The 1935 National Labor Relations (Wagner) Act created the National Labor Relations Board. The NLRB has a thin remedial palette. In the face of a finding of an unfair labor practice it can make findings of fact, award back-pay, issue a prospective orders to cease and desist or to take affirmative actions, require posting of notices, but not it cannot impose fines or penalties. Nor can it issue an injunction or find a party in contempt: for that it must go to the District Court for enforcement of its directives.
In 2002 in a 5-4 decision the Supreme Court held that the Board could not order a back pay award to benefit an undocumented alien who had been the victim of an unfair labor practice. Justice Stephen Breyer wrote the dissent for the usual suspects. He was not concerned that the NLRB order would violate the immigration laws. Contrary to the majority, he was of the view that toothless remedies invited defiance of the laws prohibiting employment of undocumented immigrants. It is the classic glass half-full problem. The conservatives want to bar the aliens, the liberals see them as likely victims of oppressive employers.
The Hoffman Plastic v. NLRB decision is HERE
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