Petitioners Reply Brief — Sure-Tan, Inc. v. NLRB

~

No. 82-945

’

IN THE CLERK

Te

HOD (Shs

ALEXANDER L. STEVAS.

Supreme Court of the Anited States

OcToBer TERM, 1982

SURE-TAN, INC. and SURAK LEATHER COMPANY,

Petitioners,

v.

NATIONAL LABOR RELA.IONS BOARD,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

REPLY BRIEF OF PETITIONERS

Of Counsel: MICHAEL R. FLAHERTY

JOHN A. MCDONALD: KECK, MAHIN & CATE

ROBERT A. CREAMER 8300 Sears Tower

STEVEN H. ADELMAN, P.C. 233 South Wacker Drive

Chicago, Illinois 60606

(312) 876-3400

Counsel for Petitioners

———__—_—

————————

a a LT ne

atte aa

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ARGUMENT

I. THE BOARD INCORRECTLY CONCLUDED

THAT PETITIONERS VIOLATED

SECTION 8(a)(3) AND (1) OF THE

NATIONAL LABOR RELATIONS ACT

BY REQUESTING TPAT THE IMMIGRA-

TION AND NATURALIZATION SERVICE

INVESTIGATE THE IMMIGRATION

STATUS OF ITS EMPLOYEES

A. Petitioners’ Conduct Did

Not Constitute An Unlaw-

ful Constructive Dis-

charge

B. Petitioners’ Right To

Report A Suspected Vio-

lation Of The Immigration

Laws Is Not Conditioned

Upon Petitioners’ Motive

For + gbeaaad the Vio-

lation . ‘ ‘

C. Petitioners Have A Consti-

tutional Right To Report

A Violaticn Of The Immig-

ration Laws and Are Not

Barred From Asserting

That Right Before This

Court . Se %

Be Petitioners Have Not

Waived Their Consti-

tutional Right to

Petition The Govern-

ment ey ee

2. Petitioners’ Conduct

Was ae

Protected .

II. THE BACKPAY AWARD DOES NOT

EFFECTUATE THE POLICIES OF THE

ACT AND CONFLICTS WITH THE

IMMIGRATION LAWS °

A. The Backpay Award Does

Not Effectuate The

Policies Of The Act

B. The Backpay Award Is

Inconsistent With The

INA ae sg. de te

III. THE COURT OF APPEALS' DECISION

REGARDING THE OFFERS OF RE-

INSTATEMENT IS UNREASONABLE

AND CONTRARY TO BOARD

PRECEDENT oe

CONCLUSION

elie

Page

13

19

26

26

28

31

36

TABLE OF AUTHORITIES

Cases: Page

American Manufacturing Company of

Texas, 167 N.L.R.B. 520

Pe) «ete 2 6 ere 8 ew ew we we ee es! aS

Bigelow v. RKO Radio Pictures,

i. wns Cells SEE, GEOR? «6 0 + o* OCF

Bill Johnson's Restaurants, Inc.,

v. NLRB « Wewe 103

$.ct. 2161 (1983) .._ Sete -« «© Qe 2 2a

12, 15, 19, 21, 22, 25

Bordenkircher v. Hayes, 434 U.S.

By | rr ee ee

Briscoe v. Lahue, wee

ae Bue. saws Civeer « we cw ew ew Fy GD

Carruthers Ready Mix, Inc.,

& © Se Bb - ) re

Eastern Railroad Presidents Conference

v. Noerr Motor Freight, Inc.,

365 U.S. 127 (1961) . .... 7, 21, 22

Curtis Publishing Co. v. BuEES.

See Ue. 200 (AGO7) « .c « eae? Pe

Fabric Mart Draperies, Inc., 182

OF Se eee

Flagg Brothers, Inc. v. Brooks,

Oe Oe OB | rr

Forro Precision, Inc. v. Interna-

tional Business Machines Corp.

2 Geme seew tapes) « « « tee) «6B Sk

-iii-

Fredeman's Calcasieu Locks Shipyard,

Inc., 208 N.L.R.B. 839 (1974). ... 35

General Iron Corp., 218 N.L.R.B.

~ 770 (1975), enforced 538 F.2d

Dae Cee Gales SOTO) +. « vss +e eee

Gifford-Hill & Company, Inc.

186 N.L.R.B. 337 (1971) . . ... 28, 29

Goodman Lumber Co., 166 N.U.R.B.

UG (2967) . «2 © © ee we wo wo 0 0 te he SG

Graves Trucking, Inc., 246 N.L.R.B.

344 (1979), enforced as modified

60a F.26 470 (7th Cais. 1968)... « és me

Helvering v. Clifford, 309 U.S. 331

e., | yaa ae . 3) \e

Hormel v. Helvering, 312 U.S.

552 (1940) ere a eee ee oe ee

Imbler v. Eacheman. 424 U.S. 409

(1976) ii beta ee 6: Senne “ae 8

Kaufman v. Societe Internationale,

, 2S SS: Bb. |) rr eee

Keco Industries, Inc., 121 N.L.R.B.

bot i>) } re 0 8: oe aoe

Macy Department Stores Co. v. NLRB,

326 Ucbe SFO CAUER) 6 0 « ote

Monroe Feed Store, 122 N.L.R.B.

1479 (1959) Pare pee ere ae ee ye

Moss Planing Mill Co., 103 N.L.R.B.

414, enforced 206 F.2d 557 geen

Gass ae: 0%) 0! wie iy, oe

NLRB v. Lundy Manufacturing Corp.,

286 F.2d 424, 426 (2d Cir. 1960).

NLRB v. Newton, 214 F.2d 472

(Sth Cir. 1954)

NLRB v. Pittsburgh Steamship

Company, 337 U.S. 656 (1949)

NLRB v. Virginia Electric & Power Co.,

~ 314 U.S. 469 (1941) ;

New York Times Company v. Sullivan,

376 U.S. 259 (1964) ;

O'Shea v. bittieten. 414 U.S. 488

(1974) a oe hg We @ @

Oyler v. Boles, 368 U.S. 448

(1962) Pe a

Quarles, In re, 158 U.S. 532

DEMO P © © es we ec eo ew ew ow ow By CG, 84,

Rosenblatt v. Baer, 383 U.S, 75

(1966) we ea le e's e

Rutter-Rex Manufacturing Company,

158 N.L.R.B. 1414 (1966), enforced

as modified, 399 F.2d 356

(Sth Cir. 1968), reversed as to

modification, 396 U.S. 258

(1969). eee « a

Sheet Metal Workers International

Association, Local 355 v. NLRB,

716 F.2d 1249 (9th Cir. 1983).

Shelley v. Kraemer, 334 U.S. 1

(1948) ; gk! Wie

“Ve

26

17

24

17

32

18

24

Uebersee Finanz-Korporation. v.

McGrath, 343 U.S. 205 (1952) .... 17

Constitution, Statutes, Regulation, and Rules:

U.S. Constitution, Amendment I .14, 19, 20,

21-29

U.S. Constitution, Amendment XIV. 24, 25.

Immigration and Nationality Act,

28 U.S.C. § 1101 st seg.

Section 241(a)(2)

8 ¥.8.6. i2Batarta) « « «es + os oe

Section 241(a)(9),

6 U.8.6G. 2e6atadt9) .« . ees sd

National Labor Relations Act, 29

U.S.C. 151 et seq.

Section 8(a)(1),

29 'VU.6.C. AaBOCa(2) 2.2 s's « #8 1

Section 8(a)(3),

29 U.8.G. 1964a)(3) . « »= « s « by oO

Section 8(b)(1)(A),

29 U.S.C. 196(B)(1)(A). . « « « 18

Section 10(e),

9 U.8.@. 26040). . . «sss Meee

Miscellaneous:

Supreme Court Rule 21.l(a) .... 14, 16

tances BBs 6 3 eee ie 0 lg 8

OP. Boats, O BROS 6s 8 e ©- @)0 ee eee 8

W. Prosser, Handbook of the Law

of Torts (4th Ed 1971)

Restatement (Second) of Torts

S Bee CSe77) © ce

-vii-

ARGUMENT

I. THE BOARD INCORRECTLY CONCLUDED THAT

PETITIONERS VIOLATED SECTION 8(a)(3)

AND (1) OF THE NATIONAL LABOR RELATIONS

ACT BY REQUESTING THAT THE IMMIGRATION

AND NATURALIZATION SERVICE INVESTIGATE

THE IMMIGRATION STATUS OF ITS EMPLOYEES.

Respondent recognizes that an employer

has a right to report a violation of the

immigration laws to the INS, but contends

that this right is conditioned upon the

employer's motive for reporting the violation.

cR.° Be. 30) ./ Respondent argues that

Sure-Tan must, in effect, pay damages for

the admittedly lawful actions of the INS

because it reported a suspected violation

of the immigration laws to the INS with an

improper motive. (R. Br. 28). Neither the

NLRA nor the INA condition the right to

l/ References herein to the Brief For The

National Labor Relations Board will be

denoted with the designation "R. Br."

References. to Brief of Petitioners

will be denoted with the designation

Py. Br.

to ie

report a violation of the law upon the

informant's motive; nor does the Constitution

permit such abridgment of the right to

report a violation of the law.

A. Petitioners’ Conduct Did Not

Constitute An Unlawful Constructive

Discharge.

Relying upon NLRB v. Newton, 214 F.2d

472, 475-476 (Sth Cir. 1954) and Goodman

Lumber Co., 166 N.L.R.B. 304, 305 (1967),

Respondent argues that Petitioners con-

structively discharged the illegal aliens

by creating an intolerable condition that

led to their deportation. (R. Br. 27). The

cases that Respondent relies on are readily

distinguishable from the present case. In

Newton, the employer condoned an assault

upon an employee by her fellow employees.

Following the assault, while the employee

was suffering from severe injuries and in

need of medical attention, the employer

ordered her to either work or get out of

Je

the plant. In Goodman, the employer

pressured an employee to convince his soni,

who was also an employee of the company, to

abandon his support for the union. Asa

result of the father's pressure, the son

resigned from the company.

The present case, in contrast, does

not involve an employee's decision to

terminate his employment induced by violent

or coercive conduct illegally taken at the

behest of an employer. Rather, it involves

employees being removed from the job by

actions properly taken by law enforcement

officials to enforce federal immigration

laws. The abusive conduct of private third

parties in Newton and Goodman is not even

remotely similar tc the law enforcement

activities of the INS in the present case.

The condition which mandated the deportation

of the illegal aliens in this case was

their own illegal status, not the action of

Sure-Tan.

—.

Respondent argues that there was a

"direct causal nexus" between Petitioners’

inquiry to the INS and the deportation of

the illegal aliens... because Petitioners

"knew that the requested INS inquiry would

result in the employees’ removal from their |

jobs. .. ." (R. Br. 28). Later, Respondent

contradicts this assertion, arguing that:

"The INS retains some measure of discretion

in deciding whether to institute [deportation]

proceedings." (R. Br. 29 n. 32). If, as

Respondent suggests, the INS retains discre-

tion in deciding whether to deport an illegal

alien, Petitioners could not have been the

direct cause of the illegal aliens' deporta-

tion; that action, according to Respondent,

was discretionary with the INS.

B. Petitioners’ Right To Report A

Violation of The Immigration Laws

Is Not Conditioned Upon Petitioners'

Motive For Reporting the Violation.

Respondent recognizes that effective

law enforcement depends upon the conscien-

tious cooperation of the public with law

enforcement agencies. (R. Br. 30). Res-

pondent further recognizes that, as a

general principle, a person who reports a

violation of the law to responsible govern-

ment officials should not be subject to

liability for that action. (R. Br. 35).

Respondent argues, however, that liability

for reporting a suspected violation of the

immigration law should be imposed where the

action is taken "for reasons other than a

simple desire to cooperate in the enforce-

ment of the INA." (R. Br. 31). Respondent

would thus condition a person's right to

report a violation of the law upon the

Board's conclusions as to the person's

motive for reporting the violation.

Contrary to Respondent's argument,

this Court recognized in In Re Quarles,

158 U.S. 532, 535 (1895), that:

It is the duty and the right, not

only of every peace officer in

the United States, but of every

citizen, to assist in the prose-

cuting, and in securing the

punishment of, any breach of the

peace of the United States. ...

It is likewise his right and his

duty to communicate to the exec-

utive officers any information

which he has of the commission of

an offence of those laws.

Mindful of the paramount importance of

citizen cooperation with law enforcement

agencies, this Court observed that: "[I]t

is the duty of [the] government to see that

[a citizen] may exercise this right freely,

and to protect him from violence while so

doing or on account of so doing." Id. at

536. Nowhere in Quarles did this Court

condition the right to report a violation

of the law on the informant's motive for

reporting the violation.

Similarly, in Bill Johnson's

Restaurants, Inc. v. NLRB, U.S. P

103 S.Ct. 2161, 2170 (1983), this Court

heid that where a compelling public interest

in the maintenance of domestic peace is

involved, the NLRA is not to be enforced

in derogation of that public interest

against those wno seek to enforce other

legal rights, regardless of the person's

motive for seeking enforcement of those

rights. 2/

Respondent argues that, although Peti-

tioners may be immune from civil liability

for their actions, that immunity does not

apply to an action brought against

Petitioners by the government. (R. Br.

36). In support of this argument, Respon-

dent cites Briscoe v. Lahue, U.S. 3

103 S.Ct. 1108, 1118 n. 22, 1118-1119 n.

26, 1121-22 n. 32 (1983), wherein this

Court observed that -witnesses enjoy no

common law immunity from criminal

2/ Accord, Eastern Railroad Presidents

Conference v. Noerr Motor Freight, Inc. 365

U.S. 127, 139 (1961), rehearing denied, 365

U.S. 875 (1961) (Right of railroad companies

to encourage rigid law enforcement action

against competing trucking companies was

protected, even though the action was motiva-

ted by anticompetitive intent and would

have otherwise been unlawful under the

antitrust laws); See P. Br. 17.

-7-

prosecution for perjury. Briscoe is wholly

inapposite because Petitioners, unlike the

.witnesses in Briscoe, were not accused of

providing the government with false

information. To the oumkwnat, the illegal

aliens in this case admitted their illegal

presence in the United States and volun-

tarily returned to Mexico. 2/

The same policies mandating immunity

from civil liability for a person who reports

a violation of the law also mandate immu-

nity from government prosecution. The

prospect of liability in a government

initiated action for providing law enforce-

ment agencies with information concerning

3/ Likewise, Imbler v. Pachtman, 424 U.S.

409, 429 (1976), and O'Shea v. Littleton,

414 U.S. 488, 503 (1974), cited by —

Respondent (R. Br. 36.), do not support

Respondent's contention that an employer

who is immune from civil liability for

redress of a private wrong is not immune

from liability in an action brought by the

government. This Court observed in those

cases that, although prosecutors and judges

are immune from liability in suits under

(footnote continued)

-8-

violations of the law would be just as

likely to deter citizens from providing

that information as the prospect of civil

liability for such action.

Respondent suggests that employers can

take solace in, and be protected by, the

fact that the Board's General Counsel has

unreviewable discretion in deciding whether

to file a complaint, and thus can screen

cases to ensure that only meritorious com-

plaints are filed. (R. Br. 36). As Judge

Wood observed, however, the Board is inclined

to "use only its private knothole to view

these issues and sees nothing except its

Footnote 3/ continued

42 U.S.C. § 1983, they can be punished

criminally for willful deprivations of

constitutional rights under 18 U.S.C. § 242,

the criminal analog of § 1983. The report-

- ing of a violation of the law by a private

citizen which properly results in the arrest

and prosecution of the wrongdoer, and which

does not involve a deprivation of a Consti-

tutional right, is clearly distinct from a

willful deprivation of a Constitutional

right by a public official.

own labor goals." (J. Wood, Dissent to

Order Denying Sure-Tan's Request for Rehear-

ing; 38a). The unreviewable discretion of

the General Counsel in deciding whether to

issue a complaint is further reason to

safeguard employers from the avetpedh of

liability under the NLRA for providing

information to law enforcement authorities.

Respondent tries to avoid the impact

of Bill Johnson's, supra, by arguing that

it applies only to plaintiffs in a civil

lawsuit, not to informers to a law enforce-

ment agency. Respondent's restrictive

misreading of Bill Johnson's ignores the

compelling public interest in the maintenance

of domestic peace recognized ie thin Court

in that case. Citizen cooperation with law

enforcement agencies is just as important

to the maintenance of public peace as the

redress of private wrongs in civil lawsuits.

For the same reasons that citizens must

enjoy an unfettered right to enforce legal

-10-

rights through well-founded civil lawsuits,

they must enjoy an unfettered right to seek

enforcement of the law by reporting violations

of the law to law enforcement agencies.

Respondent contends that the INS was

not prevented from enforcing the immigration

law as a result of holding Sure-Tan liable

for reporting the illegal aliens. (R. Br.

38). This argument ignores the fact, noted

earlier in Respondent's Brief, that INS

Agent Malin testified at the Board hearing

that Petitioners’ letter was the sole cause

of the INS investigation. (R. Br. 28).

Malin's testimony illustrates that the free

flow of information from citizens to law

enforcement agencies is essential to effec-

tive law enforcement. This critical source

of information would be seriously jeopardized

if citizens could be held liable by one

government agency for providing information

concerning violations of the law to another

- government agency.

Respondent also asserts that this case

differs from Bill Johnson's because Sure-Tan

condoned the illegal aliens' presence in

the United States by employing them while

they resided in this country. As Respondent

properly points out, however, the INA does

not prohibit employers from employing illegal

aliens, nor does it require employers to

report them to the INS. (R. Br. 18-23).

Sure-Tan certainly did not forfeit its

right to report a violation of the law by

not promptly reporting the illegal aliens

to the INS, particularly when it was not

legally obligated to report them in the

first place. There is no suggestion in

Bill Johnson's that the compelling public

_ interest in protecting the public peace is

conditioned on or limited by when a law

enforcement action is taken, or by the

motives for taking the action. To the

contrary, this Court held in Bill Johnson's .

that the right to seek enforcement of the

-12-

=

“———n

law is protected from the Board's attack,

regardless of the employer's motive. 103

S.Ct. at 2170.4/

Cc. Petitioners Have A Constitutional

Right To Report A Violation Of The

Immigration Laws and Are Not Barred

From Asserting That Right Before

This Court.

Petitioners Have Not Waived

Their Constitutional Right To

Petition The Government.

Respondent attempts to sidestep Peti-

tioners' Constitutional right to petition

the government by asserting that Petitioners

are barred from asserting this right under

Section 10(e) of the Act because they did

not raise this defense before the Board.

29 U.S.C. 7 160(e). Respondent further

4/ Respondent maintains that the imposi-

tion of liability on Sure-Tan for reporting

illegal aliens to the INS is supported by

reference to the common law tort of abuse

of process. (R. Br. 39 n. 38). Respondent

fails to point out that "there is no liabil-

ity [for abuse of process] where the defend-

ant has done nothing more than carry out

the process to its authorized conclusion,

(footnote continued)

contends that Petitioners are barred from

raising the First Amendment defense by

Supreme Court Rule 21.1(a) because they did

not raise this argument before the court of

appeals or in their petition for a writ of

certiorari.

Footnote 4/ continued

even though with bad intentions." W. Prosser,

Handbook of The Law of Torts, 857 4th Ed.

' (1971). See also Restatement Second of

Torts § 682, Comment (B) (1982) ("[Tjhere

is no action for abuse of process when the

process is used for the purpose for which

it is intended, but there is an incidental

motive of spite or an ulterior purpose of

benefit to the defendant. Thus the

entirely justified prosecution of another

on a criminal charge does not become abuse

of process merely because the instigator

dislikes the accused and enjoys doing him

harm; nor does the instigation of justified

bankruptcy proceedings become abuse of

process merely because the instigator hopes

to derive benefit from the closing down of

the business of a competitor.") Sure-Tan

reported the illegal aliens to the INS for

the purpose of having the INS enforce the

immigration laws, which is precisely what

happened. The fact that Petitioners may

have had an ulterior purpose does not make

the action an abuse of process. If any-

thing, Respondent's abuse of process

analogy supports Petitioners’ argument that

Sure-Tan's reporting of the illegal aliens

to the INS was not illegal, regardless of

Petitioners’ motives.

-14-

Respondent overlooks the fact that

Bill Johnson's was decided six months after

Petitioners filed their petition for a writ

of certiorari. Prior to this Court's deci-

sion in Bill Johnson's, the Board had held

that a retaliatory motive was the only

essential element of a violation of the Act

in a situation where an employer sues to

enjoin employees from engaging in protected

conduct. Id. at 103 S. Ct. 2168. This

Court's holding in Bill Johnson's, requir-

ing an inquiry as to the merits of the

employer's case as well as the employer's

motive, represents a substantial departure

from established Board precedent. Such a

reversal of Board precedent is precisely

the "extraordinary circumstance” contemplated

in Section 10(e) of the Act which would

justify Petitioners’ not having raised this

issue before the Board. NLRB v. Lundy

Manufacturing Corp., 286 F.2d 424, 426 (2d

Cir. 1960).

- 15-

Likewise, the general principle

embodied in Supreme Court Rule 21.1(a)

against considering issues not raised in

the petition or in courts below is not

absolute. This Court has frequently

allowed parties to raise issues for the

first time before this Court where there

has been a significant change in the law

since trial. In Curtis Publishing Co. v.

Butts, 388 U.S. 130, 144-145 (1967), for

instance, this Court held that the failure

of Curtis Publishing Company to raise a

First Amendment defense at trial did not

constitute a waiver of the defense. In

Curtis, an intervening decision of this

Court substantially changed the governing

law. This Court observed that it was not

unreasonable for counsel for the plaintiff

to rely at trial on defenses provided by

current law, and further noted that: "Where

the ultimate effect of sustaining a claim

of waiver might be an imposition on that

-16-

- valued freedom [viz., the First Amendment

freedom of speech], we are unwilling to

find waiver in circumstances which fall

short of being clear and compelling." Id

at 145.2/

Likewise, in the present case, given

the state of the law prior to this Court's

decision in Bill Johnson's, it was not

unreasonable for counsel for Petitioners to

rely upon the defenses provided by esta-

blished Board law. Further, as in Curtis,

the effect of sustaining a claim of waiver

would be an imposition on a fundamental

right -- the right of a citizen to report a

violation of the law to a law enforcement

5/ Accord, Uebersee Finanz-Korporation,

A. G. v. McGrath, 343 U.S. 205 (1952) (In

view of the holding in the intervening case

of Kaufman v. Societe Internationale,

343 U.S. 156 (1952), District Court ordered

to reopen a case to permit the plaintiff to

assert a new defense first enunciated in

Kaufman); Rosenblatt v. Baer, 383 U.S. 75

(1966) (Libel case that was tried before

this Court decided New York Times Company

v. Sullivan, 376 U.S. 254 (1964) was

(footnote continued)

agency -- which lies at the heart of a

republican form of government. In Re

Quarles, supra at 536.

In the recent case of Sheet Metal

Workers International Association, Local

355 v. NLRB, 716 F.2d 1249 (9th Cir.,

1983), the Ninth Circuit declined to

enforce a Board order where the Board held

that ‘ union had violated § 8(b)(1)(A) of

the Act by filing a state court lawsuit

Footnote 5/ continued

remanded to determine whether the proofs

showed that respondent was a "public

official" within New York Times rule);

Hormel v. Helvering, 312 U.S. 552, 556-557

(1941) (Because of the intervening decision

in Helvering v..Clifford, 309 U.S. 331

(1940), this Court allowed the Commissioner

of Internal Revenue to rely on § 22(a) of

the Revenue Act of 1934, although the

Commissioner's argument before the Board

of Tax Appeals had rested solely on §§ 166

and 167); NLRB v. Pittsburgh Steamship

Company, 337 U.S. 656, 661-662 (1949) (This

Court remanded the case to the court of

appeals for further consideration in light

of the Administrative Procedure Act, 5 U.S.C.

§ 1001 et seg., which was enacted after the

issuance of the Board's order, where impact

of APA was not briefed before the court of

appeals or before this Court).

against an employee in retaliation for the

employee's filing of an unfair labor

practice charge. The court held that, in

light of this Court's intervening decision

in Bill Johnson's, the Board's order was

unenforceable because the Board had failed

to determine whether the employer's state

court action had a reasonable basis. The

Ninth Circuit raised the First Amendment

defense sua sponte, where the employer had

failed to raise this defense either before

the Board or before the court of appeals.

Likewise, in the present case, this Court

should consider Sure-Tan's First Amendment

rights in light of the intervening decision

in Bill Johnson's, notwithstanding the fact

that Petitioners’ did not raise the First

Amendment defense in prior proceedings.

2. Petitioners’ Conduct Was

Constitutionally Protected.

Respondent argues “hat even if Peti-

tioners are not barred from asserting their

- 19+

Constitutional right to petition the govern-

ment, Sure-Tan's petition to the INS to

investigate the immigration status of its

employees does not fall within the ambit of

the First Amendment. The Constitutional

right to petition the government, Respondent

asserts, pertains only to political activity

and to civil lawsuits, not to the reporting

of violations of the law to law enforcement

agencies. (R. Br. 40-41).

Respondent's asserted limitation on

the First Amendment right to petition the

government is csehenst to established law.

In Forro Precision, Inc. v. International

Business Machines Corp., 673 F.2d 1045,

1059-1060 (9th Cir. 1982), the Ninth Circuit

held that the First Amendment right to

petition the government applied to IBM's

approach to a law enforcement agency which

resulted in a police search of a competitor's

premises and the indictment of ten indivi-

duals. The court observed that:

=20-

We do not liken an approach to the

police for aid in apprehending

wrongdoers to political activity.

However, we think that the public

policies served by ensuring the free

flow of information to the police,

although somewhat different from those

served by Noerr-Pennington, are

equally strong. Encouraging citizen

communication with police does not

generally promote the free exchange of

ideas, nor does it provide citizens

with the opportunity to influence

policy decisions. Compare Noerr,

365 U.S. at 137-38, 81S. Ct. at

529-30. Nonetheless, it would be

difficult indeed for law enforcement

authorities to discharge their duties

if citizens were in any way dis-

couraged from providing information.

We therefore hold that the Noerr-

Pennington doctrine applies to citizen

communications with police. Id. at

1060.

Respondent than falls back to the

argument that, even if the reporting of a

violation of the law constitutes a petition

to the government within the meaning of the

First Amendment, this Court did not preclude

the finding of an unfair labor practice

where the First Amendment right to petition

the government is involved. Rather, Bill

Johnson's only requires the Board ba be

"sensitive to First Amendment valued® in

4 Ae

construing the NLRA. (R. Br. 42). Respond-

ent in effect argues that once the Board

has paid nodding obeisance to the First

Amendment, it is free to brides First

Amendment rights in situations where the

Board concludes that an employer has acted

with an improper motive. (R. Br. 42).

This Court, however, did not require

mere "sensitivity" to First Amendment

rights in Bill Johnson's. Rather, this

Court held categorically that, in light of

the First Amendment right to petition and

the compelling state interest in maintaining

domestic peace, a well-founded petition to

the government may not be enjoined as an

unfair labor practice, even if the action

would not have been taken but for the em-

ployer's desire to retaliate against an

employee. 103 S.ct. at 2170.9

6/ Respondent maintains that this Court

suggested in Quarles, supra, that the right

of a citizen to inform a law enforcement

(footnote continued)

-22-

Respondent also asserts that the

Constitution does not protect the reporting

of a crime if the action was "deliberately

based upon an unjust’ fiable standard such

Footnote 6/ continued

agency of the commission of a crime is a

privilege that inures to the benefit of the

government rather than to the informer

personally. The government, Respondent

argues, can therefore abridge this Consti-

tutional right in order to accommodate

"another compelling ‘necessity of the

government’ as reflected in the NLRA." (R.

Br. 42 n. 41). Contrary to Respondent's

assertion, this Court stated unequivocally

in Quarles that citizens have a right to

inform law enforcement agencies of a vio-

lation of the law, and the government has

the duty to protect that right. The gov-

ernment's duty to protect that right arises

both from the interest of the informant and

from the necessity of the government itself,

which depends for successful law enforce-

ment upon the willingness of citizens to

report violations of the law. Id. at 158

U. S. 536. Respondent overlooks the fact

that the rights of citizens in this nation

are not divorced from the rights of the

government; nor are individual rights at

the mercy government convenience. By

making Constitutional rights subservient to

the Board's convenience, the General Counsel

continues to "use only its private knothole

to view these issues and sees nothing except

its own labor goals." (J. Wood, Dissent to

Order Denying Sure-Tan's Request for Re-

hearing; 38a).

-23-

as race, religion or other arbitrary classi-

fication." Citing Bordenkircher v. Hayes,

434 U.S. 357, 364 (1978) (quoting Oyler v.

Boles, 368 U.S. 448, 456 (1962)), Respondent

contends that one such arbitrary classifica-

tion is "based upon the exercise by employees

of rights protected by the NLRA." (R. Br.

43). Bordenkircher and Oyler, however,

concerned petitions for writs of habeas

corpus filed by prisoners who claimed that

conduct by state prosecutors violated their

Fourteenth Amendment equal protection and

due process rights. The Fourteenth Amendment

applies only to state actions, not to actions

by individuals who are not acting under the

color of state law. Flagg Brothers, Inc.

v. Brooks, 436 U.S. 149 (1978). The.

Fourteenth Amendment erects no shield against

merely private conduct. Shelley v. Kraemer,

334 U.S. 1, 13 (1948).

Even if the Fourteenth Amendment were

applicable to individuals -- which is clearly

.< fs ns Pe 2 ial

-24-

not the case -- individuals who exercise |

rights protected by the NLRA have not been

identified by this Court as an "arbitrary

classification" offensive to the equal

protection clause of the Fourteenth

Amendment. 2’ Respondent is in effect

attempting to elevate the rights created by

Congress under the NLRA to the status of

Constitutional rights by means of the

Fourteenth Amendment. This attempt to

incorporate the NLRA into the Fourteenth

Amendment is plainly contrary to the Court's

holding in Bill Johnson's that the rights

created under the NLRA are subordinate to

Constitutional rights and must be

77 Petitioner argues that Congress has

the power to identify employees who exercise

rights protected by the NLRA as an arbitrary

Classification offensive to the Fourteenth

Amendment equal protection clause. Such a

suggestion is plainly wrong. It is the the

role of this Court, not Congress, to inter-

pret the Fourteenth Amendment.

-25-

interpreted so as not to abridge Constitu-

tional rights. 2/

II. THE BACKPAY AWARD DOES NOT EFFEC-

TUATE THE POLICIES OF THE ACT AND

CONFLICTS WITH THE IMMIGRATION LAWS.

e A. The Backpay Award Does Not Effec-

tuate The Policies Of The Act.

Respondent argues that the court of

appeals' six-month backpay award effectuates

the policies of the Act and is therefore

appropriate, notwithstanding the blatantly

speculative nature of the award. (R. Br.

43-45). On the basis of a Department of

Labor study, Respondent asserts that the

illegal aliens could have been expected to

remain illegally in this country for some

unspecified additional period of time in

the absence of Sure-Tan's inquiry to the

INS. (R. Br. 44 n. 42).

87 Accord, NLRB v. Virginia Electric &

Power Co., 314 U.S. 469 (1941) (NLRA cannot

abridge freedom of speech guaranteed by

First Amendment).

The Department of Labor study provides

no basis for the six-month backpay period,

nor does it eliminate the speculative

nature of the award. Respondent concedes

that the six-month period is speculative,

but argues, relying upon Bigelow v. RKO

Radio Pictures, Inc., 327 U.S. 251, 265

(1946), that such speculation is permissible

where the uncertainty was occasioned by the

employer's actions. (R. Br. 45). This

Court observed in Bigelow, however, that:

"even where the defendant by his own wrong

has prevented a more precise computation,

the jury may not render a verdict based on

speculation or guesswork." 327 U.S. at

264.

The Board itself recognized that the

policies of the Act are not effectuated by

such a speculative backpay award. The

Board would have tolled the accrual of

backpay during the period the illegal -

aliens were unavailable for work because of

-27-

y

A, semi i A

enforced absence from the country. (4la).

In analogous situations, the Board has

tolled the accrual of backpay during periods

when employees are unavailable for work

because of incarceration for criminal vio-

lations. Gifford-Hill & Company, 188 N.L.R.B.

337, 338 (1971); Keco Industries, Inc., 121

N.L.R.B. 1213, 1228 (1958). 2/

B. The Backpay Award Is Inconsistent

With The INA.

Respondent argues that there is no

inconsistency between the INA and the NLRA

"if the NLRA is applied to the employment

relationship entered by an undocumented

alien prior to the execution of the statutory

remedy of deportation." (R. Br. 22).

9/ Respondent cites a number of cases

holding that backpay would not be tolled if

the employees’ unavailability for work is

due to illness or injury fairly attributable

to the offending employer. American

Manufacturing Company of Texas, 167

N.L.R.B. 520, 522-523 (1967) (Backpay period

is not tolled during the period of illness

(footnote continued)

*

es 2, de

an Bi Sed? ae

There is an inconsistency between the INA

and the NLRA, however, if the NLRA is

applied to the employment relationship

after an illegal alien is deported. The

INA specifically calls for the deportation

of aliens who unlawfully enter this country

Footnote 9/ continued

attributable to interim employment); Fabric

Mart Draperies, Inc., 182 N.L.R.B. 390

(1970) (Backpay not tolled during period

when employee was unable to work because of

illness which was attributable to the unlaw-

ful conduct of the employer); Graves Trucking,

Inc., 246 N.L.R.B. 344, 345 (1979), enforced

as modified 692 F.2d 470, 474-477 (7th Cir.

1982) (Backpay awarded for a period when

employee was recuperating from physical

injuries inflicted by a supervisor); Moss

Planing Mill Co., 103 N.L.R.B. 414 (1953),

enforced 206 F.2d 557 (4th Cir. 1953) (Backpay

period was not tolled where the employee's

incapacity to work was caused by the physical

injury inflicted upon him by the employer).

None of these cases involve unavailabi-

lity, for work attributable to an employee's

arrest for a violation of the law. In more

analogous cases, the Board has tolled backpay

where the unavailability for work is occa-

sioned by the employee's arrest or incarce-

ration for a violation of the law. Gifford-

Hill & Company, 188 N.L.R.B. 337, 338 (1971);

Keco Industries, Inc. 121 N.L.R.B. 1213,

1228 (1958). a ae

-29-

A ws ote

ha, aero

or who enter lawfully and fail to maintain

their lawful status. 8 U.S.C. 1251(a)(2)

and (9). By applying the NLRA to the illegal

aliens after their deportation, and awarding

them backpay for a period of time when they

were in Mexico and unable to lawfully reenter

this country, the Board creates a fundamental

conflict. between the INA and the NLRA; in

effect, the Board treats the INA as if it

were of no consequence. 22/

Respondent attempts to sidestep this

conflict by suggesting tha. the backpay

10/ Respondent argues that the inability

of the Board to provide an effective remedy

would invite a repetition of acts of discri-

mination in the future and undermine the

rights of Petitioners’ non-alien employees.

(R. Br. 43). The Board, however, is not

authorized to impose arbitrary, punitive

remedies under any circumstances. (See P.

Br. at 24-28). If it be: assumed, contrary

to fact, that Petitioners’ inquiry to the

INS constituted an unlawful constructive

discharge, Respondent could order backpay

in accordance with normal Board procedures,

which would call for tolling of backpay

during periods when the aliens were unavail-

able for work. See pages 26-28, supra.

-30-

award vindicates public rather than private

rights. (R. Br. 46). Regardless of the

rights which are vindicated, there is no

escaping the fact that the purpose of the

INA is flouted by treating illegal aliens

as though they had a right to remain in

this country illegally for another six

months after their deportation and rewarding

them for their illegal presence in this

country with six-months' backpay.22/

III. THE COURT OF APPEALS' DECISION

REGARDING THE OFFERS OF REINSTATE-

MENT IS UNREASONABLE AND CONTRARY

TO BOARD PRECEDENT.

Respondent acknowledges that the court

“f appeals improperly usurped the role of

1l/ Respondent argues that the backpay

award would not encourage illegal immigration

because the illegal aliens would be entitled

to the backpay regardless of their presence

in this country. The court of appeals and

the Board's own Genera! Counsel, however,

recognize that a backpay award would provide

an incentive for the aliens to reenter the

country illegally. (18a; 55a). ,

-3l1-

aduiceie

i > -

the Board by enlarging the Board's remedial

order rather than remanding the order to

the Board for reconsideration. Respondent

nevertheless contends that the court's

expanded remedial order, which requires

Sure-Tan to send reinstatement offers to

the aliens written in Spanish by method

allowing verification of receipt and to

leave the reinstatement offers open for

four years, reasonably effectuates the

purposes of the Act. (R. Br. 47).

Respondent relies on Carruthers Ready

Mix, Inc., 262 N.L.R.B. 739 (1982); Monroe

‘Feed Store, 122 N.L.R.B. 1479, 1480-1481

(1959); and Rutter-Rex Manufacturing Company,

158 N.L.R.B. 1414, 1424 (1966), enforced as

modified, 399 F.2d 356 (5th Cir. 1968),

reversed as to modification, 396 U.S. 258

(1969), to support the requirements that

the reinstatement offers be made in Spanish

and be sent in a manner permitting verifica-

tion of receipt. (R. Br. 48). None of

32°."

these cases, however, require that rein-

statement offers be made in an employee's

native language. Nor do these cases require

that reinstatement offers be sent ina

manner permitting verification of receipt.

In contrast, General Iron Corp., 218

N.L.R.B. 770 (1975), enforced 538 F.2d 312

(2d Cir. 1976), (discussed in Petitioners’

Brief at 31), specifically holds that rein-

statement offers to Spanish-speaking em-

ployees need not be written in Spanish or

sent by means permitting verification of

receipt .22/

Respondent attempts to justify the

court of appeals' requirement that the

offers of reinstatement be kept open for

12/ Respondent argues that the Board in

General Iron Corp., supra, noted that

Spanish-speaking employees who receive an

English reinstatement offer often consult

an English-speaking child, friend or neighbor

to read the letter, which would be impractical

if the employee has returned to Mexico. It

is certainly not unreasonable, however, for

an employer to write a reinstatement offer

(footnote continued)

-33-

four years on the grounds that it may take

the illegal aliens four years to obtain

visas to legally reenter the country.

. According to information provided to Respond-

ent by the INS, however, no visas are avail-

able for nonpreference aliens such as those

in the present case. (R. Br. 49 n. 47).

Thus, there is no reasonable relationship

whatever between the four year reinstate-

ment period and the time required for the

illegal aliens to reenter this country

lawfully.

Footnote 12/7 continued

in English when it has communicated verbally

with the employees in English throughout

the time they worked for the employer.

Furthermore, as noted by the Board: "Some

individuals who cannot readily speak English

often can read that language. An offer to

return to work does not require any great

knowledge of the English language to be

understood." Id. at 770-771. The Board

also noted that the fact that a reinstatement

offer is not sent by registered mail, return

receipt requested, does not invalidate the

offer. Rather, the issue of proof of service

is a matter to be determined in the compliance.

stage. Id. at ideal

-34-

Relying on Fredeman's Calcasieu Locks

Shipyard, Inc., 208 N.L.R.B. 839 (1974),

Respondent argues that a reasonable time

for a reinstatement offer to remain open

depends upon the circumstances affecting

the individual employee at the time of

receipt of the offer. In the present case,

the circumstances are that the illegal

aliens in question are unskilled laborers

who may never obtain visas to reenter this

country legally. Those circumstances cannot

be changed, and do not provide a reasonable

basis for treating the aliens with greater

deference than American citizens. +3/ The

30-day period for which Petitioners' offers

were held open accords with established

Board precedent and should be upheld.

13/ Cf., Keco Industries Inc., supra at

227 (Special provision should not be made

for a reinstatement offer to an employee

who was unavailable for work by reason of

incarceration).

-35-

CONCLUSION

For the foregoing reasons, and the

reasons advanced in Petitioners’ Brief, the

decision of the Board and the decision of

the court of appeals, holding that Peti-

tioners' inquiry to the INS was an unlawful

constructive discharge, should be reversed.

This case should be remanded to the court

of appeals with instructions to modify the

decree of enforcement to exclude the re-

quirement that the illegal aliens be rein-

stated with backpay. If this Court holds

that Sure-Tan's request to the INS violated

Section 8(a)(3) of the Act, the enforcement

decree should be modified to require the

tolling of the accrual of backpay during

the periods the aliens were unavailable for

work because of enforced absence from the

country. The decree should be further

modified to exclude the requirement that

-36-

Sure-Tan send revised reinstatement offers

to the aliens.

Michael R. Flaherty

KECK, MAHIN & CATE

8300 Sears Tower

\ 233 South Wacker Drive

\ Chicago, Illinois 60606

(312) 876-3400

Counsel for Petitioners

OF COUNSEL:

John A. McDonald

Robert A. Creamer

Steven H. Adelman, P.C.

°37-

we oe ee ee ae ee.