Agri Processor Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided January 4, 2008

No. 06-1329

AGRI PROCESSOR CO., INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

06-1349

On Petition for Review and Cross-Application for

Enforcement of an Order of the National

Labor Relations Board

Jeffery A. Meyer argued the cause for petitioner. On the

brief was Carmelo Grimaldi.

Julie B. Broido, Supervisory Attorney, National Labor

Relations Board, argued the cause for respondent. With her on

the brief were Ronald E. Meisburg, General Counsel, John H.

Ferguson, Associate General Counsel, and Kira Dellinger Vol,

Attorney. Linda Dreeben, Deputy Assistant General Counsel,

entered an appearance.

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Before: HENDERSON, TATEL, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

TATEL, Circuit Judge: A company whose workers recently

voted to unionize refuses to bargain with them, claiming that

most of those who voted are undocumented aliens. The

company argues that undocumented aliens are prohibited from

unionizing because they do not qualify as “employees” protected

by the National Labor Relations Act. Because the company’s

argument ignores both the Act’s plain language and binding

Supreme Court precedent, we deny its petition for review.

I.

Petitioner Agri Processor Co. is a wholesaler of kosher

meat products based in Brooklyn, New York. In September

2005, the company’s employees voted to join the United Food

and Commercial Workers union. When the company refused to

bargain, the union filed an unfair labor practice charge with the

National Labor Relations Board.

The Board’s General Counsel issued a complaint charging

that Agri Processor’s refusal to bargain violated sections 8(a)(1)

and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§

151-169, which make it “an unfair labor practice for an

employer—(1) to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in [the Act]; . . . [or] (5)

to refuse to bargain collectively with the representatives of his

employees.” Id. § 158(a)(1), (5). In a hearing before an

administrative law judge, the company claimed that after the

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election it put the Social Security numbers given by all the

voting employees into the Social Security Administration’s

online database and discovered that most of the numbers were

either nonexistent or belonged to other people. Based on this

evidence, the company alleged that most of the workers who had

voted in the election were aliens unauthorized to work in the

United States. Arguing that undocumented workers do not

count as “employees” protected by the NLRA, the company

claimed the election was invalid. The company also asserted

that undocumented aliens may not belong to the same

bargaining unit as legal workers, rendering improper the

bargaining unit created by the Board.

Relying on Supreme Court precedent and the Board’s

decision in Concrete Form Walls, Inc., 346 N.L.R.B. No. 80

(Apr. 13, 2006), the ALJ rejected the company’s arguments,

sustained the charged violations, and ordered Agri Processor to

bargain with the union. Agri Processor Co., 347 N.L.R.B. No.

107, at 3 (Aug. 31, 2006). The Board unanimously adopted the

ALJ’s recommendations. Id. at 1. Though one Board member

noted that “the average person” might find it peculiar that an

employer must bargain with illegal aliens, he acknowledged that

the NLRA compelled this result. Id. at 1 n.2.

The company petitions for review, still arguing that

undocumented aliens are not employees under the NLRA and

may not belong to the same bargaining unit as legal workers.

The Board cross-petitions for enforcement.

II.

According to the Board, Agri Processor’s contention that

undocumented aliens are not “employees” protected by the

NLRA ignores the Act’s plain language and the Supreme

Court’s decision in Sure-Tan, Inc. v. NLRB, 467 U.S. 883

(1984). We agree.

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The NLRA defines the term “employee” expansively and

lists only a few limited exceptions:

The term “employee” shall include any employee

. . . , but shall not include any individual employed as

an agricultural laborer, or in the domestic service of

any family or person at his home, or any individual

employed by his parent or spouse, or any individual

having the status of an independent contractor, or any

individual employed as a supervisor, or any individual

employed by an employer subject to the Railway

Labor Act . . . , or by any other person who is not an

employer as herein defined.

29 U.S.C. § 152(3). In Sure-Tan, the Supreme Court held that

this definition clearly includes undocumented aliens:

The breadth of [the NLRA’s] definition [of

“employee”] is striking: the Act squarely applies to

“any employee.” The only limitations are specific

exemptions for agricultural laborers, domestic

workers, individuals employed by their spouses or

parents, individuals employed as independent

contractors or supervisors, and individuals employed

by a person who is not an employer under the NLRA.

See 29 U.S.C. § 152(3). Since undocumented aliens

are not among the few groups of workers expressly

exempted by Congress, they plainly come within the

broad statutory definition of “employee.”

467 U.S. at 891-92 (emphasis added).

Remarkably, Agri Processor’s brief neither acknowledges

this controlling language in Sure-Tan nor even quotes the

NLRA’s definition of “employee.” Instead, the company focuses

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exclusively on the Immigration Reform and Control Act of 1986

(IRCA), Pub. L. No. 99-603, 100 Stat. 3359, which made it

illegal for companies knowingly to employ undocumented aliens,

8 U.S.C. § 1324a(a)(1), and on Hoffman Plastic Compounds, Inc.

v. NLRB, 535 U.S. 137 (2002), which held that IRCA bars the

Board from awarding backpay to undocumented aliens. Though

Agri Processor never articulates this clearly, its argument seems

to be that IRCA, passed after Sure-Tan, somehow amended the

NLRA to exclude undocumented aliens from its coverage, and

that Hoffman Plastic overruled Sure-Tan. In fact, however,

neither IRCA nor Hoffman Plastic supports the company’s

argument.

To begin with, nothing in IRCA’s text alters the NLRA’s

definition of “employee.” NLRA section 2(3), 29 U.S.C. §

152(3), continues to define “employee” exactly the same way it

did when the Sure-Tan Court held that “undocumented aliens . . .

plainly come within the broad statutory definition of

‘employee.’” 467 U.S. at 892. Thus, Agri Processor must be

arguing that IRCA and the NLRA conflict, requiring us to read

IRCA as implicitly repealing the NLRA’s definition of

“employee” to the extent that it includes undocumented aliens.

But “where two statutes are ‘capable of co-existence, it is the

duty of the courts, absent a clearly expressed congressional

intention to the contrary, to regard each as effective.’”

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984)

(quoting Reg’l Rail Reorganization Act Cases, 419 U.S. 102,

133-34 (1974)). Thus, courts should not infer that one statute

has partly repealed another “unless the later statute expressly

contradicts the original act or unless such a construction is

absolutely necessary . . . in order that the words of the later

statute shall have any meaning at all.” Nat’l Ass’n of Home

Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2532 (2007)

(citations and internal quotation marks omitted). Neither

condition is even arguably met here. Because IRCA nowhere

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states that undocumented aliens no longer qualify as employees

under the NLRA, it does not “expressly contradict the original

act.” And IRCA has meaning without being read as partly

repealing the NLRA: it prohibits employers from hiring

undocumented aliens, which would otherwise be legal. See

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996)

(“The rarity with which we have discovered implied repeals is

due to the relatively stringent standard for such findings, namely,

that there be an irreconcilable conflict between the two federal

statutes at issue.” (citations and internal quotation marks

omitted)).

Moreover, “[a]mendments by implication, like repeals by

implication, are not favored,” United States v. Welden, 377 U.S.

95, 102 n.12 (1964), “and will not be found unless an intent to

repeal [or amend] is ‘clear and manifest.’” Rodriguez v. United

States, 480 U.S. 522, 524 (1987) (quoting United States v.

Borden Co., 308 U.S. 188, 198 (1939)). Here, not only is there

no clear indication that Congress intended IRCA implicitly to

amend the NLRA, but all available evidence actually points in

the opposite direction. The House Judiciary Committee Report

on IRCA is clear:

It is not the intention of the Committee that the

employer sanctions provisions of the bill 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

exercising 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 National Labor

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Relations Act (NLRA), as amended, or of the rights

and protections stated in Sections 7 and 8 of that Act.

As the Supreme Court observed in Sure-Tan Inc. v.

NLRB, 467 U.S. 883 (1984)[,] 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.”

H.R. Rep. No. 99-682, pt. 1, at 58 (1986), as reprinted in 1986

U.S.C.C.A.N. 5649, 5662. Similarly, the House Education and

Labor Committee Report says that no provision of IRCA

limit[s] the powers of State or Federal labor standards

agencies such as the Occupational Safety and Health

Administration, the Wage and Hour Division of the

Department 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 undocumented 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 employees

and the depressing effect on working conditions

caused by their employment.

Id. pt. 2, at 8-9, as reprinted in 1986 U.S.C.C.A.N. 5757, 5758.

These two passages are the only places in IRCA’s legislative

history where Congress discussed the NLRA. Rather than

showing that IRCA was “clear[ly] and manifest[ly]” intended to

amend the NLRA’s definition of “employee,” Rodriguez, 480

U.S. at 524, they show precisely the opposite.

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Perhaps Agri-Processor is arguing that in making it

unlawful for employers to hire undocumented aliens, Congress

must have intended to end job protections for such workers,

even though it never said as much anywhere in IRCA’s text or

history. But this hardly follows, for it is quite possible that even

as Congress barred employers from hiring undocumented aliens,

it still intended for the NLRA to apply to such aliens. The Sure-

Tan Court explained: “Application of the NLRA [to illegal

aliens] 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.” 467 U.S. at 893. And “[i]f 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.”

Id.

In sum, there is absolutely no evidence that in passing

IRCA Congress intended to repeal the NLRA to the extent its

definition of “employee” includes undocumented aliens. Thus,

the NLRA’s plain language, as applied by the Supreme Court

in Sure-Tan, continues to control after IRCA, as the Seventh,

Ninth, and Eleventh Circuits have all held. See NLRB v.

Concrete Form Walls, Inc., 225 Fed. App’x 837 (11th Cir. 2007)

(upholding the NLRB’s conclusion in Concrete Form Walls, 346

N.L.R.B. No. 80, that undocumented workers remain statutory

employees under the NLRA after IRCA); NLRB v. Kolkka, 170

F.3d 937, 941 (9th Cir. 1999) (holding that the NLRA continues

to define undocumented aliens as employees after IRCA); Del

Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1121 (7th Cir.

1992) (same); cf. Patel v. Quality Inn S., 846 F.2d 700, 704-05

(11th Cir. 1988) (rejecting the claim that IRCA implicitly

amended the Fair Labor Standards Act’s definition of

“employee”). No circuit court has reached a contrary

conclusion.

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The dissent, instead of attempting to show implied repeal

under the Supreme Court’s established rules for doing so,

creates its own rule. It claims we should read IRCA as

implicitly amending the NLRA not because of anything

Congress said in IRCA’s text or history, but rather because of

something the Sure-Tan Court said two years before IRCA’s

enactment in a passage Agri Processor never cites. Specifically,

after the Sure-Tan Court held that “undocumented aliens . . .

plainly come within the [NLRA’s] broad statutory definition of

‘employee,’” 467 U.S. at 892, it went on to explain why it found

no conflict between its holding and then-existing immigration

law. The Court said that because the law at that time did not bar

hiring undocumented aliens, “there [wa]s no reason to conclude”

that immigration law conflicted with the NLRA’s protection of

such employees. Id. at 893. According to the dissent, this

passage means that once IRCA made it unlawful to hire

undocumented aliens, immigration law had to conflict with the

NLRA’s broad definition of “employee.” See Dissenting Op. at

2. But this does not logically follow, as an example illustrates:

“Because it’s not cold outside, it’s not snowing. It is now cold

outside, therefore it must be snowing.” See PATRICK J. HURLEY,

A CONCISE INTRODUCTION TO LOGIC 323 (9th ed. 2005)

(explaining the fallacy of denying the antecedent, in which a

person reasons from a statement phrased as “because not p, not

q,” that once p happens q will necessarily follow). The dissent

claims its reading of this passage is necessary to prevent it from

being “entirely meaningless.” Dissenting Op. at 6. But the

Sure-Tan majority had an obvious reason for including the

passage that is far more plausible than the dissent’s theory that

the Court was holding how it would treat a hypothetical

immigration statute not before it: to refute the Sure-Tan

dissent’s claim that then-existing immigration law precluded

reading the NLRA as applying to undocumented aliens. See

Sure-Tan, 467 U.S. at 913 (Powell, J., dissenting).

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More fundamentally, even if the Supreme Court had said

immigration law would inevitably conflict with the NLRA’s

definition of “employee” if hiring undocumented aliens became

unlawful, the Court never explained how it would resolve such

a conflict. And rather than applying the Supreme Court’s rule

for determining whether two statutes irreconcilably conflict so

that we must read the later as implicitly repealing the earlier, the

dissent reverses the rule, stating: “if Congress in [passing IRCA]

wished to say that illegal immigrant workers . . . [remain]

‘employees’ protected by the NLRA, it would have said so in

the text of IRCA.” Dissenting Op. at 9. Thus, instead of making

“repeals by implication . . . disfavored,” Reg’l Rail, 419 U.S. at

133, and demanding that “the intention of the legislature to

repeal . . . be clear and manifest,” Posadas v. Nat’l City Bank of

N.Y., 296 U.S. 497, 503 (1936), the dissent presumes repeal

because Congress never expressly declared that it wanted to

avoid an implied repeal—all because of one paragraph from

Sure-Tan the dissent misreads. But the Supreme Court “ha[s]

never held that Congress must speak with different gradations of

clarity depending on the specific circumstances of the relevant

legislation.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 76

(2000). The dissent’s rule would lead to the absurd result that

the Supreme Court—or any court for that matter—could alter

the plain meaning of future legislation simply by announcing

what current legislation does not mean.

Of course, the dissent is correct that “[w]hen the Supreme

Court has issued a statutory decision and Congress then acts to

change the relevant law, it flouts congressional will for a lower

court to ignore the new statute and rely reflexively on the result

of the old Supreme Court case.” Dissenting Op. at 4. But this

principle has no application here because Congress never

“change[d] the relevant law.” As we have shown above, IRCA

neither explicitly nor implicitly amended the NLRA. Thus, this

case is nothing like the examples the dissent cites in which the

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Supreme Court interpreted a statute and Congress later amended

that statute. See id. at 5. In those examples, Congress obviously

overturned the Supreme Court’s decisions—it expressly changed

the statutory provision the Court had interpreted to achieve the

opposite result. By contrast, after the Sure-Tan Court read the

plain language of the NLRA’s definition of “employee” to cover

undocumented aliens, Congress did not change the NLRA to

“expressly exempt[]” undocumented aliens from its coverage.

Sure-Tan, 467 U.S. at 892. Instead, Congress changed

immigration law, never even hinting it intended to amend the

NLRA. Congress’s decision not to amend the NLRA’s

definition of “employee” is all the more striking given that it has

previously amended that definition when it disagreed with the

Supreme Court’s interpretation of the Act. See Labor

Management Relations Act, 1947, Pub. L. No. 80-101, § 2(3),

61 Stat. 136, 137-38 (amending the NLRA’s definition of

“employee” to exclude independent contractors and supervisors,

whom the Supreme Court had held covered under the original

version of the Act in NLRB v. Hearst Publications, Inc., 322

U.S. 111, 131-32 (1944), and Packard Motor Car Co. v. NLRB,

330 U.S. 485, 488-90 (1947), respectively); see also Kimbrough

v. United States, No. 06-6330, slip op. at 14 (U.S. Dec. 10,

2007) (“Drawing meaning from silence is particularly

inappropriate here, for Congress has shown that it knows how to

[address the question at issue] in express terms.”).

The dissent also criticizes our use of legislative history.

But because IRCA, by its terms, does not amend the NLRA, it

is the dissent that—at least under the Supreme Court’s rules for

implied repeal—must find in IRCA’s history “clear and

manifest” legislative intent to amend the NLRA. Rodriguez,

480 U.S. at 524. We cite legislative history only to demonstrate

how far Agri Processor and the dissent are from meeting this

standard. Thus, Shannon v. United States, 512 U.S. 573 (1994),

upon which the dissent relies, has nothing to do with this case.

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There the Court refused to “abandon altogether the text of the

statute” in order to “give effect to [a] snippet of legislative

history.” Id. at 583. Here, by contrast, we hew closely to the

text of the NLRA and IRCA, while the dissent seeks to

“abandon [it] altogether.”

Returning now to Agri Processor’s arguments, we think the

company’s reliance on Hoffman Plastic is entirely misplaced.

In that case, the Supreme Court addressed only what remedies

the Board may grant undocumented aliens when employers

violate their rights under the NLRA. Nowhere in Hoffman

Plastic did the Court hold that IRCA leaves undocumented

aliens altogether unprotected by the NLRA. Indeed, the Court

explicitly declined to revisit Sure-Tan’s holding that

undocumented aliens are employees under the NLRA, 535 U.S.

at 149 n.4, and said that remedies other than backpay—such as

cease and desist orders—can still be imposed for NLRA

violations committed against undocumented aliens, see id. at

152. Thus, neither IRCA nor Hoffman Plastic alters the

NLRA’s definition of “employee” as applied by the Supreme

Court in Sure-Tan.

Even were we less certain about the meaning of Hoffman

Plastic and IRCA, we would still reach the same result. First, if

we thought that Hoffman Plastic’s reasoning cast some doubt on

Sure-Tan’s clear holding—which we don’t—we would still

follow Sure-Tan, for as the Supreme Court held in Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989): “If

a precedent of [the Supreme] Court has direct application in a

case, yet appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the case which

directly controls, leaving to [the Supreme] Court the prerogative

of overruling its own decisions.” Id. at 484. Sure-Tan, not

Hoffman Plastic, “directly controls” this case.

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Second, even were it unclear whether the NLRA’s

definition of “employee” included undocumented aliens—which

it isn’t—we would still defer to the Board’s decision to include

them. “Since the task of defining the term ‘employee’ is one

that ‘has been assigned primarily to the [Board],’ the Board’s

construction of that term is entitled to considerable deference,

and we will uphold any interpretation that is reasonably

defensible.” Sure-Tan, 467 U.S. at 891 (quoting Hearst, 322

U.S. at 130). Including undocumented aliens within the

meaning of “employee” is entirely reasonable because

“extending the coverage of the [NLRA] to such workers is

consistent with the Act’s avowed purpose of encouraging and

protecting the collective-bargaining process.” Id. at 892.

Leaving undocumented workers without the NLRA’s

protections would “create[] 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.” Id.

Finally, Agri Processor suggests that if neither Hoffman

Plastic nor IRCA requires the result it seeks, we should still rule

in its favor “in light of the recent policy changes and debate over

the burden of illegal immigration in this country.” Pet’r’s

Opening Br. 32. Given Sure-Tan and the NLRA’s broad

definition of “employee,” however, the company must make this

argument to Congress, not this court.

III.

This brings us to Agri Processor’s second argument—that

the Board may not place undocumented aliens and legal workers

in the same bargaining unit. NLRA section 9(b) “vests in the

Board authority to determine ‘the unit appropriate for the

purposes of collective bargaining.’” NLRB v. Action Auto., Inc.,

469 U.S. 490, 494 (1985) (quoting 29 U.S.C. § 159(b)). “[I]n

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defining bargaining units, [the Board’s] focus is on whether the

employees share a ‘community of interest.’” Id. at 494. The

community of interests test turns “on the interests of employees

as employees, not their interests more generally.” Speedrack

Prods. Group, Ltd. v. NLRB, 114 F.3d 1276, 1280 (D.C. Cir.

1997). The Board, moreover, has “broad discretion in making

unit determinations, and its unit determinations are accorded

particular deference by a reviewing court.” Id. at 1278.

Agri Processor argues that undocumented aliens and legal

workers lack a community of interest in two respects. First, the

company argues that “[t]he incorporation of the undocumented

workers with otherwise lawful and eligible workers as members

of the bargaining unit . . . caused the votes of the eligible

workers to become diluted, resulting in the disenfranchisement

of the bargaining unit’s lawful and eligible workers.” Pet’r’s

Opening Br. 33. As we have already explained, however,

undocumented aliens qualify as employees under the NLRA, so

their votes are just as valid as those of legal workers.

Second, Agri Processor maintains that because

undocumented aliens have no legitimate expectation of

continued future employment, their interests differ from those

of legal employees. But as the Board explains:

[U]ndocumented workers’ fear of detection and

termination does not prevent them from sharing a

community of interest with their coworkers. That fear

is counterbalanced by a hope of continuing their

employment indefinitely, giving them a similar

expectation of future employment as ‘regular’ at-will

employees who hold their jobs at the whim of their

employers.

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Resp’t’s Br. 21. The Board also correctly points out that

“expected tenure is not necessarily dispositive of the

community-of-interest inquiry.” Id. Indeed, the Board has

previously approved—and we have upheld—allowing workers

to vote even when, at the time of the election, the workers knew

they would soon leave for another job. See, e.g., Saint-Gobain

Indus. Ceramics, Inc. v. NLRB, 310 F.3d 778, 782-83 (D.C. Cir.

2002).

Furthermore, “the focus of the community of interests test

is on the interests of employees as employees, not their interests

more generally.” Speedrack, 114 F.3d at 1280. Thus, “to

determine if a community of interest exists,” the Board typically

looks at “the similarity of wages, benefits, skills, duties, working

conditions, and supervision of the employee.” Id. at 1278. With

regard to each of these factors, undocumented workers and legal

workers in a bargaining unit are identical. While undocumented

aliens may face penalties for violating immigration laws, they

receive the same wages and benefits as legal workers, face the

same working conditions, answer to the same supervisors, and

possess the same skills and duties.

In short, Agri Processor has failed to show that the interests

of undocumented workers as employees differ in any way from

those of legal workers. Indeed, the company has come nowhere

close to making the type of showing needed to overcome the

high degree of deference we owe the Board’s unit

determinations.

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IV.

For the reasons stated above, we deny Agri Processor’s

petition for review and grant the Board’s cross-petition for

enforcement.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

It seems “somewhat peculiar” indeed, as Board Member

Kirsanow observed, to order an employer “to bargain with a

union representing employees that the [employer] would be

required to discharge under the Immigration Reform and Control

Act, 8 U.S.C. § 1324a.” Agri Processor Co., 347 N.L.R.B. No.

107, at 1 n.2 (2006). Moreover, as the dissent makes clear, it is

hard to ignore Sure-Tan’s reliance on the absence of any

provision in the Immigration and Naturalization Act making it

“a separate criminal offense for an alien to accept employment

after entering this country illegally,” Sure-Tan, Inc. v. NLRB,

467 U.S. 883, 893 (1984), and the fact that, shortly thereafter,

the Congress enacted IRCA, which does precisely that.

Nonetheless, Sure-Tan concluded that the broad statutory

definition of “employee” in the NLRA does not exclude an

illegal immigrant and we must follow Sure-Tan’s interpretation

until the Supreme Court otherwise directs or the Congress

expressly limits the term’s scope. See Welch v. Tex. Dep’t of

Highways & Pub. Transp., 483 U.S. 468, 478-79 (1987).

Accordingly, I join the majority opinion.

KAVANAUGH, Circuit Judge, dissenting: Their

immigration status apparently unbeknownst to their employer,

illegal immigrant workers voted in a union election and

affected the election’s outcome. The employer later

discovered that the workers were illegal; terminated them as

required by federal immigration law; and sought to overturn

the tainted union election. The NLRB ruled that the union

election must stand because illegal immigrant workers are

“employees” under the National Labor Relations Act and thus

are entitled to vote in union elections. The majority opinion

agrees.

I respectfully dissent. The result reached by the majority

opinion not only is “somewhat peculiar,” as Judge Henderson

acknowledges, but also is inconsistent with Supreme Court

precedent and the Immigration Reform and Control Act of

1986. As the Supreme Court has explained, the term

“employee” in the NLRA must be interpreted in conjunction

with the immigration laws. See Sure-Tan, Inc. v. NLRB, 467

U.S. 883, 892-93 (1984). Applying the Sure-Tan analysis, I

would hold that an illegal immigrant worker is not an

“employee” under the NLRA for the simple reason that, ever

since 1986, an illegal immigrant worker is not a lawful

“employee” in the United States. I would therefore vacate the

Board’s order and remand for the Board to determine how a

party can challenge a union election or certification upon

discovering after the fact that illegal immigrant workers voted

in the election and affected the outcome.

* * *

In 1984, the Supreme Court considered whether an

employer committed an unfair labor practice by reporting

illegal immigrant workers to immigration officials in response

to the workers’ union activity. Sure-Tan, Inc. v. NLRB, 467

U.S. 883 (1984). In an opinion by Justice O’Connor, the

Court explained that the NLRA’s definition of “employee”

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must be interpreted in conjunction with the immigration laws.

Id. at 892-93. The Court then held that illegal immigrant

workers were “employees” covered by the NLRA because –

“[c]ounterintuitive though it may be” – the immigration laws

as they stood in 1984 did not prohibit employment of illegal

immigrant workers. Id. at 892. The Court stated:

For whatever reason, Congress has not adopted

provisions 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. . . . Moreover,

Congress has not made it a separate criminal offense for

an alien to accept employment after entering this country

illegally. Since the employment relationship between an

employer and an undocumented alien is hence not illegal

under the INA, there is no reason to conclude that

application of the NLRA to employment practices

affecting such aliens would necessarily conflict with the

terms of the INA.

Id. at 892-93 (emphasis added and citation omitted).

As I read the decision, the Court in Sure-Tan thus applied

a straightforward analytical framework to govern the question

whether illegal immigrant workers are “employees” under the

NLRA. If federal law does not prohibit employment of illegal

immigrant workers, then the workers can be “employees”

under the NLRA. If on the other hand federal law prohibits

employment of illegal immigrant workers, then the workers

are not “employees” under the NLRA.1

1

In Sure-Tan, Justice Powell and Justice Rehnquist dissented,

arguing that even without a specific congressional prohibition

against employing illegal immigrant workers, it is “unlikely that

Congress intended the term ‘employee’ to include – for purposes of

3

When it decided Sure-Tan in 1984, the Court was well

aware of the significance of tying the NLRA’s definition of

“employee” to the immigration laws’ prohibition or non-

prohibition on employment of illegal immigrant workers. The

Court decided Sure-Tan in the midst of an intense

congressional debate on immigration legislation. At oral

argument in Sure-Tan, moreover, one of the Justices asked a

direct question about proposed legislation banning

employment of illegal immigrant workers. See Transcript of

Oral Argument, Sure-Tan, 467 U.S. 883 (No. 82-945),

available at http://www.oyez.org/cases (Court: “There is

legislation pending in Congress to make it illegal, to make it

an unlawful act, a crime to hire an undocumented alien.”).

And just five days before the Court issued its decision, the

House of Representatives passed a bill to prohibit the

employment of illegal immigrants. See 130 CONG. REC.

12,794-95 (June 20, 1984). It would defy credulity to suggest

that the Supreme Court either was unaware of the significance

of its discussion of immigration law or intended it to be

meaningless.

Two years after Sure-Tan, as the Court had

foreshadowed, Congress passed and President Reagan signed

a comprehensive immigration bill that prohibited employment

of illegal immigrant workers. The landmark Immigration

Reform and Control Act of 1986, known as IRCA, “forcefully

being accorded the benefits of that protective statute [the NLRA] –

persons wanted by the United States for the violation of our

criminal laws.” Sure-Tan, 467 U.S. at 913 (Powell, J., concurring

in part and dissenting in part). The Sure-Tan majority reasoned,

however, that a congressional prohibition on employment of illegal

immigrants was necessary in order to conclude that illegal

immigrant workers were not “employees” under the NLRA. As a

result of passage of the Immigration Reform and Control Act in

1986, of course, such a prohibition now exists.

4

made combating the employment of illegal aliens central to

the policy of immigration law.” Hoffman Plastic Compounds,

Inc. v. NLRB, 535 U.S. 137, 147 (2002) (internal quotation

marks and alteration omitted). Under IRCA, it is now a

criminal and civil violation for an employer to knowingly hire

an illegal immigrant. Pub. L. No. 99-603, § 101, 100 Stat.

3359, 3360 (codified as amended at 8 U.S.C. § 1324a). If an

employer hires a worker and later discovers that the worker is

in the United States illegally, the employer must fire the

worker immediately. 8 U.S.C. § 1324a(a)(2). And federal

law provides that an employee may not use fraudulent

identification documents in completing the immigration forms

that are required to be employed in the United States. 8

U.S.C. § 1324c(a).

IRCA “significantly changed” the “legal landscape” that

had existed in Sure-Tan. Hoffman, 535 U.S. at 147; see also

Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 188 (4th

Cir. 1998) (en banc) (IRCA brought about “monumental

change” in immigration law). Applying the straightforward

Sure-Tan analysis in the wake of IRCA, I would hold that an

illegal immigrant worker is not an “employee” under the

NLRA because Congress has now made it illegal for illegal

immigrants to be employed.

The majority opinion and the Board rely on the result in

Sure-Tan. See Maj. Op. at 3-4; Board Br. at 12-13. But Sure-

Tan explained that the interpretation of “employee” depends

on the status of the immigration laws. 467 U.S. at 892-93.

Congress then changed those immigration laws in 1986.

When the Supreme Court has issued a statutory decision and

Congress then acts to change the relevant law, it flouts

congressional will for a lower court to ignore the new statute

and rely reflexively on the result of the old Supreme Court

case. Relying on Sure-Tan’s pre-IRCA interpretation of

5

“employee” is roughly like relying on District of Columbia v.

Carter to dismiss a § 1983 suit against a D.C. police officer

even though Congress later changed the statute to provide that

such suits are cognizable under § 1983. Compare Carter, 409

U.S. 418, 432-33 (1973), with Pub. L. No. 96-170, § 1, 93

Stat. 1284, 1284 (1979) (amending 42 U.S.C. § 1983). Or

relying on Hubbard v. United States to hold that 18 U.S.C.

§ 1001 does not prohibit false statements in judicial

proceedings even though Congress later changed the statute to

provide otherwise. Compare Hubbard, 514 U.S. 695, 715

(1995), with Pub. L. No. 104-292, § 2, 110 Stat. 3459, 3459

(amending 18 U.S.C. § 1001). Or relying on Westfall v.

Erwin to limit federal employees’ immunity from suit even

though Congress later passed the Westfall Act to ensure such

immunity. Compare Westfall, 484 U.S. 292, 300 (1988), with

Pub. L. No. 100-694, §§ 2, 5-6, 102 Stat. 4563, 4563-65

(amending 28 U.S.C. § 2679).2

Turning next to a logic textbook, the majority opinion

contends that Sure-Tan is not as clear as it could have been on

how the NLRA’s coverage of “employees” would be affected

by a change in the immigration laws. See Maj. Op. at 9. But

we nonetheless have to decide whether the better reading of

Sure-Tan is that the NLRA’s coverage of illegal immigrant

workers as “employees” (i) depends on whether illegal

immigrant workers may be lawfully employed in the United

States; or (ii) does not depend on whether illegal immigrant

2

The doctrine of Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477, 484 (1989), has no application in this

case. That doctrine instructs lower courts not to assume that a

Supreme Court decision implicitly overruled one of the Court’s

prior precedents. In this case, however, we are not considering

whether a Supreme Court decision implicitly overruled an earlier

Supreme Court decision. Rather, we are considering the effect of a

congressional change in the governing law.

6

workers may be lawfully employed in the United States. In

my judgment, the first reading – that the NLRA’s coverage of

illegal immigrant workers as “employees” depends on

whether illegal immigrant workers may be lawfully employed

in the United States – is far and away the better interpretation

of Sure-Tan. After all, under the majority opinion’s reading,

Sure-Tan’s discussion of the interaction of the NLRA and the

immigration laws would be entirely meaningless. See 467

U.S. at 892-93. I am reluctant to reach that conclusion about

Supreme Court decisions; I am especially reluctant to do so

here given that the Supreme Court was well aware of the

significance of its opinion in light of the congressional

proposals on illegal immigration then being considered and

debated.

The majority opinion also refers to the plain language of

the NLRA. See Maj. Op. at 3-4. But according to the

Supreme Court, that’s only half the equation. The other half

of the equation is the plain language of the immigration laws.

Sure-Tan established that the NLRA’s definition of

“employee” is not to be considered in isolation, but rather in

conjunction with the immigration laws and whether those

laws prohibit the employment of illegal immigrants. See 467

U.S. at 892-93. Since 1986, federal law has contained just

such a prohibition. The majority opinion would be correct if

the Supreme Court in Sure-Tan had said something like “we

interpret the NLRA’s definition of ‘employee’ without regard

to a worker’s employment status under the immigration

laws.” In fact, the Supreme Court said just the opposite.3

3

According to the majority opinion, we cannot read the

NLRA’s coverage of “employees” to be affected by the

immigration laws because that would suggest that the immigration

laws implicitly repealed the NLRA, which courts do not lightly

find. See Maj. Op. at 5-6. With respect, the majority opinion’s

7

The majority opinion and the Board imply that Hoffman

reaffirmed Sure-Tan. See Maj. Op. at 5, 12-13; Agri

Processor Co., 347 N.L.R.B. No. 107, at 3 (2006); see also

Concrete Form Walls, Inc., 346 N.L.R.B. No. 80, at 4 (2006).

That is incorrect. The Hoffman Court did not hold that, after

IRCA, illegal immigrant workers are still “employees” under

the NLRA. Rather, the Hoffman Court stated that it was not

addressing the “employee” issue. See 535 U.S. at 150 n.4

(“Our first holding in Sure-Tan is not at issue here . . . .”); see

also Brief of Petitioner at 17, Hoffman, 535 U.S. 137 (No. 00-

1595), 2001 WL 1729616 (raising remedial issues and not

challenging whether illegal immigrant worker was an

“employee” under the NLRA). If anything, the language of

the Hoffman opinion is more consistent with a conclusion that

illegal immigrant workers are not employees under the

NLRA. After all, Hoffman made clear that, in the wake of

IRCA, illegal immigrant workers are not entitled to any

remedies under the NLRA, such as reinstatement or back pay,

even when unfair labor practices are committed against them.

535 U.S. at 151-52. The Hoffman Court explained that

providing illegal immigrant workers with remedies under the

NLRA “would unduly trench upon explicit statutory

prohibitions critical to federal immigration policy, as

expressed in IRCA.” Id. at 151.

The majority opinion also relies on two House committee

reports issued in connection with IRCA. See Maj. Op. at 6-7.

The usual cautions apply to this kind of legislative history:

discussion of the repeal-by-implication doctrine is a sideshow

because the Supreme Court has already taken the step that the

majority opinion here criticizes. In Sure-Tan, the Court explained

that the immigration laws can affect the NLRA’s coverage of

employees and that a prohibition on employment of illegal

immigrant workers means they are not employees under the NLRA.

See 467 U.S. at 892-93.

8

Committee reports are highly manipulable, often unknown by

most Members of Congress and by the President, and thus

ordinarily unreliable as an expression of statutory “intent.”

Committee reports are not passed by the House and Senate

and presented to the President, as required by the Constitution

in order to become law. See U.S. CONST. art. I, § 7; see also

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,

568 (2005) (“[J]udicial reliance on legislative materials like

committee reports, which are not themselves subject to the

requirements of Article I, may give unrepresentative

committee members – or, worse yet, unelected staffers and

lobbyists – both the power and the incentive to attempt

strategic manipulations of legislative history to secure results

they were unable to achieve through the statutory text.”). The

two committee reports cited by the majority opinion here,

moreover, are from “one House of a politically divided

Congress” – the same category of legislative history that the

Hoffman Court rejected. 535 U.S. at 149 n.4. Indeed, one of

the reports cited by the majority opinion is the exact same

report that the Hoffman Court dismissed as a “rather slender

reed.” Id. at 149-50 n.4.

In considering the majority opinion’s legislative history

argument, it bears emphasis that the Court in Sure-Tan had

stated that the NLRA’s definition of “employee” depends on

whether Congress prohibits employment of illegal

immigrants. Given that analysis, Congress was necessarily

aware that prohibiting employment of illegal immigrants

could affect the NLRA’s coverage of illegal immigrant

workers. Indeed, someone on Capitol Hill in 1986 knew that

IRCA, analyzed in light of Sure-Tan, could remove illegal

immigrant workers from the NLRA’s definition of

“employee,” because one of the committee reports purports to

say that IRCA would not affect Sure-Tan’s holding. The

problem is that this committee report is “in no way anchored

9

in the text” of IRCA, and we thus cannot rely on it. Shannon

v. United States, 512 U.S. 573, 583 (1994). As Justice

Kennedy has explained for the Court, legislative materials can

have a role in statutory interpretation “only to the extent they

shed a reliable light on the enacting Legislature’s

understanding of otherwise ambiguous terms.” Exxon Mobil

Corp., 545 U.S. at 568 (emphasis added). In a circumstance

similar to this case, the Supreme Court flatly rejected a

committee report that attempted to preserve a prior judicial

precedent, stating that reliance on the report would have

required the Court to “abandon altogether the text of the

statute as a guide in the interpretative process.” Shannon, 512

U.S. at 583. So too here. In light of Sure-Tan, if Congress in

1986 wished to say that illegal immigrant workers are

prohibited from being employees in the United States but

nonetheless are “employees” protected by the NLRA, it

would have said so in the text of IRCA.

Contrary to the suggestion in the majority opinion, since

IRCA only one other court of appeals has analyzed this issue

in an opinion; it reached the same conclusion as the majority

opinion here. See NLRB v. Kolkka, 170 F.3d 937 (9th Cir.

1999); Maj. Op. at 8. But the Ninth Circuit’s decision did not

grapple with the Supreme Court’s analysis in Sure-Tan and

how IRCA applies under that analysis. I thus disagree with

and would not follow the Ninth Circuit’s decision.

* * *

Applying Sure-Tan and Hoffman in the wake of IRCA, I

would hold that an illegal immigrant worker is not an

“employee” under the NLRA. I would vacate the Board’s

order upholding the union election because the Board’s order

rested on the incorrect conclusion that illegal immigrant

workers are “employees” under the NLRA. This particular

10

case involves a union election and thus does not affect or

involve the illegal immigrant workers themselves because

they no longer work for the employer (the law prohibits their

employment) and because the Supreme Court has already held

that illegal immigrant workers are not entitled to any remedies

under the NLRA. See Hoffman, 535 U.S. at 151-52. But the

question whether these illegal immigrant workers’ votes

should count in the union election – the particular issue in this

case – is still important to (i) the legal workers, whose votes

may have been diluted or overridden in the union election by

the votes of illegal immigrant workers, and (ii) the employer,

who may have to bargain with a union that would not have

been certified but for the votes of the illegal immigrant

workers. I would remand for the Board to address how a

party may challenge a union election or certification upon

discovering after the fact that illegal immigrant workers voted

in the election and affected the outcome.