On August 09, 2011, the National Labor Relations Board issued its decision in Mezonos Maven Bakery, 357 NLRB No. 47 (2011), in which it held that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002) was binding upon the Board in deciding that it lacked the authority to award backpay to undocumented immigrant workers whose rights under the National Labor Relations Act had been violated.  This was found to be so even if the employer knew at the time the undocumented workers were hired that they lacked employability with the meaning of the Immigration Reform and Control Act of 1986 (IRCA).

On February 12, 2003, seven employees who worked for Mezonos Maven Bakery were discharged after complaining about treatment they were receiving from a supervisor.  Charges were filed alleging a violation of the Act over this retaliation for engaging in protected concerted activity.  The case was settled but the employer later refused to offer reinstatement or backpay citing the fact that the seven employees were undocumented workers.  An NLRB Administrative Law Judge ruled against Mezonos Maven Bakery and it appealed to the Board, which ruled for the Bakery.

However, two of the NLRB’s three member panel, Chairman Liebman and Member Gaston, criticized the Supreme Court’s 2002 ruling, stating “in addition to the obvious failure to make employee-victims whole the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.”  Member Hayes refused to join in that criticism stating “it is the Board’s role to enforce this controlling precedent in adjudicatory proceedings without critical comment.  It is the role of Congress to determine whether to alter the law in response to the Court’s decision.”

Liebman and Gaston also postulated that they “would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”  Hayes also refused to speculate about future other possible remedies.