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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 1999 Decided March 17, 2000

No. 98-1570

Hoffman Plastic Compounds, Inc.
Petitioner

v.

National Labor Relations Board,
Respondent

On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board

Maurice Baskin argued the cause and filed the briefs for
petitioner.

Sharon Block, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Linda Sher, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Fred L. Cornnell,

Attorney. John D. Burgoyne, Deputy Associate General
Counsel, entered an appearance.

Marsha S. Berzon argued the cause for amicus curiae
American Federation of Labor and Congress of Industrial
Organizations. With her on the brief were Jonathan P. Hiatt
and James B. Coppess.

Before: Sentelle, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Sentelle.

Tatel, Circuit Judge: Petitioner illegally fired several
workers in retaliation for attempting to organize a union.
Finding multiple unfair labor practices, the National Labor
Relations Board ordered its traditional remedy, reinstatement
with backpay, for all discharged employees. When the Board
learned that one of these employees was an undocumented
alien, it denied him reinstatement and terminated his backpay
as of the date the employer discovered he was unauthorized
to work. Challenging even this reduced award, the employer
claims that awarding any backpay to undocumented workers
conflicts with immigration law. Because the Supreme Court
has held that undocumented workers are protected by the
National Labor Relations Act, and because the limited reme-
dy awarded here is within the Board's discretion and furthers
the purposes of both labor and immigration law, we deny the
petition for review and grant the cross-application for en-
forcement.

I

This case lies at the intersection of two statutory schemes:
labor and immigration. Enacted in 1935, the National Labor
Relations Act encourages collective bargaining, promotes in-
dustrial peace, and protects workers' rights of association,
self-organization, and representation. See, e.g., Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 182-85 (1941). The statute
vests the NLRB with broad discretion to enforce the Act and
to remedy unfair labor practices. See 29 U.S.C. s 160(c).

Not limited to "the correction of private injuries" or the
"adjudication of private rights," the Board "acts in a public
capacity to give effect to the declared public policy of the
Act." Phelps Dodge, 313 U.S. at 192-93. "Making the
workers whole for losses suffered on account of an unfair
labor practice is part of the vindication of the public policy
which the Board enforces." Id. at 197. Awards of backpay
not only make discriminatees whole, but "also achieve a public
purpose by deterring future similar unlawful practices, and
by depriving employers of any competitive advantage they
may have secured by acting unlawfully." Local 512, Ware-
house and Office Workers' Union v. NLRB, 795 F.2d 705, 718
(9th Cir. 1986) ("Felbro").

Like the NLRA, the nation's immigration laws preserve
jobs and safeguard American workers' wages and employ-
ment conditions. See INS v. National Ctr. for Immigrants'
Rights, 502 U.S. 183, 194 & n.8 (1991); Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 893 (1984). Until 1986, the Immigration
and Nationality Act was primarily concerned "with the terms
and conditions of admission to the country and the subse-
quent treatment of aliens lawfully in the country." Sure-Tan,
467 U.S. at 892 (quoting DeCanas v. Bica, 424 U.S. 351, 359
(1976)). The Immigration Reform and Control Act of 1986
focused new immigration control efforts on employers. The
Act makes it unlawful to employ anyone known to be an
unauthorized alien, requires employers to verify and docu-
ment the work eligibility of new hires, and authorizes sanc-
tions against employers who violate the Act. See 8 U.S.C.
s 1324a.

The NLRB and the courts have sought to ensure that labor
and immigration laws operate in tandem. They have held
that all employees, regardless of immigration status, have the
right to organize and are entitled to protection from unfair
labor practices. In Sure-Tan, for example, the Supreme
Court affirmed a Board decision that extended the protec-
tions of the NLRA to undocumented workers. In addition to
relying on the text of the Act, which broadly defines covered
employees, the Court pointed to the common policies driving
both labor and immigration law:

 Application of the NLRA [to undocumented workers]
helps to assure that the wages and employment condi-
tions of lawful residents are not adversely affected by the
competition of illegal alien employees who are not subject
to the standard terms of employment. If an employer
realizes that there will be no advantage under the NLRA
in preferring illegal aliens to legal resident workers, any
incentive to hire such illegal aliens is correspondingly
lessened. In turn, if the demand for undocumented
aliens declines, there may then be fewer incentives for
aliens themselves to enter in violation of the federal
immigration laws.

467 U.S. at 893-94. According to the Court, protecting
undocumented aliens from unfair labor practices not only is
"clearly reconcilable with," but indeed "serves the purposes
of" the immigration laws. Id. at 894; see also NLRB v.
Kolkka, 170 F.3d 937, 940 (9th Cir. 1999). At the same time,
the Court emphasized that while the NLRA protects undocu-
mented workers, the Board's remedies for unfair labor prac-
tices must not conflict with immigration law. See Sure-Tan,
467 U.S. at 902.

Petitioner Hoffman Plastic Compounds, Inc. manufactures
custom-formulated polyvinylchloride pellets for use by cus-
tomers who produce pharmaceutical, construction, and house-
hold products. In May, 1988, JosE Castro began working in
Hoffman's production plant earning minimum wage as a
compounder, an operator of large blending machines that mix
and cook the plastic formulas ordered by customers. When
the United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO began an organizing drive at Hoffman's
factory, Castro, along with several other employees, distribut-
ed union authorization cards to coworkers. After what the
Board later described as "coercive and restraining" interroga-
tion of union supporters, Hoffman laid off each employee who
had engaged in organizing activities, including Castro. Hoff-
man Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992).

When Hoffman received notice from the NLRB that the
Union had filed a representation petition, it made some

attempt to recall the discharged workers. A March 10, 1989
letter from Hoffman to Castro stated "[i]t looks like we'll
need a few men soon" and asked him to contact his former
supervisor "no later than 4 P.M., Monday, March 13, 1989."
Hoffman Plastic Compounds, Inc., 326 N.L.R.B. No. 86
(1998). Castro never responded.

After one of the discharged employees filed charges with
the Board, an Administrative Law Judge found that Hoffman
had engaged in multiple unfair labor practices. The Board
adopted the ALJ's findings, concluding not only that the
company had unlawfully interrogated employees about their
union activities and sympathies, but that "in order to rid itself
of known union supporters, [Hoffman] discriminatorily select-
ed union adherents for layoff" in violation of Sections 8(a)(1)
and (3) of the NLRA, 29 U.S.C. 158(a)(1), (3). Hoffman
Plastic, 306 N.L.R.B. at 100. The Board ordered Hoffman to
cease and desist from such unfair labor practices, to post a
notice at the work site, and to reinstate and make whole those
union supporters it had illegally fired.

When a dispute arose as to the proper computation of
backpay, a compliance proceeding was held before another
ALJ. Castro appeared at the hearing, testifying through an
interpreter. When Hoffman's attorney began to question
Castro about his citizenship and authorization to work in the
United States, the Board's General Counsel objected. The
ALJ sustained the objection, but not before Castro had stated
that he was a Mexican national and that the birth certificate
he had used to gain employment at Hoffman was borrowed
from a friend. On the basis of this admission, the ALJ
recommended neither reinstatement nor backpay for Castro.
See Hoffman Plastic Compounds, Inc., 314 N.L.R.B. 683, 685
(1994).

While the ALJ's recommendation was under consideration
by the NLRB, the Board decided another case involving
undocumented discriminatees, A.P.R.A. Fuel Oil Buyers
Group, 320 N.L.R.B. 408 (1995), enforced 134 F.3d 50 (2d Cir.
1997). There, the Board modified its standard remedy of

reinstatement with backpay to account for the fact that the
illegally fired workers lacked documentation. The Board
conditioned its reinstatement order on the discriminatees'
ability to verify their eligibility to work. It also ordered that
the backpay period terminate either when the discriminatees
were lawfully reinstated or when they failed to produce the
necessary employment eligibility documents within a reason-
able period of time.

Issuing its Second Supplemental Decision and Order in this
case, the Board adapted the remedy it had developed in
A.P.R.A. Fuel to Castro's situation, denying reinstatement
due to his undocumented status and awarding only limited
backpay. See Hoffman Plastic Compounds, Inc., 326
N.L.R.B. No. 86 (1998). To determine the backpay period,
the Board first considered whether Hoffman's "[i]t looks like
we'll need a few men soon" letter amounted to a specific and
unequivocal offer of reinstatement that would toll backpay.
Answering this question in the negative, the Board nonethe-
less allowed Hoffman the benefit of the after-acquired evi-
dence defense and terminated the backpay period as of June
14, 1993, the date Hoffman learned that Castro had misrepre-
sented his immigration status.

Hoffman now petitions for review of the Board's final
order. The company does not challenge the Board's findings
that it illegally discharged known union organizers and com-
mitted other unfair labor practices. It contests only Castro's
limited backpay award, arguing that 1) Sure-Tan holds that
undocumented aliens may never be awarded backpay; 2)
IRCA prohibits backpay awards to undocumented workers;
and 3) the Board misapplied the after-acquired evidence rule
and violated the equal protection guarantee of the Fifth
Amendment by giving undocumented workers preferential
treatment. Cross-petitioning for enforcement, the NLRB,
supported by amicus AFL-CIO, responds that the award of
limited backpay to Castro is prohibited by neither Sure-Tan
nor IRCA and falls well within the Board's broad remedial
discretion. Indeed, the Board contends, the limited backpay
award furthers the purposes of both labor and immigration
law.

 Before considering these issues, we register our disagree-
ment with Hoffman's characterization of this case as a dispute
between "an innocent employer" and an employee who has no
legal right to be in this country and who obtained his job
through fraud. To be sure, the Board did find the evidence
insufficient to conclude that Hoffman violated IRCA by hiring
Castro knowing him to be an unauthorized alien. At the
same time, however, the Board found that Hoffman had
committed multiple unfair labor practices by interrogating,
intimidating, and ultimately discharging union supporters.
Hoffman neither contests these findings nor disputes that it
failed to comply with the Board's order to reinstate Castro
before his ineligibility for employment became known, when
to do so would have ended the company's backpay liability
without violating IRCA. See 8 C.F.R. s 274a.2(b)(viii)(A)(3),
(5) (exempting employer from re-verifying an employee's
eligibility for continuing employment after a temporary layoff
or reinstatement after unjustified suspension or wrongful
termination). And while it is true that Castro lied when
falsely attesting to his work eligibility on the I-9 form and
when identifying himself as "JosE Castro" in his sworn testi-
mony at the compliance proceeding, the Supreme Court has
held that a discriminatee's dishonesty does not preclude an
award of backpay to remedy unfair labor practices. See ABF
Freight System, Inc. v. NLRB, 510 U.S. 317 (1994). More-
over, Castro's use of another's birth certificate to obtain
employment did not violate IRCA at that time. See Immigra-
tion Act of 1990, Pub. L. No. 101-649, s 544, 104 Stat. 4978,
5059 (1990), codified at 8 U.S.C. s 1324c(a)(3) (amending
IRCA to prohibit the use of documents issued to a person
other than the possessor). Thus the precise issue before us is
this: Did Castro's undocumented status--as opposed to his
lying about it--render him entirely ineligible to obtain back-
pay as a remedy for Hoffman's serious and undisputed viola-
tions of the National Labor Relations Act?

II

We begin with Hoffman's argument, embraced by our
dissenting colleague, that this case is controlled by a single

sentence from the Supreme Court's opinion in Sure-Tan v.
NLRB: "[I]n computing backpay, the employees must be
deemed 'unavailable' for work (and the accrual of backpay
therefore tolled) during any period when they were not
lawfully entitled to be present and employed in the United
States." Sure-Tan, 467 U.S. at 903. This sentence, Hoffman
claims, "plainly prohibits" the NLRB from awarding even
limited backpay to undocumented workers victimized by un-
fair labor practices. Read literally and divorced from its
context, the sentence could well be interpreted to support
that view. But determining whether particular Supreme
Court language amounts to binding precedent is not so sim-
ple. The Court itself has warned against "dissect[ing] the
sentences of the United States Reports as though they were
the United States Code." St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993). Instead, we must read the allegedly
controlling sentence in context, taking account of the facts of
the case, the issues presented, and the Court's reasoning and
holding. "The Court's every word and sentence cannot be
read in a vacuum; its pronouncements must be read in light
of the holding of the case and to the degree possible, so as to
be consistent with the Court's apparent intentions and with
other language in the same opinion." Aka v. Washington
Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc).
With this perspective in mind, and with the Court's entire
backpay discussion at our fingertips (see Appendix A)--the
sentence on which Hoffman relies appears in the penultimate
paragraph--we turn to the task of elucidating Sure-Tan and
determining whether it controls this case.

The employer in Sure-Tan attempted to invalidate a union
election by notifying the Immigration and Naturalization
Service that several employees were undocumented. In re-
sponse, the INS arrested five of the workers, all of whom
agreed to return to Mexico to avoid deportation. "By the end
of the day, all five employees were on a bus ultimately bound
for Mexico." Sure-Tan, 467 U.S. at 887.

An ALJ found that the employer had violated the NLRA
by constructively discharging its undocumented workers in
retaliation for their union support. Because the ALJ thought

that the discriminatees' return to Mexico rendered reinstate-
ment "at best an unlikely prospect," he recommended holding
the reinstatement offers open for six months to permit them
to return lawfully. And since their absence from the country
left the discriminatees "unavailable for employment" and
therefore ineligible for backpay under standard NLRB policy,
the ALJ suggested a minimum award of four weeks pay to
each discriminatee to provide some measure of compensation
for the discharged employees and to deter the employer.
Sure-Tan, Inc., 234 N.L.R.B. 1187, 1192 (1978).

Although the Board agreed that the company had violated
the NLRA, it rejected the ALJ's recommended minimum
remedy as "unnecessarily speculative" because no evidence
supported his assumption that the discriminatees were not
already back in the country and once again available for work.
Id. at 1187. The Board instead ordered its usual remedy of
reinstatement with backpay, leaving for a future compliance
proceeding the determination of each employee's availability
for work and the calculation of backpay. Id. In doing so, the
Board reiterated two standard rules: "[t]he backpay period
runs from the discriminatory loss of employment to the bona
fide reinstatement offer," and discriminatees "found to be
unavailable for work (including unavailability because of en-
forced absence from the country) will have their backpay
tolled accordingly." Sure-Tan, Inc., 246 N.L.R.B. 788, 788
(1979). One dissenting member urged the Board to "clarify"
that reinstatement offers should be available only to discrimi-
natees who reenter the country lawfully. Id. at 791. A
second dissenter urged that the backpay period run only from
the date of the constructive discharge to the date the discri-
minatees left the country. Id.

The Seventh Circuit upheld the Board's decision and en-
forced its order, with a few modifications. To guard against
the possibility that the discriminatees "might be motivated to
reenter the United States unlawfully to claim reinstatement
and backpay," NLRB v. Sure-Tan, Inc., 672 F.2d 592, 603
(7th Cir. 1982), the court directed that the reinstatement
offers be made conditional upon legal re-entry, that they be
sent in Spanish by verified delivery to the discriminatees'

addresses in Mexico, and that they remain open for at least
four years to afford the workers an opportunity to return
lawfully and reclaim their jobs. See id. at 606. Using
language later adopted by the Supreme Court and now relied
on by Hoffman, the court also modified the Board's order by
stating that "in computing backpay discriminatees will be
deemed unavailable for work during any period when not
lawfully entitled to be present and employed in the United
States." Id. Sharing the ALJ's concern that the discrimina-
tees, having left the country immediately after their discharge
with no prospect of lawful return, might receive no backpay
at all, thus leaving them uncompensated and the employer
undeterred, and echoing the ALJ's original suggested mini-
mum backpay award, the court directed the Board to modify
the order to include a minimum award of six months' backpay
to each discharged worker. Six months, the court said,
represented an estimate of the minimum time "during which
the discriminatees might reasonably have remained employed
without apprehension by INS, but for the employer's unfair
labor practice." Id.

The Supreme Court agreed with the Board and the Sev-
enth Circuit that undocumented workers are protected by the
NLRA. It also agreed that the employer, by notifying the
INS of the workers' immigration status, had committed an
unfair labor practice. Sure-Tan, 467 U.S. at 895-96. Then,
turning to the question of remedy, and repeatedly emphasiz-
ing the broad deference due the NLRB, the Court affirmed
the Board's original order in all respects. Even a cursory
review of the Court's discussion--readers might want to
pause and read it for themselves (see Appendix A)--reveals
that 1) whether undocumented workers are eligible to receive
backpay was not an issue before the Court and 2) the only
backpay issue the Court considered was whether the six-
month minimum award imposed by the Seventh Circuit was
an unduly speculative estimate "not sufficiently tailored to the
actual, compensable injuries suffered by the discharged em-
ployees." Id. at 901. At the very outset of its discussion, the
Court states: "Petitioners attack those portions of the Court
of Appeals' order which modified the Board's original order

by providing for an irreducible minimum of six months'
backpay for each employee and by detailing the language,
acceptance period, and verification method of the reinstate-
ment offers." Id. at 898 (emphasis added). Notice that the
Court nowhere says that the employer argued, as does Hoff-
man, that the discriminatees were ineligible to receive back-
pay simply because they were undocumented. Notice also
that the Court describes the sentence on which Hoffman
places so much emphasis as merely repeating a limitation on
backpay imposed by the Seventh Circuit, an issue that was
neither challenged nor briefed by either the Board or the
employer:

Conditioning the offers of reinstatement on the employ-
ees' legal reentry and deeming the employees "unavail-
able" during any period when they were not lawfully
present are requirements that were in fact imposed by
the Court of Appeals in this case, and hence fully accept-
ed by the Board.... The Board has clearly indicated its
agreement with these portions of the Court of Appeals'
remedial order by specifically noting that petitioners do
not challenge these parts of the order [and] by limiting
its own argument to the minimum backpay award issue
alone....

Id. at 903 n.12. See also id. at 898 n.8; Del Rey Tortilleria,
Inc. v. NLRB, 976 F.2d 1115, 1123 (7th Cir. 1992) (Cudahy, J.,
dissenting). The sentence on which Hoffman relies was not
even an issue before the Court.

Moreover, in setting aside the Seventh Circuit's six-month
minimum award, the Court made clear that, contrary to
Hoffman's argument, undocumented workers may receive
backpay. To begin with, the Court said that it "generally
approve[s] the Board's original course of action in this case by
which it ordered the conventional remedy of reinstatement
with backpay, leaving until the compliance proceeding more
specific calculations as to the amounts of backpay, if any, due
these employees." Sure-Tan, 467 U.S. at 902. The Court
explained that the discriminatees could receive backpay de-
spite their illegal status so long as the amount reflected the

actual time they might have continued working but for the
employer's unfair labor practice. The Court did not fault the
Seventh Circuit for awarding backpay to undocumented
workers, nor for basing the award on the "minimum time
during which the discriminatees might reasonably have re-
mained employed without apprehension by INS, but for the
employer's unfair labor practice." Id. at 899 (internal quota-
tion marks omitted). Instead, the Court held that the Sev-
enth Circuit erred by picking the six-month period out of thin
air. The "main deficiency" in the Seventh Circuit's order, the
Court explained, was not that it awarded backpay to undocu-
mented aliens, but that the amount of backpay awarded was
"develop[ed] in the total absence of any record evidence as to
the circumstances of the individual employees," thus violating
the "cardinal" proposition "that a backpay remedy must be
sufficiently tailored to expunge only the actual, and not
merely speculative, consequences of the unfair labor prac-
tices." Id. at 899-900 & n.9. The Court continued:

[T]he Court of Appeals "estimated" an appropriate peri-
od of backpay without any evidence whatsoever 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. In the absence of relevant factual
information or adequate analysis, it is inappropriate for
us to conclude, as does Justice Brennan, that the Court
of Appeals had estimated the proper minimum backpay
award "with a fair degree of precision."

Id. at 901 n.11. If as Hoffman argues undocumented workers
may never be awarded backpay, the Court would not have
mentioned "the proper minimum backpay award," "the period
of time these particular employees might have continued
working before apprehension by the INS," or "affording
petitioners any opportunity to provide mitigating evidence."
Nor would there have been any need for more "relevant
factual information or adequate analysis," much less for a
compliance proceeding to determine the amount of backpay
actually due.

 In light of the fact that Sure-Tan does not bar undocu-
mented workers from receiving backpay, what are we to
make of the sentence on which Hoffman and our dissenting
colleague place so much emphasis? The answer is that the
Court intended the sentence to guide the Board on remand in
dealing with the unique circumstances of the Sure-Tan em-
ployees. Recall that the Sure-Tan discriminatees, unlike
Castro, had left the country. Having approved the Board's
general order of reinstatement with backpay, and having
remanded for compliance proceedings to calculate the amount
of backpay due, the Court went on to agree with the Seventh
Circuit that whatever specific remedy the Board might for-
mulate must not encourage the discriminatees to re-enter the
country illegally. The INA's "central concern," the Court
pointed out, was regulating "admission to the country." Id.
at 892. The Court therefore added the paragraph in which
Hoffman's sentence appears:

[A]s the Court of Appeals recognized, the implementation
of the Board's traditional remedies at the compliance
proceedings must be conditioned upon the employees'
legal readmittance to the United States. In devising
remedies for unfair labor practices, the Board is obliged
to take into account another equally important Congres-
sional objective--to wit, the objective of deterring unau-
thorized immigration that is embodied in the INA. By
conditioning the offers of reinstatement on the employ-
ees' legal reentry, a potential conflict with the INA is
thus avoided. Similarly, in computing backpay, the
employees must be deemed "unavailable" for work (and
the accrual of backpay therefore tolled) during any
period when they were not lawfully entitled to be present
and employed in the United States.

Id. at 902-03 (emphasis added) (internal quotation marks and
citation omitted). Notice that the first sentence refers to
"the employees' legal readmittance to the United States." Id.
at 903. The second sentence mentions "deterring unautho-
rized immigration." Id. The third again refers to "the
employees' legal reentry." Id. So when in the final sentence

the Court mentions employees "not lawfully entitled to be
present and employed in the United States," it must be
referring only to those particular Sure-Tan employees who
had left the country and could not lawfully return.

Indeed, the sentence makes sense only because the Sure-
Tan discriminatees had left the country. As the Court itself
pointed out, although the employees were illegally present in
the United States while working for the company, it was not
unlawful for the company to have employed them. Id. at
892-93. Because their employment was not prohibited, it
cannot be said that they were "not lawfully entitled to be
present and employed in the United States." Not until the
discriminatees left the country--at which point they could not
have been reinstated without reentering in violation of immi-
gration law--did they become "not lawfully entitled to be
present and employed in the United States." And for the
same reason, not until they left the country did the discrimi-
natees lose their "legal availability for work." Id. at 904.

To sum up, in light of Sure-Tan's reasoning and its holding
that undocumented workers are protected by the NLRA and
may in fact receive properly tailored awards of backpay, we
must reject Hoffman's interpretation of the sentence. Read-
ing it to bar all backpay to undocumented workers would
expand a snippet of dicta well beyond the unique facts of
Sure-Tan to create a blanket rule that, in addition to conflict-
ing with Sure-Tan itself, would undermine the purposes of
both immigration and labor law. See infra at 21-23. What
we said in Aka, where we also refused to adopt "an unquali-
fiedly literal reading" of an isolated passage from a Supreme
Court opinion, applies here as well: Hoffman's interpretation
"would not carry out the Court's true purpose." 156 F.3d at
1291. Read properly, the sentence simply reminds the Board
that the remedies it fashions for unfair labor practices must
not encourage violations of immigration law.

Two of the three Circuits that have addressed this issue
agree with our interpretation of Sure-Tan. In Felbro, the
Ninth Circuit stated: "In Sure-Tan, the Supreme Court did

not address the issue whether undocumented workers re-
maining at work in the United States throughout the backpay
period are entitled to backpay awards. 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." 795 F.2d at
722. To be sure, in a later case also upholding an award of
backpay to undocumented workers, the Ninth Circuit added a
footnote speculating whether the enactment of IRCA might
"change[] the mix of policy considerations underlying the case
law which supports our conclusion that undocumented em-
ployees may recover backpay." EEOC v. Hacienda Hotel,
881 F.2d 1504, 1517 n.11 (9th Cir. 1989). As we explain in the
following section, however, IRCA's enactment did not alter
the labor and employment law protections afforded undocu-
mented workers. The Ninth Circuit, moreover, has never
repudiated Felbro's and Hacienda Hotel's holdings that back-
pay can be awarded to undocumented workers. Indeed, the
Ninth Circuit and its district courts have consistently reaf-
firmed that undocumented workers continue to be protected
by labor and employment laws after IRCA and have contin-
ued to award them backpay. See, e.g., Kolkka, 170 F.3d 937;
Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.
Supp. 2d 1053 (N.D. Cal. 1998); Escobar v. Baker, 814 F.
Supp. 1491, 1498 (W.D. Wash. 1993); EEOC v. Tortilleria
"La Mejor," 758 F. Supp. 585 (E.D. Cal. 1991). Likewise, in
A.P.R.A. Fuel, the Second Circuit held that Sure-Tan bars
awards of backpay only to those undocumented employees
who are unavailable for work because they are outside the
country and unable to lawfully reenter. See A.P.R.A. Fuel,
134 F.3d at 54-55. But see Del Rey Tortilleria, 976 F.2d at
1120-21 (interpreting Sure-Tan as imposing a blanket prohi-
bition on backpay awards to undocumented workers).

* * *

Hoffman next argues that even if Sure-Tan does not bar
backpay to undocumented aliens, the Immigration Reform
and Control Act of 1986 does. IRCA, it will be recalled,
"establishe[d] penalties for employers who knowingly hire

undocumented aliens, thereby ending the magnet that lures
them to this country." H.R. Rep. No. 99-682(I) at 45-46
(1986), reprinted in 1986 U.S.C.C.A.N. 5649-50 (emphasis
added). In addition to employer sanctions, see 8 U.S.C.
s 1324a(a), IRCA establishes procedures by which employers
must verify employee eligibility to work, see 8 U.S.C.
s 1324a(b), and makes it unlawful for employers to discrimi-
nate against authorized workers on the basis of citizenship or
national origin, see 8 U.S.C. s 1324b. Because undocumented
workers "live in fear, afraid to seek help when their rights are
violated, when they are victimized by criminals, employers or
landlords," IRCA established amnesty procedures to legalize
the status of undocumented workers illegally present in the
country, allowing them "to contribute openly to society and
... help[ing] to prevent the exploitation of this vulnerable
population in the work place." H.R. Rep. 99-682(I) at 49,
1986 U.S.C.C.A.N. at 5653.

According to Hoffman, "the plain intent of IRCA" was to
prevent the Board from awarding undocumented workers
backpay. The Board interprets IRCA differently. It argues
that far from barring backpay awards, IRCA preserves the
NLRA's "protections and remedies for undocumented aliens
as one of many useful tools in a multifaceted strategy" to
reduce illegal immigration by aiming at its "economic roots."

Two principles guide our consideration of this issue. First,
while the Board's formulation of remedies for NLRA viola-
tions merits the highest level of deference, see ABF Freight,
510 U.S. at 324, we owe no deference to its interpretation of
IRCA. See, e.g., New York Shipping Ass'n v. Federal Mari-
time Comm'n, 854 F.2d 1338, 1365 (D.C. Cir. 1988) (agency
interpretation of a statute it does not administer is entitled to
no deference). Second, in enforcing the NLRA, the Board
may not

ignore other and equally important Congressional objec-
tives. Frequently the entire scope of Congressional
purpose calls for careful accommodation of one statutory
scheme to another, and it is not too much to demand of
an administrative body that it undertake this accommo-

 dation without excessive emphasis upon its immediate
task.

Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942). If
a conflict requires the Board "to accommodate the policies of
another statutory regime within the framework of the legisla-
tion it administers," it "must fully enforce the requirements of
its own statute, but must do so, insofar as possible, in a
manner that minimizes the impact of its actions on the
policies of the other statute." New York Shipping, 854 F.2d
at 1367. "[A]n agency, faced with alternative methods of
effectuating the policies of the statute it administers, (1) must
engage in a careful analysis of the possible effects those
alternative courses of action may have on the functioning and
policies of other statutory regimes, with which a conflict is
claimed; and (2) must explain why the action taken mini-
mizes, to the extent possible, its intrusion into policies that
are more properly the province of another agency or statuto-
ry regime." Id. at 1370. This is precisely what the Board
has done.

To begin with, we agree with the Board that nothing in
IRCA bars awards of limited backpay to remedy unfair labor
practices against undocumented workers. Hoffman itself ac-
knowledges that IRCA neither amends nor repeals the
NLRA or any other labor law. The House Judiciary Com-
mittee Report, moreover, expressly states that IRCA's em-
ployer sanctions provisions are not intended to

be used to undermine or diminish in any way labor
protections in existing law, or to limit the powers of
federal or state labor relations boards, labor standards
agencies, or labor arbitrators to remedy unfair practices
committed against undocumented employees for exercis-
ing their rights before such agencies or for engaging in
activities protected by existing law. In particular, the
employer sanctions provisions are not intended to limit in
any way the scope of the term "employee" in Section 2(3)
of the [NLRA], as amended, or of the rights and protec-
tions stated in Sections 7 and 8 of that Act.

H.R. Rep. 99-682(I) at 58, 1986 U.S.C.C.A.N. at 5662. The
Judiciary Committee relied on Sure-Tan to support its view
that continued protection of undocumented workers under the
labor laws is fully consistent with IRCA's goals:

As the Supreme Court observed in Sure-Tan, application
of the NLRA [to undocumented workers] "helps to as-
sure that the wages and employment conditions of lawful
residents are not adversely affected by the competition of
illegal alien employees who are not subject to the stan-
dard terms of employment."

Id. (internal citation omitted). Echoing this view, the House
Education and Labor Committee Report states that no provi-
sion of the law should

limit the powers of State or Federal labor standards
agencies such as the Occupational Safety and Health
Administration, the Wage and Hour Division of the De-
partment of Labor, the Equal Employment Opportunity
Commission, the National Labor Relations Board, or
Labor arbitrators, in conformity with existing law, to
remedy unfair practices committed against undocu-
mented employees for exercising their rights before such
agencies or for engaging in activities protected by these
agencies. To do otherwise would be counter-productive
of our intent to limit the hiring of undocumented employ-
ees and the depressing effect on working conditions
caused by their employment.

H.R. Rep. No. 99-682(II) at 8-9 (1986), reprinted in 1986
U.S.C.C.A.N. 5758 (emphasis added). Not only does this
legislative history make clear that IRCA imposed no limits on
labor law protections for undocumented workers, but the
statute itself authorized supplemental appropriations to the
Department of Labor for expanded enforcement of existing
labor standards and practices "in order to deter the employ-
ment of unauthorized aliens and remove the economic incen-
tives for employers to exploit and use such aliens." Pub. L.
No. 99-603, s 111(d), 100 Stat. 3359 (1986). If as Hoffman
argues IRCA limited labor law protection for undocumented

workers, it hardly seems likely that IRCA would have simul-
taneously authorized additional funds to enforce the labor
laws.

In formulating remedies for unfair labor practices commit-
ted against undocumented workers, moreover, the Board has
not "ignore[d] other and equally important Congressional
objectives." Southern Steamship, 316 U.S. at 47. To the
contrary, it has "fully enforce[d] the requirements of its own
statute [the NLRA] in a manner that minimizes the impact of
its actions on the policies of the other statute [IRCA]." New
York Shipping, 854 F.2d at 1367. In its first post-IRCA case,
A.P.R.A. Fuel, the Board observed that the NLRA and IRCA
share "virtually identical policy objectives with respect to the
American workplace," and concluded that it "can best achieve
this mutuality of purpose and effect by vigorously enforcing
the NLRA, including providing traditional Board remedies,
with respect to all employees, to the extent that such enforce-
ment does not require or encourage unlawful conduct by
either employers or individuals." A.P.R.A. Fuel, 320
N.L.R.B. at 415, 411. "To do otherwise," the Board ex-
plained, "would increase the incentives for some 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. Thus, these employers would be free to flout their
obligations under the Act, secure in the knowledge that the
Board would be powerless fully to remedy their violations."
Id. at 415. Taking account of these common statutory goals,
the Board in A.P.R.A. Fuel ordered its usual remedy of
reinstatement with backpay but imposed two limitations to
avoid any conflict with the policies underlying IRCA: it
conditioned reinstatement on compliance with IRCA's em-
ployment eligibility verification requirements and terminated
backpay when the discriminatees either are lawfully reinstat-
ed or, after a reasonable period of time, fail to produce the
required employment documents. See id. (citing NLRB v.
Future Ambulette, Inc., 903 F.2d 140, 145 (2d Cir. 1990)
(conditioning reinstatement of a driver whose license had
been suspended on his presentation of a valid driver's license

within a reasonable period of time and placing a time limit on
backpay liability to prevent the employer from being tempted
to rehire the driver before he obtained a valid license)).
According to the Board, this remedy--conditional reinstate-
ment combined with limited backpay--best reconciles the
goals of the NLRA and IRCA. See A.P.R.A. Fuel, 320
N.L.R.B. at 416; see also Regal Recycling, Inc., 329 N.L.R.B.
No. 38 (1999); County Window Cleaning Co., 328 N.L.R.B.
No. 26 (1999); Intersweet, Inc., 321 N.L.R.B. 1 (1996).

Courts and administrative agencies agree that IRCA does
not limit labor law protections afforded undocumented work-
ers. Enforcing the Board's A.P.R.A. Fuel remedy, the Sec-
ond Circuit held "without hesitation that IRCA did not dimin-
ish the Board's power to craft remedies for violations of the
NLRA, provided that the Board's remedies do not conflict
with the requirements of IRCA." NLRB v. A.P.R.A. Fuel
Oil Buyers Group, Inc., 134 F.3d 50, 56 (2d Cir. 1997).
Withholding backpay from undocumented workers would, the
court explained, undermine the purposes of both IRCA and
the NLRA. It would conflict with IRCA because "precluding
the remedy would increase the incentives for employers to
hire undocumented aliens," which would, in turn, increase the
incentives that encourage illegal immigration. Withholding
backpay would also frustrate collective bargaining rights of
lawful U.S. workers under the NLRA, the court found:

[T]he lack of a backpay remedy would make undocu-
mented workers an easy target for employers resisting
union organization, and, thus, frustrate the rights of
lawful U.S. workers under the NLRA. An employer
could intimidate United States citizens and other lawful
residents by targeting undocumented workers for anti-
union discharges. Or, alternatively, legal workers might
be reluctant to organize in the first instance if the Board
were unable to issue any remedy against illegal actions
taken by employers against undocumented workers who
support the union.

Id. at 58; see also, e.g., Kolkka, 170 F.3d at 941 (holding that
IRCA does not limit the rights of undocumented workers to
vote in union elections); Patel v. Quality Inn South, 846 F.2d
700, 704 (11th Cir. 1988) (applying the FLSA to undocu-
mented aliens to further IRCA's goal of "eliminating employ-
ers' economic incentives to hire" them); Contreras, 25
F. Supp. 2d at 1059-60 (continuing after IRCA to apply the
FLSA to undocumented workers and to award them punitive
damages, noting that "[t]he Ninth Circuit has taken the
broader view of the Sure-Tan holding, upholding awards of
back pay to undocumented aliens for wrongful employment
practices if, during their time of discharge, the workers
remained in the U.S. available for work, and the back pay
period could be calculated with certainty"), Escobar, 814
F. Supp. at 1498 (holding that undocumented workers can
recover damages for violations of the Migrant and Seasonal
Agricultural Workers Protection Act, as amended by IRCA);
EEOC v. Switching Systems Div. of Rockwell Int'l Corp., 783
F. Supp. 369, 374 (N.D. Ill. 1992) ("Title VII's protections
extend to aliens who may be in this country either legally or
illegally.") (post-IRCA); Tortilleria "La Mejor," 758 F. Supp.
585 (holding that Title VII continues to apply to undocu-
mented workers after IRCA); EEOC Enforcement Guidance
on Remedies Available to Undocumented Workers Under
Federal Employment Discrimination Laws, No. 915.002
(1999) (adopting the A.P.R.A. Fuel analysis and remedy for
undocumented workers whose rights under Title VII, the
Americans with Disabilities Act, the Rehabilitation Act, the
Age Discrimination in Employment Act, or the Equal Pay Act
are violated).

In contrast to the Board's limited backpay policy, Hoff-
man's position would undermine both IRCA and the NLRA.
If employers are exempt from paying backpay to undocu-
mented workers, they will favor undocumented over docu-
mented workers, thus increasing the incentives for unlawful
immigration, precisely what IRCA is intended to prevent. As
the Supreme Court said in Sure-Tan, "[i]f an employer
realizes that there will be no advantage under the NLRA in
preferring illegal aliens to legal resident workers, any incen-

tive to hire such illegal aliens is correspondingly lessened. In
turn, if the demand for undocumented aliens declines, there
may then be fewer incentives for aliens themselves to enter in
violation of the federal immigration laws." 467 U.S. at 893-
94. Denying backpay would likewise subvert the common
policy underlying both IRCA and the NLRA, i.e., maintaining
wages and working conditions for authorized employees.
Sure-Tan made this point as well: "Application of the NLRA
helps to assure that the wages and employment conditions of
lawful residents are not adversely affected by the competition
of illegal alien employees who are not subject to the standard
terms of employment." Id. at 893. Finally, excusing employ-
ers from paying backpay to undocumented workers would
undermine the collective bargaining rights of all employees,
including authorized workers. Sure-Tan put it this way:

If undocumented alien employees were excluded from
participation in union activities and 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. Thus, the
Board's categorization of undocumented aliens as pro-
tected employees furthers the purposes of the NLRA.

Id. at 892 (internal citation omitted). Elaborating in A.P.R.A.
Fuel, the Board explained that because "undocumented aliens
are extremely reluctant to complain to the employer or to any
of the agencies charged with enforcing workplace standards,"
they make easy targets for an employer's "unprincipled effort
to stave off ... union representation." A.P.R.A. Fuel, 320
N.L.R.B. at 414. Employers resisting unions could simply
fire undocumented workers who try to organize and then
raise "the unlawful immigration status of their discharged
employees in retaliation for protected activities;" employers
might even "consider the penalties of IRCA a reasonable
expense more than offset by the savings of employing undoc-
umented workers or the perceived benefits of union avoid-
ance." Id. at 415. This also harms the collective bargaining

rights of authorized workers, the Board found, because "the
continuous threat of replacement with powerless and desper-
ate undocumented workers would certainly chill the American
and authorized alien workers' exercise of their Section 7
rights." Id. at 414.

For all these reasons, we hold that the Board has fully
satisfied its obligation to "accommodat[e] one statutory
scheme to another." Southern Steamship, 316 U.S. at 47.
The Board crafted its limited backpay remedy to avoid con-
flict with IRCA and to promote the purposes of both statutes.
The remedy reduces employer incentives to prefer undocu-
mented workers (IRCA's goal), reinforces collective bargain-
ing rights for all workers (the NLRA's goal), and protects
wages and working conditions for authorized workers (the
goal of both Acts). Because these last two points reflect the
Board's interpretation of the NLRA, we owe them considera-
ble deference. See, e.g., Sure-Tan, 467 U.S. at 899 (warning
that courts "should not substitute their judgment for that of
the Board in determining how best to undo the effects of
unfair labor practices"). If as Hoffman believes the Board
has struck the wrong balance between the two statutes, its
remedy lies in Congress, not this court.

* * *

With this understanding of Sure-Tan and IRCA in mind,
we return to the specific remedy the Board ordered in this
case. To repeat, it denied Castro reinstatement altogether
and limited his backpay to the period beginning with his
unlawful termination and ending on the date Hoffman learned
of his undocumented status. This remedy complies with
Sure-Tan and IRCA in all respects.

First, unlike the Seventh Circuit's six-month minimum
award in Sure-Tan, the Board's award of backpay to Castro
was not at all speculative. The Board limited backpay to the
period of time during which Castro could have continued
working but for Hoffman's unfair labor practice. This repre-
sents precisely the kind of individual tailoring demanded by
Sure-Tan. And unlike in Sure-Tan, the Board had no reason

to worry that the remedy might encourage the discriminatee
to re-enter the country illegally--Castro had never left.

Second, the Board modified its usual A.P.R.A. Fuel remedy
in this case to ensure that Castro's award would not conflict
with immigration law. Although the usual remedy includes
reinstatement conditional on compliance with IRCA's verifica-
tion provisions, the Board denied conditional reinstatement to
Castro because, under IRCA, Hoffman's discovery of Castro's
ineligibility to work would have required his termination.
For the same reason, the Board ended Castro's backpay as of
the date Hoffman discovered his true immigration status.

According to our dissenting colleague, requiring an employ-
er to give backpay to an employee it cannot now lawfully hire
"boggles the mind." See infra., Sentelle, J., dissenting. It
certainly would boggle the mind had the Board ordered
reinstatement, but it rejected that option. Instead it fash-
ioned a limited remedy, carefully crafted to promote the goals
of the NLRA without running afoul of IRCA. IRCA, as we
pointed out above, does not make it unlawful for an alien to
work; it makes it unlawful for an employer to hire "an alien
knowing the alien is ... unauthorized." 8 U.S.C.
s 1324a(a)(1)(A). Having now discovered Castro's unautho-
rized status, Hoffman can no longer employ him lawfully.
But at the time Hoffman hired Castro, it complied with
IRCA, and from that date until it learned he is unauthorized,
nothing prohibited his continued employment. It was to that
period of Castro's lawful availability for employment that the
Board limited the backpay award. Far from boggling the
mind, this remedy fully complies with Sure-Tan and avoids
any violation of IRCA.

III

Hoffman's additional arguments require little discussion.
It claims that the Board misapplied the after-acquired evi-
dence rule. According to Hoffman, Castro's undocumented
status should have barred all backpay, not just backpay from
the date Hoffman learned of Castro's status. For this propo-
sition, Hoffman cites McKennon v. Nashville Banner Pub-

lishing Co., 513 U.S. 352 (1995), but misreads the case. In
McKennon, the lower court had dismissed a discharged em-
ployee's lawsuit under the Age Discrimination in Employment
Act because the employer learned that the plaintiff had
violated company policy by making unauthorized copies of
sensitive documents. The Supreme Court reversed, squarely
rejecting the lower court's conclusion that discovery of
"wrongdoing which would have resulted in discharge bars
employees from any relief" for employers' unlawful acts. Id.
at 356. Rejecting "[a]n absolute rule barring any recovery of
backpay," the Court held that the typical remedy should be
"backpay from the date of the unlawful discharge to the date
the new information was discovered." Id. Consistent with
its longstanding policy, that is precisely what the Board
ordered in this case. See, e.g., Marshall Durbin Poultry Co.,
310 N.L.R.B. 68, 70 (1993), enforced in pertinent part, 39
F.3d 1312, 1317 (5th Cir. 1994); John Cuneo, Inc., 298
N.L.R.B. 856, 857 (1990).

Equally without merit is Hoffman's argument that "[b]y
awarding undocumented aliens backpay without any consider-
ation regarding whether these individuals can mitigate their
damages, the Board treats illegal aliens more favorably than
documented workers and by doing so, the Board violates the
equal protection clause of the Fifth Amendment to the United
States Constitution." Not only do we doubt the company's
standing to assert the equal protection rights of third parties,
see, e.g., Powers v. Ohio, 499 U.S. 400, 410-16 (1991), but
Hoffman points to no evidence that the Board applies a
different mitigation standard to undocumented workers. In
any event, the Board found that Castro had sought and
obtained interim employment, thus fulfilling his duty to miti-
gate. The Board subtracted his interim earnings of almost
$4,000 from the backpay award.

Finally, we think it worth repeating that Hoffman itself
could have mitigated its backpay liability either by making a
bona fide reinstatement offer in its letter recalling Castro a
few weeks after it fired him, or by complying promptly with
the Board's reinstatement order. See supra at 7. INS
regulations issued pursuant to IRCA expressly permit rein-

statement after an unlawful discharge without requiring the
employer to re-verify the employee's eligibility documents.
See 8 C.F.R. s 274a.2(b)(viii)(A).

IV

The petition for review is denied, and the cross-application
for enforcement is granted.

So ordered.

APPENDIX A

[467 U.S 898-905 not available electronically.] Sentelle, Circuit Judge, dissenting: In May of 1988, an
undocumented alien having illegally entered the United
States compounded his illegality when he fraudulently used
the name and birth certificate of Jose Castro to obtain
employment in the production plant of Hoffman Plastic. On
January 31, 1989, the company laid off a number of employ-
ees supportive of a union organizing effort, including the
employee (whose true name is still unknown) who had falsely
represented himself to be Jose Castro. Thereafter, an ad-
ministrative law judge, following an evidentiary hearing,
found that Hoffman had engaged in unfair labor practices
including the discriminatory selection of union adherents in
the layoffs which included the illegal alien known as Castro.

After the disclosure of the undocumented worker's illegal
status and his fraudulent use of the birth certificate, the
administrative law judge unsurprisingly recommended nei-
ther reinstatement nor backpay. I find this decision by the
administrative law judge unsurprising for multiple reasons.
First, as it would be unlawful for Hoffman to employ the
illegal and pay him earned wages, it defies logic--indeed it
boggles the mind--to suppose that the employer could be
compelled by law to pay to the illegal unearned wages which
he could not lawfully earn and to which he would have no
claim but for his prior successful fraud. If this were a case of
first impression I would find it simple. I would hold that by
no theory of law or equity could the federal government
compel an employer to employ an illegal alien to do nothing
and pay him for doing nothing when it could not lawfully
employ him to work and pay him for working. But this is not
a case of first impression. There is controlling Supreme
Court law which makes the case an even easier one.

Analysis

In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the
Supreme Court reviewed a Seventh Circuit decision which
had modified an NLRB order applying the National Labor
Relations Act to unfair labor practices committed against
undocumented aliens. See NLRB v. Sure-Tan, Inc., 672 F.2d

592 (7th Cir. 1982). The High Court concluded that the
Circuit was correct in upholding the Board's position "that
undocumented aliens are 'employees' within the meaning of
[29 U.S.C. s 152(3)]." 467 U.S. at 891. The Court reached
this conclusion based on the deference owed the Board in
"defining the term 'employee,' " a task "that 'has been as-
signed primarily to the agency created by Congress to admin-
ister the Act.' " Id. at 891 (quoting NLRB v. Hearst Publica-
tions, Inc., 322 U.S. 111, 130 (1944)); cf. Chevron U.S.A., Inc.
v. NRDC, 467 U.S. 837, 842-45 (1984). That said, the Su-
preme Court nonetheless vacated the remedial portion of the
Seventh Circuit decision, which had ordered the Board to
award an irreducible minimum of six months backpay to each
of the affected employees even in the face of the employees'
illegal entry and presence in the United States. In vacating
that portion of the Seventh Circuit decision, the Supreme
Court held, "[b]y directing the Board to impose a minimum
backpay award without regard to the employees' actual eco-
nomic losses or legal availability for work, the Court of
Appeals plainly exceeded its limited authority under the Act."
Sure-Tan, 467 U.S. at 904-05 (emphasis added). Based on
that italicized phrase, even if this were all the Supreme Court
had held on the question, I would nonetheless conclude that
Sure-Tan compels us to vacate the Board's decision overrul-
ing the logical result reached by the administrative law judge.
But the Supreme Court did not stop there.

The Supreme Court explicitly rejected the position taken
by the NLRB and the majority in today's decision when it
held, "[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
lawfully entitled to be present and employed in the United
States." Id. at 903. It is difficult to see how the Court could
more clearly have decided the question oppositely to the
Board's resolution in the decision we now review.

Read in context, the sentence speaks even more plainly:

Nonetheless, as the Court of Appeals recognized, the
implementation of the Board's traditional remedies at the

 compliance proceedings must be conditioned upon the
employees' legal readmittance to the United States. In
devising remedies for unfair labor practices, the Board is
obliged to take into account another equally important
Congressional objective--to wit, the objective of deter-
ring unauthorized immigration that is embodied in the
INA. By conditioning the offers of reinstatement on the
employees' legal reentry, a potential conflict with the
INA is thus avoided. Similarly, in computing backpay,
the employees must be deemed "unavailable" for work
(and the accrual of backpay therefore tolled) during any
period when they were not lawfully entitled to be present
and employed in the United States.

Sure-Tan, 467 U.S. at 902-03 (emphasis added) (internal
quotation marks and citation omitted). In a feat of ipse dixit,
the logic of which escapes me, the majority today declares
that this paragraph demonstrates that the Supreme Court's
holding in the final sentence has nothing to do with the issues
before us. The Supreme Court in a rather concise paragraph
makes it plain that it is dealing with the possibility of
affording a backpay remedy to illegal aliens. It further
makes it plain that such a remedy is not an option when the
employees are "deemed unavailable" for work and that such a
period of deemed unavailability occurs "during any period
when they were not lawfully entitled to be present and
employed in the United States." The majority refuses to
apply this rather simple statement of law that a lack of legal
presence in the country constitutes unavailability for employ-
ment to the anonymous person known as Castro. The major-
ity reaches this conclusion by creating a dichotomy--never
mentioned by the Supreme Court--between illegal aliens who
have departed the United States without legally re-entering
and those like the illegal alien known as Castro who may or
may not have interrupted the continuity of their illegal stay in
the country. See Maj. Op. at 14-15. Having created the
dichotomy heretofore unrecognized by the Supreme Court,
the majority then refuses to apply the sentence by its terms
to persons in the newly minted subcategory, apparently be-
cause the Supreme Court did not separate out the subcatego-

ry and reaffirm the applicability of the stated principle to it.
The majority does not recognize that neither does the Court
ever suggest that application is limited to employees whose
legal unavailability arises from an interrupted period of illegal
presence as opposed to a continuous one.

The majority accuses me of taking a sentence out of
context from the Supreme Court's decision. For its proposi-
tion that the quoted sentence is not applicable, the majority
expends several pages of type and suggests ways of supplying
emphases not present in the opinion to get around the
apparent meaning of the Supreme Court's language that
"employees must be deemed 'unavailable' for work (and the
accrual of backpay therefore tolled) during any period when
they were not lawfully entitled to be present and employed in
the United States." Read in context, read out of context, or
read both ways and compared, the majority is left with no
way of dealing with the High Court's plain statement. I
invite the reader to review the phrase "not lawfully entitled to
be present and employed" in its original context. I further
suggest that contextual illumination for this sentence of the
High Court's opinion is supplied in the Court's analysis of the
Seventh Circuit decision that it was reversing. The High
Court described that decision as "[r]ecognizing that the dis-
charged employees would most likely not have been lawfully
available for employment and so would receive no backpay
award at all...." Sure-Tan, 467 U.S. at 890 (emphasis
added). Thus, the governing factor in determining eligibility
for backpay awards is not mere presence, but also the lawful
entitlement to be present.

The majority fundamentally errs in rewriting the phrase
"not lawfully entitled to be present and employed in the
United States" so that it has no application to a case like the
present one in which an alien fits precisely within the situa-
tion described by that phrase: i.e., an alien who is present in
the United States but without legal permission to be present
and without a legal right to be employed here. In effect, that
view rewrites the phrase to read "not present, and not
lawfully entitled to be present in the United States." It adds
the "not present" limitation and deletes the "not lawfully

entitled to be ... employed" requirement. That rewriting of
Sure-Tan leads the majority astray.

The rewriting of Sure-Tan endorsed by the majority ap-
pears to have first occurred in Bevles Co. v. Teamsters Local
986, 791 F.2d 1391, 1393 (9th Cir. 1986). Before that time,
even its critics believed that Sure-Tan meant what it said.
See Sure-Tan, 467 U.S. at 911 (Brennan, J., dissenting)
(criticizing the majority for holding that undocumented aliens
"are effectively deprived of any remedy"); Felbro, Inc., 274
N.L.R.B. 1268, 1269 (1985) (stating that the undocumented
aliens in Felbro, who had remained in the country, would be
affected by Sure-Tan); Local 512, Warehouse & Office Work-
ers' Union v. NLRB, 795 F.2d 705, 725 (9th Cir. 1986)
("Felbro") (Beezer, J., dissenting in part); Terry A. Bethel,
Recent Labor Law Decisions of the Supreme Court, 45 Md.
L. Rev. 179, 196 (1986) ("Sure-Tan ... deprive[s] undocu-
mented employees of any effective remedy for unlawful dis-
crimination...."); Lucinda M. Cardinal, Note, Immigration
Reform: Solving the "Problem" of the Illegal Alien in the
American Workforce, 7 Cardozo L. Rev. 223, 244 (1985)
("Sure-Tan mandates that illegal aliens do not receive the
remedies granted their legal coworkers."); John W. Sagaser,
Note, Rights Without A Remedy--Illegal Aliens Under the
National Labor Relations Act, 27 B.C. L. Rev. 407, 452 (1986)
("By denying a minimum backpay award, the Court in effect
deprives illegal alien workers of any remedy."). In Bevles,
the court was reviewing an arbitrator's award; the issue was
whether the arbitrator's decision showed a "manifest disre-
gard of the law," and the court was not entitled to reverse
erroneous legal conclusions. See 791 F.2d at 1392-93 & n.2.
In not following Sure-Tan, the court ignored the lawful
presence requirement and considered whether the aliens in
that case were lawfully entitled to be employed. The court
clearly relied on the fact that--prior to the passage of
IRCA--it was not a criminal act for employers to hire
undocumented aliens. See id. at 1393. The court also consid-
ered the effect of section 2805 of the California Labor Code,
which prohibited employers from knowingly employing undoc-
umented aliens if it would affect lawful workers. Because an

unreversed state court decision had previously held section
2805 unconstitutional, the court did not fault the arbitrator
for disregarding it. See id. at 1393-94.

The focus on the lawful right to seek employment continued
in Felbro. The Ninth Circuit there again relied on the fact
that it was not illegal for an employer to hire undocumented
aliens. Because the Sure-Tan employees could not lawfully
reenter the United States, the court noted that they were
"unavailable for work during the backpay period." Felbro,
795 F.2d at 719. The court reasoned that being present in
the United States did not create unavailability because
"[t]here is no provision 'in the INA making it unlawful for an
employer to hire an alien who is present or working in the
United States without appropriate authorization.' " Id. (quot-
ing Sure-Tan, 467 U.S. at 892-93).

Since the passage of IRCA, both the Second and Ninth
Circuits have registered concern over IRCA's effect on their
misguided attempts to limit Sure-Tan. In Rios v. Enterprise
Ass'n Steamfitters Local Union 638, 860 F.2d 1168 (2d Cir.
1988), the Second Circuit was careful to explain that recovery
was only permissible because the claimants were "available
for employment during the entire period covered by the
backpay order, since such employment would have violated no
immigration law." Id. at 1173. The court explicitly reserved
the question of whether IRCA would affect later claims. See
id. at 1172 n.2. The Ninth Circuit likewise has questioned
the viability of its Felbro decision after IRCA. See EEOC v.
Hacienda Hotel, 881 F.2d 1504, 1517-18 n.11 (9th Cir. 1989).
In a further Second Circuit case postdating the enactment of
IRCA, that circuit continued to follow its pre-enactment
precedent. See NLRB v. A.P.R.A. Fuel Oil Buyers Group,
Inc., 134 F.3d 50 (2d Cir. 1997). However, as Judge Jacobs
clearly demonstrated on dissent, without the slender reed of
the employer's legal capacity to hire undocumented aliens,
"an undocumented alien is not 'lawfully available for employ-
ment.' " Id. at 62 (Jacobs, J., dissenting) (quoting Sure-Tan,
emphasis supplied by Judge Jacobs). As Judge Jacobs point-
ed out, the remedy of backpay to the alien ineligible for
employment "is foreclosed by Sure-Tan and IRCA...." Id.

 Like the Second Circuit in A.P.R.A. Fuel, the majority
today offers nothing that should lead us to believe that the
Supreme Court in Sure-Tan meant anything other than what
it said; and what it said disqualifies the illegal alien in this
case from an award of backpay.

Conclusion

For the reasons set forth above, I would grant Hoffman
Plastic's petition for review of the Board's order, and deny
the cross-petition for employment. I respectfully dissent.