In Mezonos Maven Bakery Inc., 357 N.L.R.B. No 47 (Aug. 9, 2011), a unanimous three-member panel held that the National Labor Relations Act and Supreme Court precedent in Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002) “forecloses us from awarding back pay to undocumented workers” even where the employer was violating the Immigration Reform and Control Act by knowingly employing undocumented workers. The workers in this case were fired in 2003 after they complained about a supervisor. They filed unfair labor practice charges and eventually the parties settled. In accordance with the settlement, the NLRB issued a stipulation that ordered the employer to offer reinstatement and backpay for the employees. The employer later argued that he could do neither as a result of the Hoffman decision. In a concurrence voicing a more employee-friendly viewpoint, two members of the NLRB agreed that this case was governed by the Hoffman decision, but disagreed that the case served to advance the interest of the NLRA or IRCA. In an attempt to undermine the precedential power of this decision, the concurrence stated: “We 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.”
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