Embracing Paradox: Three Problems the NLRB Must Confront to Resist Further Erosion of Labor Rights in the Expanding Immigrant Workplace

31 Pages Posted: 6 Oct 2008 Last revised: 8 Oct 2008

See all articles by Michael C. Duff

Michael C. Duff

University of Wyoming College of Law

Date Written: October 1, 2008

Abstract

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on the broad crediting of employee witnesses to establish unlawful employer conduct. How can NLRB attorneys win credibility-based cases heard before judges who may be predisposed to disbelieve witnesses based on the witnesses' unauthorized status? Third, after Hoffman bargaining units under the NLRA, which are certified when a union gains the support of a majority of employees in a work setting, can be severely impacted by the absence of a discharge remedy. How can the structural integrity of the NLRA be maintained if employers may simply discharge union-represented, unauthorized workers, without real remedial consequence, until the union's majority support, and with it the employer's obligation to bargain, is destroyed? Assessing the NLRB's peculiar, post-Hoffman investigative policy of assiduously avoiding immigration issues, the article contrarily recommends active engagement with the problems identified, and chides the agency's failure to embrace new paradox in the expanding immigrant workplace as a serious abdication of its mission.

Keywords: labor law, immigration, evidence, administrative law, credibility, professional responsibility, Hoffman Plastic Compounds

JEL Classification: K23, K31, K41

Suggested Citation

Duff, Michael C., Embracing Paradox: Three Problems the NLRB Must Confront to Resist Further Erosion of Labor Rights in the Expanding Immigrant Workplace (October 1, 2008). Berkley Journal of Employment and Labor Law, 2009. Available at SSRN: https://ssrn.com/abstract=1276867

Michael C. Duff (Contact Author)

University of Wyoming College of Law ( email )

P.O. Box 3035
Laramie, WY 82071
United States

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