636 F.3d 33
2d Cir.2011Background
- NLRB seeks enforcement of two Board decisions against Domsey as a single employer under NLRA § 10(e).
- Domsey cross-petitions for review of the Board’s Supplemental Decisions and Orders.
- The Board held Hoffman precluded backpay for undocumented discriminatees; Domsey objected to immigration-related evidentiary rulings by the ALJ.
- ALJ barred testifying about immigration status during backpay, limiting mitigation evidence and excluding an immigration expert.
- After Hoffman, the Board remanded and partially awarded backpay, while failing to address Domsey’s immigration-status objections.
- This Court remands for further proceedings consistent with Hoffman and this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of objections to immigration rulings | Domsey preserved the objections | Board argued object was not preserved | Domsey preserved; Board erred in finding waiver |
| Remand required by Hoffman after Hoffman | Hoffman mandates considering immigration status for backpay | Board declined to apply Hoffman post hoc | Abuse of discretion; remand required |
| Scope of immigration-related questioning and evidence | Employer should be allowed cross-exam and expert testimony | Board may restrict cross-examination | Remand to permit cross-examination and expert testimony; align with Hoffman |
Key Cases Cited
- Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (U.S. 2002) (undocumented aliens not entitled to NLRA backpay; Hoffman governs evidentiary scope)
- NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997) (immigration status relevance to backpay issues pre-Hoffman)
- Carpenter Sprinkler Corp. v. NLRB, 605 F.2d 60 (2d Cir. 1979) (courts defer to Board’s evidentiary rules; abuse of discretion standard)