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Abstract

Congress enacted the National Labor Relations Act (NLRA) in 1935 in order to level the bargaining power of employees and employers to prevent burdening the flow of commerce and depressing workers’ wages. The NLRA vests the administration of promulgating the goals of the NLRA in the National Labor Relations Board (Board), broadly stating that the Board should take such affirmative action as necessary to effectuate the policies of the Act.

In 1935, however, Congress could not predict the future demographic makeup of the American workforce, and in its definition of an “employee” as covered under the NLRA, the statute makes no mention of a workers’ immigration status. As such, and through its broad discretion as upheld by the Supreme Court to speak “where the statute does not speak for itself,” the Board extended its usual remedies of backpay and reinstatement to documented and undocumented workers alike whose labor rights were violated by their employers. However, that all changed in 2002 when the Supreme Court in Hoffman Plastic Compounds, Inc. v. NLRB ruled that this very practice completely bypassed the goals of the Immigration Reform and Control Act (IRCA) and exceeded the Board’s authority.

This Comment discusses the evolution of the Board’s application of the NLRA to undocumented workers prior to Hoffman Plastic, and the challenges it has faced in effectuating the goals of the NLRA since. This Comment argues that prioritizing IRCA over the NLRA instead perpetuates the pull of undocumented immigration, creates a subclass of workers, and impedes the strength of collective bargaining for all workers. In seeking to preserve the objectives of the NLRA, this Comment suggests the possibility of a common fund as an alternative solution for money owed to ineligible undocumented workers and speculates on the Board’s authority to create such a fund within the confines of its remedial authority. Finally, this Comment encourages Congress to make concrete statutory amendments to harmonize and honor the objectives of both the NLRA and IRCA.

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