Respondents Brief — Hoffman Plastic Compounds, Inc. v. NLRB

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9 | NOV 10 2001

No. 00-1595

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In the Supreme Court of the United States

HOFFMAN PLASTIC COMPOUNDS, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

THEODORE B. OLSON

Solicitor General

Counsel of Record

ARTHUR F. ROSENFELD LAWRENCE G. WALLACE

General Counsel Deputy Solicitor General

JOHN E. HIGGINS, JR. PAUL R.Q. WOLFSON

Deputy General Counsel Assistant to the Solicitor

JOHN H. FERGUSON General

Associate General Counsel Department of Justice

NORTON J. COME Washington, D.C. 20530-0001

Deputy Associate General (202) 514-2217

Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations

Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether an order of the National Labor Relations Board

directing petitioner to pay back pay to an employee who was

discriminatorily laid off for union-organizing activity in

violation of Section 8(a)(3) of the National Labor Relations

Act (Act), 29 U.S.C. 158(a)(3), but only up to the date on

which petitioner discovered that the employee was an

undocumented alien not authorized to be employed in the

United States, is a proper exercise of the Board’s authority

to remedy petitioner’s violation of Section 8(a)(3) of the Act.

(1)

TABLE OF CONTENTS

The Board’s limited award of back pay in this case

is a proper exercise f its authority to remedy

petitioner’s violation of Section 8(a)(3) of the National

Labor Relations Act

A. This Court’s decision in Sure-Tan does not

documented alien employees discharged in violation

of Section 8(a)(3) who are physically present in the

United States during the back pay period

B. The Board’s limited back pay award in this case

reasonably accommodates the policies of the

NLRA and IRCA

Conclusion

TABLE OF AUTHORITIES

Cases:

ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317

(1994)

AP.R.A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B.

sun

& 8

408 (1995), enf’d, 134 F.3d 50 (2d Cir. 1997) — 6-7, 8, 34, 35, 36

Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975)

Alvarez v. Sanchez, 482 N.Y.S.2d 184 (App. Div.

1984)

Cases—Continued:

Page

Bevles Co. v. Teamsters Local 986, 791 F 2d 1391

(9th Cir. 1986), cert. denied, 484 U.S. 985 (1987) ............. 26

Brown Truck & Trailer Mfg. Co., 106 N.L.R.B.

999 (1953) 21

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

25 F. Supp. 2d 1053 (N. D. Cal. 1998) 26

Del Rey Tortilleria, Inc., 302 N.L.R.B. 216 (1991),

enf. denied, 976 F 2d 1115 (7th Cir. 1992) 6, 25, 27

Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115

(7th Cir. 1992) . 6, 25, 27

EEOC v. Hacienda Hotel, 881 F 2d 1504

Cir. 1989) 26

EEOC v. Tortilleria “La Mejor,” 758 F. Supp.

595 (E.D. Cal. 1991) 26

Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184

(4th Cir. 1998), cert. denied, 525 U.S. 1142 (1999) ..... 26, 28-29

F. W. Woolworth Co., 90 N. L. R. B. 286 (1950) 10

Fel bro, Inc., 274 N. L. R. B. 1268 (1985), enf. denied,

795 F 2d 705 (9th Cir. 1986) 6, 21, 27, 28

Gifford-Hill & Co., Inc., 188 N.L.R.B. 337 (1971) 21

Golden State Bottling Co. v. NLRB, 414 U.S. 168

(1973) 30

Hoffman Plastic Compounds, Inc., 306 N.L.R.B.

100 (1992) 8,9

INS v. Lopez-Mendoza, 468 U.S. 1082 (1884) 24,25

John Cuneo, Inc., 298 N.L.R.B. 856 (1990) 31, 32, 33

John David Brock, 42 N.L.R.B. 457 (1942) 21

Justrite Mfg. Co., 238 N.L.R.B. 57 (1978) 21

Local 512, Warehouse & Office Workers’ Union v.

NLRB (Felbro, Inc.), 795 F 2d 705 (9th Cir.

1986) 6, 25

Lundy Packing Co., 286 N.L.R.B. 141 (1987), enf d.

856 F 2d 627 (4th Cir. 1988) 21

MSW Constr., Inc., 219 N.L.R.B. 1078

(1975) 21

Cases—Continued: Page

Marshall Durbin Poultry Co., 310 N.L.R.B. 68

(1998), enf’d in relevant part, 39 F.3d 1312 (5th

Cir. 1994) 31

McKennon v. Nashville Banner Publ’g Co.,

513 U.S. 352 (1995) 14, 30-31, 32

Miller v. Marsh, 766 F 2d 490 (11th Cir. 1985) ................ 21-22

Mitchell v. Robert De Mario Jewelry, Inc.,

361 U.S. 288 (1980) 37

NLRB v. AP.R.A. Fuel Oil Buyers Group, Inc.,

134 F.3d 50 (2d Cir. 1997)

NLRB v. Apollo Tire Co., 604 F 2d 1180 (9th

Cir. 1979)

NLRB v. Browne, 890 F 2d 605 (2d Cir. 1989) .................

NLRB v. Future Ambulette, Inc., 903 F.2d 140

(2d Cir. 1990)

NLRB v. IBEW, Local Union 112, 992 F 2d 990

(9th Cir. 1993)

NLRB v. JH. Rutter-Rex Mfg. Co., 396 U.S. 258

(1969) 2, 32

NLRB v. Seven-Up Bottling Co., 344 U.S. 344

(1953) 2, 10

NLRB v. Sure- Tun, Inc., 672 F 2d 592 (7th Cir.

1982), rev'd in part, 467 U.S. 883 (1984) 3, 4, 18, 19

NLRB v. Transportation Mgmt. Corp., 462 U.S.

393 (1983) 2

Nathanson v. NLRB, 344 U.S. 25 (1952) 29, 41

Patel v. Quality Inn South, 846 F 2d 700 (11th Cir.

1988), cert. denied, 489 U.S. 1011 (1989) 26, 40

Phelps Dodge Corp. v. NLRB, 313 U.S. 177

(1941) 2, 29, 30, 41

Republic Steel Corp. v. NLRB, 311 U.S. 7 (1940) ............ 30

Reyes, In re, 814 F 2d 168 (Sth Cir. 1987) — 26

Rios v. Enterprise Assoc. Steamfitters Local

Union 638, 860 F 2d 1168 (2d Cir. 1988) 26

Robinson Freight Lines, 129 N.L.R.B. 1040 (1960) ........... 21

28 F&F RR R

Cases—Continued: Page

Southern S. S. Co. v. NLRB, 316 US. 31 (1942) ............... 32

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

(1993) 39

Sure-Tan, Inc., 234 N.L.R.B. 1187 (1978). 138, 21, 22

Sure - Tun, Inc. v. NLRB, 467 U.S. 883 (1984) . passim

United States v. Duquesne Light Co., 423 F. Supp.

507 (W.D. Pa. 1976)

United States v. Travers, 514 F 2d 1171 (2d Cir.

1974)

United States v. Whitney Nat'l Bank, 671 F. Supp.

441 (E.D. La. 1987)

Virginia Elec. & Power Corp. v. NLRB, 319 US.

533 (1943)

eg * &

Statutes and regulations:

Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq.

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq.

Equal Pay Act, 29 U.S.C. 206(d)

Fair Labor Standards Act of 1938, 29 U.S.C. 201

et seq.

29 U.S.C. 206(a)

29 U.S.C. 207(a)

29 U.S.C. 215(aX3)

29 US.C. 216(c)

Fair Labor Standards Amendments of 1989,

Pub. L. No. 101-157, § 9, 108 Stat. 945

Immigration Act of 1990, Pub. L. No. 101-649, § 544,

104 Stat. 5059-5061

Immigration and Nationality Act, 8 U.S.C. 1101

„ „ 8 S$ BSENNK VK 2

VII

Statutes and regulations—Continued: Page

8 U.S.C. 1324a(a)(2) 5, 24, 34, 37

8 U.S.C. 1324a(a\X(3) 34

8 U.S.C. 1324a(b) 5, 6, 33

8 U.S.C. 1324a(e)(4) 5

8 U.S.C. 1324a(e)(4)(A) 5-6

8 U.S.C. 1324a(e)(5) 5,6

8 U.S.C. 1324a(f\(1) 5,6

8 U.S.C. 1324a(h\(3) 5

8 U.S.C. 1324c(a) 38

8 U.S.C. 1824) 39

8 U.S.C. 1324¢(d\(3) 38, 39

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359 4, 16

§ 111(a)(1), 100 Stat. 3381 36

§ 111(d), 100 Stat. 3381 36

National Labor Relations Act, 29 U.S.C. 151 et seg. .. 26

§ 2(3), 29 U.S.C. 152(3) 2

§ 8(a)(3), 29 U.S.C. 1580 (3) . 2, 7, 8, 12, 13, 16,17

$ 10(c), 29 U.S.C. 160(c) 2

18 U.S.C. 1546(a) (1994 & Supp. V 1999) 38

18 U.S.C. 1546(b) 6, 38, 39

18 U.S.C. 1546(b)\(1) 6, 38

18 U.S.C. 1546(b)\(2) 6, 38

8 C. F. R.:

Section 274. Ich) 41

Section 274. b (1. 41

Section 274a.2(b)(1)( viii A (5) 34

Section 274a.10(b)(1) 6

Section 274a.10(b)(2) 6

41 C.F.R. 60-1.26(a)(2) 37

VIII

Mscellaneous:

Equal Employment Opportunity Commission,

Enforcement Guidance on Remedies Available to

Undocumented Workers Under Federal Employment

Discrimination Laws (Oct. 26, 1999), available at

<http://www.eeoc.gov/docs/undoc/html>

H.R. Rep. No. 682, 99th Cong., 2d Sess. Pt. 1 (1986)

2 B. Lindemann & P. Grossman, Employment Dis-

crimination Law (3d ed. 1996)

Memorandum of Understanding Between the

Immigration and Naturalization Service, Depart-

ment of Justice and the Employment Standards

Administration, Department of Labor (Nov. 1998),

available at <http://www.dol.gov/dol/esa/public/

whatsnew/whd/mou/nov98mou.html>

35, 40

In the Supreme Court of the United States

No. 00-1595

HOFFMAN PLASTIC COMPOUNDS, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet. App. la-

36a) is reported at 237 F.3d 639. The prior opinion of the

court of appeals panel (Pet. App. 37a-77a) is reported at 208

F.3d 229. The second supplemental decision and order of the

National Labor Relations Board (Pet. App. 78a-87a) and the

decision of the administrative law judge (Pet. App. 88a-95a)

are reported at 326 N.L.R.B. 1060. Prior decisions and or-

ders of the Board are reported at 314 N.L.R.B. 683 and 306

N.L.R.B. 100.

JURISDICTION

The judgment of the en banc court of appeals was entered

on January 16, 2001. The petition for a writ of certiorari was

filed on April 16, 2001, and was granted on September 25,

(1)

2001. The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

STATEMENT

1. a. Section 8(a)(3) of the National Labor Relations Act

(NLRA or Act), 29 U.S.C. 158(a)(8), makes it an unfair labor

practice for an employer “by discrimination in regard to hire

or tenure of employment or any term or condition of employ-

ment to encourage or discourage membership in any labor

organization.” Under Section 8(a)(3), “if the employer fires

an employee for having engaged in union activities and has

no other basis for the discharge, or if the reasons that he

proffers are pretextual, the employer commits an unfair

labor practice.” NLRB v. Transportavion Mgmt. Corp., 462

U.S. 398, 398 (1983). Section 10(c) of the Act authorizes the

National Labor Relations Board (Board) to order, as a re-

medy for a violation of Section 8(a)(3), that the employer

en Se and desist from such unfair labor practice, and to take

such affirmative action including reinstatement of employees

with or without backpay.” 29 U.S.C. 160(c). Awards of back

pay have historically been a core part of the Board’s re-

medial authority under the Act. See NLRB v. JH. Rutter-

Rex Mfg. Co., 396 U.S. 258, 262-263 (1969) (discussing impor-

tance of back pay remedy); NLRB v. Seven-Up Bottling Co.,

344 U.S. 344, 347 (1953) (noting that the Board has provided

for back pay from its “very first published order”); Phelps

Dodge Corp. v. NLRB, 313 U.S. 177, 197-200 (1941).

b. In Sure-Tan, Inc. v. NLRB, 467 U.S. 888 (1984), this

Court held, in agreement with the Board, that an alien not

lawfully present in the United States is entitled to the pro-

teetions of the NLRA as an “employee” within the meaning

of Section 203) of the Act, 29 U.S.C. 152(8). See Sure-Tan,

467 U.S. at 891-894. The Court also sustained the Board’s

ruling in that case that the employer had violated Section

S(a)(3) of the Act when it constructively discharged its un-

documented alien workers by reporting them to the Immi-

gration and Naturalization Service (INS), which resulted in

the employees’ arrest and immediate voluntary departure

from the United States to Mexico in lieu of deportation. See

467 U.S. at 886-888, 898-906.

As a remedy for the violation in the Sure-Tan case, the

Board had “ordered the conventional remedy of reinstate-

ment with backpay, leaving until the compliance proceedings

more specific calculations as to the amounts of backpay, if

any, due these employees.” 467 U.S. at 902.“ The court of

appeals modified the Board’s remedial order to require rein-

statement “only if the discriminatees are legally present and

legally free to be employed in this country when they offer

themselves for reinstatement,” and to deny back pay to dis-

criminatees “unavailable for work during any period when

not lawfully entitled to be present and employed in the

United States.” NLRB v. Sure-Tan, Inc., 672 F. 2d 592, 606

(7th Cir. 1982), rev’d in part, 467 U.S. 883 (1984); see also 467

U.S. at 889. The court of appeals observed, however, that

the discriminatees might not have been lawfully available for

employment in the United States before the new offers of

reinstatement were extended, and thus might receive no

back pay at all. 672 F.2d at 606. To avoid such a situation,

the court of appeals directed that the alien employees who

had left the United States be awarded a minimum of six

months’ back pay, reasoning that was “the minimum durirg

which the discriminatees might reasonably have remained

employed without apprehension by INS, but for the em-

ployer’s unfair labor practice.” Ibid.

This Court held that the minimum six-month back pay

award imposed by the court of appeals “constitute[d] pure

speculation and [did] not comport with the general reparative

policies of the NLRA.” Swre-Tan, 467 U.S. at 901. As the

Court explained, such an order departed from the require-

ment that a remedy “be adapted to the situation which calls

for redress.” Id. at 900. The Court agreed with the court of

appéals, however, that “the implementation of the Board’s

traditional remedies at the compliance proceedings must be

conditioned upon the employees’ legal readmittance to the

United States.” Id. at 902-903. That condition on the dis-

criminatees’ remedy, the Court stated, was appropriate to

accommodate “the objective of deterring unauthorized immi-

gration” reflected in the Immigration and Nationality Act

(INA), 8 U.S.C. 1101 et seg. See 467 U.S. at 903.2 The Court

added (ibid.).

By conditioning the offers of reinstatement on the em-

ployees’ 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 pre-

sent and employed in the United States.

e. Subsequent to Sure-Tan, Congress amended the INA

by enacting the Immigration Reform and Control Act of 1986

(IRCA), Pub. L. No. 99-603, 100 Stat. 3359. In a substantial

2 The Court observed that, under the version of the INA then in

effect, t he central concern of the INA [was] with the terms and con-

ditions of admission to the country and the subsequent treatment of aliens

lawfully in the country,” and the INA reflected at most “a peripheral

concern with employment of illegal entrants.” Sure-Tan, 467 U.S. at 892

(internal quotation marks omitted).

change from prior law (see note 2, supra), IRCA made it un-

lawful for employers knowingly to employ aliens not

authorized to obtain employment in the United States. Con-

gress provided in IRCA that “(i]t is unlawful for a person or

other entity—(A) to hire * for employment in the

United States an alien knowing the alien is an unauthorized

alien * * * or (B) to hire for employment in the United

States an individual without complying with the require-

ments of subsection (b).“ 8 U.S.C. 1324a(a)(1).“ ITjhe

requirements of subsection (b)” referred to in Section

1324a(a)(1)(B) are set forth in Section 1324a(b), which estab-

lishes an “employment verification system” that obligates

each employer to examine specified kinds of documents to

verify that a person whom it wishes to hire is not an “un-

authorized alien.” 8 U.S.C. 1324a(b). In addition, Section

1324a(a)(2) of Title 8, as added by IRCA, makes it unlawful

for a person, after hiring an alien for employment in accor-

dance with paragraph (I) (i e., Section 1324a(a)(1)), “to con-

tinue to employ the alien in the United States knowing the

alien is (or has become) an unauthorized alien.” 8 U.S.C.

1324a(a)(2).

An employer who violates Section 1324a may be subject to

civil and criminal penalties. See 8 U.S.C. 1324a(e)(4) and

(5) (civil penalties); 8 U.S.C. 1324a(f)(1) (criminal penalties).

Any penalties apply, however, only if the employer has

knowingly hired or retained an unauthorized alien or has not

complied with the employment verification system.‘

8 IRCA defines “unauthorized alien” to mean, “with respect to the em-

ployment of an alien at a particular time, that the alien is not at that time

either (A) an alie» lawfully admitted for permanent residence, or (B)

authorized to be so employed by this chapter or by the Attorney General.”

8 U.S.C. 1324a(h\3).

An employer that violates IRCA’s prohibition against knowingly

hiring or continuing to employ an unauthorized alien is subject to an esca-

lating range of civil penalties from $275 to $11,000. See 8 U.S.C.

In addition to placing new restrictions on the hiring prac-

tices of employers, IRCA also prohibited certain conduct by

individuals seeking employment. Under 18 U.S.C. 1546(b),

as amended by IRCA, it is a criminal offense for a person to

use “an identification document, knowing (or having reason

to know) that the document was not issued lawfully for the

use of the possessor, [or] * * * that the document is false, .

* * * for the purpose of satisfying a requirement of” the

employment verification system established by Section

1824a(b). See 18 U. 3. C. 1546(b)(1) and (2).

2. Following the Court’s decision in Sure-Tan and the

enactment of IRCA, the Board considered in several cases

whether undocumented alien workers who had not departed

from the United States remained eligible for the remedies of

reinstatement or back pay. Most extensively, in A. P. R. A.

182 4a (e )( A) 8 C. F. R. 274a.10(b)(1). An employer that engages in a

“pattern or practice” of violations is subject to a criminal fine of not more

than $3000 for each such violation, and to imprisonment not to exceed six

months “for the entire pattern or practice.” 8 U.S.C. 1824a(f)(1). An em-

ployer that violates IRCA’s prohibition against hiring an individual with-

out complying with the “employment verification system” (see 8 US.C.

1324a(a)(1(B), 1824a(b)) is subject only to a civil penalty, ranging from

$110 to $1100 per violation. 8 U.S.C. 1824a(e)(5); 8 C.F.R. 274a.10(b)(2).

5 Initially, the Board interpreted Sure-Tan’s rule requiring the tolling

of any back pay period as applying to all undocumented alien workers,

whether or not they remained in the United States during the back pay

period. See Felbro, Inc., 274 N.L.R.B. 1268, 1269 (1985), enf. denied, 795

F. 2d 705 (9th Cir. 1986). The Ninth Circuit rejected the Board’s reading of

Sure-Tan and concluded that Sure-Tan “barred from backpay only those

undocumented workers who were unavailable for work in the backpay

period because they were outside the United States without entry papers.”

Local 512, Warehouse & Office Workers’ Union v. NLRB (Felbro, Inc.),

795 F.2d 705, 722 (1986). The Board subsequently reexamined the issue in

light of the Ninth Circuit’s decision and adopted that court’s reading of

Sure-Tan. See Del Rey Tortilleria, Inc., 302 N.L.R.B. 216, 219-220 (1991),

enf. denied, 976 F.2d 1115 (7th Cir. 1992). The Board has since adhered to

the Felbro court’s reading of Sure-Tun. See A. P. R. A. Fuel Oil Buyers

Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995), enf’d,

134 F.3d 50 (2d Cir. 1997), the Board considered the situation

of an employer who had knowing. hired undocumented

workers in violation of IRCA, and then discharged them for

union activities in violation of Section 8(a)(3) of the NLRA.

Seeking to accommodate the policies of both the NLRA and

IRCA, the Board concluded that a limited award of back pay

and a conditional order of reinstatement would effectuate

the policies of the NLRA by affording the alien workers

meaningful redress for the violation of that Act, without re-

quiring the reestablishment of an employment relationship

in violation of IRCA. See A.P.R.A. Fuel, 320 N.L.R.B. at

415-416.“ As the Board explained, the fired employees

“would have retained their jobs with [the employer] but for

their union activities and the [employer’s] unlawful retalia-

tion for them.” Id. at 416. And the Board stressed that,

unlike the situation in Sure-Tun, “in which [this] Court

sought to avoid sponsoring a violation of the INA by en-

couraging the employees to reenter the country illegally,” an

appropriately limited award of back pay to an undocumented

alien who has never left the United States “does not promote

illegal reentry” and also does not “induce [the employer] to

illegally rehire the discriminatees in order to terminate

backpay liability.“ Ibid. Rather, the Board noted, “the

Group, Inc., 320 N. L. R. B. 408, 415 (1995), enf’d, 134 F.3d EO (2d Cir. 1997);

Pet. App. 83a n.8.

6 The remedy of reinstatement under A. P. R. A. Fuel is available to

discharged employees only upon “their satisfaction of the normal verifi-

cation of eligibility requirements prescribed by IRCA.” 320 N.L.R.B. at

415. The back pay period under A. P. R. A. Fuel terminates when the alien

employees are reinstated, “subject to compliance with the [employer’s]

normal obligations under IRCA” to verify their eligibility for employment

in the United States, or when the employees, after a reasonable period of

time, fail to produce “the documents enabling the [employer] to eet its

obligations under IRCA,” whichever date is earlier. Jd. at 416.

backpay remedy serves to place the employees for a limited

time in the position that they would have been but for the

[employer’s] unlawful conduct.” Ibid.

The Board in A. P. R. A. Fuel indicated, moreover, that in

light of the policies of IRCA, it would not order reinstate-

ment in a case where the employer did not know, at the time

of hire, that the employee whom it subsequently discharged

in violation of the NLRA was not authorized to work in the

United States under IRCA, but rather learned of that fact

only after the discharge. See A.P.R.A. Fuel, 320 N.L.R.B. at

415 n.39, 416 n.44. As the Board noted, under established

Board law, “if an employer satisfies its burden of establish-

ing that the discriminatee engaged in unprotected conduct

for which the employer would have discharged any em-

ployee, reinstatement is not ordered and backpay is termi-

nated on the date the employer first acquired knowledge of

the misconduct.” Id. at 416 n.44 (internal quotation marks

and citations omitted). Thus, an employer who hires an

employee in conformity with IRCA’s employment-verification

system and believes in good faith that the employee is

authorized to work in the United States, but who sub-

sequently learns that the employee is an undocumented alien

not authorized for employment, may take advantage of this

after-acquired evidence rule to terminate its liability for

back pay and to avoid reinstatement altogether, even if it

has discharged the employee in violation of Section 8(aX3) of

the NLRA.

3. a. Petitioner produces polyvinyl chloride pellets. In

May 1988, petitioner hired Jose Castro to work as a com-

pounder in petitioner’s plant. Pet. App. 40a; Hoffman

Plastic Compounds, Inc., 306 N.L.R.B. 100, 101, 104 (1992).

Prior to hiring Castro, petitioner, as required by IRCA (see

p. 5, supra), examined documents tendered by Castro to

verify that he was authorized to work in the United States.

Those documents appeared to be genuine and related to the

person presenting them. Pet. App. 85a & n.11.

* 4 in 1988, the United Rubber, Cork, Linoleum, and

tie Workers of America, AFL-CIO, began a union-

— campaign at petitioner’s plant. Castro supported

organizing campaign and distributed authorization cards

— Torry Pet. App. 5a; Hoffman Plastic Compounds,

— L. R. B. at 102, 108. On January 31, 1989, petitioner

off Castro and all of the other employees who had

engaged in organizing activities. Pet. App. 5a.

1. 5 January 22, 1992, the Board issued a decision find-

— at petitioner had unlawfully responded to the union’s

—— Psd by discriminatorily selecting Castro

—— r emp yees for layoff “in order to rid itself of

1 supporters, contrary to Section 8a) (3) of the

—4 Hoffman Plastic Compounds, 306 N.L.R.B. at 100;

see al 2 „ n. I (finding that Castro had sufficient

—— that he would not have been laid off but for

_ oner’s} discrimination against him”); Pet. App. 5a, 79a.

e Board ordered petitioner, inter alia, to offer reinstate-

ment to Castro and the other discriminatees, and to make

them whole for lost earnings, with the amount to be deter-

mined at a compliance hearing before an administrative law

judge (ALJ). Hoffman Plastic Compounds, 306 N.L.R.B. at

100, 107; Pet. App. 5a, 79a. Thereafter, petitioner entered

into a stipulation with the Board’s General Counsel, whereby

petitioner waived its right to seek judicial review of the

Board’s January 22, 1992, decision and order. Pet. App. 88a.

* The parties then proceeded to the compliance hearing

ore the ALI. On June 14, 1993, the final day of the hear-

ing, Castro testified that he was born in Mexico and that, to

3 — — ö in 1988, he had tendered

certificate that is not his own,” but rather “is for an

individual born in El Paso, Texas.” Pet. App. 80a. He

further testified, I Tqhe birth certificate was loaned to me so

that I can secure a job.” Ibid. Based on Castro’s testimony,

the ALJ recommended that Castro be denied reinstatement

and awarded no back pay. /d. at 94a-95a.

On September 23, 1998, the Board reversed the ALJ’s de-

cision in part. Pet. App. 78a-87a. Relying on its decision in

A. P. R. A. Fuel, the Board rejected petitioner's contention

that Sure-Tan and IRCA bar any award of back pay to

Castro in light of his testimony before the ALJ. Id. at 84a.

The Board found, however, that petitioner had “attempted

to comply with IRCA when it hired Castro,” that it “would

not have offered Castro initial employment had it known of

his unauthorized immigration status,” and that it “did not

learn until the back-pay hearing that Castro used fraudulent

identification in applying for employment.” Ibid. Applying

the “after-acquired knowledge” rule adverted to in A.P.R.A.

Fuel (see p. 8, supra), the Board concluded that “Castro is

not entitled to reinstatement, and backpay shall terminate

on June 14, 1993, the date [petitioner] learned that Castro

used fraudulent identification to gain employment.” Id. at

85a.” A dissenting Board Member would have denied Castro

all back pay. Id. at 87a.

7 The Board generally defines the back pay period as commencing on

the date of the discharge (or other discriminatory action) and ending on

the date on which the employer extends the employee a proper offer of

reinstatement. See Seven-Up Bottling, 344 U.S. at 347; F.W. Woolworth

Co., 90 N.L.R.B. 286, 292-298 (1950). In this case, petitioner attempted to

make Castro an offer of reinstatement on March 10, 1989, before the

Board’s decision of January 22, 1992, finding petitioner in violation of the

NLRA and ordering relief. See Pet. App. 80a. Petitioner’s offer of rein-

statement, however, did not toll its back pay liability to Castro because,

the Board found, that offer was not “specific, unequivocal, and uncon-

ditional.” Id. at 8la. Petitioner did not challenge that finding by the

Board in the court of appeals. The Board awarded Castro $66,951 (plus

interest). It found that Castro had satisfied his obligation to mitigate his

damages by obtaining interim work. Id. at 85a & n.12.

— ——— ———ů—ů—ů——ů—ͤ—s—ͤ3

4. Petitioner filed a petition for review of the Board’s

order in the court of appeals. A panel of the court of appeals

denied the petition for review. Pet. App. 37a-77a. After

rehearing the case en banc, the court again denied the

petition for review and enforced the Board’s order. Id. at

la-36a.

The en bane court rejected petitioner's contention that

Sure-Tan prohibits the Board from awarding any back pay

to Castro. Pet. App. 7a. That contention, the court noted, is

based on “a single sentence from Sure-Tan,” but Irlead in

context, the Swre-Tan sentence does not bar backpay to un-

documented discriminatees.” Jbid.* The court explained

that to construe that passage as establishing an absolute bar

to back pay “would conflict with the Court’s holding [in Sure-

Tan] that an undocumented discriminatee is entitled to back-

pay so long as it is appropriately tailored to the discri-

minatee’s actual loss.” Id. at 8a. The court further observed

that the restriction set forth in the sentence at issue had

been fashioned by the Seventh Circuit, and was adopted by

this Court “to ensure that the Sure-Tan discriminatees who

had left the country would not reenter illegally to claim

backpay.” Id. at lla.

The court also rejected petitioner’s alternative contention

that, “even if Sure- Tun does not bar backpay to undocu-

mented discriminatees, IRCA does.” Pet. App. 14a. The

court explained that “IRCA neither amends nor repeals the

NLRA or any other labor law,” and “IRCA’s legislative

history * * * shows that Congress did not intend the

statute to limit the NLRA even indirectly.” Ibid. And it

® The relevant sentence reads: In computing backpay, the em-

ployees 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

908. See also p. 4, supra.

rejected petitioner’s contention that, even “[aJbsent a statu-

tory bar * * * the Board’s backpay award fails to accommo-

date IRCA’s goal of limiting the hiring of undocumented

workers.” Id. at 16a. As the court explained:

The Board crafted the limited backpay remedy to avoid

conflict with IRCA and to implement its understanding

of the purposes of both IRCA and the NLRA. According

to the Board, the limited backpay award reduces

employer incentives to prefer undocumented workers

(IRCA’s goal), reinforces collective bargaining rights for

all workers (the NLRA’s goal), and protects wages and

working conditions for authorized workers (the goal of

both Acts).

Id. at 23a.

SUMMARY OF ARGUMENT

The National Labor Relations Board acted reasonably and

within its authority in ordering a limited award of back pay

to Jose Castro as a remedy for petitioner’s violation of

Section 8(a)(3) of the National Labor Relations Act (NLRA).

Contrary to petitioner’s contentions, that back pay award,

which terminates as of the date that petitioner learned that

Castro was an undocumented alien and therefore could not

Judge Sentelle, joined by Judges Henderson and Randolph, dis-

sented. Pet. App. 24a-36a. Judge Sentelle would have ruled that Sure-

Tan “definitively answered” the question before the court and would have

required vacatur of the Board’s back pay award to Castro. Id. at 27a. He

also believed that the majority “essentially ignore{d]” the “statutory

directives of IRCA,” and improperly cholse] to mediate between [the]

statutory goals of IRCA and the NLRA. Id. at 35a. Judge Ginsburg, in

a separate dissenting opinion, agreed with Judge Sentelle that Sure-Tan

“definitively answered the question” before the court, and therefore found

it unnecessary “to reach the question whether the Board reasonably

reconciled the remedial scheme of the NLRA with the policies embodied

in the IRCA.” Id. at 36a.

be employed because of the Immigration Reform and Con-

trol Act of 1986 (IRCA), does not contravene either this

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

(1984), or IRCA. The award also accommodates and indeed

furthers the policies underlying IRCA, and it represents an

otherwise proper exercise of the Board’s authority to re-

mented aliens who were reported to the INS by their

NI B. in retaliation for exercising their rights under the

RA, were taken into custody by the INS, and immedi-

ately left the United States. The Court held that a minimum

This case, however, differs markedly from 1

3 , Sure-T.

that the discriminate did not leave the United States labor

: 14

him, its continued employment of Castro (until it learned he

was an undocumented alien) was not prohibited by IRCA.

The Board’s back pay award also terminated as of the date

that petitioner learned it could no longer employ Castro, and

the Board did not order reinstatement. Thus, the Board’s

back pay award does not encourage employers to violate

IRCA by hiring undocumented aliens. Nor does the Board’s

back pay remedy reflect speculation. To the contrary, it re-

medies Castro’s actual economic loss resulting from peti-

tioner’s unfair labor practice, in that it is tied to the period

that Castro would have continued to work for petitioner. Al-

though petitioner invokes one sentence in the Court’s

opinion in Sure-Tan to argue that no undocumented alien

may receive back pay as a remedy for a violation of the

NLRA (and possibly other federal labor laws as well), that

broad question was not before the Court in Sure-Tan, and

the Court need not and should not read that sentence in a

manner divorced from its context as petitioner suggests.

B. The Board’s order appropriately reconciles the policies

of the NLRA and IRCA, and indeed it furthers the purposes

underlying IRCA. Back pay is a fundamei.cal aspect of the

Board’s remedial authority under the NLRA and has long

been recognized as essential to effective enforcement of the

Act. The Board’s award also takes account of Castro’s mis-

conduct by denying him reinstatement and terminating his

back pay when it became clear that, because he was an un-

documented alien, petitioner could and would no longer

employ him. The Board’s after-acquired knowledge rule,

terminating back pay as of that date, is very similar to the

approach taken by this Court in McKennon v. Nashville

Banner Publishing Co., 513 U.S. 352 (1995). In addition, the

Board’s order does not place petitioner into a situation of

conflicting obligations. The back pay order does not require

petitioner to hire Castro in violation of IRCA, and it runs

only for the time in which petitioner could have emplo

Castro without violating IRCA. ,

in subpar working conditions and are unlike to i

about such wages and conditions in the absence of eal nae

tections. Including undocumented aliens within the pro-

tection of federal labor law counteracts that incentive, be-

cause it minimizes the danger that employers will obtain

a competitive advantage from employing unauthorized

workers. If an employer recognizes that it will face the

monetary sanction of back pay if it unlawfully discharges an

undocumented alien worker in violation of the N LRA, just

as if it unlawfully discharged a citizen worker, then it is less

likely to perceive an advantage in hiring undocumented

aliens. Undocumented aliens in t i i

ar ed — — urn will be less likely to

Based on all these considerations, Con did no

undocumented aliens from receiving — a neste

for violations of federal labor laws, and indeed in IRCA it

authorized increased enforcement of labor laws by the

Department of Labor, in recognition of the fact that such

enforcement (including the possibility of back pay awards for

undocumented aliens) would deter employment of undocu-

mented aliens and would therefore deter illegal immigration.

The flat rule advocated by petitioner, barring undocumented

aliens from back pay awards, might therefore undermine

effective enforcement of federal immigration and labor laws,

and neither Swre-Tan nor IRCA requires that result.

ARGUMENT

THE BOARD’S LIMITED AWARD OF BACK PAY IN

THIS CASE IS A PROPER EXERCISE OF ITS

AUTHORITY TO REMEDY PETITIONER’S VIOLA-

TION OF SECTION 8(a)(3) OF THE NATIONAL

LABOR RELATIONS ACT

The question before the Court in this case is whether the

Board acted within its remedial authority in awarding

Castro a limited measure of back pay as a remedy for peti-

tioner’s violation of the NLRA.” Petitioner contends that

the Board is precluded from awarding Castro any back pay

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

Immigration Reform and Control Act of 1986 (IRCA), Pub.

L. No. 99-603, 100 Stat. 3359. That contention is incorrect.

The passage from Sure-Tun on which petitioner relies,

understood in light of its context, does not bar the remedy

ordered by the Board in this case. Further, the Board’s

limited back pay order appropriately effectuates the re-

medial purposes of the NLRA and accommodates the pro-

hibitions against employment of undocumented aliens in

IRCA. Accordingly, the Court should uphold the Board’s

award of back pay to Castro.

10 Petitioner has not challenged in this Court the Board’s deter-

mination that it engaged in an unfair labor practice by discriminatorily

laying off Castro in violation of Section 8(a)(8) of the NLRA. See Pet.

App. 88a.

A. This Court’s Decision In Sure-Tan Does Not Preclude

Appropriately Limited Back Pay For Undocumented

Alien Employees Discharged In Violation of Section

8(a)(3) Who Are Physically Present In The United

States During The Back Pay Period.

1. Petitioner principally contends that the Court’s de-

cision in Sure-Tan conclusively prohibits any award of back

pay to an undocumented alien who is not authorized to work

in the United States. Pet. Br. 7-20. That argument is based

on one sentence in the Sure- Tun opinion, in which the Court

stated that, “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 law-

fully entitled to be present and employed in the United

States.” 467 U.S. at 903. Based on that sentence, petitioner

argues (Br. 20) that Castro is not entitled to any back pay

because he “never was lawfully present during the backpay

period and he never was lawfully entitled to work during the

backpay period.”

As the court of appeals observed (Pet. App. 7a), however,

the sentence from Sure-Tan upon which petitioner relies

would support a conclusion that Castro is not entitled to any

back pay only if that sentence is “divorced from Sure-Tan’s

factual and legal context.” In its context, the Sure-Tan sen-

tence applies specifically to those undocumented workers

who left the United States during the relevant back pay

period, and not to employees like Castro, who did not. See

Pet. App. 7a-13a. |

a. Sure-Tan involved undocumented alien employees

who were reported by their employer to the INS in retalia-

tion for pro-union activities and who were immediately

arrested by INS and granted voluntary departure (in lieu of

deportation) from the United States. 467 U.S. at 886-888;

see pp. 2-3, supra. No evidence in the record indicated

whether the employees had returned to the United States,

with or without authorization. The ALJ nevertheless had

declined to order any back pay based on a finding that the

deported employees were “physically unavailable for work.”

The Board, noting the absence of evidence on that point,

remitted the issue of the employees’ availability for work to

a compliance hearing. See Sure-Tan, Inc., 234 N.L.R.B.

1187, 1187, 1198 (1978).

On the NLRB’s petition for enforcement, the Seventh

Circuit limited in some respects and expanded in other re-

spects the remedy ordered by the Board. NLRB v. Sure-

Tan, Inc., 672 F.2d 604-606. In particular, the Seventh Cir-

cuit expressed concern that the undocumented alien employ-

ees “might be motivated to reenter the United States un-

lawfully to claim reinstatement and backpay,” and deter-

mined that the Board’s remedial order required modification

to avoid such an incentive. Id. at 603. The court therefore

modified the Board’s remedial order “to require

reinstatement only if the discriminatees are legally present

and legally free to be employed in this country when they

offer themselves for reinstatement.” Id. at 606. The court

further concluded that, ſe lonsistent with our requirement

that there be reinstatement only if the discriminatees are

legally present and permitted by law to be employed in the

United States,” it was appropriate for the court to “modify

the Board's order so as to make clear * * that in

computing backpay discriminatees will be deemed unavail-

able for work during any period when not lawfully entitled to

be present and employed in the United States.” Ibid. That

statement was the genesis of the proposition ultimately

adopted by this Court in respect to back pay awards for

undocumented workers. See Sure-Tan, 467 U.S. at 903.

The court of appeals also observed in Sure-Tan, however,

that “[iJn the circumstances of this case it may well be that

the discriminatees will not have been lawfully available for

employment in the United States prior to the date of the

new offers of reinstatement which will be required,” and that

im that event, the discriminatees will receive no backpay.”

672 F. 2d at 606. Concluding that such a result would be in-

consistent with remedial principles of the NLRA, the court

ordered the Board to fix a minimum award of six months’

back pay for the discriminatees, which the court estimated to

be the length of time during which the employees “might

reasonably have remained employed without apprehension

by INS,” had Sure-Tan not reperted them to the INS in

retaliation for their protected union activity, contrary to the

NLRA. Ibid.

b. This Court reversed the minimum six months’ award

of back pay that the court of appeals had ordered, on the

ground that such an award would not be “sufficiently

tailored to the actual, compensable injuries suffered by the

discharged employees.” Sure-Tan, 467 U.S. at 901. The

Court faulted the court of appeals for “‘estimat{ing]’ an ap-

propriate period of backpay without any evidence whatso-

ever as to the period of time these particular employees

might have continued working before apprehension by the

INS and without affording petitioners any opportunity to

provide mitigating evidence.” Id. at 902 n.11. The Court did

not accept the employer’s argument (see Pet. Br. at 19-23,

Sure-Tan, Inc. v. NLRB, supra (No. 82-945)) that, as a matter

of law, any back pay award for the benefit of the discri-

minatees would be contrary to federal immigration law.

Rather, the Court “generally approve[d] the Board’s original

course of action in this case by which it ordered the con-

ventional remedy of reinstatement with backpay, leaving

until the compliance proceedings more specific calculations

as to the amounts of backpay, if any, due these employees.”

467 U.S. at 902 (emphasis added).

The Court also recognized, however, that the discri-

minatees had left the United States, perhaps without

authorization to return and obtain employment. The Court

therefore concluded that implementation of “the Board’s

traditional remedies at the compliance proceedings must be

conditioned upon the employees’ legal readmittance to the

United States,” to accommodate “the objective of deterring

unauthorized immigration that is embodied” in the INA.

Sure-Tan, 467 U.S. at 902-903 (emphasis added). As the

Court explained, “[bly conditioning the offers of reinstate-

ment on the employees’ legal reentry, a potential conflict

with the INA is thus avoided.” Id. at 903 (emphasis added).

And, like the court of appeals, the Court added the proviso

that, “(s}imilarly, in computing backpay, the employees must

be deemed ‘unavailable’ for work (and the accrual of backpay

therefore tolled) during any period when they were not law-

fully entitled to be present and employed in the United

States.” Ibid.

e. The opinions of the Board, the court of appeals, and

this Court in Sure-Tan make clear that the central remedial

problem in that case resulted from the fact that, on the very

first day of the back pay period (the date of the constructive

discharge), all of the discriminatees departed from the

United States. See 467 U.S. at 887. By that departure,

those workers removed themselves from the United States

labor market, under circumstances where they were prohib-

ited by law from reentering that labor market without

authorization from federal immigration authorities. Under

standard principles of employment law, workers who are

“unavailable” for work are ineligible for back pay during the

period of their absence from the labor market." Indeed, the

1 For example, periods that an employee is “unavailable” for work be-

cause of illness or disability are excluded in computing a back pay award

(unless the condition was caused by the employer’s unlawful conduct). See

2 B. Lindemann & P. Grossman, Employment Discrimination Law 1810-

1811 (3d ed. 1996); see also Miller v. Marsh, 766 F.2d 490, 492 (11th Cir.

workers in Sure-Tan were similarly situated to employees

who are incarcerated or who are inducted into the armed

forces after having been discharged in violation of the

NLRA, and who (the Board has held) may not receive back

pay during the period of their incarceration or military

service, because they are unavailable for work during that

period and could not physically enter the labor market

without breaking the law.” And because the record did not

1985) (no back pay for employee who removed herself from job market by

entering law school full-time).

12 See Sure-Tan, 467 U.S. at 908 (citing to NLRB’s case handling

manual, which discussed, where cited, grounds on which employees might

be unavailable and therefore ineligible for back pay, including illness,

attendance at school, confinement in institutions, and service in armed

forces); 234 N.L.R.B. at 1198 nn.11 & 12 (ALJ’s order in Sure-Tan denying

back pay, relying on these analogies); see also Lundy Packing Co., 286

N.L.R.B. 141, 163 (1987) (incarceration), enf’d, 856 F.2d 627 (4th Cir.

1988); MSW Constr., Inc., 219 N.L.R.B. 1073, 1079 (1975) (same); Gifford-

Hill & Co., Inc., 188 N. L. R. B. 337, 388 (1971) (same); Brown Truck &

Trailer Mfg. Co., 106 N. L. R. B. 999, 1028 (1953) (same); John David Brock,

42 N.L.R.B. 457, 468-469 (1942) (induction).

By contrast, the Board has awarded back pay to discriminatees who

lacked certain legal qualifications to obtain employment, but who were not

physically barred from the labor market without legal authorization. See

Felbro, 795 F.2d at 718 (discussing cases); see also NLRB v. IBEW Local

Union 112, 992 F.2d 990, 995 (9th Cir. 1993) (permitting award of back pay

to discriminatee who did not have journeyman electrician’s license neces-

sary to perform work); NLRB v. Future Ambulette, Inc., 908 F. 2d 140, 145

(2d Cir. 1990) (modifying Board’s award of back pay to permit award to

discriminatee whose driver’s license was suspended, during periods in

which other unlicensed drivers were also employed); Justrite Mfg. Co., 238

N.L.R.B. 57, 67-68 (1978) (underage worker entitled to back pay); Robinson

Freight Lines, 129 N.L.R.B. 1040, 1042, 1047-1048 (1960) (truck driver

without valid driver's license awarded back pay up to date on which he

was laid off by employer for that reason). But see NLRB v. Browne, 890

F. 2d 605, 608-609 (2d Cir. 1989) (reversing Board award of back pay at

“driver’s rate” to discriminatee whose driver’s license had been sus-

pended).

show that those aliens were available for work in the United

States for any period after their departure, there was no

basis in the record for the court of appeals’ speculation that

they would have likely remained in Sure-Tan’s employment

for six more months, had the employer not reported their

unlawful presence in the United States to the INS.

Thus, the principal thrust of the Court’s ruling on back

pay as a remedy in Sure-Tan was to set aside the speculative

award ordered by the court of appeals as inconsistent with

the proper standard governing judicial review of Board re-

medial orders. See Swre-Tan, 467 U.S. at 898 (“We find that

the Court of Appeals exceeded its narrow scope of review in

imposing both these modifications.”) (referring to six

months’ back pay and various requirements governing the

reinstatement offers). Indeed, the Court “generally

approved the Board’s original course of action” in that case,

which was to order back pay, remitting the amount to be

calculated at a compliance hearing, at which the employees’

availability for work would be considered. See id. at 902.

The Court did not have before it for review any remedial

order of the Board in which the Board, taking into account

the policies of both the NLRA and the INA, had determined

that the discriminatees should receive the traditional

compensatory remedy of back pay for a specific period,

based on particularized evidence about the employee’s

employment history following his discharge.” Rather, the

Court criticized the court of appeals, not the Board, for

18 See Sure-Tan, 467 U.S. at 901 n.11 (noting that the Board had never

before “attempted to impose a minimum backpay award that the employer

must pay regardless of the actual evidence as to such issues as an em-

ployee’s availability for work or his efforts to secure comparable interim

employment”). Indeed, the ALJ in Sure-Tan had invited the Board to

consider ordering a minimum period of back pay, even in the absence of

evidence about the discriminatees’ presence in the national labor market,

see 234 N.L.R.B. at 1198, but the Board declined to take that course.

ordering back pay “without regard to the employees’ actual

economic losses or legal availability for work,” characterizing

the court of appeals’ action as “plainly exceedlingl its limited

authority under the Act.” Id. at 904-905.

The Court also recognized that, after the discriminatees ~

left the United States, they might subsequently have be-

come “available” for work by reentering the United States.

See Sure-Tan, 467 U.S. at 908-904. To preclude the dis-

criminatees in Sure-Tan from claiming that they had re-

established their “availability” for work by reentering the

country (illegally) during the back pay period, and to encour-

age the discriminatees to reenter legally if they wished to

render themselves “available” for work, the Court adopted

the court of appeals’ proviso that the discriminatees must be

deemed “unavailable” for work “during any period when

they were not lawfully entitled to be present and employed

in the United States.” Id. at 903.

Understood in its context, therefore, the Court’s limita-

tion of the back pay remedy available to the workers in Sure-

Tan should not be understood as a blanket rule barring back

pay for undocumented workers in all factual contexts."

Certainly the Court was not required in Sure-Tan to decide

any such broad issue in order to resolve the case before it.

4 Petitioner suggests (Br. 9) that, in his partial dissent in Sure-Tan,

Justice Brennan “agreed” that the Court’s decision in that case limiting

back pay operates broadly to bar back pay for al] undocumented workers.

That suggestion is unpersuasive. While Justice Brennan expressed con-

cern that, under the majority's decision, undocumented alien workers

would be “effectively deprived of any remedy” (467 U.S. at 911), Justice

Brennan did not address whether the Court’s back pay proviso must

necessarily be read as applying to undocumented workers who remain in

the United States during the back pay period. In any event, “Cassandra-

like predictions in dissent are not a sure guide to the breadth of the

majority's ruling.” United States v. Travers, 514 F.2d 1171, 1174 (2d Cir.

1974).

Rather, the Court was faced with a specific situation in

which the discriminatees, having made themselves unavail-

able for work by leaving the United States labor market,

could not reenter that labor market and become available for

work again without either (a) receiving official authorization

or (b) breaking the law (by reentering illegally). The Court’s

decision reflects a concern that a discriminatee who had left

the United States should be encouraged to pursue the former,

rather than the latter, route to reentering the labor market

here.

The Board’s limited award of back pay to Castro in this

case accordingly does not conflict with Sure-Tan. Castro

remained in the United States following his unlawful dis-

charge by petitioner, and thus did not make himself un-

available for work by removing himself from the labor

market. Awarding Castro limited back pay therefore would

not promote his illegal reentry into the United States.

Rather, Castro is more similarly situated to other workers

who are legally ineligible for employment, such as underage

workers or workers without necessary state licenses, but

who nonetheless may receive back pay under Board and

court precedent. See p.21 note 12, supra. Nor is the factual

basis for the back pay award speculative. The record in this

case demonstrates that, absent his unlawful layoff on

January 31, 1989, Castro would have continued working for

petitioner until June 14, 1993, at which point the facts

revealed by his testimony before the Board would have

required petitioner to discharge him under IRCA. 8 U.S.C.

1324a(a\(2); see p. 41, infra.

This Court’s own discussion of Sure-Tan also reveals that

that decision does not flatly preclude all back pay for undocu-

mented workers who have been discharged in violation of

the NLRA. In INS v. Lopez-Mendoza, 468 U.S. 1082 (1984),

decided only ten days after the decision in Sure-Tan, the

Court summarized that decision as follows:

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

Court concluded that an employer can be guilty of an un-

fair labor practice in his dealings with an alien notwith-

standing the alien’s illegal presence in this country.

Retrospective sanctions against the employer may ac-

cordingly be imposed by the National Labor Relations

Board to further the public policy against unfair labor

ices. But while he maintains the status of an illegal

alien, the employee is plainly not entitled to the prospec-

tive relief—reinstatement and continued employment—

that probably would be granted to other victims of

468 U.S. at 1047-1048 n.4 (emphasis added). The Lopez-

Mendoza Court’s reference to the availability of “(rjetro-

spective sanctions” under Sure-Tan, as distinguished from

the “prospective relief” of reinstatement, indicates that

Sure-Tan does not categorically prohibit the Board from

awarding back pay to undocumented aliens.“

2. As petitioner recognizes (Br. 12 & n.7), the court of ap-

peals’ reading of Sure-Tan in this case is consistent with that

of the Second and Ninth Circuits, which likewise have read

- Sure-Tan’s restriction on back pay to apply only to undocu-

mented discriminatees who have departed from the United

States during the back pay period. See NLRB v. A.P.R.A.

Fuel Oil Buyers Group, Inc., 134 F.3d 50, 54 (2d Cir. 1997);

Local 512, Warehouse & Office Workers’ Union v. NLRB

(Felbro, Inc.), 795 F.2d 705, 722 (9th Cir. 1986). Similarly,

most courts that have examined the issue have held that

16 Similarly, Judge Cudahy, who had written the Seventh Circuit's

opinion in Sure-Tan, subsequently explained that the “not lawfully en-

titled to be present and employed in the United States” language first

appeared in the Seventh Circuit’s opinion, and was addressed only to

aliens who had left the country. Del Rey Tortilleria, Inc. v. NLRB, 976

F.2d 1115, 1123-1124 (7th Cir. 1992) (Cudahy, J., dissenting).

Sure-Tan does not preclude an award of back pay under

other employment-rights statutes, such as Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e et geg., and the Fair

Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq.,

to undocumented aliens who have remained in the United

States. In addition, many courts have ruled that undocu-

6 See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517 (9th Cir. 1989)

‘pre-IRCA case holding that Sure-Tan does not preclude undocumented

aliens who were subjected to various discriminatory practices from re-

ceiving back pay); Rios v. Enterprise Ass'n Steamfitters Local Union 638,

860 F. 2d 1168, 1173 (2d Cir. 1988) (pre-IRCA Title VII case holding that

Sure-Tan did not preclude back pay to undocumented alien members of

class of black and Hispanic employees); EEOC v. Tortilleria “La Mejor,”

758 F. Supp. 585 (E. D. Cal. 1991) (holding that, after IRCA, undocu-

mented aliens remain protected by Title VII); Patel v. Quality Inn South,

846 F.2d 700, 706 (11th Cir. 1988) (pre-IRCA case holding that undocu-

mented aliens may recover unpaid back wages for violations of FLSA),

cert. denied, 489 U.S. 1011 (1989); In re Reyes, 814 F.2d 168, 170 (5th Cir.

1987) (pre-IRCA case holding undocumented alien status irrelevant to

coverage of FLSA); Contreras v. Corinthian Vigor Ins. Brokerage, Inc.,

25 F. Supp. 2d 1053 (N.D. Cal. 1998) (undocumented alien may sue for

compensatory and punitive damages under anti-retaliation provision of

FLSA); Alwarez v. Sanchez, 482 N. V. S. 2d 184, 185 (App. Div. 1984) (pre-

IRCA case holding undocumented alien may maintain action under

FLSA). See also Equal Employment Opportunity Commission, Enforce-

ment Guidance on Remedies Available to Undocumented Workers Under

Federal Employment Discrimination Laws (Oct. 26, 1999), available at

<http://www.eeoc.gov/docs/undoc/html> (also concluding that Sure-Tan

bars back pay for undocumented aliens “only where, as in Sure-Tan, the

worker is unavailable for work by virtue of being out of the country”). Cf.

Beviles Co. v. Teamsters Local 986, 791 F. 2d 1391, 1398-1394 (9th Cir. 1986)

(undocumented alien may recover under labor arbitration agreement),

cert. denied, 484 U.S. 985 (1987). But see Egbuna v. Time-Life Libraries,

Inc., 158 F.3d 184 (4th Cir. 1998) (en banc) (holding that, after IRCA,

undocumented alien could not pursue claim of retaliatory failure to hire

under Title VII), cert. denied, 525 U.S. 1142 (1999).

Some of those employment-rights statutes may raise additional reasons

for awarding back pay that are not present in this case. For example, -

mented aliens may recover lost wages in tort and contract

actions. See Felbro, 795 F.2d at 718 n.12 (collecting cases).

Petitioner, however, urges the Court to adopt the con-

trary interpretation of Sure-· Tun set forth in the majority

opinion in Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115

(7th Cir. 1992), and in Judge B ezer's dissenting opinion in

Felbro. Neither of those opinions, however, provides a per-

suasive reading of the Sure-Tun decision. In Del Rey

Tortilleria, a majority of a panel of the Seventh Circuit in-

terpreted Sure - Tun's back pay limitation broadly to bar]

undocumented aliens from receiving backpay.” 976 F. 2d at

1119. In reaching that conclusion, the Del Rey Tortilleria

court relied in part on Judge Beezer’s dissent in Felbro (as

does petitioner). See ibid.” Judge Beezer argued that an

undocumented worker “has not been harmed in a legal sense

by the deprivation of employment to which he had no

under the minimum-wage and overtime provisions of the FLSA, 29 U.S.C.

206(a) and 207(a), and under the Equal Pay Act, 29 U.S.C. 206(d), when an

employee sues to recover unpaid back wages, the employee is seeking

compensation for work that was actually performed, not (as in this case)

back pay for work that would have been performed had the employee not

been unlawfully discharged. In addition, such FLSA and Equal Pay Act

suits usually do not present questions of mitigation of damages, whereas

an employee who has been discharged in violation of the NLRA and who

seeks back pay through an NLRB award generally must show that he has

attempted to mitigate his damages. See p. 10 note 7, supra.

17 The panel in Del Rey also suggested that, if undocumented aliens

could receive back pay as a remedy for a violation of their rights under the

NLRA, they “would be rewarded by the NLRB for entering the United

States illegally.” 976 F.2d at 1119. Nowhere in Sure-Tan, however, did

this Court explain the justification for its limitation on back pay in such

terms. See 467 U.S. at 902-905. Indeed, that reasoning is in significant

tension with this Court’s conclusion in Sure- Tun that, notwithstanding

their having illegally entered the United States, undocumented workers

are entitled to the benefit of improved wages and working conditions (ie.

the “rewards”) that may flow from collective bargaining under the NLRA.

See id. at 891-894.

entitlement,” and therefore is not entitled to any back pay

oe in violation of the NLRA. Felbro, 795 F.2d at

But in Sure-Tan, this Court declined to adopt the view

that an undocumented alien worker cannot be “harmed in a

legal sense” by a violation of the NLRA because he has no

right to employment in the United States. To the contrary,

the Court ruled in Sure-Tan, in agreement with the Board,

that undocumented workers are “employees” within the

coverage of the NLRA and thus are entitled to the Act’s

protection against discharge for engaging in protected union

activity. See 467 U.S. at 891-894. The Court stressed that

interpreting the NLRA to cover undocumented workers pro-

tects not only those individuals but also others who are

covered by the NLRA. First, Hilf undocumented alien

employees were excluded from * * * protections against

employer intimidation, there would be created a subclass of

workers without a comparable stake in the collective goals of

their legally resident co-workers, thereby eroding the unity

of all the employees and impeding effective collective

bargaining.” Id. at 892." Second, including undocumented

aliens within the coverage of the NLRA (and similar laws)

ensures that employers do not obtain any financial or

competitive advantage in hiring undocumented aliens at

substandard wages and conditions of employment, rather

than citizens and aliens authorized to work. See id. at 893;

see also Egbuna v. Time-Life Libraries, Inc., 15? ¥.3d 184,

18 Indeed, if undocumented workers were not included within the

coverage of the NLRA, they would likely be intimidated from reporting

violations to the authorities, even if those violations affected other workers

within the coverage of the Act. See NLRB v. Apollo Tire Co., 604 F.2d

1180, 1184 (9th Cir. 1979) (Kennedy, J., concurring) (“If the NLRA were

inapplicable to workers who are illegal aliens, we would leave helpless the

188 (4th Cir. 1998) (en banc) (Ervin, J., dissenting), cert.

denied, 525 U.S. 1142 (1999).

In sum, the Board and the court of appeals correctly

rejected petitioner’s contention that Sure Tun categorically

prohibits the Board from awarding back pay in any circum-

stances to undocumented workers simply because of their

undocumented status during the back pay period. Rather,

the Board and the court properly read Sure - Tun to restrict

back pay only for discriminatees who were not physically

present in the United States during the back pay period.

Because Castro was physically present in the United States

during the back pay period, Swre-Tan did not preclude the

Board from awarding him appropriately limited back pay.

B. The Board’s Limited Back Pay Award In This Case

Reasonably Accommodates The Policies Of The NLRA

and IRCA.

Petitioner also contends (Br. 20-28) that, even if Swre-Tan

does not preclude the Board from awarding any back pay to

Castro, IRCA does, because IRCA barred Castro from ob-

taining employment in the United States. The Board’s

award of limited back pay to Castro, however, reasonably

reconciles the remedial purposes of the NLRA with the

objectives of IRCA.

1. The propriety of the Board’s back pay order in this

case is governed by three remedial principles. First, back

pay is a fundamental aspect of the Board’s authority to

remedy violations of Section 8(a)(3). “Making the workers

whole for losses suffered on account of an unfair labor prac-

tice is part of the vindication of the public policy which the

Board enforces.” Phelps Dodge Corp. v. NLRB, 313 U.S.

177, 197 (1941); see also Nathanson v. NLRB, 344 U.S. 25, 27

(1952). Furthermore, Board back pay orders are not limited

to the “correction of private injuries.” Phelps Dodge, 313

U.S. at 198. An order of back pay also promotes “the

achievement and maintenance of workers’ self-organization”

(ibid.) by making all employees at a particular job site

(whether or not they are the actual targets of unfair labor

practices) “more confident in tne exercise of their statutory

rights.” Virginia Elec. & Power Corn. v. NLRB, 319 U.S.

533, 541 (1943); see also Golden Staie Bottling Co. v. NLRB,

414 U.S. 168, 185 (1973) (back pay aids in the “prevention of a

deterrent effect on the exercise of rights guaranteed

employees by [Section] 7 of the Act”). Back pay thus deters

employers from reaping a financial advantage from retalia-

tory discharges of union organizers.”

Second, even if an employee has been subjected to un-

lawful discrimination, the employee’s own wrongdoing is re-

levant “(ijn determining appropriate remedial action.”

McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 361

10 As amicus Equal Employment Advisory Council points out (Br. 15-

16), the Board does not have authority under the NLRA to impose purely

punitive sanctions such as fines. See Republic Steel Co. v. NLRB, 311

U.S. 7, 10 (1940). A back pay order is not punitive, however, merely be-

cause one of its functions is to deter employers from engaging in unfair

labor practices in violation of the Act. Rather, in a situation like this case,

where petitioner hired Castro without knowledge that Castro was an

undocumented alien and then also discharged Castro without that

knowledge, but with the purpose of retaliating against Castro’s exercise of

rights under the NLRA, an order of back pay, tied closely to the period

that Castro would have worked had petitioner not violated Section 8(a)(3),

serves the compensatory function of restoring “the situation, as nearly as

possible, to that which would have obtained but for the illegal discrimina-

tion. Phelps Dodge, 313 U.S. at 194. By contrast, one of the chief defects

of the court of appeals’ decision in Sure-Tan was that its award of back

pay had no connection to any period that the undocumented aliens would

in fact have worked had they not suffered discrimination, and therefore

did not serve a compensatory function. See Sure-Tan, 467 U.S. at 900-901.

In that situation, the court of appeals’ order was arguably more similar to

an impermissible fine for a violation of the NLRA. Cf. id. at 905 n.14

(declining to resolve whether court of appeals’ minimum back pay order in

that case was improperly punitive).

(1995) (decided under Age Discrimination in Employment

Act of 1967 (ADEA), 29 U.S.C. 621 et seqg.). Evidence that an

employee has engaged in misconduct sufficiently grave that

the employer would be fully justified in discharging or re-

fusing to hire the employee on that ground alone may pre-

clude any reinstatement of the employee. Such misconduct

may also terminate the employee’s right to back pay as of

the date that misconduct came to light, on the ground that

the employer would have discharged the employee as of that

date anyway. But the Board has also concluded that such

misconduct will not necessarily deprive the employee of all

entitlement to back pay for the period before evidence of the

misconduct came to light. Rather, the Board has applied an

after-acquired knowledge rule closely similar to that applied

by this Court in McKennon: if the discriminatee “engaged in

unprotected conduct for which the employer would have dis-

charged any employee, reinstatement is not ordered and

backpay is terminated on the date that the employer first

acquired knowledge of the misconduct.” Marshall Durbin

Poultry Co., 310 N.L.R.B. 68, 70 (1993) (limiting back pay of

discriminatee who had engaged in workplace sexual harass-

ment), enf d in relevant part, 39 F.3d 1312 (5th Cir. 1994);

John Cuneo, Inc., 298 N.L.R.B. 856, 856-857 (1990) (limiting

back pay of discriminatee who had made false statements on

job application). Cf. McKennon, 513 U.S. at 362 (applying

similar back pay limitation rule under ADEA).

The Board’s after-acquired knowledge policy is based on a

remedial judgment that, while it is appropriate for a dis-

criminatee to bear the economic consequences of his miscon-

duct, he is nonetheless entitled to limited compensatory re-

lief, because “relieving [the employer] of all back pay

liability, including that for the period when [the employer]

had no knowledge of [the discriminatee’s misconduct] and

had no lawful reason to fire him, would provide an undue

windfall for [the employer].” John Cuneo, Inc., 298 N.L.R.B.

at 856 (emphasis added). This Court reached a similar judg-

ment in McKennon. On one hand, the Court recognized that

requiring reinstatement and continued back pay after the

employer learned of the employee’s serious misconduct

would unduly infringe upon the employer’s rights and pre-

rogatives. 513 U.S. at 362. On the other hand, the Court

made clear that Jaln absolute rule barring any recovery of

backpay * * * would undermine” the statutory objectives

of preventing unlawful employment discrimination. Ibid.

Third, in fashioning a remedy, the Board “may [not] wholly

ignore other and equally important Congressional objec-

tives,” for, “[flrequently the entire scope of Congressional

purpose calls for careful accommodation of one statutory

scheme to another.” Southern S.S. Co. v. NLRB, 316 U.S.

31, 47 (1942). Thus, in a case like this one, involving re-

medies for violations against undocumented alien employees,

the Board’s order “is obliged to take into account

* * * the objective of deterring unauthorized immigration

that is embodied in the INA.” Sure-Tan, 467 U.S. at 903.

2. The back pay order fashioned by the Board in this case

is consistent with the remedial principles articulated above.

First, the award furthers the compensatory goals of the

NLRA by placing Castro, for an appropriately limited period

of time, in the economic position he would have occupied had

petitioner not violated his rights under the NLRA. See J.H.

Rutter-Rex Mfg. Co., 396 U.S. at 265 (back pay award proper

where “designed to restore, so far as possible, the status quo

that would have obtained but for the wrongful act”).

Second, by terminating Castro’s entitlement to back pay

as of June 14, 1993, the Board’s order is also consistent with

NLRA remedial principles. On that date, petitioner learned

that Castro had used false documents in applying for em-

ployment in May 1988, to establish that he was authorized to

work in the United States. Pet. App. 79a-80a. The Board

found that petitioner “would not have offered Castro initial

employment had it known of his unauthorized immigration

status.” Jd. at 84a. The Board thus cut off Castro’s

entitlement to back pay as of June 14, 1993. That termi-

nation date is consistent with the remedial principles, recog-

nized by this Court in McKennon and the Board in numerous

cases, that a discriminatee must bear the economic conse-

quences of his own employment-related misconduct, but that

misconduct should not be seized upon to give the employer

an “undue windfall” of relief from all monetary liability for

its own violation of the NLRA. John Cuneo, Inc., 298

N. L. R. B. at 856.

Third, the Board’s order reasonably accommodates IRCA.

As we have explained (see pp. 4-6, supra), IRCA generally

makes it unlawful for an employer to hire or retain an in-

dividual knowing that he is an alien not authorized to be

employed in the United States, or without complying with

the “employment verification system” established by IRCA,

which obligates each employer to examine specified kinds of

documents to verify that a person whom it wishes to hire is

not an “unauthorized alien.” Petitioner, however, did not

contravene these provisions of IRCA in its employment

relationship with Castro. Petitioner did examine relevant

documents and did not know that Castro lacked authori-

zation to work in the United States either when it hired him

or when it laid him off. See Pet. App. 84a-85a & n.11.”

Accordingly, the Board’s order recognizes that, at least as of

the date that petitioner laid off Castro, petitioner could have

20 Moreover, under 8 U.S.C. 1324a(a)(3), an employer that “establishes

that it has complied in good faith with” the verification requirements of

Section 1324a(b) “has established an affirmative defense” that the em-

ployer has not violated the statute’s prohibition against knowingly hiring

unauthorized aliens. The Board’s findings in respect to petitioner's effort

to verify whether Castro was authorized to work at the time of hire (see

Pet. App. 84a-85a & n.11) are consistent with a conclusion that petitioner

could have established that affirmative defense under IRCA.

continued to employ him for a limited period of time without

violating IRCA.

The Board’s decision to cut off Castro’s back pay award as

of June 14, 1993 (but not before) based on his employment-

related misconduct also reasonably accommodates IRCA.

Once petitioner discovered Castro’s unauthorized immi-

gration status on June 14, 1998, it could not have continued

to employ Castro after that date (had he not already been

laid off in violation of the NLRA), because IRCA makes it

unlawful for an employer “to continue to employ the alien in

the United States knowing the alien is (or has become) an

unauthorized alien.” 8 U.S.C. 1824a(a)(2). But because

petitioner had previously employed Castro, it could have

rehired him at any time before that date without checking

his documents (for example, to comply with the Board’s

order finding it in violation of the NLRA), as long as it did

not otherwise become aware that Castro was an undocu-

mented alien. See 8 C.F.R. 274a.2(b)\(1)(viiiA)(5). In these

circumstances, by cutting off Castro’s entitlement to back

pay as of June 14, 1993, the Board reasonably accounted for

21 We do not suggest that a Board order awarding back pay to an

undocumented alien discharged in violation of Section 8(a)(3) would be

invalid if the employer had initially hired or retained the discriminatee

knowing that he was not authorized to work in the United States. In that

situation, the Board has concluded that a limited award of back pay is

appropriate. See pp. 6-8, supra; A.P.R.A. Fuel, 320 N.L.R.B. 408, 416

(1995), aff'd, 134 F.3d 50 (2d Cir. 1997); Pet. App. 88a. The Board has

explained that that distinct back pay remedy is warranted to reduce the

incentive for “unscrupulous employers to play the provisions of the NLRA

and IRCA against each other to defeat the fundamental objectives of each,

while profiting from their own wrongdoing with relative impunity.”

A.P.R.A. Fuel, 320 N.L.R.B. at 415. Estoppel may also present another

reason why an employer should not entirely escape back pay liability in

such situations. In this case, the court of appeals expressly did not

address the propriety of a back pay remedy in such situations (see Pet.

App. 20a), and this Court need not reach that issue here.

the fact that, although Castro had sustained economic harm

due to petitioner’s NLRA violation up to that date, effective

on that date Castro presumably would have suffered a termi-

nation of employment by petitioner once petitioner learned

of his unauthorized status.

8. The availability of back pay for undocumented aliens

who are discharged in violation of federal labor law but who

remain in the United States also advances the underlying

policies of IRCA. IRCA is based squarely on Congress’s

determination that “[eJmployment is the magnet that

attracts aliens here illegally.” See H.R. Rep. No. 682, 99th

Cong., 2nd Sess: Pt. 1, at 46 (1986). Congress also concluded

that “the hiring of undocumented workers adversely affects

American employees because alien workers, out of despera-

tion, will work in substandard conditions and for starvation

wages.” A. P. R. A. Fuel, 320 N.L.R.B. at 413-414. Congress

therefore enacted penalties against employers who know-

ingly employ undocumented workers or fail to check their

documentation in order to deter employers from hiring un-

authorized aliens and, in turn, to deter aliens from entering

illegally to seek employment.

The Board’s provision for limited back pay to discri-

minatees such as Castro advances this deterrent objective of

IRCA. If employers were absolved from their obligation to

compensate undocumented aliens discharged in violation of

federal labor laws, the deterrent effect of IRCA’s penalties

would be undermined by employers’ monetary incentive to

hire undocumented workers willing to work for lower wages

and without labor protections, rather than citizens and aliens

authorized for employment here. An employer might, for

example, compare the monetary cost of compliance with

IRCA’s employment-verification system and the monetary

effect of potential sanctions under IRCA with the savings of

employing undocumented workers and the perceived bene-

fits of union avoidance, and decide that it is worth the risk of

incurring IRCA’s penalties to hire undocumented aliens.

See A.P.R.A. Fuel Oil, 134 F.3d at 57. The availability of a

limited back pay remedy ensures that employers will

“realize[] that there will be no advantage under the NLRA

in preferring illegal aliens to legal resident workers,” and

thus reduces “any incentive to hire such illegal aliens.” Sure-

Tan, 467 U.S. at 893.

Other provisions of IRCA reinforce the point that mone-

tary remedies for undocumented aliens who have suffered

violations of federal labor laws advance the deterrent

purposes of IRCA. In Section 111(a)(1) of IRCA, Congress

stated that one of the “essential elements of the program of

immigration control established by this Act” is “an increase

in the * * * enforcement activities” of “appropriate

Federal agencies in order to prevent and deter the illegal

entry of aliens into the United States.” 100 Stat. 3381. To

that end, in Section 111(d) of IRCA, Congress appropriated

funds for “such sums as may be necessary to the Department

of Labor for enforcement activities of the Wage and Hour

Division and the Office of Federal Contract Compliance Pro-

grams [OFCCP] within the Employment Standards Admini-

stration of the Department in order to deter the employment

of unauthorized aliens and remove the economic incentive for

employers to exploit and use such aliens.” 100 Stat. 3381.

Back pay is a conventional remedy available when the

Wage and Hour Division of the Department of Labor en-

forces the FLSA and when OFCCP enforces pro-

hibiting discrimination by federal contractors.~ In providing

2 See 29 U.S.C. 216(c) (unpaid minimum wages and overtime compen-

sation); see also Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288

(1960) (back pay available when Department of Labor enforces the

FLSA’s anti-retaliation provision, 29 U.S.C. 215(a)(3)); United States v.

Whitney Nat'l Bank, 671 F. Supp. 441 E. D. La. 1987) (back pay available

when OFCCP enforces programs prohibiting discrimination by federal

contractors); United States v. Duquesne Light Co., 423 F. Supp. 507 (W.D.

for increased enforcement of those provisions to deter

employers from hiring undocumented aliens, Congress thus

clearly anticipated that employers would be subject to mone-

tary liability for back pay to undocumented alien workers.

That result is inconsistent with any suggestion that IRCA

catagorically limited the legal protections available to such

workers under federal labor laws.”

4. Petitioner contends (Br. 20, 24) that the Board’s limited

back pay order in this case is inconsistent with IRCA’s

prohibition against an employer’s knowingly hiring or con-

tinuing to employ an unauthorized alien. See 8 U.S.C.

1324a(a)(1) and (2). There is no merit to that assertion.

Rather, as we have explained, during the back pay period

defined by the Board (i.e., January 31, 1989, through June 14,

1998), petitioner could have continued to employ Castro (had

he not already been laid off in violation of the NLRA) with-

out violating IRCA. Moreover, unlike a reinstatement

order, the back pay award to Castro does not require peti-

Pa. 1976) (same); 41 C. F. R. 60-1.26(a)(2) (same). Congress likely had in

mind back pay as the monetary sanction because civil penalties are not

available when the Department of Labor enforces the FLSA’s anti-retalia-

tion provision or when OFCCP enforces anti-discrimination provisions.

Civil penalties under the FLSA for minimum wage and overtime

violations were not enacted until 1989, after IRCA. See Fair Lubor

Sten ards Amendments of 1989, Pub. L. No. 101-157, § 9, 103 Stat. 945.

*The Department of Labor’s Employment Standards Administration

and the INS have also recognized, in a memorandum of understanding

concerning enforcement of labor-standards laws, that “vigorous targeted

enforcement of labor standards can serve as a meaningful deterrent to

illegal immigration” because “[i}t denies some of the business advantages

that may be gained through the employment of highly vulnerable and

workers at sub-standard wages and working conditions.” See

Memorandum of Understanding Between the Immigration and Naturali-

zation Service, Department of Justice and the Employment Standards

Administration, Department of Labor (Nov. 23, 1998), available at

<http://www.dol.gov/dol/esa/public/whatsnew/whd/mou/nov98mou.htmi.>

tioner to hire Castro in contravention of IRCA; it only re-

quires petitioner to compensate Castro for a period of

employment that would not have violated IRCA. The back

pay award therefore does not place petitioner in a position of

conflicting obligations under t ederal statutes.

Petitioner also maintains (Lr. 20, 24, 27-28) that the

Board’s limited back pay order is inconsistent with IRCA’s

prohibition against an employee’s misuse of identification

documents to secure employment. See 18 U.S.C. 1546(a) and

(b) (1994 & Supp. V 1999). That contention is unpersuasive.

Although Congress chose, in Section 1546(b)(1) and (2), to

criminalize the misuse of identification documents, it did not

also make violators ineligible for back pay awards or other

compensation flowing from employment secured by the

misuse of such documents. And because Congress recog-

nized that the availability of back pay to undocumented

aliens promotes enforcement of the immigration laws (see

pp. 36-37, supra), the Board therefore could reasonably

decline to invoke the document-misuse provisions as a

complete bar to any award of back pay to Castro.™

Petitioner’s reliance on the criminal provisions of 18

U.S.C. 1546(b) to bar the Board’s award of limited back pay

to Castro also finds little support in this Court’s decisions.

The Court has concluded that the Board is not required to

deny a remedy under the NLRA to a discriminatee who

gives false testimony under oath before the agency. See

* Subsequent to IRCA, Congress revisited the issue of the misuse of

identification documents by employees and enacted additional civil penal-

ties. See Immigration Act of 1990, Pub. L. No. 101-649, § 544, 104 Stat.

5059-5061. Yet, as in IRCA, Congress, in the 1990 Act, did not provide

any disqualification from entitlement to back pay awards for employees

who misuse identification documents. See 8 U.S.C. 1824c(a) and (d)(3).

The civil penalties enacted in the 1990 Act were not made retroactive, and

therefore do not apply to Castro's misuse of false identification documents,

which occurred in 1988.

ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 322-325

(1994). Likewise, the Court has rejected the contention that,

in a Title VII case, a court should enter judgment against a

defendant employer solely because it has lied about its rea-

son for the adverse employment action at issue. See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993) (ex-

plaining that “Title VII is not a cause of action for perjury;

we have other civil and criminal remedies for that”).

Accordingly, while Castro could have been prosecuted for his

fraud under IRCA, it does not follow that the Board was

required to deny a back pay remedy to Castro, and thereby

relieve petitioner of the conventional monetary liability that

flowed from its own unlawful conduct, namely, laying off an

employee in violation of the NLRA.*

Moreover, as the court of appeals observed (Pet. App.

14a), the legislative history of IRCA confirms that Congress

“did not intend the statute to limit the NLRA even

indirectly.” The relevant House committee report explains

25 There is, accordingly, no merit to petitioner's contention (Br. 24) that

the availability of back pay to undocumented aliens like Castro improperly

rewards their use of fraudulent documents to gain employment. Congress

has authorized substantial criminal and civil penalties for such misconduct;

an alien who uses such false documents may be imprisoned for up to five

years, see 18 U.S.C. 1546(b), may be subjected to civil penalties, see 8

U.S.C. 1824e(a)(4) and (d)(3), and may be deported as well, see 8 U.S.C.

DO. Any alien who engages in such document fraud does so,

therefore, at substantial peril to himself. Nevertheless, Congress did not

bar all back pay for undocumented aliens, and indeed in IRCA it

authorized increased enforcement of labor-standards laws, in recognition

of the fact that such enforcement (including a potential monetary remedy

for the benefit of undocumented aliens) also deters illegal immigration by

reducing employers’ economic incentive to hire undocumented aliens. See

pp. 36-87, supra. Faced with competing considerations as to the optimal

deterrence of illegal immigration, Congress simply did not preclude all

undocumented aliens from receiving back pay, and to have done so might

well have undermined enforcement of the Nation's immigration laws.

that no provision of IRCA should “be used to * * * limit

the powers of federal or state labor relations boards * * *

to remedy unfair practices committed against undocumented

employees for * * * engaging in activities protected by

existing law.” H.R. Rep. No. 682, supra, Pt. 1, at 58.

parameters of the remedy that Congress expected the Board

to award undocumented workers victimized by NLRA vio-

lations, the legislative history yields no support for the

proposition that Congress sought to combat illegal irami-

gration by (as petitioner urges) denying remedies for labor

law violations to undocumented workers.

5. Petitioner argues (Br. 25) that an award of back pay

for undocumented aliens like Castro who remain in the

United States after being illegally discharged encourages

such aliens to extend their illegal stay. That contention,

however, is based on the doubtful speculation that undocu-

mented workers will consider the possibility of receiving

back pay, perhaps after years of litigation, in deciding

whether to remain in the United States or to return home

after being discharged. In fact, such discharged undocu-

mented workers are far more likely to focus on obtaining a

new job immediately, if such employment is available. See

Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1988)

(noting that “[iJt is the hope of getting a job—at any

wage—that prompts most illegal aliens to cross our borders”).

At any rate, such judgments about the likely effects of the

Board’s remedial orders are principally for the Board to

make in determining how its remedial authority should be

exercised. As this Court explained shortly after enactment

of the NLRA:

[Congress left] the adaptation of means to ends to the

empiric process of administration [by the Board]. * * *

Because the relation of remedy to policy is peculiarly a

matter for administrative competence, courts must not

enter the allowable area of the Board’s discretion and

must guard against the danger of sliding unconsciously

from the narrow confine of law into the more spacious

domain of policy. * * * [T)he power with which Con-

gress invested the Board implies responsibility—the

responsibility of exercising its judgment in employing

the statutory powers.

Phelps Dodge, 313 U.S. at 194.

There is also no merit to petitioner’s claim (Br. 25) that,

in awarding Castro limited back pay, the Board either

exeusſed] Castro’s failure to mitigate his damages” or

“sanctionfed] the perpetration of a fraud by Castro on yet

another unsuspecting employer.” The Board did not excuse

any alleged “failure” by Castro to mitigate his loss of income

after petitioner unlawfully laid him off. See generally

Nathanson, 344 U.S. at 29 (in calculating net back pay,

Board deducts “actual interim earnings”). Rather, the Board

found (Pet. App. 85a-86a n.12) that Castro “satisfied his

obligation to make reasonable efforts to find interim work

following his unlawful layoff” by securing such jobs as a

carpenter’s helper and a gardener. Nor is there any evi-

dentiary basis in the record for a conclusion that Castro

tendered fraudulent identification documents in obtaining

interim work. Petitioner adduced no such facts in the

compliance proceeding before the Board. It may well be that

the employers with which Castro secured interim

employment either hired him without complying with the

“employment verification system” set forth in 8 U.S.C.

1324a(b), or were not legally obligated to verify Castro’s

work authorization prior to hiring him.”

2 An INS regulation provides that “employment” does not include

. “easual employment by individuals who provide domestic service in a

private home that is sporadic, irregular, or intermittent.” 8 C.F.R.

Finally, there is no merit to petitioner’s suggestion (Br.

17) that issuance by the Board of a cease and desist order

alone represents the only proper accommodation of the

NLRA and IRCA in this case. As this Court has explained

in the context of Title VII, Ailf employers faced only the

prospect of an injunctive order, they would have little

incentive to shun practices of dubious legality.” Albemarle

Paper Co. v. Moody, 422 U.S. 405, 417 (1975). Rather, “[i}t is

the reasonably certain prospect of a backpay award that

providels] the spur or catalyst which causes employers and

unions to self-examine and to self-evaluate their employment

practices.” Id. at 417-418 (internal quotation marks omitted).

The same reasoning holds true in the context of unfair

labor practices under the NLRA. As this Court has recog-

nized, a back pay order provides “more certain deterrence

against unfair labor practices” than does a Board cease-and-

desist order alone. Sure- Tan, 467 U.S. at 904 n. 13. To be

sure, as the Court also held in Sure-Tan, back pay is not

available for undocumented aliens in some circumstances,

just as it is not available in some circumstances for other

employees who remove themselves from the labor market or

are otherwise not physically capable of working legally in the

United States. See pp. 20-22, supra. But it does not follow

that back pay under the NLRA (or other federal labor laws)

is never available for undocumented alien workers, and such

a holding could impair the effective enforcement of both the

Nation’s labor and immigration laws. Neither Sure-Tan nor

IRCA requires such a result.“

274a.1(h). An employer's obligation to verify an individual’s authorization

for “employment” does not extend to such casual work. See 8 C.F.R.

Naa. Some of the work that Castro obtained after his layoff by

petitioner could have been the kind of casual employment for which verifi-

cation was not required (a. g., his work as a gardener).

27 In attempting to demonstrate that the Board’s limited back pay

order in this case is precluded by IRCA, petitioner relies (Br. 21-22) on the

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

LAWRENCE G. WALLACE

ARTHUR F. ROSENFELD Deputy Solicitor General

1 tay Sony oy

0 ’ . . to +s

Deputy General Counsel —

JOHN H. FERGUSON

Associate General Counsel

NORTON J. COME

1 — Associate Generul

ounsel

JOHN EMAD ARBAB

National Labor Relations

Board

DECEMBER 2001

response of the governments attorney to a hypothetical question posed by

a Member of the Court at oral argument in Sure-Tan, concerning the

permissibility of a back pay award if Congress were to enact legislation

making it illegal to hire an alien not lawfully present in the United States.

That reliance is misplaced. A lawyer's response to a hypothetical question

at oral argument concerning a law that had not yet been passed by

Congress or interpreted by the Board is entitled to little weight as a gloss

on a statute that was subsequently enacted. When, after Congress

enacted IRCA, the Board did have occasion to consider the significance of

IRCA for the appropriateness of back pay awards to undocumented aliens,

the Board carefully examined the new legislation and determined that a

such a back pay award would accommodate and, indeed, further, the pur-

poses of IRCA. See pp. 6-8, supra. ,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.