Hoffman Plastic Compounds, Inc. v. National Labor Relations Board

COMPOUNDS, HOFFMAN PLASTIC

INC., Petitioner,

NATIONAL LABOR RELATIONS

BOARD, Respondent.

No. 98-1570.

United States Court of Appeals,

District of Columbia Circuit. En

Argued Banc Sept. 2000.

Decided Jan. by Circuit opinion filed

Dissenting SENTELLE, Circuit which Judge HENDERSON, GINSBURG, and Judges join. RANDOLPH filed Circuit Dissenting opinion Judge GINSBURG.

TATEL, Judge: Circuit workers fired illegally several Petitioner organize attempts for their in retaliation unfair labor multiple Finding a union. Relations Labor National practices, rein- remedy, traditional Board ordered discharged all for statement learned that When employees. an undocumented was discriminatee one and termi- alien, reinstatement it denied petitioner the date as of nated lack of doc- discriminatee’s discovered this re- Challenging even umentation. for the cause argued Baskin Maurice award, argues that both petitioner duced briefs was him on the petitioner. With Inc. McCortney. Ryan D. (1984), and L.Ed.2d Labor Block, Attorney, National Sharon Act of Reform and Control Immigration for re- Board, the cause argued Relations (“IRCA”), bar awards 100 Stat. brief her on the spondent. With discrimi- to undocumented any backpay Counsel, Aileen Page, R. General Leonard under- disagree. Properly natees. We General Armstrong, Deputy Associate A. backpay awards stood, supports Sure-Tan Cornnell, Jr., Attor- Counsel, L. Fred and long so discriminatees to undocumented Sher, General Associate Linda R. ney. actu- discriminatees’ reflect the awards Deputy Counsel, Burgoyne, D. John and Moreover, nothing in because al losses. Counsel, ap- entered Associate General limited such prohibits IRCA pearances. awards, fashioned because B.oard just fulfill this case the award in the cause argued Coppess B. James the National Labor Relations objectives of of La- American Federation amicus curiae IRCA, Act, to avoid violations but also Organiza- Congress Industrial bor broad the Board’s within the award falls were Jona- him the brief on tions. With deny therefore We remedial discretion. Laurence Gold. than P. Hiatt cross- grant review petition for enforcement. application EDWARDS, Judge, Chief Before: SENTELLE, GINSBURG, WILLIAMS, I ROGERS, RANDOLPH, HENDERSON, Compounds, Plastic GARLAND, Judges, and Hoffman TATEL, Petitioner Circuit po- Inc., custom-formulated SILBERMAN, Judge.* Circuit manufactures Senior by custom- pellets use lyvinylchloride construc- pharmaceutical, produce ers who filed Circuit Opinion for the Court May tion, products. and household TATEL. Judge * part in this matter. regular active Garland took Judge Silberman was Senior Judge argument. oral time of service began sion, working José Castro in Hoff- the ALJ recommended neither rein- production man’s plant earning minimum statement nor backpay. In reaching this wage compounder, conclusion, as a operator IRCA, the ALJ relied on which large blending mix machines that and cook makes it unlawful for employers to know- plastic by formulas ingly ordered hire customers. undocumented workers and for Rubber, Cork, Linoleum, the United When to use fraudulent documents to America, and Plastic establish employment Workers of AFL- See eligibility. Inc., Plastic Compounds, began an organizing CIO drive at Hoff- Hoffman Castro, 683, 685, factory, (1994). N.L.R.B. along man’s with several WL 397901 employees, other distributed union autho- Expressly considering policies rization cards to Following coworkers. NLRA, both IRCA and the the Board what the Board later described as “coer- agreed with the ALJ that reinstatement of cive restraining” interrogation of un- an undocumented discriminatee would be supporters, ion Hoffinan laid off all em- See 326 N.L.R.B. No. inappropriate. who had ployees engaged organizing 23, 1998). WL at *2-4 (Sept. activities, including Castro. As the Board Hoffman explained had an earlier Inc., Compounds, Plastic 306 N.L.R.B. case, ordering reinstatement would force (1992). 1992WL 14561 an to violate prohibition IRCA’s against knowingly hiring undocumented discharged After one employee filed aliens. See A.P.R.A. Fuel Buyers Oil charges Board, with the an Administrative Inc., Group, 320 N.L.R.B. Judge Law found that company had (1995). WL 803434 The Board disagreed engaged multiple practices. labor unfair with the ALJ that prevented IRCA any The Board adopted findings, the ALJ’s award of backpay. To account for IRCA’s concluding only that Hoffman had un- prohibition on the fraudulent use of docu- lawfully interrogated employees about ments, however, applied their union activities sympathies, but well-established after-acquired evidence also “in order to rid itself of known rule and ended backpay liability the mo- supporters, union company] [the discrimi- ment Hoffman became aware of Castro’s natorily selected union lay- adherents for Plastic, status. 8(a)(1) (3) off’ in Hoffman violation sections 1998 WL 663933 at *3-4. NLRA, 158(a)(1), (3). § 29 U.S.C. Plastic, 306 N.L.R.B. at 100. Hoffman petitioned for review of Hoffman The Board ordered Hoffman to cease and Board’s order. The company did not chal- desist from such unfair practices, to lenge the Board’s finding that it committed post a site, notice at the work and to practices, unfair labor including illegal reinstate and make sup- whole union discharge of known organizers. union It porters it had illegally fired. only contested Castro’s limited backpay award, arguing primarily that awards of a dispute When arose as to the proper backpay to undocumented diseriminatees computation of backpay, a compliance NLRB, Inc. v. are barred hearing was held before another ALJ. 81 L.Ed.2d appeared Castro hearing, testifying 732, and, alternative, by IRCA. through interpreter. When Hoffman’s enforcement, Cross-applying attorney began questioning Castro about NLRB, supported by AFL-CIO, amicus citizenship, his the Board’s General Coun- responded that the limited award objected. sel The ALJ sustained the ob- runs afoul of neither Sure-Tan nor IRCA jection, but not before had Castro stated and falls well within the Board’s remedial that he was a Mexican national and that discretion. the birth certificate he had used to gain

employment at Hoffman was borrowed A panel divided of this court resolved all from a friend. On the basis of this admis- issues favor. Board’s Hoffman imposed restriction the sen- party, Inc. v. Compounds,

Plastic dispute did an issue in (D.C.Cir.2000). tence not address granted We then F.3d 229 Court; play any part nor did en banc before rehearing petition Hoffman’s holding reasoning. or Having in either Sure-Tan’s opinion. the panel and vacated such, hardly banc, “consid- we As the sentence is Hoffman’s claims en now heard ... Dissenting Op. dict[um].” ered petition for review again deny the Cf. Moreover, extending the sentence cross-application for en- Board’s grant the as Hoffman beyond the facts forcement. hold- urges, would conflict with Court’s II diseriminatee is ing that an undocumented backpay long appro- as it entitled to so argu begin with Hoffman’s We to ac- tailored the discriminatee’s priately ment, col dissenting by our embraced loss. tual by a this case is controlled leagues, that from com The in Sure-Tan committed single “[I]n Sure-Tan: sentence when, in employees practice must be unfair retaliation puting backpay, the labor (and the in employees’ electing for work for its success deemed ‘unavailable’ tolled) during union, Immigration the Nat- backpay therefore alerted and accrual lawfully any period they when were not uralization that some of its em- Service employed Rather present ployees might entitled to be be undocumented. Sure-Tan, workers, at deport 467 U.S. than the the allowed United States.” INS sentence, 903, “By This Hoff to country voluntarily. 104 2803. them leave the S.Ct. claims, NLRB “plainly prohibits” day, man the end of all five were the the backpay ultimately limited to awarding from even on a bound Mexico.” bus 887, by Sure-Tan, un workers victimized 104 2803. 467 U.S. S.Ct. literally remedy practices. fair Read The Board ordered the traditional Sure-Tan, legal backpay. from Sure-Tan’s factual and of reinstatement with divorced (1979). 788, context, inter the sentence could well be 246 N.L.R.B. WL 9533 1979 dissented, But the Su preted support fearing that view. Two members that these “dis preme against produce has warned could Court remedies violations law, immigration the of the United Immi- sect[ing] then-existing sentences the the Reports though they gration Nationality were Act. Id. at 789- States Mary’s St. Honor The on employment United States Code.” INA focused not Hicks, Ctr. v. 113 S.Ct. la- of undocumented workers—that came (1993). 2742, And as we Congress 125 L.Ed.2d 407 ter when enacted IRCA—but said, have word and every “[t]he Court’s rather on “the terms and conditions of vacuum; Sure-Tan, in a country.” sentence cannot be read its admission to the pronouncements light 892, be in De (quoting must read U.S. Bica, holding degree the of the case and to the Canas (1976)). as to with the possible, Citing so be consistent these L.Ed.2d with other apparent Court’s intentions and the dissenters would have prohibitions, opinion.” remedy Aka v. language “encouraging] in same limited the avoid Ctr., 156 Washington Hosp. country F.3d ille- a diseriminatee reenter (en banc). (D.C.Cir.1998) at 789. gally.” 246 N.L.R.B. context, con- Echoing dissenting in sentence members’ Read Sure-Tan cerns, does bar to undocumented the Seventh backpay not Circuit “modified origi- aspects.” See Board’s] discriminatees. Seventh some Circuit Inc., sentence, nally which the Su- NLRB v. 672 F.2d crafted (7th Cir.1982). with allowed preme merely repeated, to deal court 603-06 unique to remind the discriminatees circumstances Sure-Tan Sure-Tan ob- present in this neither that without case. Contested reinstatement offer taming proper they documentation could Conditioning the offers of reinstatement not reenter the United States to reclaim on employees’ legal reentry and jobs. Id. at their 605-606. To reduce deeming the employees “unavailable” appeal illegal reentry, the court also during any period they when were not modified the order require “to reinstate- lawfully present requirements are only if ment legally discriminatees are fact imposed by the Court of present legally free to be employed Appeals case, in this and hence fully country this offer themselves accepted by the Board.... The Board for reinstatement.” Id. at 606. has clearly agreement indicated its these portions of the Court of Appeals’

Eliminating still another incentive for remedial order specifically noting illegal reentry, the court added a clarifica- petitioners do not order, challenge tion to the these Board’s a clarifi- parts of the order by limiting [and] cation forms the basis sen- own argument to tence issue in minimum backpay case: computing “[I]n award issue alone. discriminatees will be un- deemed available for work during any period when Id. at 903 n. 104 S.Ct. 2803 (emphasis entitled and added); Torbilleria, see also Del Rey Inc. employed in the States.” United Id. This NLRB, (7th 1115, 976 F.2d 1123 Cir. limitation, which was based on the Board’s 1992) (Cudahy, J., dissenting). Turning its practice standard of tolling backpay when attention to that limited issue—the “mini unavailable, discriminatees are physically mum backpay Supreme award”—the 512, see Local Warehouse & Work- Office Court held that the Circuit Seventh had 705, Union v. ers’ 795 F.2d 716 n. only not “exceeded its narrow scope of (9th Cir.1986) (“Felbro”) (citing 3 NLRB by review” substituting its own judgment 10,612, Casehandling 10,656.9), §§ Manual Board, for that of the but by also erred not including when of the out see country, sufficiently tailoring remedy “to the Best, Inc., Hickory’s 1274, 267 N.L.R.B. actual, compensable injuries by suffered 1277, 1983 WL 24897 that ensured discharged Sure-Tan, the employees.” illegal reentry would not restart the accu- 901, U.S. at Although S.Ct. 2803. mulation of backpay. agreeing with the Seventh Circuit that Though the Seventh Circuit believed these restrictions would mean that the that these restrictions pre- were needed to Sure-Tan likely discriminatees would re INA, vent violations of the it that worried ceive no id. at “in the circumstances of this case”—the 2803, the Court cautioned that “the proba Sure-Tan discriminatees had been of out unavailability ble of the more [NLRA’s] country the since company’s the viola- effective in light practical remedies of the tion—the might restrictions result in no workings laws, of the immigration howev backpay at all. See at F.2d er, simply justify judicial cannot the arro To 606. solve this problem and to “effec- gation authority of remedial fairly en policies [NLRA],” the tuate of the the compassed 904, 104 within the Act.” Id. at court ordered the to the pay conclusion, S.Ct. In reaching discriminatees for an backpay “obviously the Court mentioned the “not lawfully enti conjectural” period. six-month tled” restriction on backpay simply ex Supreme began by emphasiz- Court plain the Seventh for im Circuit’s motive that ing party neither challenged “not posing the a six-month minimum award. The lawfully entitled” restriction on which by additional sentence relied on our dis Hoffman now Sure-Tan had sup- senting relies. colleagues, see Dissenting Op. at ported the restriction throughout, restriction; Sure- adds no new it merely Tan, 467 U.S. at n. the holding summarizes Court’s that back- and even the Board accept had come to pay it: awards must be tailored to the discri- the Seventh fact that the ignores only as de- circumstances individual

minatees’ to deal with the restriction crafted Circuit the Board. termined it faced—undocu- problem precise the on which sentence only does Not returning to the discriminatees mented of Sure- part thus form relies Hoffman backpay to claim illegally country —but contrary to reasoning, but holding or Tan’s (our language” “other conflicts with also claim, no bar presents it company’s 1291) it Aka, making 156 F.3d words discri- to undocumented backpay awarding undocumented discriminatees clear above, the Sev- explain As we minatees. Specifical- backpay. in fact entitled are to en- restriction crafted the Circuit enth approve[d of] “generally ly, the who discriminatees the Sure-Tan sure in this of action original course Board’s would reenter country left the had it ordered conventional which case supra backpay. See to claim illegally backpay,” of reinstatement restriction, interpreting In so 653-54. of amount precise calculation leaving in- Circuit’s not on Seventh rely we proceeding. compliance until the Dissenting Op. at 652- meaning, tended of. S.Ct. 2803. Court’s rather on but in the Cir- deficiency” “main Seventh the same concern: precisely expression was not order, explained, the Court cuit’s recognized, Appeals the Court [A]s backpay to undocumented awarded tradi- Board’s implementation discriminatees, amount but pro- compliance at the tional remedies “develop[ed] was awarded upon conditioned must be ceedings toas any record evidence absence total readmittance legal employees’ employ- of individual the circumstances devising In remedies States. United proposi- “cardinal” ees,” violating the thus practices, unfair labor be suffi- remedy must a backpay “that tion account another to take into obliged actual, expunge only tailored to ciently objec- Congressional important equally consequences merely speculative, and not deterring wit, of objective tiv[e]—to Id. at 899- practices.” unfair of is em- immigration unauthorized The Court 2803. 104 S.Ct. n. conditioning the By INA. bodied continued: employ- on of reinstatement offers an “estimated” Appeals of Court [T]he conflict reentry, potential legal ees’ without period appropriate Similarly, avoided. INA is thus with the peri- as to the any evidence whatsoever backpay, employees computing employees particular these of time od for work deemed “unavailable” must be working before have might continued (and backpay therefore accrual of without INS by the apprehension tolled) any during period to any opportunity affording petitioners lawfully to be entitled In the ab- mitigating evidence. provide States. employed the United or factual information of relevant sence (internal quo- 104 S.Ct. Id. at it is analysis, inappropriate adequate omitted) (empha- citation the Court tation marks ... to conclude us added). mini- the proper sis had Appeals estimated degree “with fair backpay award mum out, true, points It is as Hoffman precision.” pres- entitled “not words If, n. at 901-02 broadly more sweep employed” ent and discri- argues, undocumented dis- as Hoffman undocumented necessary to than deter be awarded may minatees never country reentering from criminatees “the mentioned not have would im- the Court But these words illegally. reading “the or backpay award” minimum any proper award back- bar pose absolute particular of time these period discriminatees pay for undocumented might working.” Fuel, have continued (2d Nor A.P.R.A. 134 F.3d 54-55 Cir. 1997). would there have been a need for Likewise, more Felbro, the Ninth Cir- factual “relevant information or adequate cuit stated: analysis,” much compliance less for a the Supreme Court did not proceeding to determine the amount of address the issue whether undocu- backpay actually According due. to the mented workers remaining at work in dissent, compliance was proceeding the United States throughout back- only intended to determine whether pay period are to backpay entitled discriminatees had legally returned to the awards. Sure-Tan barred from backpay country. See Dissenting Op. at 653-54. only those undocumented workers who clear, itself made were unavailable for work in the back- however, that such a hearing would de- pay period because they were outside period termine “the of time these partic- the United States entry without papers. ular employees might have continued Felbro, sure, 795 F.2d at 722. To be in a

working before apprehension by the later case also upholding an award of back- INS.” See 467 U.S. at n. pay to workers, the Ninth 11, 104 S.Ct. 2803. Circuit added a footnote speculating Hoffman next argues that sub- IRCA’s whether the enactment of IRCA might sequent adoption employer penalties “change! the mix of policy ] considerations knowingly hiring undocumented aliens ex- underlying the case law which supports tended the Sure-Tan sentence to un- all our conclusion that undocumented employ- discriminatees, documented including ees may recover backpay.” EEOC v. Ha- who, Castro, those like never leave the Hotel, cienda 881 F.2d 1517 n. 11 country. According Hoffman, Castro (9th Cir.1989); see also v. Enterprise Rios now falls squarely within the Sure-Tan Ass’n Steamfitters, 860 F.2d 1172 n. sentence because longer he is no “legally (2d Cir.1988) (noting, footnote, in a entitled to be ... employed.” Had the IRCA, passage of but “not decid[ing] the law, sentence established a general rule of claims”). effect provision of this on future might agree. we As we demonstrate Yet the Ninth Circuit and its district above, however, the sentence is neither courts consistently have reaffirmed that (it general only addressed the unique fac- protected undocumented workers remain Sure-Tan), (it tual situation in nor a rule by labor employment and laws after IRCA played part no in either the Court’s hold- and have continued to award them back- ing Court, moreover, or reasoning). The See, Kolkka, pay. e.g., NLRB v. 170 F.3d did not consistently describe the limitation (9th Cir.1999); 937 v. Contreras Corinthi- employment in terms of eligibility. At one an Vigor Inc., Ins. Brokerage, 25 point, it referred the to sentence as condi- F.Supp.2d (N.D.Cal.1998); 1053 Escobar v. tioning backpay merely on “legal presence Baker, (W.D.Wash. 814 F.Supp. country”; elsewhere, in this to referred 1993); EEOC “La Mejor,” Tortilleria being “lawfully present.” Id. at n. (E.D.Cal.1991). F.Supp. Only the 2803; id. at 903 n. 104 S.Ct. Seventh Circuit has interpreted Sure-Tan though a differently, point- dissent strong out ed panel the the Two of the three Circuits that have ad- dressed agree this issue interpre- our Fuel,

tation of Sure-Tan. In A.P.R.A. the faced significantly different scenario. Second Circuit held that Sure-Tan bars In the aliens question in awards of backpay only undocumented, to undocumented not only they in were not discriminatees who were country. unavailable for the They could not reenter for work because were outside the coun- the purpose taking of up employment try and unable to lawfully reenter. See breaking without the law. This was the omitted). (internal Echoing (and citation the in Sure-Tan Court’s concern and Labor view, Education the House it). before panel’s concern provision that no stated Report Committee Tortilleria, at 1123-24 976 F.2d Rey

Del should the law J., dissenting). (Cudahy, or Federal of State powers the limit such as agencies standards labor Ill Admin- Safety and Health Occupational if Sure- even argues that Hoffman Division of istration, Hour Wage to undocu not bar does Tan Labor, Equal Department discriminatees, Yet does. IRCA mented Commission, Opportunity Employment such an directly bars in IRCA nothing Board, or Labor Relations the National acknowledges, itself Hoffman award. As ex- arbitrators, conformity with Labor repeals nor amends neither IRCA law, practices remedy unfair to isting law. IRCA’s labor any or other NLRA em- undocumented against committed moreover, shows history, legislative rights before exercising their for ployees the statute not intend Congress did in activi- engaging or agencies such indirectly. even NLRA limit To do agencies. by these protected ties Report stated Judiciary Committee House counter-productive would be otherwise of IRCA should provision undoc- hiring limit the intent to of our depressing any employees diminish umented or undermine be used to law, caused working conditions existing or on effect protections way employment. state or their powers of federal limit the boards, labor standards labor relations 99-682, pt. at 8-9 H.R.Rep. No. labor arbitrators or agencies, News at Cong. & Admin. Code against un committed practices unfair added). (emphasis exercising documented bar to back- statutory Absent agencies or such rights their before discriminatees, we undocumented pay for by exist protected in activities engaging un we argument to the alternative turn particular, law. ing making: that Hoffman to be derstand are not intended to provisions sanctions accommo award fails Board’s of the term any way scope limit hiring of goal limiting date IRCA’s 2(3) of in Section “employee” principles workers. Two amended, rights [NLRA], or this issue. our consideration of guide 7 and stated in Sections protections First, the Board’s formulation while Act. of that merits the NLRA violations remedies for (1986), 1, U.S. pt. Rep. deference, H.R. see ABF highest level 5649, 5662. Admin. News Cong. NLRB, & Code Inc. v. Freight Sys., on Sure- Judiciary relied Committee 127 L.Ed.2d 152 114 S.Ct. that continued its view support Tan to of IRCA warrants interpretation under workers undocumented protection See, Ship New York e.g., at all. deference with fully Comm’n, IRCA’s NLRA is consistent Federal Maritime Ass’n v. ping (D.C.Cir.1988) goals: (agency F.2d ad does not of a statute it interpretation in Sure- As the observed deference). Sec to no minister is entitled undoc- Tan, [to of the application NLRA NLRA, Board ond, enforcing “helps to assure workers] umented may not conditions of employment wages important Con- equally ignore other adversely affect- are lawful residents Frequently the objectives. gressional illegal alien competition of by the ed purpose Congressional scope subject to entire who are not of one accommodation calls for careful employment.” terms of standard statutory another, scheme to and it is and then raise “the unlawful immigration much too to demand of an adminis- status of their discharged employees in body trative that it undertake this ac- retaliation for protected activities”; em- commodation without empha- excessive ployers might even penalties “consider the upon sis its immediate task. of IRCA a expense reasonable more than offset the savings of employing undocu- Steamship Southern Co. mented workers perceived or the benefits 86 L.Ed. 1246 of union avoidance.” Id. at (1942). 415. The If requires a conflict the Board “to Board also found that denying backpay policies accommodate the of another statu- would harm the collective bargaining tory regime within the framework of the rights of authorized workers because “the legislation administers,” it fully “must continuous threat replacement with requirements enforce the of its own stat- powerless and desperate ute, so, but must do insofar as possible, workers would certainly chill the American a manner that minimizes the impact of its and authorized alien workers’ exercise of policies actions on the of the other stat- their rights.” Section 7 Id. at 414. ute.” New York Shipping, 854 F.2d at recognize We may there be dif- agency, [A]n faced with alternative ferent views on the extent to which methods of effectuating policies awarding backpay to undocumented dis- (1) administers, the statute it must en- criminatees employer reduces incentives gage analysis a careful possible to violate the NLRA. It could be ar- effects those alternative courses of gued, ac- example, that employers would tion may have on the functioning and not likely risk penalties criminal policies of other statutory regimes, with knowingly hiring undocumented workers claimed; (2) a conflict which and must simply gain the increased leverage explain why minimizes, the action taken that would flow from reduced remedies possible, the extent its intrusion into for unfair practices. But even if policies that are more properly prov- true, this is employers who merely sus- ince of another agency or statutory re- pect their workers are undocumented gime. Id. at 1370. will still have reason test the bound- end, aries of the NLRA. In the howev- The Board’s first opportunity to consid- er, we need not resolve policy these er whether and to what traditional extent questions, for it is the Board pos- might require NLRA remedies modifica- expertise sesses this area and it is to tion to account for IRCA’s sanc- the Board that we owe deference. See tions came in A.P.R.A. Fuel. See 320 New Shipping, York 854 F.2d at 1364 N.L.R.B. 408. Beginning New York (holding that courts must defer to an Shipping’s requirement it “fully en- agency “interpretation of organic its own requirements statute,” force the of its own legislation” even there where are com- Board, F.2d citing Sure- schemes). statutory Indeed, peting Tan, explained why policy NLRA calls for very existence of competing views rein- backpay for undocumented discriminatees. forces the need for reliance on the at N.L.R.B. 414. Because “undocu- experience. Board’s mented extremely aliens are reluctant to complain to the employer or to any of the We have reaction same to Hoffman’s agencies charged with enforcing workplace argument that the Board authority lacked standards,” they easy make targets for an backpay to award here because “none of ” employer’s “unprincipled effort to stave off ‘parade of the Board horribles’ iden- ... representation.” union Id. Employ- in A.P.R.A tified including employ- Fuel — ers resisting simply unions un- could fire exploitation er of workers’ undocumented documented try workers who organize to status to chill activity union have —“could to “be used not the Act take insistence to In order in this case.” occurred labor any way or diminish workers, undermine Hoff- undocumented advantage of at 413 law.” Id. existing protections be aware must claims,

man at pt. Rep. H.R. (quoting status, is “[i]t undocumented of their 5662); at News Cong. & Admin. U.S. Code not did company dispute” beyond at 56. F.3d A.P.R.A. see also Fuel was an undocumented that Castro “[know] NLRA prac- applied unfair then these the time The Board alien” at remedy Ac- at 14. a Pet’r to formulate policies for IRCA Supp. Br. tice. See however, it had denying Board, practices unfair labor specific for the to the cording pur- NLRA’s for retal- accomplish remedies found. To workers undocumented reinstatement in union ordered the Board participation poses, chill would iation con- to avoid the em- But in order backpay. whether of with “regardless activities knowingly on prohibition worker’s with IRCA’s undocumented flict of knew the ployer aliens, it conditioned Resp. for Br. undocumented Supp. hiring status.” immigration pro- for on the discriminatees’ no reason reinstatement provides 4. Hoffman A.P.R.A. this documents. proper on position duction of the Board’s believing that ordered Fuel, 415. It also interpre- N.L.R.B. at unreasonable represents issue backpay give to of period limited the NLRA. tation of to obtain the opportunity discriminatees believ- its reasons Having explained this documentation. remedies requires policy NLRA ing that Castro, the remedy for discriminatees, crafting for undocumented accommo- Fuel’s on A.P.R.A. its second relied Board Board addressed Fuel A.P.R.A adding policies, and IRCA the accom- dation of NLRA obligation: Shipping New York remedy to ac- limit began It an additional policy. immigration of modation A.P.R.A. unlike the fact and IRCA count for the NLRA by observing that its of Fuel, knowledge had no objectives Hoffman policy “virtually share identical him. it hired illegal status when workplace employee’s American respect to the with rule, evidence after-acquired achieve Applying we can best .... believe [W]e its rein- relieved Hoffman effect mutuality purpose off and cut NLRA, altogether including obligation statement enforcing the vigorously status remedies, the moment Castro’s backpay Board traditional providing Plastic, 314 that was discovered. extent employees, respect to all Hoffman than Rather 685-86. or en- N.L.R.B. require does such enforcement nothing,” Dis- doing “pay[ing] either em- Castro conduct courage unlawful Fuel, the NLRB Op. at senting A.P.R.A. or individuals.” ployers “in lost noted, work compensates him award As the Board at 411. 320 N.L.R.B. authority to restrain of the Board’s preserving aid recognized that itself Sure-Tan workers, Con- see that harm all violations” protection N.L.R.A. Co. v. Edison solidated advan- economic the distinct eliminates L.Ed. employers incentive to and thus the tage (1938) limited award was even that in preference aliens —and hiring illegal of Castro’s recognition or alien American citizens need had no Board status. Because A reduction lawfully. working other Fuel’s adopt A.P.R.A. to undocumented availability jobs —the the discriminatees while award found, in turn aliens, the Court would documentation —the to obtain attempted entering many aliens discourage from before an award of such propriety illegally. States the United us. history of legislative Citing Id. at should the Board argues that Hoffman above, observed the Board quoted

IRCA back- Castro denied gone further and have Congress’ explained similar concern 649 out, pay altogether. As it points IRCA company’s] contention, [The though not criminalizes the false use of inconsistent documents to with our appraisal of [the employee’s] misconduct, employment. obtain Yet the Board has raises counter- vailing long concerns. employee held that Most important misconduct does is Congress’ decision to completely delegate to immunize from employers Board the primary responsibility their backpay obligations, even when the making remedial decisions that best ef- would discriminatees not have been hired fectuate the policies of the Act when it but for their own wrongful conduct. Cf. has substantiated unfair prac- labor Dissenting Cuneo, at 651. In Op. John tice. example, the job discriminatee falsified his 856, application. 298 N.L.R.B. 1990 323-24,114 WL S.Ct. Writing sepa- (1990). Instead of denying backpay rately emphasize to that the Board’s fail- altogether, employer as the urged, adopt had ure to an unclean hands_ “un- policy Board limited to period be dermines and courts,” dishonors the id. at 329, 835, tween the illegal discharge and the mo S.Ct. two concurring Justices ment the nevertheless agreed learned employ the Board acted so, ee’s within its doing 326, falsification. remedial discretion. Id. at J., 114 S.Ct. 835 applied (Kennedy, after-acquired concurring), evidence rule to 329, (Scalia, J., S.Ct. 835 “balance responsibility concurring [its] to judgment). Respondent’s unfair practice against public interest in not condoning [the Attempting distinguish Freight, ABF employee’s] falsification of employment his says the dissent that unlike the perjury application.” Id. at 856. Supreme statute, IRCA forbade Castro “from ob-

Court has used after-acquired itself job.” taining Dissenting Op. at 657 n.2. evidence rule as a means of “deter[ring]” This misreads IRCA. The statute makes labor law violations and “compensating]” it unlawful for employers knowingly discriminatees, without disregarding the aliens, hire undocumented 8 U.S.C. “prerogatives” of employers. 1324(a), § See McKen and for undocumented aliens to non Co., v. Nashville Banner Pub. knowingly use false documents to obtain jobs, 1324c(a)(3). § 115 S.Ct. L.Ed.2d U.S.C. IRCA does (1995). explicitly make unlawful for undocu- True, mented aliens to work. Castro could where, here, Even the discriminatee have been prosecuted fraud, for his but law, violates the Court has nothing there was illegal about his actual require refused to deny Board to all employment. So the Board ordered backpay. In ABF Freight System v. limited it was not compensating 127 Castro for the wages loss of prohib- IRCA L.Ed.2d the discriminatee perjured him ited from earning. No matter how during himself compliance proceed- may much Hoffman deplore con- Castro’s which, ing act like Castro’s fraudulent —an duct, ABF Freight stands for proposi- conduct, law, violated federal criminal see tion that balancing Castro’s misconduct § 18 U.S.C. cited in Freight, ABF against Hoffman’s is the Board’s responsi- 510 U.S. at 835. Al- S.Ct. bility, not ours. Had the Board ruled that though declaring that testimony “[f]alse disqualified Castro’s behavior him from a formal proceeding intolerable,” any backpay, would we have deferred should “perjury severely sanc- that decision as well. important,” “Most tioned,” 323,114 id. at the Court ABF said Freight, important most rejected company’s argument here, Congress’ “is delegate decision to such preclude behavior should the employ- the Board the primary responsibility for ee from receiving backpay: making remedial decisions that best effec- all, not this remedy Congress, Act it its lies in has of policies

tuate the court. practice.” unfair substantiated 323-24,114 S.Ct. 835. atU.S. IV the Board’s accom- argues that Hoffman argument requires final Hoffman’s for reason: IRCA fails another modation of company The claims that little discussion. gives undocumented discrimi- remedy back- “[b]y awarding undocumented aliens in the coun- to remain natees an incentive any regarding consideration pay without accumulating backpay. It try continue to mitigate can whether these individuals by making U.S. argued could also be illegal damages, their Board treats attractive, backpay

jobs awarding to more than documented favorably aliens more actually en- undocumented discriminatees and, so, the Board vio doing workers if immigration. Even courages illegal protection clause of the equal lates the course, so, providing is the Board’s of to the United Fifth Amendment States la- remedy unfair purely compensatory Brief Pet’r at Not Constitution.” immi- illegal make bor could not practices standing only does Hoffman lack to assert than it would be if gration more attractive protection rights parties, third equal unfair labor never committed employers see, Ohio, e.g., Powers U.S. however, practices. job, Our to 410-16, 113 L.Ed.2d 111 S.Ct. resolve, it, “medi- puts to or as the dissent to no evidence that the points but ate,” issues, Dissenting at 656-57. Op. such mitigation Board a different stan applies misinterprets neither long So Board In to discriminatees. dard undocumented IRCA, Shipping, New York 854 F.2d see event, found any that Castro 1365, “ignore[s]” policies, the statute’s employ interim sought both obtained emphasis” nor on the places “excessive ment, duty to fulfilling mitigate. his thus NLRA, Steamship, 316 U.S. at Southern The Castro’s interim Board subtracted upset we 62 S.Ct. will its $4,000 his earnings backpay almost from precise statutory accommodation award. schemes. Finally, pointing we think it worth out Hoffman have mitigated itself could sum, fully the NLRB has satisfied its liability by making its either backpay Shipping obligation. New York fide Castro bona reinstatement offer— limited backpay Board crafted the him, the although it did offer to rehire imple- conflict IRCA and to avoid inadequate—or by Board found the offer understanding purposes ment its with the Board’s re- complying promptly According NLRA. both IRCA order before instatement issued Castro’s Board, re- the limited award became known. undocumented status undoc- employer prefer duces incentives Plastic, 663933, at See 1998 WL Hoffman (IRCA’s goal), umented reinforces workers *2, regulations promulgated *5. INS bargaining rights collective for all workers permit pursuant expressly to IRCA rein- (the goal), protects wages NLRA’s with- discharge statement after unlawful working conditions authorized reverify requiring out (the Acts). goal Far from workers of both employee’s documents. C.F.R. “ignor[ing] equally important other and 274a.2(b)(viii)(A)(5). § objectives,” Congressional Southern Steamship, V Board, statute, fully enforcing its own and the petition for review is denied carefully considered IRCA and modified cross-application grant- for enforcement is according- backpay remedy traditional ed. If, believes, ly. as Hoffman discriminatees should receive no So ordered.

SENTELLE, Judge, dissenting, compel an to employ illegal Circuit an HENDERSON and nothing pay with whom alien do and him doing for RANDOLPH, join, Judges, Circuit nothing when it could not lawfully employ GINSBURG, Judge, joins part: in Circuit him pay to work and him working. But this is not a case impression. of first 1988, In of an undocumented alien May Supreme guid- Court has offered clear having illegally entered the United States ance which makes the case an even easier compounded illegality his when he fraudu- one. lently used the name and birth certificate in employment of Jose Castro to obtain Analysis

production of Hoffman plant Plastic. On January company laid off a Inc. v. 467 U.S. employees supportive number of of a union 883, 2803, 104 S.Ct. 81 L.Ed.2d 732 effort, organizing including employee Supreme Court reviewed a Seventh falsely illegally represented who had Circuit decision which had modified an Thereafter, himself to be Jose an Castro. applying NLRB order the National Labor judge, following administrative law evi- (“NLRA”) Relations Act to unfair labor dentiary hearing, found that Hoffman had practices committed against undocumented engaged practices including unfair labor aliens, Sure-Tan, Inc., see NLRB v. discriminatory ad- selection union (7th Cir.1982). F.2d 592 The High Court layoffs herents which included the concluded that the Circuit was correct illegal alien known as Castro. upholding position the Board’s “that un After of the undocu- disclosure ‘employees’ documented aliens are within illegal mented worker’s status and his 152(3) meaning § of [29 U.S.C. ].” certificate, fraudulent use of the birth the Sure-Tan, 104 S.Ct. 2803. judge administrative law recommended The reached Court this conclusion based backpay. neither reinstatement nor Hoff- on the deference owed the Board “defin ” Inc., Compounds, man Plastic 314 ing the term ‘employee,’ a task “that ‘has (1994). N.L.R.B. 1994 WL 397901 assigned primarily agency been to the cre ” review, Upon agreed with the by ated Congress administer the Act.’ ALJ reinstatement of an undocu- Id. at (quoting S.Ct. 2803 NLRB beyond authority, mented alien was but Publications, Inc., v. Hearst 322 U.S. backpay ordered from the time of the dis- 130, (1944)); 88 L.Ed. 1170 cf. criminatory until discharge the revelation NRDC, Chevron U.S.A. Inc. v. Castro’s status. Hoff- 837, 842-45,104 2778, L.Ed.2d 694 S.Ct. Inc., man Compounds, Plastic 326 (1984). said, That Supreme Court N.L.R.B. I 1998 WL 663933 at *2-4. portion nonetheless vacated the remedial would reverse the Board and restore the decision, of the Seventh Circuit which had ALJ’s recommended result. ordered the Board to award an irreducible As it would be unlawful for Hoffman to minimum backpay of six months to each him employ illegal pay earned the affected in the face of the wages, it logic Immigra- employees’ illegal entry presence defies the tion Reform and Act In vacating por Control of 1986 the United States. (“IRCA”) decision, that the employer could be com- tion of the Seventh Circuit held, pelled pay illegal Supreme “[b]y directing law to to the unearned Court wages impose which he could not earn Board to a minimum regard employees’ and to which he would have no claim but award to the without prior legal availability his successful fraud. If this were actual economic losses or work, impression plainly a case of first I would find it Appeals the Court of I simple. theory authority would hold that exceeded its limited under the law equity government or could the federal Act.” 467 U.S. at added). plain paragraph makes Based on rather concise (emphasis possibility if were all with the dealing even it is phrase, italicized ques- held on the illegal had affording coun- tion, that Sure-Tan I would conclude plain it that such aliens. It further makes decision over- the Board’s us to vacate sels the em- option when remedy a is not by the reached logical result ruling the unavailable” for work ployees are “deemed But, the judge. Su- law administrative period of deemed unavaila- and that such there. stop did not preme Court they when bility “during any period occurs rejected present explicitly lawfully entitled to be Supreme The Court were not and the by the NLRB position the taken in the States.” employed and United held, it today’s in decision when majority Thus, definitive- Supreme the Court has em- backpay, in the “[similarly, computing us. Cas- question the before ly answered ‘unavailable’ for must be deemed ployees lawfully present to be tro was not entitled (and backpay of therefore the accrual work in the United States. employed tolled) they were when during any period ‘unavail- deemed “[E]mployees must be present to be lawfully entitled (and backpay the accrual of able’ for work Id. at in the States.” employed United tolled)” they are so situat- therefore when Thus, Supreme the 104 S.Ct. 2803. Therefore, backpay the award of ed. appropri- directed the very clearly Court period must be vacated. Castro for before the Board response ate to the issue of theo- majority complex advances a The directly and did so present im the case the avoiding ries for what seems the disposition reached opposite the lan- import Supreme of the Court’s plain Board. by asserting in Sure-Tan. It starts guage context, speaks Read in the sentence crafted the re- that “the Seventh Circuit plainly: even more precise problem striction to deal with the Nonetheless, Appeals as the of Court faced,” is, diserimi- it “undocumented the recognized, implementation the of returning country illegal- to the natees ... com- Board’s traditional remedies backpay.” Maj. Op. at ly to claim their must be conditioned pliance proceedings analysis fails for two reasons. 644. This employees’ legal readmittance upon First, origin are not controlled we In devising to the States. reme- United in the of the instructive sentence Seventh practices, dies for unfair labor Supreme Court’s context is Circuit. to take into account another obliged regard without governing context objec- equally important Congressional original coinage of the sentence. wit, objective deterring tive—to Cf City, 470 City Anderson v. Bessemer immigration that is embod- unauthorized 564, 572-73, 1504, 84 U.S. [Immigration in and Na- ied the INA (1985) that a dis- (explaining L.Ed.2d 518 By conditioning the of- tionality Act]. findings of fact and conclu- judge’s trict employees’ on the fers of reinstatement findings and conclu- are the sions law legal reentry, potential conflict with are despite they of that the fact Similarly, sions court the INA is thus avoided. par- of the must drawn from the submissions computing (and ties). Supreme “unavailable” work importantly, be deemed More tolled) the accrual give statement and its context Court’s therefore during any period it other than what indication that it meant and em- lawfully present entitled to be that there is some sort of simply said: not States. ployed United immigrants unique applicable illegal bar un- country might who have left the (emphasis return, added) (internal the same bar lawfully but quotation marks and cita- omitted). to be in a extends to all not entitled Supreme tion Court employed preferences the United remedial of an administrative higher authority board and the States. of statuto fact, ry enactment. following at dis- Expanding attempt on its first paragraph, the Supreme Court took care tinction, majority opines that when the to note “probable unavailability” “generally approvefd] [of] “in light practical workings original Board’s course of action of the immigration laws.” by which it ordered the conventional case 904, 104 S.Ct. 2803. Following this backpay” of reinstatement and Court, language” “other of the Supreme language created in- somehow had other we should reach no other than conclusion with the broad effect of the consistent the reversal of what the in Board has done language disputed in the sentence. Court’s present the case. Maj. majority The then relies Op. majority drawn from our decision in The principle attempts on the further to define Center, Hospital 156 the Washington qualifying language away ap- Aka v. from its (en (D.C.Cir.1998) banc), parent by meaning extracting F.3d from a foot- every Supreme that word and note the Supreme the “Court’s Court’s observation that vacuum; cannot read in a its main deficiency” sentence be “the order’s was that it light read in “was in pronouncements ‘developed] must be the total absence of degree any and to the holding the of the case record evidence as to the circum- ” to be consistent with the possible, employees.’ so as stances of the individual Sure-Tan, Maj. apparent Op. (quoting Court’s intent and with other at 644 9,104 2803). in language opinion.” (Empha- the same U.S. at 900 n. Far from quarrel supporting majority’s proposition, I have no with the the that supplied.) sis principle; simply agree language Supreme I do not that its in Court read in application compels actually supports application this case the result context the Indeed, majority. the I think the eligibility language by reached its terms. contrary. language Supreme it from footnote the cuts to the Court is discuss- majori- the of a ing the Sure-Tan decision cited assertion dissenter that in ty general deferentially, blesses terms the remedies review should be conducted It if backpay. reinstatement and no more the Board rather than the Court of compels uphold Appeals developed us to award to had the remedial order. rejects employee lawfully proposition not entitled to em- Footnote 9 that as not compels uphold going than it us to to the defect in the order. The ployment illegal employ- language concerning reinstatement of the same the “total absence of wholly any ee. record evidence” is consistent that if circum- proposition with the suggest important I that the most “oth- employee stances of an are he was not Supreme er words” of the Court are those and em- lawfully eligible preceding the sentence of immediately States, in ployed the United then he does quoted contention. Those I have above. Indeed, backpay recovery. receive a it not is, devising “[i]n That remedies Supreme difficult what is to see else practices, obliged unfair labor the Board is referring Court could have been to. objective ... to take into account deterring immigration Today’s majority opinion unauthorized that is reads Sure- in holding employees embodied the INA.” As the Tan as the fired there is no inherent were entitled to because or- plain, Court makes compliance proceeding conflict between the labor and the dered a “to deter- statute backpay actually if amount of due.” only INA. The conflict arises the Board mine the Maj. im- miscon- imposes Op. remedies inconsistent with the at 645. This assertion is, and the migration posture law. That the conflict arises strues the case statutes, holding. two between the Prior to the Court’s deci- between but Court’s tolled) Sure-Tan, during any period nobody any had offered therefore in sion pres- they entitled to be happened to the were concerning what evidence States,” in employed the United deported. ent they were employees after addressed. issue that had not been employees factual question that There was no words, In other 104 S.Ct. 2803. States, was no Id. but there left United eligible could be they legally had Sure-Tan whether way to know (and if only only for some but appropriate backpay during returned which) they prove in could opinion periods NLRB original period. As eligible to work legally no evidence explained, “[T]here States.1 Unlike not returned to the United they have record that factual ques- case there is no forum for Hoffman’s appropriate United States. lawfully unavailable tion—Castro was relating to their avail determining issues and, thus, throughout backpay period compliance proceed ability work is a Sure-Tan, Inc., instruction consistent the Court’s 234 N.L.R.B. ing.” denied, any not entitled to receive back- NLRB v. Sure- reh’rg (7th Cir.1982), Inc., Tan, pay. 677 F.2d 584 aff'd 883, 104 part, rev’d in 467 U.S. part, majority argues that “the Finally, (1984). 2803, Ac 81 L.Ed.2d 732 S.Ct. part ... Sure-Tan’s form[s] sentence Supreme Court ordered that cordingly, the I holding....” Maj. Op. at 644. take this the NLRB to be remanded for the case “All way saying: a tactful being any discharged of the “whether determine it, Supreme Court said but it’s right, able ... employees will be establish dicta, I just go by we don’t have to it.” they that compliance proceedings singularly unimpressive. As we find that employment during lawfully available in the “because ‘care- past, have observed Sure-Tan, period.” backpay fully language Supreme considered 904, 2803. As the Court ex 104 S.Ct. dictum, Court, technically general- even if compliance proceedings “these plained, authoritative,’ ly must be treated as this forum where the provide appropriate im- ignore court cannot the unmistakable will be able to offer petitioners Board and analy- port Supreme decision’s] Court [a as to the amounts of concrete evidence Oakar, States v. 111 F.3d sis.” United any, discharged to which the omitted). (D.C.Cir.1997) (citations if 146, 153 individually employees are entitled.” Id. Or, stated, as we have elsewhere “Su- added). 901, (emphasis 104 2803 S.Ct. dicta to have somewhat preme Court tends particularly when ex- greater force— majority’s interpretation The is inconsis- unequivocally.” Bangor Hy- so pressed with the Sure-Tan Court’s instruction tent FERC, 659, dro-Electric Co. v. 78 F.3d 662 holding. acknowledged The Court (D.C.Cir.1996). eligible could for a employees that the context, prior In a different dissenters backpay remedy, but it stressed that when awards, to an en banc decision once lamented that computing backpay their actual majority Supreme had discarded Court “the must be deemed ‘unavail- ” (and ‘dicta,’ “In our backpay language saying, the accrual of “as mere able’ for work determined, compliance hearing majority’s Supreme that would have 1. The assertion compliance] ... [a Court “made clear descriptive passage setting but rather a forth hearing period would determine 'the of time transpired Supreme what had before the employees might particular have contin- these specifically review. It was offered to Court’s apprehension by working before ued dissenting Justice rebut the conclusion ” Sure-Tan, INS,’ Maj. Op. (quoting at 644-45 Appeals "that the Court of had esti- Brennan 902, 2803), S.Ct. is founded 467 U.S. at on a proper backpay mated the minimum award quotation uprooted from all context. (quoting degree precision.” with fair Supreme phrase encompassed Court 2803) 467 U.S. at majority's text comes from footnote 11 (internal omitted). quotes and was not in a discussion of what a future for members quite presumptuous rewriting view it is tantamount it to read “not a decision of present, lawfully of an inferior court to dismiss and not entitled to be a man- Supreme present, effect, Court so cavalier United States.” Administrator, present” ner.” Hubbard v. it adds the “not limitation and EPA (D.C.Cir.1992) (en banc) F.2d deletes the “not lawfully entitled to be ... (Edwards, J., dissenting). so here. employed” Just That requirement. rewriting of told us that “em- Supreme Court has Sure-Tan majority astray. leads the unavailable for ployees must be deemed The erroneous construction of Sure-Tan work and the accrual of tolled majority endorsed appears to have during any period were not first occurred in Bevies Co. v. Teamsters entitled to be and em- (9th Local 791 F.2d Cir. Indeed, ployed the United States.” 1986). time, Before even its critics rather, statement is more than it dicta— believed Sure-Tan meant what said. unequivocal was an instruction for the See 467 U.S. at compliance proceed- Board to follow in its (Brennan, J., dissenting) (criticizing ing on remand. I would not dismiss the the majority holding that undocu Supreme Court’s instruction in so cavalier effectively mented aliens “are deprived of majority. a manner as does the Felbro, Inc., any remedy”); 274 N.L.R.B. end, In the I submit the (1985) (stating WL 45911 has made clear the state of the law: “em- Felbro, the undocumented aliens in ployees must be deemed ‘unavailable’ for who had remained in country, would be (and work the accrual of therefore Sure-Tan); affected by Local Ware tolled) during any period house & Workers’ Union v. Office lawfully entitled to present be and (9th Cir.1986) (“Fel 795 F.2d 725 in employed the United States.” Read in bro”) (Beezer, J., dissenting part); in Ter context, context, read out of or read both Bethel, ry A. Recent Labor Law Decisions ways compared, majority and the is left Court, the Supreme 45 Md. L.Rev. way dealing High with no the (1986) (“Sure-Tan 196 ... deprive[s] un I plain Court’s statement. invite the read- documented of any effective phrase lawfully er to review the “not enti- discrimination....”); remedy for unlawful present tled to be employed” Cardinal, Note, Lucinda M. Immigration original context. I suggest further that Solving the “Problem” the Ille Reform: contextual for illumination this sentence of gal Alien in the Workforce, American High the opinion supplied Court’s is the (1985) (“Sure-Tan Caedozo L.Rev. Court’s analysis of the Seventh Circuit de- illegal mandates that aliens do not receive cision that it was reversing. High The granted legal the remedies their cowork “[rjecog- Court described that decision as ers.”); Note, Sagaser, John W. Rights nizing discharged employees the a Remedy Illegal Without Aliens Under — likely would most lawfully not have been Act, the National Labor Relations 27 B.C. employment available for and so would (1986) (“By denying a min L.Rev. receive no backpay award at all....” award, imum backpay the Court in effect Sure-Tan, 104 S.Ct. 2803 deprives illegal any alien workers of reme added). Thus, (emphasis governing the Bevies, dy.”). In the Ninth Circuit was factor in determining eligibility for back- award; reviewing an the arbitrator’s issue pay presence, awards is not mere but also was whether decision arbitrator’s present the lawful entitlement to be law,” disregard showed a “manifest employed. and the court was not entitled to reverse majority’s simply legal construction of erroneous conclusions. See phrase lawfully “not entitled to be 791 F.2d at 1392-93 n. 2. In not follow & employed ing ignored is the court the lawful United States” deci- viability of its Felbro questioned and considered requirement

presence v. Hacienda after IRCA. See EEOC in that ease were law- sion aliens whether (9th Hotel, 1517-18 n. 881 F.2d The Bevies employed. to be fully entitled Cir.1989). In a further Second Circuit prior fact to the on the court relied that — IRCA, the enactment of postdating criminal case was not a of IRCA—it passage pre- to follow its that circuit continued to hire undocumented employers act for NLRB v. precedent. See The court also enactment id. at 1393. aliens. See Inc., Group, Buyers Fuel Oil of the A.P.R.A. the effect of section 2805 considered Cir.1997). (2d However, Judge Code, F.3d 50 prohibited which Labor California dissent, clearly on un- demonstrated knowingly employing Jacobs from employers employer’s reed of the if it affect lawful without the slender aliens would documented aliens, to hire undocumented legal capacity an unreversed state workers. Because ‘lawfully alien is not “an undocumented had held section previously court decision ” (Ja- Id. at 62 unconstitutional, employment.’ available for the court did not cobs, J., dissenting) (quoting disregarding it. arbitrator fault Jacobs). As supplied by Judge emphasis at 1393-94. See id. out, remedy of pointed Judge Jacobs right grant focus on the lawful ineligible employ- alien backpay to the in Felbro. The employment continued “is foreclosed Sure-Tan ment again on the fact there relied Ninth Circuit IRCA.” illegal that it was not in A.P.R.A. hire Like the Second Circuit undocumented aliens. Because Fuel, majority today nothing offers employees could not Sure-Tan States, that should lead us to believe the court noted reenter United any- meant Supreme Court Sure-Tan they were “unavailable for work dur- Felbro, said; and what it thing 795 F.2d other than what ing backpay period.” illegal alien in this being disqualifies said at 719. The court reasoned backpay. an award of did case from illegally present the United States “[tjhere unavailability because not create emphasized, the Court Sure-Tan ‘in it un- making the INA provision respect the di- remain bound “[W]e to hire an alien who lawful for an of the INA as well as the NLRA rectives working in the present is or United States judicial guard against and to distortion ” authorization.’ appropriate without Congress on statutory placed by the limits 892-93, 467 U.S. at (quoting authority.” the Board’s remedial Sure- 2803). S.Ct. Tan, 13, n. 2803. 467 U.S. at 904 S.Ct. IRCA, Likewise, statutory by we are bound the passage the both the Since pro- regis- have directives of IRCA. Those directives Second and the Ninth Circuits aliens, employers hiring illegal from concern over effect on their hibit tered IRCA’s 1324a(a)(l)-(2), (e), (f), § attempts to limit Sure-Tan. see 8 U.S.C. misguided a aliens to obtain Enterprise illegal v. Ass’n Lo- make it crime Rios Steamfitters (2d 688, using “an identification docu- employment cal 860 F.2d 1168 Cir. Union (or know) 1988), knowing having reason to the Second Circuit was careful to ment lawfully only that the document was not issued explain recovery permissible was ... possessor, [or] were for the use of the because the claimants “available false,” 18 U.S.C. employment during period the entire cov- the document 1546(b); order, § see also U.S.C. ered since such 1324a(b)(c)(ii) (1988). majority § have no immi- employment would violated directives, essentially ignores opinion Id. at 1173. The court ex- these gration law.” pointing “employee out that mis- question of whether instead plicitly reserved a employee’s providing at and an IRCA would affect later claims. See id. conduct” while under has “false excuse tardiness” 1172 n. 2. The Ninth Circuit likewise oath, (1984), Freight Sys., Supreme ABF Inc. L.Ed.2d 732 “the Court 835, 127 L.Ed.2d definitively has question answered the be- necessarily do not bar fore us.” Dissent at 652. The court today points inapposite are awards. These simply convincingly cannot evade the High —in case, dearly prohibit this federal statutes Court’s clear statement that “in computing job.2 obtaining from even ed Castro must deemed be (and ‘unavailable’ for work the accrual of confronting these statutes di- Instead tolled) pay back therefore during any peri- majority chooses to mediate rectly, od when not entitled to statutory This Court’s “goals.” between employed the United legislature’s divination of what were States.” 467 U.S. at 2803. goals trump should never be allowed to legislature actually what said. And Because I believe that Sure-Tan is con- legislature has said is clear. De- what think trolling, I do it necessary policy preferences spite what this Court’s question reach the whether the Board rea- be, may preferences justify those “cannot sonably reconciled the remedial scheme of judicial arrogation of remedial authori- the NLRA with policies embodied in ty fairly encompassed within the IRCA. [NLRAj” interpreted S.Ct. 2803.

Conclusion majority length discusses of back-

incentives and counter-incentives aliens from

pay illegal employ- awards legally employ ers who could not them. In re: SEALED CASE While I do not think that law-and-econom- Nos. 00-5302. analysis controlling particular- ics to be or case, ly I would observe helpful Appeals, United States Court of passing strange to think seems least District Columbia Circuit. Congress making would outlaw the particular Argued of contract between two Nov. 2000. type (United types employ- of individuals States Decided Jan. aliens) and undocumented and then ers expect impose the courts to remedies that

compel parties one of the to the disfavored pay money to the other. I

contract see how those incentives could be

cannot complete

much wash. other than above, forth I re-

For the reasons set

spectfully dissent.

GINSBURG, Judge, dissenting: Circuit join Judge

I dissent insofar as Sentelle’s Inc. v.

he demonstrates that

NLRB, U.S. S.Ct. distinguishes ity. Maj. Op. peijury statute before See at 649. The This circumstance sanctions; Sys., Freight provides criminal it does not us from that in ABF Inc. potential perjurer from forbid a or upon by major- obtaining job. L.Ed.2d 152 relied

Case Details

Case Name: Hoffman Plastic Compounds, Inc. v. National Labor Relations Board

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 17, 2000

Citation: 237 F.3d 639

Docket Number: 98-1570

Court Abbreviation: D.C. Cir.