NEW YORK CITYâNational Labor Relations Board Chairman Mark Pearce says his agency could pursueÂ new remedies to punish employers who retaliate against undocumented immigrants for organizing. Last yearÂ Pearce interpreted a 2002 Supreme Court decision to rule out back pay as a remedy in such cases, limiting the NLRB’s options of financial penalties.
Interviewed Friday by Working In These Times, Pearce called the tension between immigration law and labor law âextremely frustrating,â and the tools available for protecting undocumented workers against employer crimes âinsufficient.”
âThe concept of âmade wholeâ by us needs to be examined,â said Pearce, referring to a legal guideline for NLRBÂ remedies.Â âPerhaps there are things within that concept that we can utilize. Now I canât articulate what they are, because weâve got to consider it.â
Pearce made these comments following a forum hosted by Cornell University’s ILR School. In his remarks to the assembled attorneys, Pearce said he âhad angst overâ his ruling in the NLRBâs Mezonos Maven Bakery case last year. In that 3-0 decision, the NLRB found that a bakery that fired a group of workers who had collectively complained about a supervisor could not be required to pay them back pay, because they were undocumented.
The Mezonos decision cited the US Supreme Courtâs 2002 decision in Hoffman Plastic Compounds v. NLRB, which overturned an NLRB ruling granting back pay to an undocumented worker who was fired after trying to form a union (the NLRB is tasked with enforcing and interpreting private-sector labor law, butÂ federal courts have the power to overturn the NLRB). Writing for a 5-4 majority, then-Chief Justice William Rehnquist said that âawarding back pay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations.â
At Fridayâs forum, Pearce said that theÂ HoffmanÂ decision had forced him to deny back pay inÂ MezonosÂ and âcontinues to create that problem where an employer could get away scot-freeâ with firing undocumented union supporters. Pearce said he had âstruggled with the tension between the National Labor Relations Act, immigration law, and the rights of undocumented workers.â While the NLRB can still use non-economic remedies in such a situation, like requiring a company to post a notice saying it will comply with the law in the future, Pearce said that âseems a little emptyâ without a financial cost attached.
After the forum, Pearce told Working In These Times that the tension heâd identified could be resolved if a future Supreme Court case offers the NLRB âa more promising, or a more significant remedy to be applied for discriminatees who happen to be undocumented. But otherwise, it would probably have to take a change in the law.â
In the meantime, said Pearce, âthe board has a certain degree of discretion with respect to the remedies.â He noted that the NLRB is legally empowered to âmake wholeâ workers who are illegally punished or discriminated against, but is barred from assessingÂ punitiveÂ damages against employers. That means that financial penalties against companies generally come in the form of back payâwhichÂ MezonosÂ took off the table for undocumented workers. âSo exploration would have to be had,â said Pearce, âas to the full parameters of [the ‘made whole’] concept, to see whether or not a remedy could be fleshed out [for] those kinds of violations.â
Such a move âwould be significant,â said Ana AvendaĂ±o, the AFL-CIO’s director of immigration and community action. âBecause under the current structure, employers basically get a free bite at the apple. They can violate the law with impunity.â
Interviewed Saturday by phone, AvendaĂ±o disputed Pearceâs view that the Supreme CourtâsÂ HoffmanÂ ruling required the NLRB to deny back pay inÂ Mezonos. She said that a lower-level NLRB judge had been right to find thatÂ HoffmanÂ didnât apply inÂ Mezonos, because inÂ HoffmanÂ it was the undocumented worker that had been proven to have violated immigration law, and inÂ MezonosÂ it was the employer. AvendaĂ±o, who was among the attorneys arguing for back pay inÂ Mezonos, said she hopes the second circuit court will reject the NLRB’sÂ MezonosÂ reasoning and send the case back for a new ruling.
But AvendaĂ±o echoed Pearceâs criticism ofÂ Hoffman, which she said âhas a chilling effectâ on undocumented immigrants seeking to organize at work. Ultimately, she said, new legislation will be necessary to restore such workersâ rights, perhaps as part of a broader immigration reform.
Still, AvendaĂ±o welcomed the NLRB Chairmanâs comments about the possibility of other remedies under current law. Given that the law bars punitive damages, andÂ HoffmanÂ restricts back pay awards to workers, AvendaĂ±o said, âone idea that advocates haveâand the legal basis for this is soundâis that there could be a fund established, where employers would still have to pay the back pay, but it would go into the fund, not directly to the worker.â
AvendaĂ±o said such a âspecial remedyâ would be âless than ideal,â but would be an improvement over the status quo, where employers face a âperverse incentive âŠ to just violate the immigration law, and then violate the [National Labor Relations Act], and have no responsibility for it.â
If a fitting test case reaches the NLRB, said Pearce, âWe would have to see whether the board has that kind of authority, or is there something that causes us to feel that we are able to create an exception to the standard remedy.â AvendaĂ±o said the AFL-CIO hopes that will be the case: âIf there was an opportunity, and we may have one soon, then we certainly are going to advance that argument.â
This article was originally posted on In these Times on October 29, 2012. Reprinted with permission.