Hoffman Plastic Compounds, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 1999 Decided March 17, 2000

No. 98-1570

Hoffman Plastic Compounds, Inc.

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

Maurice Baskin argued the cause and filed the briefs for

petitioner.

Sharon Block, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

Linda Sher, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Fred L. Cornnell,

Attorney. John D. Burgoyne, Deputy Associate General

Counsel, entered an appearance.

Marsha S. Berzon argued the cause for amicus curiae

American Federation of Labor and Congress of Industrial

Organizations. With her on the brief were Jonathan P. Hiatt

and James B. Coppess.

Before: Sentelle, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Sentelle.

Tatel, Circuit Judge: Petitioner illegally fired several

workers in retaliation for attempting to organize a union.

Finding multiple unfair labor practices, the National Labor

Relations Board ordered its traditional remedy, reinstatement

with backpay, for all discharged employees. When the Board

learned that one of these employees was an undocumented

alien, it denied him reinstatement and terminated his backpay

as of the date the employer discovered he was unauthorized

to work. Challenging even this reduced award, the employer

claims that awarding any backpay to undocumented workers

conflicts with immigration law. Because the Supreme Court

has held that undocumented workers are protected by the

National Labor Relations Act, and because the limited reme-

dy awarded here is within the Board's discretion and furthers

the purposes of both labor and immigration law, we deny the

petition for review and grant the cross-application for en-

forcement.

I

This case lies at the intersection of two statutory schemes:

labor and immigration. Enacted in 1935, the National Labor

Relations Act encourages collective bargaining, promotes in-

dustrial peace, and protects workers' rights of association,

self-organization, and representation. See, e.g., Phelps Dodge

Corp. v. NLRB, 313 U.S. 177, 182-85 (1941). The statute

vests the NLRB with broad discretion to enforce the Act and

to remedy unfair labor practices. See 29 U.S.C. s 160(c).

Not limited to "the correction of private injuries" or the

"adjudication of private rights," the Board "acts in a public

capacity to give effect to the declared public policy of the

Act." Phelps Dodge, 313 U.S. at 192-93. "Making the

workers whole for losses suffered on account of an unfair

labor practice is part of the vindication of the public policy

which the Board enforces." Id. at 197. Awards of backpay

not only make discriminatees whole, but "also achieve a public

purpose by deterring future similar unlawful practices, and

by depriving employers of any competitive advantage they

may have secured by acting unlawfully." Local 512, Ware-

house and Office Workers' Union v. NLRB, 795 F.2d 705, 718

(9th Cir. 1986) ("Felbro").

Like the NLRA, the nation's immigration laws preserve

jobs and safeguard American workers' wages and employ-

ment conditions. See INS v. National Ctr. for Immigrants'

Rights, 502 U.S. 183, 194 & n.8 (1991); Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 893 (1984). Until 1986, the Immigration

and Nationality Act was primarily concerned "with the terms

and conditions of admission to the country and the subse-

quent treatment of aliens lawfully in the country." Sure-Tan,

467 U.S. at 892 (quoting DeCanas v. Bica, 424 U.S. 351, 359

(1976)). The Immigration Reform and Control Act of 1986

focused new immigration control efforts on employers. The

Act makes it unlawful to employ anyone known to be an

unauthorized alien, requires employers to verify and docu-

ment the work eligibility of new hires, and authorizes sanc-

tions against employers who violate the Act. See 8 U.S.C.

s 1324a.

The NLRB and the courts have sought to ensure that labor

and immigration laws operate in tandem. They have held

that all employees, regardless of immigration status, have the

right to organize and are entitled to protection from unfair

labor practices. In Sure-Tan, for example, the Supreme

Court affirmed a Board decision that extended the protec-

tions of the NLRA to undocumented workers. In addition to

relying on the text of the Act, which broadly defines covered

employees, the Court pointed to the common policies driving

both labor and immigration law:

Application of the NLRA [to undocumented workers]

helps to assure that the wages and employment condi-

tions of lawful residents are not adversely affected by the

competition of illegal alien employees who are not subject

to the standard terms of employment. If an employer

realizes that there will be no advantage under the NLRA

in preferring illegal aliens to legal resident workers, any

incentive to hire such illegal aliens is correspondingly

lessened. In turn, if the demand for undocumented

aliens declines, there may then be fewer incentives for

aliens themselves to enter in violation of the federal

immigration laws.

467 U.S. at 893-94. According to the Court, protecting

undocumented aliens from unfair labor practices not only is

"clearly reconcilable with," but indeed "serves the purposes

of" the immigration laws. Id. at 894; see also NLRB v.

Kolkka, 170 F.3d 937, 940 (9th Cir. 1999). At the same time,

the Court emphasized that while the NLRA protects undocu-

mented workers, the Board's remedies for unfair labor prac-

tices must not conflict with immigration law. See Sure-Tan,

467 U.S. at 902.

Petitioner Hoffman Plastic Compounds, Inc. manufactures

custom-formulated polyvinylchloride pellets for use by cus-

tomers who produce pharmaceutical, construction, and house-

hold products. In May, 1988, JosE Castro began working in

Hoffman's production plant earning minimum wage as a

compounder, an operator of large blending machines that mix

and cook the plastic formulas ordered by customers. When

the United Rubber, Cork, Linoleum and Plastic Workers of

America, AFL-CIO began an organizing drive at Hoffman's

factory, Castro, along with several other employees, distribut-

ed union authorization cards to coworkers. After what the

Board later described as "coercive and restraining" interroga-

tion of union supporters, Hoffman laid off each employee who

had engaged in organizing activities, including Castro. Hoff-

man Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992).

When Hoffman received notice from the NLRB that the

Union had filed a representation petition, it made some

attempt to recall the discharged workers. A March 10, 1989

letter from Hoffman to Castro stated "[i]t looks like we'll

need a few men soon" and asked him to contact his former

supervisor "no later than 4 P.M., Monday, March 13, 1989."

Hoffman Plastic Compounds, Inc., 326 N.L.R.B. No. 86

(1998). Castro never responded.

After one of the discharged employees filed charges with

the Board, an Administrative Law Judge found that Hoffman

had engaged in multiple unfair labor practices. The Board

adopted the ALJ's findings, concluding not only that the

company had unlawfully interrogated employees about their

union activities and sympathies, but that "in order to rid itself

of known union supporters, [Hoffman] discriminatorily select-

ed union adherents for layoff" in violation of Sections 8(a)(1)

and (3) of the NLRA, 29 U.S.C. 158(a)(1), (3). Hoffman

Plastic, 306 N.L.R.B. at 100. The Board ordered Hoffman to

cease and desist from such unfair labor practices, to post a

notice at the work site, and to reinstate and make whole those

union supporters it had illegally fired.

When a dispute arose as to the proper computation of

backpay, a compliance proceeding was held before another

ALJ. Castro appeared at the hearing, testifying through an

interpreter. When Hoffman's attorney began to question

Castro about his citizenship and authorization to work in the

United States, the Board's General Counsel objected. The

ALJ sustained the objection, but not before Castro had stated

that he was a Mexican national and that the birth certificate

he had used to gain employment at Hoffman was borrowed

from a friend. On the basis of this admission, the ALJ

recommended neither reinstatement nor backpay for Castro.

See Hoffman Plastic Compounds, Inc., 314 N.L.R.B. 683, 685

(1994).

While the ALJ's recommendation was under consideration

by the NLRB, the Board decided another case involving

undocumented discriminatees, A.P.R.A. Fuel Oil Buyers

Group, 320 N.L.R.B. 408 (1995), enforced 134 F.3d 50 (2d Cir.

1997). There, the Board modified its standard remedy of

reinstatement with backpay to account for the fact that the

illegally fired workers lacked documentation. The Board

conditioned its reinstatement order on the discriminatees'

ability to verify their eligibility to work. It also ordered that

the backpay period terminate either when the discriminatees

were lawfully reinstated or when they failed to produce the

necessary employment eligibility documents within a reason-

able period of time.

Issuing its Second Supplemental Decision and Order in this

case, the Board adapted the remedy it had developed in

A.P.R.A. Fuel to Castro's situation, denying reinstatement

due to his undocumented status and awarding only limited

backpay. See Hoffman Plastic Compounds, Inc., 326

N.L.R.B. No. 86 (1998). To determine the backpay period,

the Board first considered whether Hoffman's "[i]t looks like

we'll need a few men soon" letter amounted to a specific and

unequivocal offer of reinstatement that would toll backpay.

Answering this question in the negative, the Board nonethe-

less allowed Hoffman the benefit of the after-acquired evi-

dence defense and terminated the backpay period as of June

14, 1993, the date Hoffman learned that Castro had misrepre-

sented his immigration status.

Hoffman now petitions for review of the Board's final

order. The company does not challenge the Board's findings

that it illegally discharged known union organizers and com-

mitted other unfair labor practices. It contests only Castro's

limited backpay award, arguing that 1) Sure-Tan holds that

undocumented aliens may never be awarded backpay; 2)

IRCA prohibits backpay awards to undocumented workers;

and 3) the Board misapplied the after-acquired evidence rule

and violated the equal protection guarantee of the Fifth

Amendment by giving undocumented workers preferential

treatment. Cross-petitioning for enforcement, the NLRB,

supported by amicus AFL-CIO, responds that the award of

limited backpay to Castro is prohibited by neither Sure-Tan

nor IRCA and falls well within the Board's broad remedial

discretion. Indeed, the Board contends, the limited backpay

award furthers the purposes of both labor and immigration

law.

Before considering these issues, we register our disagree-

ment with Hoffman's characterization of this case as a dispute

between "an innocent employer" and an employee who has no

legal right to be in this country and who obtained his job

through fraud. To be sure, the Board did find the evidence

insufficient to conclude that Hoffman violated IRCA by hiring

Castro knowing him to be an unauthorized alien. At the

same time, however, the Board found that Hoffman had

committed multiple unfair labor practices by interrogating,

intimidating, and ultimately discharging union supporters.

Hoffman neither contests these findings nor disputes that it

failed to comply with the Board's order to reinstate Castro

before his ineligibility for employment became known, when

to do so would have ended the company's backpay liability

without violating IRCA. See 8 C.F.R. s 274a.2(b)(viii)(A)(3),

(5) (exempting employer from re-verifying an employee's

eligibility for continuing employment after a temporary layoff

or reinstatement after unjustified suspension or wrongful

termination). And while it is true that Castro lied when

falsely attesting to his work eligibility on the I-9 form and

when identifying himself as "JosE Castro" in his sworn testi-

mony at the compliance proceeding, the Supreme Court has

held that a discriminatee's dishonesty does not preclude an

award of backpay to remedy unfair labor practices. See ABF

Freight System, Inc. v. NLRB, 510 U.S. 317 (1994). More-

over, Castro's use of another's birth certificate to obtain

employment did not violate IRCA at that time. See Immigra-

tion Act of 1990, Pub. L. No. 101-649, s 544, 104 Stat. 4978,

5059 (1990), codified at 8 U.S.C. s 1324c(a)(3) (amending

IRCA to prohibit the use of documents issued to a person

other than the possessor). Thus the precise issue before us is

this: Did Castro's undocumented status--as opposed to his

lying about it--render him entirely ineligible to obtain back-

pay as a remedy for Hoffman's serious and undisputed viola-

tions of the National Labor Relations Act?

II

We begin with Hoffman's argument, embraced by our

dissenting colleague, that this case is controlled by a single

sentence from the Supreme Court's opinion in Sure-Tan v.

NLRB: "[I]n computing backpay, the employees must be

deemed 'unavailable' for work (and the accrual of backpay

therefore tolled) during any period when they were not

lawfully entitled to be present and employed in the United

States." Sure-Tan, 467 U.S. at 903. This sentence, Hoffman

claims, "plainly prohibits" the NLRB from awarding even

limited backpay to undocumented workers victimized by un-

fair labor practices. Read literally and divorced from its

context, the sentence could well be interpreted to support

that view. But determining whether particular Supreme

Court language amounts to binding precedent is not so sim-

ple. The Court itself has warned against "dissect[ing] the

sentences of the United States Reports as though they were

the United States Code." St. Mary's Honor Ctr. v. Hicks,

509 U.S. 502, 515 (1993). Instead, we must read the allegedly

controlling sentence in context, taking account of the facts of

the case, the issues presented, and the Court's reasoning and

holding. "The Court's every word and sentence cannot be

read in a vacuum; its pronouncements must be read in light

of the holding of the case and to the degree possible, so as to

be consistent with the Court's apparent intentions and with

other language in the same opinion." Aka v. Washington

Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc).

With this perspective in mind, and with the Court's entire

backpay discussion at our fingertips (see Appendix A)--the

sentence on which Hoffman relies appears in the penultimate

paragraph--we turn to the task of elucidating Sure-Tan and

determining whether it controls this case.

The employer in Sure-Tan attempted to invalidate a union

election by notifying the Immigration and Naturalization

Service that several employees were undocumented. In re-

sponse, the INS arrested five of the workers, all of whom

agreed to return to Mexico to avoid deportation. "By the end

of the day, all five employees were on a bus ultimately bound

for Mexico." Sure-Tan, 467 U.S. at 887.

An ALJ found that the employer had violated the NLRA

by constructively discharging its undocumented workers in

retaliation for their union support. Because the ALJ thought

that the discriminatees' return to Mexico rendered reinstate-

ment "at best an unlikely prospect," he recommended holding

the reinstatement offers open for six months to permit them

to return lawfully. And since their absence from the country

left the discriminatees "unavailable for employment" and

therefore ineligible for backpay under standard NLRB policy,

the ALJ suggested a minimum award of four weeks pay to

each discriminatee to provide some measure of compensation

for the discharged employees and to deter the employer.

Sure-Tan, Inc., 234 N.L.R.B. 1187, 1192 (1978).

Although the Board agreed that the company had violated

the NLRA, it rejected the ALJ's recommended minimum

remedy as "unnecessarily speculative" because no evidence

supported his assumption that the discriminatees were not

already back in the country and once again available for work.

Id. at 1187. The Board instead ordered its usual remedy of

reinstatement with backpay, leaving for a future compliance

proceeding the determination of each employee's availability

for work and the calculation of backpay. Id. In doing so, the

Board reiterated two standard rules: "[t]he backpay period

runs from the discriminatory loss of employment to the bona

fide reinstatement offer," and discriminatees "found to be

unavailable for work (including unavailability because of en-

forced absence from the country) will have their backpay

tolled accordingly." Sure-Tan, Inc., 246 N.L.R.B. 788, 788

(1979). One dissenting member urged the Board to "clarify"

that reinstatement offers should be available only to discrimi-

natees who reenter the country lawfully. Id. at 791. A

second dissenter urged that the backpay period run only from

the date of the constructive discharge to the date the discri-

minatees left the country. Id.

The Seventh Circuit upheld the Board's decision and en-

forced its order, with a few modifications. To guard against

the possibility that the discriminatees "might be motivated to

reenter the United States unlawfully to claim reinstatement

and backpay," NLRB v. Sure-Tan, Inc., 672 F.2d 592, 603

(7th Cir. 1982), the court directed that the reinstatement

offers be made conditional upon legal re-entry, that they be

sent in Spanish by verified delivery to the discriminatees'

addresses in Mexico, and that they remain open for at least

four years to afford the workers an opportunity to return

lawfully and reclaim their jobs. See id. at 606. Using

language later adopted by the Supreme Court and now relied

on by Hoffman, the court also modified the Board's order by

stating that "in computing backpay discriminatees will be

deemed unavailable for work during any period when not

lawfully entitled to be present and employed in the United

States." Id. Sharing the ALJ's concern that the discrimina-

tees, having left the country immediately after their discharge

with no prospect of lawful return, might receive no backpay

at all, thus leaving them uncompensated and the employer

undeterred, and echoing the ALJ's original suggested mini-

mum backpay award, the court directed the Board to modify

the order to include a minimum award of six months' backpay

to each discharged worker. Six months, the court said,

represented an estimate of the minimum time "during which

the discriminatees might reasonably have remained employed

without apprehension by INS, but for the employer's unfair

labor practice." Id.

The Supreme Court agreed with the Board and the Sev-

enth Circuit that undocumented workers are protected by the

NLRA. It also agreed that the employer, by notifying the

INS of the workers' immigration status, had committed an

unfair labor practice. Sure-Tan, 467 U.S. at 895-96. Then,

turning to the question of remedy, and repeatedly emphasiz-

ing the broad deference due the NLRB, the Court affirmed

the Board's original order in all respects. Even a cursory

review of the Court's discussion--readers might want to

pause and read it for themselves (see Appendix A)--reveals

that 1) whether undocumented workers are eligible to receive

backpay was not an issue before the Court and 2) the only

backpay issue the Court considered was whether the six-

month minimum award imposed by the Seventh Circuit was

an unduly speculative estimate "not sufficiently tailored to the

actual, compensable injuries suffered by the discharged em-

ployees." Id. at 901. At the very outset of its discussion, the

Court states: "Petitioners attack those portions of the Court

of Appeals' order which modified the Board's original order

by providing for an irreducible minimum of six months'

backpay for each employee and by detailing the language,

acceptance period, and verification method of the reinstate-

ment offers." Id. at 898 (emphasis added). Notice that the

Court nowhere says that the employer argued, as does Hoff-

man, that the discriminatees were ineligible to receive back-

pay simply because they were undocumented. Notice also

that the Court describes the sentence on which Hoffman

places so much emphasis as merely repeating a limitation on

backpay imposed by the Seventh Circuit, an issue that was

neither challenged nor briefed by either the Board or the

employer:

Conditioning the offers of reinstatement on the employ-

ees' legal reentry and deeming the employees "unavail-

able" during any period when they were not lawfully

present are requirements that were in fact imposed by

the Court of Appeals in this case, and hence fully accept-

ed by the Board.... The Board has clearly indicated its

agreement with these portions of the Court of Appeals'

remedial order by specifically noting that petitioners do

not challenge these parts of the order [and] by limiting

its own argument to the minimum backpay award issue

alone....

Id. at 903 n.12. See also id. at 898 n.8; Del Rey Tortilleria,

Inc. v. NLRB, 976 F.2d 1115, 1123 (7th Cir. 1992) (Cudahy, J.,

dissenting). The sentence on which Hoffman relies was not

even an issue before the Court.

Moreover, in setting aside the Seventh Circuit's six-month

minimum award, the Court made clear that, contrary to

Hoffman's argument, undocumented workers may receive

backpay. To begin with, the Court said that it "generally

approve[s] the Board's original course of action in this case by

which it ordered the conventional remedy of reinstatement

with backpay, leaving until the compliance proceeding more

specific calculations as to the amounts of backpay, if any, due

these employees." Sure-Tan, 467 U.S. at 902. The Court

explained that the discriminatees could receive backpay de-

spite their illegal status so long as the amount reflected the

actual time they might have continued working but for the

employer's unfair labor practice. The Court did not fault the

Seventh Circuit for awarding backpay to undocumented

workers, nor for basing the award on the "minimum time

during which the discriminatees might reasonably have re-

mained employed without apprehension by INS, but for the

employer's unfair labor practice." Id. at 899 (internal quota-

tion marks omitted). Instead, the Court held that the Sev-

enth Circuit erred by picking the six-month period out of thin

air. The "main deficiency" in the Seventh Circuit's order, the

Court explained, was not that it awarded backpay to undocu-

mented aliens, but that the amount of backpay awarded was

"develop[ed] in the total absence of any record evidence as to

the circumstances of the individual employees," thus violating

the "cardinal" proposition "that a backpay remedy must be

sufficiently tailored to expunge only the actual, and not

merely speculative, consequences of the unfair labor prac-

tices." Id. at 899-900 & n.9. The Court continued:

[T]he Court of Appeals "estimated" an appropriate peri-

od of backpay without any evidence whatsoever as to the

period of time these particular employees might have

continued working before apprehension by the INS and

without affording petitioners any opportunity to provide

mitigating evidence. In the absence of relevant factual

information or adequate analysis, it is inappropriate for

us to conclude, as does Justice Brennan, that the Court

of Appeals had estimated the proper minimum backpay

award "with a fair degree of precision."

Id. at 901 n.11. If as Hoffman argues undocumented workers

may never be awarded backpay, the Court would not have

mentioned "the proper minimum backpay award," "the period

of time these particular employees might have continued

working before apprehension by the INS," or "affording

petitioners any opportunity to provide mitigating evidence."

Nor would there have been any need for more "relevant

factual information or adequate analysis," much less for a

compliance proceeding to determine the amount of backpay

actually due.

In light of the fact that Sure-Tan does not bar undocu-

mented workers from receiving backpay, what are we to

make of the sentence on which Hoffman and our dissenting

colleague place so much emphasis? The answer is that the

Court intended the sentence to guide the Board on remand in

dealing with the unique circumstances of the Sure-Tan em-

ployees. Recall that the Sure-Tan discriminatees, unlike

Castro, had left the country. Having approved the Board's

general order of reinstatement with backpay, and having

remanded for compliance proceedings to calculate the amount

of backpay due, the Court went on to agree with the Seventh

Circuit that whatever specific remedy the Board might for-

mulate must not encourage the discriminatees to re-enter the

country illegally. The INA's "central concern," the Court

pointed out, was regulating "admission to the country." Id.

at 892. The Court therefore added the paragraph in which

Hoffman's sentence appears:

[A]s the Court of Appeals recognized, the implementation

of the Board's traditional remedies at the compliance

proceedings must be conditioned upon the employees'

legal readmittance to the United States. In devising

remedies for unfair labor practices, the Board is obliged

to take into account another equally important Congres-

sional objective--to wit, the objective of deterring unau-

thorized immigration that is embodied in the INA. By

conditioning the offers of reinstatement on the employ-

ees' legal reentry, a potential conflict with the INA is

thus avoided. Similarly, in computing backpay, the

employees must be deemed "unavailable" for work (and

the accrual of backpay therefore tolled) during any

period when they were not lawfully entitled to be present

and employed in the United States.

Id. at 902-03 (emphasis added) (internal quotation marks and

citation omitted). Notice that the first sentence refers to

"the employees' legal readmittance to the United States." Id.

at 903. The second sentence mentions "deterring unautho-

rized immigration." Id. The third again refers to "the

employees' legal reentry." Id. So when in the final sentence

the Court mentions employees "not lawfully entitled to be

present and employed in the United States," it must be

referring only to those particular Sure-Tan employees who

had left the country and could not lawfully return.

Indeed, the sentence makes sense only because the Sure-

Tan discriminatees had left the country. As the Court itself

pointed out, although the employees were illegally present in

the United States while working for the company, it was not

unlawful for the company to have employed them. Id. at

892-93. Because their employment was not prohibited, it

cannot be said that they were "not lawfully entitled to be

present and employed in the United States." Not until the

discriminatees left the country--at which point they could not

have been reinstated without reentering in violation of immi-

gration law--did they become "not lawfully entitled to be

present and employed in the United States." And for the

same reason, not until they left the country did the discrimi-

natees lose their "legal availability for work." Id. at 904.

To sum up, in light of Sure-Tan's reasoning and its holding

that undocumented workers are protected by the NLRA and

may in fact receive properly tailored awards of backpay, we

must reject Hoffman's interpretation of the sentence. Read-

ing it to bar all backpay to undocumented workers would

expand a snippet of dicta well beyond the unique facts of

Sure-Tan to create a blanket rule that, in addition to conflict-

ing with Sure-Tan itself, would undermine the purposes of

both immigration and labor law. See infra at 21-23. What

we said in Aka, where we also refused to adopt "an unquali-

fiedly literal reading" of an isolated passage from a Supreme

Court opinion, applies here as well: Hoffman's interpretation

"would not carry out the Court's true purpose." 156 F.3d at

1291. Read properly, the sentence simply reminds the Board

that the remedies it fashions for unfair labor practices must

not encourage violations of immigration law.

Two of the three Circuits that have addressed this issue

agree with our interpretation of Sure-Tan. In Felbro, the

Ninth Circuit stated: "In Sure-Tan, the Supreme Court did

not address the issue whether undocumented workers re-

maining at work in the United States throughout the backpay

period are entitled to backpay awards. Sure-Tan barred

from backpay only those undocumented workers who were

unavailable for work in the backpay period because they were

outside the United States without entry papers." 795 F.2d at

722. To be sure, in a later case also upholding an award of

backpay to undocumented workers, the Ninth Circuit added a

footnote speculating whether the enactment of IRCA might

"change[] the mix of policy considerations underlying the case

law which supports our conclusion that undocumented em-

ployees may recover backpay." EEOC v. Hacienda Hotel,

881 F.2d 1504, 1517 n.11 (9th Cir. 1989). As we explain in the

following section, however, IRCA's enactment did not alter

the labor and employment law protections afforded undocu-

mented workers. The Ninth Circuit, moreover, has never

repudiated Felbro's and Hacienda Hotel's holdings that back-

pay can be awarded to undocumented workers. Indeed, the

Ninth Circuit and its district courts have consistently reaf-

firmed that undocumented workers continue to be protected

by labor and employment laws after IRCA and have contin-

ued to award them backpay. See, e.g., Kolkka, 170 F.3d 937;

Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.

Supp. 2d 1053 (N.D. Cal. 1998); Escobar v. Baker, 814 F.

Supp. 1491, 1498 (W.D. Wash. 1993); EEOC v. Tortilleria

"La Mejor," 758 F. Supp. 585 (E.D. Cal. 1991). Likewise, in

A.P.R.A. Fuel, the Second Circuit held that Sure-Tan bars

awards of backpay only to those undocumented employees

who are unavailable for work because they are outside the

country and unable to lawfully reenter. See A.P.R.A. Fuel,

134 F.3d at 54-55. But see Del Rey Tortilleria, 976 F.2d at

1120-21 (interpreting Sure-Tan as imposing a blanket prohi-

bition on backpay awards to undocumented workers).

* * *

Hoffman next argues that even if Sure-Tan does not bar

backpay to undocumented aliens, the Immigration Reform

and Control Act of 1986 does. IRCA, it will be recalled,

"establishe[d] penalties for employers who knowingly hire

undocumented aliens, thereby ending the magnet that lures

them to this country." H.R. Rep. No. 99-682(I) at 45-46

(1986), reprinted in 1986 U.S.C.C.A.N. 5649-50 (emphasis

added). In addition to employer sanctions, see 8 U.S.C.

s 1324a(a), IRCA establishes procedures by which employers

must verify employee eligibility to work, see 8 U.S.C.

s 1324a(b), and makes it unlawful for employers to discrimi-

nate against authorized workers on the basis of citizenship or

national origin, see 8 U.S.C. s 1324b. Because undocumented

workers "live in fear, afraid to seek help when their rights are

violated, when they are victimized by criminals, employers or

landlords," IRCA established amnesty procedures to legalize

the status of undocumented workers illegally present in the

country, allowing them "to contribute openly to society and

... help[ing] to prevent the exploitation of this vulnerable

population in the work place." H.R. Rep. 99-682(I) at 49,

1986 U.S.C.C.A.N. at 5653.

According to Hoffman, "the plain intent of IRCA" was to

prevent the Board from awarding undocumented workers

backpay. The Board interprets IRCA differently. It argues

that far from barring backpay awards, IRCA preserves the

NLRA's "protections and remedies for undocumented aliens

as one of many useful tools in a multifaceted strategy" to

reduce illegal immigration by aiming at its "economic roots."

Two principles guide our consideration of this issue. First,

while the Board's formulation of remedies for NLRA viola-

tions merits the highest level of deference, see ABF Freight,

510 U.S. at 324, we owe no deference to its interpretation of

IRCA. See, e.g., New York Shipping Ass'n v. Federal Mari-

time Comm'n, 854 F.2d 1338, 1365 (D.C. Cir. 1988) (agency

interpretation of a statute it does not administer is entitled to

no deference). Second, in enforcing the NLRA, the Board

may not

ignore other and equally important Congressional objec-

tives. Frequently the entire scope of Congressional

purpose calls for careful accommodation of one statutory

scheme to another, and it is not too much to demand of

an administrative body that it undertake this accommo-

dation without excessive emphasis upon its immediate

task.

Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942). If

a conflict requires the Board "to accommodate the policies of

another statutory regime within the framework of the legisla-

tion it administers," it "must fully enforce the requirements of

its own statute, but must do so, insofar as possible, in a

manner that minimizes the impact of its actions on the

policies of the other statute." New York Shipping, 854 F.2d

at 1367. "[A]n agency, faced with alternative methods of

effectuating the policies of the statute it administers, (1) must

engage in a careful analysis of the possible effects those

alternative courses of action may have on the functioning and

policies of other statutory regimes, with which a conflict is

claimed; and (2) must explain why the action taken mini-

mizes, to the extent possible, its intrusion into policies that

are more properly the province of another agency or statuto-

ry regime." Id. at 1370. This is precisely what the Board

has done.

To begin with, we agree with the Board that nothing in

IRCA bars awards of limited backpay to remedy unfair labor

practices against undocumented workers. Hoffman itself ac-

knowledges that IRCA neither amends nor repeals the

NLRA or any other labor law. The House Judiciary Com-

mittee Report, moreover, expressly states that IRCA's em-

ployer sanctions provisions are not intended to

be used to undermine or diminish in any way labor

protections in existing law, or to limit the powers of

federal or state labor relations boards, labor standards

agencies, or labor arbitrators to remedy unfair practices

committed against undocumented employees for exercis-

ing their rights before such agencies or for engaging in

activities protected by existing law. In particular, the

employer sanctions provisions are not intended to limit in

any way the scope of the term "employee" in Section 2(3)

of the [NLRA], as amended, or of the rights and protec-

tions stated in Sections 7 and 8 of that Act.

H.R. Rep. 99-682(I) at 58, 1986 U.S.C.C.A.N. at 5662. The

Judiciary Committee relied on Sure-Tan to support its view

that continued protection of undocumented workers under the

labor laws is fully consistent with IRCA's goals:

As the Supreme Court observed in Sure-Tan, application

of the NLRA [to undocumented workers] "helps to as-

sure that the wages and employment conditions of lawful

residents are not adversely affected by the competition of

illegal alien employees who are not subject to the stan-

dard terms of employment."

Id. (internal citation omitted). Echoing this view, the House

Education and Labor Committee Report states that no provi-

sion of the law should

limit the powers of State or Federal labor standards

agencies such as the Occupational Safety and Health

Administration, the Wage and Hour Division of the De-

partment of Labor, the Equal Employment Opportunity

Commission, the National Labor Relations Board, or

Labor arbitrators, in conformity with existing law, to

remedy unfair practices committed against undocu-

mented employees for exercising their rights before such

agencies or for engaging in activities protected by these

agencies. To do otherwise would be counter-productive

of our intent to limit the hiring of undocumented employ-

ees and the depressing effect on working conditions

caused by their employment.

H.R. Rep. No. 99-682(II) at 8-9 (1986), reprinted in 1986

U.S.C.C.A.N. 5758 (emphasis added). Not only does this

legislative history make clear that IRCA imposed no limits on

labor law protections for undocumented workers, but the

statute itself authorized supplemental appropriations to the

Department of Labor for expanded enforcement of existing

labor standards and practices "in order to deter the employ-

ment of unauthorized aliens and remove the economic incen-

tives for employers to exploit and use such aliens." Pub. L.

No. 99-603, s 111(d), 100 Stat. 3359 (1986). If as Hoffman

argues IRCA limited labor law protection for undocumented

workers, it hardly seems likely that IRCA would have simul-

taneously authorized additional funds to enforce the labor

laws.

In formulating remedies for unfair labor practices commit-

ted against undocumented workers, moreover, the Board has

not "ignore[d] other and equally important Congressional

objectives." Southern Steamship, 316 U.S. at 47. To the

contrary, it has "fully enforce[d] the requirements of its own

statute [the NLRA] in a manner that minimizes the impact of

its actions on the policies of the other statute [IRCA]." New

York Shipping, 854 F.2d at 1367. In its first post-IRCA case,

A.P.R.A. Fuel, the Board observed that the NLRA and IRCA

share "virtually identical policy objectives with respect to the

American workplace," and concluded that it "can best achieve

this mutuality of purpose and effect by vigorously enforcing

the NLRA, including providing traditional Board remedies,

with respect to all employees, to the extent that such enforce-

ment does not require or encourage unlawful conduct by

either employers or individuals." A.P.R.A. Fuel, 320

N.L.R.B. at 415, 411. "To do otherwise," the Board ex-

plained, "would increase the incentives for some unscrupulous

employers to play the provisions of the NLRA and IRCA

against each other to defeat the fundamental objectives of

each, while profiting from their own wrongdoing with relative

impunity. Thus, these employers would be free to flout their

obligations under the Act, secure in the knowledge that the

Board would be powerless fully to remedy their violations."

Id. at 415. Taking account of these common statutory goals,

the Board in A.P.R.A. Fuel ordered its usual remedy of

reinstatement with backpay but imposed two limitations to

avoid any conflict with the policies underlying IRCA: it

conditioned reinstatement on compliance with IRCA's em-

ployment eligibility verification requirements and terminated

backpay when the discriminatees either are lawfully reinstat-

ed or, after a reasonable period of time, fail to produce the

required employment documents. See id. (citing NLRB v.

Future Ambulette, Inc., 903 F.2d 140, 145 (2d Cir. 1990)

(conditioning reinstatement of a driver whose license had

been suspended on his presentation of a valid driver's license

within a reasonable period of time and placing a time limit on

backpay liability to prevent the employer from being tempted

to rehire the driver before he obtained a valid license)).

According to the Board, this remedy--conditional reinstate-

ment combined with limited backpay--best reconciles the

goals of the NLRA and IRCA. See A.P.R.A. Fuel, 320

N.L.R.B. at 416; see also Regal Recycling, Inc., 329 N.L.R.B.

No. 38 (1999); County Window Cleaning Co., 328 N.L.R.B.

No. 26 (1999); Intersweet, Inc., 321 N.L.R.B. 1 (1996).

Courts and administrative agencies agree that IRCA does

not limit labor law protections afforded undocumented work-

ers. Enforcing the Board's A.P.R.A. Fuel remedy, the Sec-

ond Circuit held "without hesitation that IRCA did not dimin-

ish the Board's power to craft remedies for violations of the

NLRA, provided that the Board's remedies do not conflict

with the requirements of IRCA." NLRB v. A.P.R.A. Fuel

Oil Buyers Group, Inc., 134 F.3d 50, 56 (2d Cir. 1997).

Withholding backpay from undocumented workers would, the

court explained, undermine the purposes of both IRCA and

the NLRA. It would conflict with IRCA because "precluding

the remedy would increase the incentives for employers to

hire undocumented aliens," which would, in turn, increase the

incentives that encourage illegal immigration. Withholding

backpay would also frustrate collective bargaining rights of

lawful U.S. workers under the NLRA, the court found:

[T]he lack of a backpay remedy would make undocu-

mented workers an easy target for employers resisting

union organization, and, thus, frustrate the rights of

lawful U.S. workers under the NLRA. An employer

could intimidate United States citizens and other lawful

residents by targeting undocumented workers for anti-

union discharges. Or, alternatively, legal workers might

be reluctant to organize in the first instance if the Board

were unable to issue any remedy against illegal actions

taken by employers against undocumented workers who

support the union.

Id. at 58; see also, e.g., Kolkka, 170 F.3d at 941 (holding that

IRCA does not limit the rights of undocumented workers to

vote in union elections); Patel v. Quality Inn South, 846 F.2d

700, 704 (11th Cir. 1988) (applying the FLSA to undocu-

mented aliens to further IRCA's goal of "eliminating employ-

ers' economic incentives to hire" them); Contreras, 25

F. Supp. 2d at 1059-60 (continuing after IRCA to apply the

FLSA to undocumented workers and to award them punitive

damages, noting that "[t]he Ninth Circuit has taken the

broader view of the Sure-Tan holding, upholding awards of

back pay to undocumented aliens for wrongful employment

practices if, during their time of discharge, the workers

remained in the U.S. available for work, and the back pay

period could be calculated with certainty"), Escobar, 814

F. Supp. at 1498 (holding that undocumented workers can

recover damages for violations of the Migrant and Seasonal

Agricultural Workers Protection Act, as amended by IRCA);

EEOC v. Switching Systems Div. of Rockwell Int'l Corp., 783

F. Supp. 369, 374 (N.D. Ill. 1992) ("Title VII's protections

extend to aliens who may be in this country either legally or

illegally.") (post-IRCA); Tortilleria "La Mejor," 758 F. Supp.

585 (holding that Title VII continues to apply to undocu-

mented workers after IRCA); EEOC Enforcement Guidance

on Remedies Available to Undocumented Workers Under

Federal Employment Discrimination Laws, No. 915.002

(1999) (adopting the A.P.R.A. Fuel analysis and remedy for

undocumented workers whose rights under Title VII, the

Americans with Disabilities Act, the Rehabilitation Act, the

Age Discrimination in Employment Act, or the Equal Pay Act

are violated).

In contrast to the Board's limited backpay policy, Hoff-

man's position would undermine both IRCA and the NLRA.

If employers are exempt from paying backpay to undocu-

mented workers, they will favor undocumented over docu-

mented workers, thus increasing the incentives for unlawful

immigration, precisely what IRCA is intended to prevent. As

the Supreme Court said in Sure-Tan, "[i]f an employer

realizes that there will be no advantage under the NLRA in

preferring illegal aliens to legal resident workers, any incen-

tive to hire such illegal aliens is correspondingly lessened. In

turn, if the demand for undocumented aliens declines, there

may then be fewer incentives for aliens themselves to enter in

violation of the federal immigration laws." 467 U.S. at 893-

94. Denying backpay would likewise subvert the common

policy underlying both IRCA and the NLRA, i.e., maintaining

wages and working conditions for authorized employees.

Sure-Tan made this point as well: "Application of the NLRA

helps to assure that the wages and employment conditions of

lawful residents are not adversely affected by the competition

of illegal alien employees who are not subject to the standard

terms of employment." Id. at 893. Finally, excusing employ-

ers from paying backpay to undocumented workers would

undermine the collective bargaining rights of all employees,

including authorized workers. Sure-Tan put it this way:

If undocumented alien employees were excluded from

participation in union activities and from protections

against employer intimidation, there would be created a

subclass of workers without a comparable stake in the

collective goals of their legally resident co-workers,

thereby eroding the unity of all the employees and

impeding effective collective bargaining. Thus, the

Board's categorization of undocumented aliens as pro-

tected employees furthers the purposes of the NLRA.

Id. at 892 (internal citation omitted). Elaborating in A.P.R.A.

Fuel, the Board explained that because "undocumented aliens

are extremely reluctant to complain to the employer or to any

of the agencies charged with enforcing workplace standards,"

they make easy targets for an employer's "unprincipled effort

to stave off ... union representation." A.P.R.A. Fuel, 320

N.L.R.B. at 414. Employers resisting unions could simply

fire undocumented workers who try to organize and then

raise "the unlawful immigration status of their discharged

employees in retaliation for protected activities;" employers

might even "consider the penalties of IRCA a reasonable

expense more than offset by the savings of employing undoc-

umented workers or the perceived benefits of union avoid-

ance." Id. at 415. This also harms the collective bargaining

rights of authorized workers, the Board found, because "the

continuous threat of replacement with powerless and desper-

ate undocumented workers would certainly chill the American

and authorized alien workers' exercise of their Section 7

rights." Id. at 414.

For all these reasons, we hold that the Board has fully

satisfied its obligation to "accommodat[e] one statutory

scheme to another." Southern Steamship, 316 U.S. at 47.

The Board crafted its limited backpay remedy to avoid con-

flict with IRCA and to promote the purposes of both statutes.

The remedy reduces employer incentives to prefer undocu-

mented workers (IRCA's goal), reinforces collective bargain-

ing rights for all workers (the NLRA's goal), and protects

wages and working conditions for authorized workers (the

goal of both Acts). Because these last two points reflect the

Board's interpretation of the NLRA, we owe them considera-

ble deference. See, e.g., Sure-Tan, 467 U.S. at 899 (warning

that courts "should not substitute their judgment for that of

the Board in determining how best to undo the effects of

unfair labor practices"). If as Hoffman believes the Board

has struck the wrong balance between the two statutes, its

remedy lies in Congress, not this court.

* * *

With this understanding of Sure-Tan and IRCA in mind,

we return to the specific remedy the Board ordered in this

case. To repeat, it denied Castro reinstatement altogether

and limited his backpay to the period beginning with his

unlawful termination and ending on the date Hoffman learned

of his undocumented status. This remedy complies with

Sure-Tan and IRCA in all respects.

First, unlike the Seventh Circuit's six-month minimum

award in Sure-Tan, the Board's award of backpay to Castro

was not at all speculative. The Board limited backpay to the

period of time during which Castro could have continued

working but for Hoffman's unfair labor practice. This repre-

sents precisely the kind of individual tailoring demanded by

Sure-Tan. And unlike in Sure-Tan, the Board had no reason

to worry that the remedy might encourage the discriminatee

to re-enter the country illegally--Castro had never left.

Second, the Board modified its usual A.P.R.A. Fuel remedy

in this case to ensure that Castro's award would not conflict

with immigration law. Although the usual remedy includes

reinstatement conditional on compliance with IRCA's verifica-

tion provisions, the Board denied conditional reinstatement to

Castro because, under IRCA, Hoffman's discovery of Castro's

ineligibility to work would have required his termination.

For the same reason, the Board ended Castro's backpay as of

the date Hoffman discovered his true immigration status.

According to our dissenting colleague, requiring an employ-

er to give backpay to an employee it cannot now lawfully hire

"boggles the mind." See infra., Sentelle, J., dissenting. It

certainly would boggle the mind had the Board ordered

reinstatement, but it rejected that option. Instead it fash-

ioned a limited remedy, carefully crafted to promote the goals

of the NLRA without running afoul of IRCA. IRCA, as we

pointed out above, does not make it unlawful for an alien to

work; it makes it unlawful for an employer to hire "an alien

knowing the alien is ... unauthorized." 8 U.S.C.

s 1324a(a)(1)(A). Having now discovered Castro's unautho-

rized status, Hoffman can no longer employ him lawfully.

But at the time Hoffman hired Castro, it complied with

IRCA, and from that date until it learned he is unauthorized,

nothing prohibited his continued employment. It was to that

period of Castro's lawful availability for employment that the

Board limited the backpay award. Far from boggling the

mind, this remedy fully complies with Sure-Tan and avoids

any violation of IRCA.

III

Hoffman's additional arguments require little discussion.

It claims that the Board misapplied the after-acquired evi-

dence rule. According to Hoffman, Castro's undocumented

status should have barred all backpay, not just backpay from

the date Hoffman learned of Castro's status. For this propo-

sition, Hoffman cites McKennon v. Nashville Banner Pub-

lishing Co., 513 U.S. 352 (1995), but misreads the case. In

McKennon, the lower court had dismissed a discharged em-

ployee's lawsuit under the Age Discrimination in Employment

Act because the employer learned that the plaintiff had

violated company policy by making unauthorized copies of

sensitive documents. The Supreme Court reversed, squarely

rejecting the lower court's conclusion that discovery of

"wrongdoing which would have resulted in discharge bars

employees from any relief" for employers' unlawful acts. Id.

at 356. Rejecting "[a]n absolute rule barring any recovery of

backpay," the Court held that the typical remedy should be

"backpay from the date of the unlawful discharge to the date

the new information was discovered." Id. Consistent with

its longstanding policy, that is precisely what the Board

ordered in this case. See, e.g., Marshall Durbin Poultry Co.,

310 N.L.R.B. 68, 70 (1993), enforced in pertinent part, 39

F.3d 1312, 1317 (5th Cir. 1994); John Cuneo, Inc., 298

N.L.R.B. 856, 857 (1990).

Equally without merit is Hoffman's argument that "[b]y

awarding undocumented aliens backpay without any consider-

ation regarding whether these individuals can mitigate their

damages, the Board treats illegal aliens more favorably than

documented workers and by doing so, the Board violates the

equal protection clause of the Fifth Amendment to the United

States Constitution." Not only do we doubt the company's

standing to assert the equal protection rights of third parties,

see, e.g., Powers v. Ohio, 499 U.S. 400, 410-16 (1991), but

Hoffman points to no evidence that the Board applies a

different mitigation standard to undocumented workers. In

any event, the Board found that Castro had sought and

obtained interim employment, thus fulfilling his duty to miti-

gate. The Board subtracted his interim earnings of almost

$4,000 from the backpay award.

Finally, we think it worth repeating that Hoffman itself

could have mitigated its backpay liability either by making a

bona fide reinstatement offer in its letter recalling Castro a

few weeks after it fired him, or by complying promptly with

the Board's reinstatement order. See supra at 7. INS

regulations issued pursuant to IRCA expressly permit rein-

statement after an unlawful discharge without requiring the

employer to re-verify the employee's eligibility documents.

See 8 C.F.R. s 274a.2(b)(viii)(A).

IV

The petition for review is denied, and the cross-application

for enforcement is granted.

So ordered.

APPENDIX A

[467 U.S 898-905 not available electronically.] Sentelle, Circuit Judge, dissenting: In May of 1988, an

undocumented alien having illegally entered the United

States compounded his illegality when he fraudulently used

the name and birth certificate of Jose Castro to obtain

employment in the production plant of Hoffman Plastic. On

January 31, 1989, the company laid off a number of employ-

ees supportive of a union organizing effort, including the

employee (whose true name is still unknown) who had falsely

represented himself to be Jose Castro. Thereafter, an ad-

ministrative law judge, following an evidentiary hearing,

found that Hoffman had engaged in unfair labor practices

including the discriminatory selection of union adherents in

the layoffs which included the illegal alien known as Castro.

After the disclosure of the undocumented worker's illegal

status and his fraudulent use of the birth certificate, the

administrative law judge unsurprisingly recommended nei-

ther reinstatement nor backpay. I find this decision by the

administrative law judge unsurprising for multiple reasons.

First, as it would be unlawful for Hoffman to employ the

illegal and pay him earned wages, it defies logic--indeed it

boggles the mind--to suppose that the employer could be

compelled by law to pay to the illegal unearned wages which

he could not lawfully earn and to which he would have no

claim but for his prior successful fraud. If this were a case of

first impression I would find it simple. I would hold that by

no theory of law or equity could the federal government

compel an employer to employ an illegal alien to do nothing

and pay him for doing nothing when it could not lawfully

employ him to work and pay him for working. But this is not

a case of first impression. There is controlling Supreme

Court law which makes the case an even easier one.

Analysis

In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the

Supreme Court reviewed a Seventh Circuit decision which

had modified an NLRB order applying the National Labor

Relations Act to unfair labor practices committed against

undocumented aliens. See NLRB v. Sure-Tan, Inc., 672 F.2d

592 (7th Cir. 1982). The High Court concluded that the

Circuit was correct in upholding the Board's position "that

undocumented aliens are 'employees' within the meaning of

[29 U.S.C. s 152(3)]." 467 U.S. at 891. The Court reached

this conclusion based on the deference owed the Board in

"defining the term 'employee,' " a task "that 'has been as-

signed primarily to the agency created by Congress to admin-

ister the Act.' " Id. at 891 (quoting NLRB v. Hearst Publica-

tions, Inc., 322 U.S. 111, 130 (1944)); cf. Chevron U.S.A., Inc.

v. NRDC, 467 U.S. 837, 842-45 (1984). That said, the Su-

preme Court nonetheless vacated the remedial portion of the

Seventh Circuit decision, which had ordered the Board to

award an irreducible minimum of six months backpay to each

of the affected employees even in the face of the employees'

illegal entry and presence in the United States. In vacating

that portion of the Seventh Circuit decision, the Supreme

Court held, "[b]y directing the Board to impose a minimum

backpay award without regard to the employees' actual eco-

nomic losses or legal availability for work, the Court of

Appeals plainly exceeded its limited authority under the Act."

Sure-Tan, 467 U.S. at 904-05 (emphasis added). Based on

that italicized phrase, even if this were all the Supreme Court

had held on the question, I would nonetheless conclude that

Sure-Tan compels us to vacate the Board's decision overrul-

ing the logical result reached by the administrative law judge.

But the Supreme Court did not stop there.

The Supreme Court explicitly rejected the position taken

by the NLRB and the majority in today's decision when it

held, "[s]imilarly, in computing backpay, the employees must

be deemed 'unavailable' for work (and the accrual of backpay

therefore tolled) during any period when they were not

lawfully entitled to be present and employed in the United

States." Id. at 903. It is difficult to see how the Court could

more clearly have decided the question oppositely to the

Board's resolution in the decision we now review.

Read in context, the sentence speaks even more plainly:

Nonetheless, as the Court of Appeals recognized, the

implementation of the Board's traditional remedies at the

compliance proceedings must be conditioned upon the

employees' legal readmittance to the United States. In

devising remedies for unfair labor practices, the Board is

obliged to take into account another equally important

Congressional objective--to wit, the objective of deter-

ring unauthorized immigration that is embodied in the

INA. By conditioning the offers of reinstatement on the

employees' legal reentry, a potential conflict with the

INA is thus avoided. Similarly, in computing backpay,

the employees must be deemed "unavailable" for work

(and the accrual of backpay therefore tolled) during any

period when they were not lawfully entitled to be present

and employed in the United States.

Sure-Tan, 467 U.S. at 902-03 (emphasis added) (internal

quotation marks and citation omitted). In a feat of ipse dixit,

the logic of which escapes me, the majority today declares

that this paragraph demonstrates that the Supreme Court's

holding in the final sentence has nothing to do with the issues

before us. The Supreme Court in a rather concise paragraph

makes it plain that it is dealing with the possibility of

affording a backpay remedy to illegal aliens. It further

makes it plain that such a remedy is not an option when the

employees are "deemed unavailable" for work and that such a

period of deemed unavailability occurs "during any period

when they were not lawfully entitled to be present and

employed in the United States." The majority refuses to

apply this rather simple statement of law that a lack of legal

presence in the country constitutes unavailability for employ-

ment to the anonymous person known as Castro. The major-

ity reaches this conclusion by creating a dichotomy--never

mentioned by the Supreme Court--between illegal aliens who

have departed the United States without legally re-entering

and those like the illegal alien known as Castro who may or

may not have interrupted the continuity of their illegal stay in

the country. See Maj. Op. at 14-15. Having created the

dichotomy heretofore unrecognized by the Supreme Court,

the majority then refuses to apply the sentence by its terms

to persons in the newly minted subcategory, apparently be-

cause the Supreme Court did not separate out the subcatego-

ry and reaffirm the applicability of the stated principle to it.

The majority does not recognize that neither does the Court

ever suggest that application is limited to employees whose

legal unavailability arises from an interrupted period of illegal

presence as opposed to a continuous one.

The majority accuses me of taking a sentence out of

context from the Supreme Court's decision. For its proposi-

tion that the quoted sentence is not applicable, the majority

expends several pages of type and suggests ways of supplying

emphases not present in the opinion to get around the

apparent meaning of the Supreme Court's language that

"employees must be deemed 'unavailable' for work (and the

accrual of backpay therefore tolled) during any period when

they were not lawfully entitled to be present and employed in

the United States." Read in context, read out of context, or

read both ways and compared, the majority is left with no

way of dealing with the High Court's plain statement. I

invite the reader to review the phrase "not lawfully entitled to

be present and employed" in its original context. I further

suggest that contextual illumination for this sentence of the

High Court's opinion is supplied in the Court's analysis of the

Seventh Circuit decision that it was reversing. The High

Court described that decision as "[r]ecognizing that the dis-

charged employees would most likely not have been lawfully

available for employment and so would receive no backpay

award at all...." Sure-Tan, 467 U.S. at 890 (emphasis

added). Thus, the governing factor in determining eligibility

for backpay awards is not mere presence, but also the lawful

entitlement to be present.

The majority fundamentally errs in rewriting the phrase

"not lawfully entitled to be present and employed in the

United States" so that it has no application to a case like the

present one in which an alien fits precisely within the situa-

tion described by that phrase: i.e., an alien who is present in

the United States but without legal permission to be present

and without a legal right to be employed here. In effect, that

view rewrites the phrase to read "not present, and not

lawfully entitled to be present in the United States." It adds

the "not present" limitation and deletes the "not lawfully

entitled to be ... employed" requirement. That rewriting of

Sure-Tan leads the majority astray.

The rewriting of Sure-Tan endorsed by the majority ap-

pears to have first occurred in Bevles Co. v. Teamsters Local

986, 791 F.2d 1391, 1393 (9th Cir. 1986). Before that time,

even its critics believed that Sure-Tan meant what it said.

See Sure-Tan, 467 U.S. at 911 (Brennan, J., dissenting)

(criticizing the majority for holding that undocumented aliens

"are effectively deprived of any remedy"); Felbro, Inc., 274

N.L.R.B. 1268, 1269 (1985) (stating that the undocumented

aliens in Felbro, who had remained in the country, would be

affected by Sure-Tan); Local 512, Warehouse & Office Work-

ers' Union v. NLRB, 795 F.2d 705, 725 (9th Cir. 1986)

("Felbro") (Beezer, J., dissenting in part); Terry A. Bethel,

Recent Labor Law Decisions of the Supreme Court, 45 Md.

L. Rev. 179, 196 (1986) ("Sure-Tan ... deprive[s] undocu-

mented employees of any effective remedy for unlawful dis-

crimination...."); Lucinda M. Cardinal, Note, Immigration

Reform: Solving the "Problem" of the Illegal Alien in the

American Workforce, 7 Cardozo L. Rev. 223, 244 (1985)

("Sure-Tan mandates that illegal aliens do not receive the

remedies granted their legal coworkers."); John W. Sagaser,

Note, Rights Without A Remedy--Illegal Aliens Under the

National Labor Relations Act, 27 B.C. L. Rev. 407, 452 (1986)

("By denying a minimum backpay award, the Court in effect

deprives illegal alien workers of any remedy."). In Bevles,

the court was reviewing an arbitrator's award; the issue was

whether the arbitrator's decision showed a "manifest disre-

gard of the law," and the court was not entitled to reverse

erroneous legal conclusions. See 791 F.2d at 1392-93 & n.2.

In not following Sure-Tan, the court ignored the lawful

presence requirement and considered whether the aliens in

that case were lawfully entitled to be employed. The court

clearly relied on the fact that--prior to the passage of

IRCA--it was not a criminal act for employers to hire

undocumented aliens. See id. at 1393. The court also consid-

ered the effect of section 2805 of the California Labor Code,

which prohibited employers from knowingly employing undoc-

umented aliens if it would affect lawful workers. Because an

unreversed state court decision had previously held section

2805 unconstitutional, the court did not fault the arbitrator

for disregarding it. See id. at 1393-94.

The focus on the lawful right to seek employment continued

in Felbro. The Ninth Circuit there again relied on the fact

that it was not illegal for an employer to hire undocumented

aliens. Because the Sure-Tan employees could not lawfully

reenter the United States, the court noted that they were

"unavailable for work during the backpay period." Felbro,

795 F.2d at 719. The court reasoned that being present in

the United States did not create unavailability because

"[t]here is no provision 'in the INA making it unlawful for an

employer to hire an alien who is present or working in the

United States without appropriate authorization.' " Id. (quot-

ing Sure-Tan, 467 U.S. at 892-93).

Since the passage of IRCA, both the Second and Ninth

Circuits have registered concern over IRCA's effect on their

misguided attempts to limit Sure-Tan. In Rios v. Enterprise

Ass'n Steamfitters Local Union 638, 860 F.2d 1168 (2d Cir.

1988), the Second Circuit was careful to explain that recovery

was only permissible because the claimants were "available

for employment during the entire period covered by the

backpay order, since such employment would have violated no

immigration law." Id. at 1173. The court explicitly reserved

the question of whether IRCA would affect later claims. See

id. at 1172 n.2. The Ninth Circuit likewise has questioned

the viability of its Felbro decision after IRCA. See EEOC v.

Hacienda Hotel, 881 F.2d 1504, 1517-18 n.11 (9th Cir. 1989).

In a further Second Circuit case postdating the enactment of

IRCA, that circuit continued to follow its pre-enactment

precedent. See NLRB v. A.P.R.A. Fuel Oil Buyers Group,

Inc., 134 F.3d 50 (2d Cir. 1997). However, as Judge Jacobs

clearly demonstrated on dissent, without the slender reed of

the employer's legal capacity to hire undocumented aliens,

"an undocumented alien is not 'lawfully available for employ-

ment.' " Id. at 62 (Jacobs, J., dissenting) (quoting Sure-Tan,

emphasis supplied by Judge Jacobs). As Judge Jacobs point-

ed out, the remedy of backpay to the alien ineligible for

employment "is foreclosed by Sure-Tan and IRCA...." Id.

Like the Second Circuit in A.P.R.A. Fuel, the majority

today offers nothing that should lead us to believe that the

Supreme Court in Sure-Tan meant anything other than what

it said; and what it said disqualifies the illegal alien in this

case from an award of backpay.

Conclusion

For the reasons set forth above, I would grant Hoffman

Plastic's petition for review of the Board's order, and deny

the cross-petition for employment. I respectfully dissent.