# Hoffman Plastic Compounds, Inc. v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · June 16, 2000 · 208 F.3d 229 URL: https://www.frixlaw.com/law-library/cases/6985355 ## Case - **Full name:** HOFFMAN PLASTIC COMPOUNDS, INC. v. NATIONAL LABOR RELATIONS BOARD - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** June 16, 2000 - **Citations:** 208 F.3d 229; 341 U.S. App. D.C. 1 - **Precedential status:** Published - **Opinion:** Dissent by Sentelle - **Judges:** Edwards, Garland, Ginsburg, Henderson, Randolph, Rogers, Sentelle, Silberman, Tatel, Williams - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6985355 ## Opinion text SENTELLE, Circuit Judge, dissenting: In May of 1988, an undocumented alien having illegally entered the United States compounded his illegality when he fraudu *253 lently 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 employees 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 administrative 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 neither 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. 888 , 104 S.Ct. 2803 , 81 L.Ed.2d 732 (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. § 152 (3) ].” 467 U.S. at 891 , 104 S.Ct. 2803 . The Court reached this conclusion based on the deference owed the Board in “defining the term ‘employee,’ ” a task “that ‘has been assigned primarily to the agency created by Congress to administer the Act.’” Id. at 891, 104 S.Ct. 2803 (quoting NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130 , 64 S.Ct. 851 , 88 L.Ed. 1170 (1944)); cf. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-45 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). That said, the Supreme 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 economic losses or legal availability for luork, the Court of Appeals plainly exceeded its limited authority under the Act.” Sure-Tan, 467 U.S. at 904-05 , 104 S.Ct. 2803 (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 overruling 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, “[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 903, 104 S.Ct. 2803 . 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. *254 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 deterring 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 , 104 S.Ct. 2803 (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 employment to the anonymous person known as Castro. The majority 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 237-38. 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 because the Supreme Court did not separate out the subcategory 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 proposition 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 “[rjecognizing that the discharged 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, 104 S.Ct. 2803 (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 *255 fits precisely within the situation 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 appears 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 , 104 S.Ct. 2803 (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 (1986) (stating that the undocumented aliens in Felbro, who had remained in the country, would be affected by Sure-Tan); Local 512, Warehouse & Office Workers’ Union v. NLRB, 795 F.2d 705 , 725 (9th Cir.1986) (“Felbro”) (Beezer, J., dissenting in part); Terry A. Bethel, Recent Labor Latu Decisions of the Supreme Court, 45 Md. L.Rev. 179, 196 (1986) {“Sure-Tan ... deprive[s] undocumented employees of any effective remedy for unlawful discrimination.... ”); 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 Bevies, the court was reviewing an arbitrator’s award; the issue was whether the arbitrator’s decision showed a “manifest disregard 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 considered the effect of section 2805 of the California Labor Code, which prohibited employers from knowingly employing undocumented 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 “[tjhere 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. (quoting Sure-Tan, 467 U.S. at 892-93 , 104 S.Ct. 2803 ). 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 *256 (9thCir.l989). 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 employment.’ ” Id. at 62 (Jacobs, J., dissenting) (quoting Sure-Tan , emphasis supplied by Judge Jacobs). As Judge Jacobs pointed 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. BEFORE: EDWARDS, Chief Judge; SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, and GARLAND, * Circuit Judges. ORDER June 16, 2000 Per Curiam. Upon consideration of petitioner’s petition for rehearing en banc, the response thereto, and the vote by a majority of the judges of the court in regular active service in favor of the petition, it is ORDERED that the petition be granted. This case will be reheard by the court sitting en banc. It is FURTHER ORDERED that the judgment filed herein on March 17, 2000 is hereby vacated. An order governing further proceedings will issue at a later date. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6985355. Public record. Not legal advice.