Washington Law Review


In Local 512 v. NLRB, the Ninth Circuit Court of Appeals ordered the National Labor Relations Board (NLRB or Board) to award backpay to undocumented workers who had been unlawfully laid off by their employer. The court decided Local 512 before enactment of the Immigration Reform and Control Act of 1986 (IRCA). One of the aims of the IRCA is to keep undocumented aliens out of the workplace by making it illegal to knowingly employ undocumented aliens. Because protection of undocumented workers like that granted in Local 512 might undermine pursuit of this IRCA objective, apparent conflict arises between National Labor Relations Act (NLRA) and IRCA objectives regarding undocumented workers. This apparent conflict merits careful consideration. This Comment focuses on how the NLRB should resolve conflicts between NLRA and IRCA workplace objectives. It begins by discussing the scope of the Board's discretion to fashion remedies for unfair labor practices and the limitation imposed on that discretion by the requirement that remedial orders accommodate non-NLRA statutory objectives. Next, the Comment summarizes pre-IRCA treatment of undocumented workers under the NLRA. The Local 512 decision and the employer sanctions provisions of the IRCA are then described. The Comment suggests that the Local 512 court reached the correct result. Nevertheless, Local 512 gives the Board little guidance regarding how it should treat non-NLRA objectives such as those of the IRCA. Accordingly, a proposal for clarifying the NLRB's duty to accommodate non-NLRA objectives in its remedial orders is presented. The Comment then examines whether, consistent with this duty, the NLRB could award reinstatement and backpay to an undocumented worker given the employer sanctions provisions of the IRCA. Finally, pertinent general policy considerations are taken into account. The Comment concludes that an NLRB reinstatement and backpay order for unlawfully discharged undocumented workers would not, under most circumstances, impermissibly fail to accommodate IRCA objectives.

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