Hoffman Plstcs v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc September 27, 2000

Decided January 16, 2001

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 for petitioner. With him
on the briefs was Ryan D. McCortney.

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

Attorney. Linda R. Sher, Associate General Counsel, and
John D. Burgoyne, Deputy Associate General Counsel, en-
tered appearances.

James B. Coppess argued the cause for amicus curiae
American Federation of Labor and Congress of Industrial
Organizations. With him on the brief were Jonathan P.
Hiatt and Laurence Gold.

Before: Edwards, Chief Judge, Williams, Ginsburg,
Sentelle, Henderson, Randolph, Rogers, Tatel, Garland,
Circuit Judges, and Silberman, Senior Circuit Judge.*

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Sentelle, in
which Circuit Judges Ginsburg, Henderson, and Randolph
join.

Dissenting opinion filed by Circuit Judge Ginsburg.

Tatel, Circuit Judge: Petitioner illegally fired several
workers in retaliation for their attempts 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 discriminatee was an undocumented alien, it
denied reinstatement and terminated backpay as of the date
petitioner discovered the discriminatee's lack of documenta-
tion. Challenging even this reduced award, petitioner argues
that both Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), and
the Immigration Reform and Control Act of 1986 ("IRCA"),
100 Stat. 3359, bar awards of any backpay to undocumented
discriminatees. We disagree. Properly understood, Sure-
Tan supports backpay awards to undocumented discrimina-
tees so long as the awards reflect the discriminatees' actual
losses. Moreover, because nothing in IRCA prohibits such
limited backpay awards, and because the Board fashioned the
award in this case not just to fulfill the objectives of the
National Labor Relations Act, but also to avoid violations of

__________
* Senior Judge Silberman was in regular active service at the
time of oral argument. Judge Garland took no part in this matter.

IRCA, the award falls within the Board's broad remedial
discretion. We therefore deny the petition for review and
grant the cross-application for enforcement.

I

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 1998, 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 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. Following what
the Board later described as "coercive and restraining" inter-
rogation of union supporters, Hoffman laid off all employees
who had engaged in organizing activities, including Castro.
Hoffman Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992).

After one discharged employee filed charges with the
Board, an Administrative Law Judge found that the company
had engaged in multiple unfair labor practices. The Board
adopted the ALJ's findings, concluding not only that Hoffman
had unlawfully interrogated employees about their union ac-
tivities and sympathies, but also that "in order to rid itself of
known union supporters, [the company] discriminatorily se-
lected union adherents for layoff" in violation of sections
8(a)(1) and (3) of the NLRA, 29 U.S.C. s 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 the union supporters it had illegally fired.

When a dispute arose as to the proper computation of
backpay, a compliance hearing was held before another ALJ.
Castro appeared at the hearing, testifying through an inter-
preter. When Hoffman's attorney began questioning Castro
about his citizenship, 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. In
reaching this conclusion, the ALJ relied on IRCA, which
makes it unlawful for employers to knowingly hire undocu-
mented workers and for employees to use fraudulent docu-
ments to establish employment eligibility. See Hoffman
Plastic Compounds, Inc., 314 N.L.R.B. 683, 685 (1994).

Expressly considering the policies of both IRCA and the
NLRA, the Board agreed with the ALJ that reinstatement of
an undocumented discriminatee would be inappropriate. See
326 N.L.R.B. No. 86, 1998 WL 663933, at *2-4 (Sept. 23,
1998). As the Board had explained in an earlier case, order-
ing reinstatement would force an employer to violate IRCA's
prohibition against knowingly hiring undocumented aliens.
See NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 320
N.L.R.B. 408, 415 (1995). The Board disagreed with the ALJ
that IRCA prevented any award of backpay. To account for
IRCA's prohibition on the fraudulent use of documents, how-
ever, the Board applied its well-established after-acquired
evidence rule and ended backpay liability the moment Hoff-
man became aware of Castro's undocumented status. Hoff-
man Plastic, 1998 WL 663933 at *3-4.

Hoffman petitioned for review of the Board's order. The
company did not challenge the Board's finding that it commit-
ted unfair labor practices, including the illegal discharge of
known union organizers. It contested only Castro's limited
backpay award, arguing primarily that awards of backpay to
undocumented discriminatees are barred by Sure-Tan, Inc. v.
NLRB, 467 U.S. 883 (1984), and, in the alternative, by IRCA.
Cross-applying for enforcement, the NLRB, supported by
amicus AFL-CIO, responded that the limited backpay award
runs afoul of neither Sure-Tan nor IRCA and falls well within
the Board's remedial discretion.

A divided panel of this court resolved all issues in the
Board's favor. Hoffman Plastic Compounds, Inc. v. NLRB,

208 F.3d 229 (D.C. Cir. 2000). We then granted Hoffman's
petition for rehearing en banc and vacated the panel opinion.
Having now heard Hoffman's claims en banc, we again deny
the petition for review and grant the Board's cross-application
for enforcement.

II

We begin with Hoffman's argument, embraced by our
dissenting colleagues, that this case is controlled by a single
sentence from Sure-Tan: "[I]n computing backpay, the em-
ployees must be deemed 'unavailable' for work (and the
accrual of backpay therefore tolled) during any period when
they were not lawfully entitled to be present and employed in
the United States." Sure-Tan, 467 U.S. at 903. This sen-
tence, Hoffman claims, "plainly prohibits" the NLRB from
awarding even limited backpay to undocumented workers
victimized by unfair labor practices. Read literally and di-
vorced from Sure-Tan's factual and legal context, the sen-
tence could well be interpreted to support that view. But the
Supreme Court has warned against "dissect[ing] the sen-
tences 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). And as we have said, "[t]he 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).

Read in context, the Sure-Tan sentence does not bar
backpay to undocumented discriminatees. The Seventh Cir-
cuit originally crafted the sentence, which the Supreme Court
merely repeated, to deal with unique circumstances of Sure-
Tan not present in this case. Contested by neither party, the
restriction imposed by the sentence did not address an issue
in dispute before the Court; nor did it play any part in either
Sure-Tan's holding or reasoning. As such, the sentence is
hardly "considered dict[um]." Cf. Dissenting Op. at 7.

Moreover, extending the sentence beyond the facts of Sure-
Tan, as Hoffman urges, would conflict with the Court's
holding that an undocumented discriminatee is entitled to
backpay so long as it is appropriately tailored to the discrimi-
natee's actual loss.

The employer in Sure-Tan committed an unfair labor prac-
tice when, in retaliation for its employees' success in electing
a union, it alerted the Immigration and Naturalization Service
that some of its employees might be undocumented. Rather
than deport the workers, the INS allowed them to leave the
country voluntarily. "By the end of the day, all five employees
were on a bus ultimately bound for Mexico." Sure-Tan, 467
U.S. at 887. The Board ordered the traditional remedy of
reinstatement with backpay. Sure-Tan, 246 N.L.R.B. 788
(1979). Two members dissented, fearing that these remedies
could produce violations of the then-existing immigration law,
the Immigration and Nationality Act. Id. at 789-90. The
INA focused not on employment of undocumented workers--
that came later when Congress enacted IRCA--but rather on
"the terms and conditions of admission to the country."
Sure-Tan, 467 U.S. at 892 (quoting DeCanas v. Bica, 424 U.S.
351, 359 (1976)). Citing these prohibitions, the dissenters
would have limited the remedy to avoid "encourag[ing] a
discriminatee to reenter the country illegally." Sure-Tan,
246 N.L.R.B. at 789.

Echoing the dissenting members' concerns, the Seventh
Circuit "modif[ied the Board's] remedy in some aspects." See
NLRB v. Sure-Tan, Inc., 672 F.2d 592, 603-06 (7th Cir. 1982).
The court allowed Sure-Tan to remind the discriminatees in
the reinstatement offer that without obtaining proper docu-
mentation they could not reenter the United States to reclaim
their jobs. Id. at 605-606. To reduce the appeal of illegal
reentry, the court also modified the order "to require rein-
statement only if the discriminatees are legally present and
legally free to be employed in this country when they offer
themselves for reinstatement." Id. at 606.

Eliminating still another incentive for illegal reentry, the
court added a clarification to the Board's backpay order, a

clarification that forms the basis for the sentence at issue in
this case: "[I]n 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. This limitation, which was based on the Board's
standard practice of tolling backpay when discriminatees are
physically unavailable, see Local 512, Warehouse & Office
Worker's Union v. NLRB, 795 F.2d 705, 716 n.9 (9th Cir.
1986) ("Felbro") (citing 3 NLRB Casehandling Manual
ss 10,612, 10,656.9), including when out of the country, see
NLRB v. Hickory's Best, Inc., 267 N.L.R.B. 1274, 1277 (1983),
ensured that illegal reentry would not restart the accumula-
tion of backpay.

Though the Seventh Circuit believed that these restrictions
were needed to prevent violations of the INA, it worried that
"in the circumstances of this case"--the Sure-Tan discrimina-
tees had been out of the country since the company's viola-
tion--the restrictions might result in no backpay at all. See
Sure-Tan, 672 F.2d at 606. To solve this problem and to
"effectuate the policies of the [NLRA]," the court ordered the
employer to pay the discriminatees backpay for an "obviously
conjectural" six-month period. Id.

The Supreme Court began by emphasizing that neither
party challenged the "not lawfully entitled" restriction on
which Hoffman now relies. Sure-Tan had supported the
restriction throughout, Sure-Tan, 467 U.S. at 898 n.8, and
even the Board had come to accept it:

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 (emphasis added); see also Del Rey Tortille-
ria, Inc. v. NLRB, 976 F.2d 1115, 1123 (7th Cir. 1992)
(Cudahy, J., dissenting). Turning its attention to that limited
issue--the "minimum backpay award"--the Supreme Court
held that the Seventh Circuit had not only "exceeded its
narrow scope of review" by substituting its own judgment for
that of the Board, but also erred by not sufficiently tailoring
its remedy "to the actual, compensable injuries suffered by
the discharged employees." Sure-Tan, 467 U.S. at 900, 901.
Although agreeing with the Seventh Circuit that these re-
strictions would mean that the Sure-Tan discriminatees would
likely receive no backpay, id. at 903-04, the Court cautioned
that "the probable unavailability of the [NLRA's] more effec-
tive remedies in light of the practical workings of the immi-
gration laws, however, simply cannot justify the judicial arro-
gation of remedial authority not fairly encompassed within
the Act." Id. at 904. In reaching this conclusion, the Court
mentioned the "not lawfully entitled" restriction on backpay
simply to explain the Seventh Circuit's motive for imposing a
six-month minimum award. The additional sentence relied on
by our dissenting colleagues, see Dissenting Op. at 2, adds no
new restriction; it merely summarizes the Court's holding
that backpay awards must be tailored to the discriminatees'
individual circumstances as determined by the Board.

Not only does the sentence on which Hoffman relies thus
form no part of Sure-Tan's holding or reasoning, but contrary
to the company's claim, it presents no bar to awarding
backpay to undocumented discriminatees. As we explained
above, the Seventh Circuit crafted the restriction to ensure
that the Sure-Tan discriminatees who had left the country
would not reenter illegally to claim backpay. See supra at 6-
7. In so interpreting the restriction, we rely not on the
Seventh Circuit's intended meaning, cf. Dissenting Op. at 4,
but rather on the Supreme Court's expression of precisely the
same concern:

[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 objectiv[e]--to wit, the objective of deterring un-
authorized immigration that is embodied in the INA.
By conditioning the offers of reinstatement on the em-
ployees' legal reentry, a potential conflict with the INA is
thus avoided. Similarly, in computing backpay, the em-
ployees must be deemed "unavailable" for work (and the
accrual of backpay therefore tolled) during any period
when they were not lawfully entitled to be present and
employed in the United States.

Id. at 902-03 (internal quotation marks and citation omitted)
(emphasis added).

It is true, as Hoffman points out, that the words "not
lawfully entitled to be present and employed" sweep more
broadly than necessary to deter undocumented discriminatees
from reentering the country illegally. But reading these
words to impose an absolute bar to any award of backpay for
undocumented discriminatees not only ignores the fact that
the Seventh Circuit crafted the restriction to deal with the
precise problem it faced--undocumented discriminatees re-
turning to the country illegally to claim backpay--but also
conflicts with "other language" (our words in Aka, 156 F.3d at
1291) making it clear that undocumented discriminatees are
in fact entitled to backpay. Specifically, the Court "generally
approve[d of] the Board's original course of action in this case
by which it ordered the conventional remedy of reinstatement
and backpay," leaving calculation of the precise amount of
backpay until the compliance proceeding. Sure-Tan, 467 U.S.
at 902. The "main deficiency" in the Seventh Circuit's order,
the Court explained, was not that it awarded backpay to
undocumented discriminatees, but that the amount of back-
pay awarded was "develop[ed] in the total absence of any
record evidence as to the circumstances of individual employ-
ees," 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 un-

fair labor practices." Id. at 899-900 n.9, 900. 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 ... that the Court of Appeals had estimat-
ed the proper minimum backpay award "with a fair
degree of precision."

Id. at 901-02 n.11. If, as Hoffman argues, undocumented
discriminatees may never be awarded backpay, the Court
would not have mentioned "the proper minimum backpay
award" or "the period of time these particular employees
might have continued working." Nor would there have been
a need for more "relevant factual information or adequate
analysis," much less for a compliance proceeding to determine
the amount of backpay actually due. According to the dis-
sent, the compliance proceeding was intended only to deter-
mine whether the discriminatees had legally returned to the
country. See Dissenting Op. at 6-7. The Supreme Court
itself made clear, however, that such a hearing would deter-
mine "the period of time these particular employees might
have continued working before apprehension by the INS."
See Sure-Tan, 467 U.S. at 902 n.11.

Hoffman next argues that IRCA's subsequent adoption of
employer penalties for knowingly hiring undocumented aliens
extended the Sure-Tan sentence to all undocumented discri-
minatees, including those who, like Castro, never leave the
country. According to Hoffman, Castro now falls squarely
within the Sure-Tan sentence because he is no longer "legally
entitled to be ... employed." Had the sentence established a
general rule of law, we might agree. As we demonstrate
above, however, the sentence is neither general (it addressed
only the unique factual situation in Sure-Tan), nor a rule (it
played no part in either the Court's holding or reasoning).

The Court, moreover, did not consistently describe the limita-
tion in terms of employment eligibility. At one point, it
referred to the sentence as conditioning backpay merely on
"legal presence in this country"; elsewhere, it referred to
being "lawfully present." Id. at 898 n.8; id. at 903 n.12.

Two of the three Circuits that have addressed this issue
agree with our interpretation of Sure-Tan. In A.P.R.A. Fuel,
the Second Circuit held that Sure-Tan bars awards of back-
pay only to undocumented discriminatees who were unavail-
able for work because they were outside the country and
unable to lawfully reenter. See A.P.R.A. Fuel, 134 F.3d 50,
54-55 (2d Cir. 1997). Likewise, in Felbro, the Ninth Circuit
stated:

In Sure-Tan, the Supreme Court did not address the
issue whether undocumented workers remaining 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.

Felbro, 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 enact-
ment of IRCA might "change[ ] the mix of policy consider-
ations underlying the case law which supports our conclusion
that undocumented employees may recover backpay." EEOC
v. Hacienda Hotel, 881 F.2d 1504, 1517 n.11 (9th Cir. 1989);
see also Rios v. Enterprise Ass'n Steamfitters, 860 F.2d 1168,
1172 n.2 (2d Cir. 1988) (noting, in a footnote, the passage of
IRCA, but "not decid[ing] the effect of this provision on
future claims"). Yet the Ninth Circuit and its district courts
have consistently reaffirmed that undocumented workers re-
main protected by labor and employment laws after IRCA
and have continued to award them backpay. See, e.g., NLRB
v. Kolkka, 170 F.3d 937 (9th Cir. 1999); Contreras v. Corint-
hian 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). Only the Seventh Circuit has interpret-
ed Sure-Tan differently, though a strong dissent pointed out
that the panel and the Supreme Court

faced a significantly different scenario. In Sure-Tan, the
aliens in question were not only undocumented, they
were not in the country. They could not reenter for the
purpose of taking up employment without breaking the
law. This was the Court's concern in Sure-Tan (and the
panel's concern before it).

Del Rey Tortilleria, 976 F.2d at 1123-24 (Cudahy, J., dissent-
ing).

III

Hoffman argues that even if Sure-Tan does not bar back-
pay to undocumented discriminatees, IRCA does. Yet noth-
ing in IRCA directly bars such an award. As Hoffman itself
acknowledges, IRCA neither amends nor repeals the NLRA
or any other labor law. IRCA's legislative history, moreover,
shows that Congress did not intend the statute to limit the
NLRA even indirectly. The House Judiciary Committee
Report stated that no provision of IRCA should

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, pt. 1, at 58 (1986). The Judiciary Commit-
tee relied on Sure-Tan to support its view that continued
protection of undocumented workers under the NLRA 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 stated 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, pt. 2, at 8-9 (1986) (emphasis added).

Absent a statutory bar to backpay for undocumented discri-
minatees, we turn to the alternative argument we understand
Hoffman to be making: that the Board's backpay award fails
to accommodate IRCA's goal of limiting the hiring of undocu-
mented workers. Two principles guide our consideration of
this issue. First, while the Board's formulation of remedies
for NLRA violations merits the highest level of deference, see
ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994), its
interpretation of IRCA warrants no deference at all. See,
e.g., New York Shipping Ass'n v. Federal Maritime 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 effectuat-
ing 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 minimizes, to the extent possible, its intrusion into
policies that are more properly the province of another
agency or statutory regime. Id. at 1370.

The Board's first opportunity to consider whether and to
what extent traditional NLRA remedies might require modifi-
cation to account for IRCA's employer sanctions came in
A.P.R.A. Fuel. See 320 N.L.R.B. 408. Beginning with New
York Shipping's requirement that it "fully enforce the re-
quirements of its own statute," 854 F.2d at 1367, the Board,
citing Sure-Tan, explained why NLRA policy calls for back-
pay for undocumented discriminatees. 320 N.L.R.B. at 414.
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." Id. 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 em-
ploying undocumented workers or the perceived benefits of
union avoidance." Id. at 415. The Board also found that
denying backpay would harm the collective bargaining rights
of authorized workers because "the continuous threat of
replacement with powerless and desperate undocumented
workers would certainly chill the American and authorized
alien workers' exercise of their Section 7 rights." Id. at 414.

We recognize that there may be different views on the
extent to which awarding backpay to undocumented discrimi-
natees reduces employer incentives to violate the NLRA. It
could be argued, for example, that employers would not likely
risk criminal penalties for knowingly hiring undocumented
workers simply to gain the increased leverage that would flow
from reduced remedies for unfair labor practices. But even if
this is true, employers who merely suspect their workers are
undocumented will still have reason to test the boundaries of
the NLRA. In the end, however, we need not resolve these
policy questions, for it is the Board that possesses expertise
in this area and it is to the Board that we owe deference. See
New York Shipping, 854 F.2d at 1364 (holding that courts
must defer to an agency "interpretation of its own organic
legislation" even where there are competing statutory
schemes). Indeed, the very existence of competing views
reinforces the need for reliance on the Board's experience.

We have the same reaction to Hoffman's argument that the
Board lacked authority to award backpay here because "none
of the 'parade of horribles' " the Board identified in A.P.R.A.
Fuel--including employer exploitation of workers' undocu-
mented status to chill union activity--"could have occurred in
this case." In order to take advantage of undocumented
workers, Hoffman claims, the employer must be aware of
their undocumented status, and "[i]t is beyond dispute" the
company did not "[know] that Castro was an undocumented
alien" at the time of the unfair labor practice. See Supp. Br.
for Pet'r at 14. According to the Board, however, denying

undocumented workers remedies for retaliation would chill
participation in union activities "regardless of whether the
employer knew of the undocumented worker's immigration
status." Supp. Br. for Resp. at 4. Hoffman provides no
reason for believing that the Board's position on this issue
represents an unreasonable interpretation of the NLRA.

Having explained its reasons for believing that NLRA
policy requires remedies for undocumented discriminatees,
the A.P.R.A. Fuel Board addressed its second New York
Shipping obligation: the accommodation of immigration poli-
cy. It began by observing that the NLRA and IRCA share
"virtually identical policy objectives with respect to the Amer-
ican workplace .... [W]e believe that we 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 411. As the Board noted, Sure-Tan itself recog-
nized that preserving N.L.R.A. protection

eliminates the distinct economic advantage and thus the
incentive to employers of hiring illegal aliens in prefer-
ence to American citizens or alien employees working
lawfully. A reduction in the availability of jobs to undoc-
umented aliens, the Court found, would in turn discour-
age many aliens from entering the United States illegal-
ly.

Id. at 412. Citing the legislative history of IRCA quoted
above, the Board observed that a similar concern explained
Congress' insistence that the Act not "be used to undermine
or diminish in any way labor protections in existing law." Id.
at 413 (quoting H.R. Rep. 99-682, pt. 1, at 58); see also
A.P.R.A. Fuel, 134 F.3d at 56.

The Board then applied these NLRA and IRCA policies to
formulate a remedy for the specific unfair labor practices it
had found. To accomplish the NLRA's purposes, the Board
ordered reinstatement with backpay. But in order to avoid
conflict with IRCA's prohibition on knowingly hiring undocu-

mented aliens, it conditioned reinstatement on the discrimina-
tees' production of proper documents. A.P.R.A. Fuel, 320
N.L.R.B. at 415. It also ordered a limited period of backpay
to give the discriminatees the opportunity to obtain this
documentation.

In crafting a remedy for Castro, the Board relied on
A.P.R.A. Fuel's accommodation of NLRA and IRCA policies,
adding an additional limit to the remedy to account for the
fact that unlike A.P.R.A. Fuel, Hoffman had no knowledge of
Castro's illegal status when it hired him. Applying its after-
acquired evidence rule, the Board relieved Hoffman of its
reinstatement obligation altogether and cut off backpay at the
moment Castro's status was discovered. Hoffman Plastic,
314 N.L.R.B. at 685-86. Rather than "pay[ing] Castro for
doing nothing," Dissenting Op. at 1, the NLRB backpay
award compensates him for lost work "in aid of the Board's
authority to restrain violations" that harm all workers, see
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 220 (1938)--
and even that award was limited in recognition of Castro's
undocumented status. Because the Board had no need to
adopt A.P.R.A. Fuel's other remedy--the award of backpay
while the discriminatees attempted to obtain documentation--
the propriety of such an award is not before us.

Hoffman argues that the Board should have gone further
and denied Castro backpay altogether. As it points out,
IRCA criminalizes the false use of documents to obtain
employment. Yet the Board has long held that employee
misconduct does not completely immunize employers from
their backpay obligations, even when the discriminatees
would not have been hired but for their own wrongful con-
duct. Cf. Dissenting Op. at 1. In John Cuneo, for example,
the discriminatee falsified his job application. 298 N.L.R.B.
856 (1990). Instead of denying backpay altogether, as the
employer had urged, the Board limited backpay to the period
between the illegal discharge and the moment the employer
learned of the employee's falsification. In doing so, the
Board applied the after-acquired evidence rule to "balance
[its] responsibility to remedy the Respondent's unfair labor

practice against the public interest in not condoning [the
employee's] falsification of his employment application." Id.
at 856. The Supreme Court has itself used the after-acquired
evidence rule as a means of "deter[ring]" labor law violations
and "compensat[ing]" discriminatees, without disregarding
the "prerogatives" of employers. See McKennon v. Nashville
Banner Publishing Company, 513 U.S. 352, 362 (1995).

Even where, as here, the discriminatee violates the law, the
Supreme Court has refused to require the Board to deny all
backpay. In ABF Freight System v. NLRB, 510 U.S. 317
(1994), the discriminatee perjured himself during the compli-
ance proceeding--an act which, like Castro's fraudulent con-
duct, violated federal criminal law, see 18 U.S.C. s 1621, cited
in ABF Freight, 510 U.S. at 328-29. Although declaring that
"[f]alse testimony in a formal proceeding is intolerable," and
that "perjury should be severely sanctioned," id. at 323, the
Court rejected the company's argument that such behavior
should preclude the employee from receiving backpay:

[The company's] contention, though not inconsistent with
our appraisal of [the employee's] misconduct, raises coun-
tervailing concerns. Most important is Congress' deci-
sion to delegate to the Board the primary responsibility
for making remedial decisions that best effectuate the
policies of the Act when it has substantiated an unfair
labor practice.

Id. at 323-24. Writing separately to emphasize that the
Board's failure to adopt an unclean hands policy "undermines
and dishonors the courts," id. at 329, two concurring Justices
nevertheless agreed that the Board acted within its remedial
discretion. Id. at 326 (Kennedy, J., concurring), 329 (Scalia,
J., concurring in judgment).

Attempting to distinguish ABF Freight, the dissent says
that unlike the perjury statute, IRCA forbade Castro "from
obtaining a job." Dissenting Op. at 11 n.2. This misreads
IRCA. The statute makes it unlawful for employers to
knowingly hire undocumented aliens, 8 U.S.C. s 1324(a), and
for undocumented aliens to knowingly use false documents to

obtain jobs, 8 U.S.C. s 1324c(a)(3). IRCA does not explicitly
make it unlawful for undocumented aliens to work. True,
Castro could have been prosecuted for his fraud, but there
was nothing illegal about his actual employment. So when
the Board ordered limited backpay, it was not compensating
Castro for the loss of wages IRCA prohibited him from
earning. No matter how much Hoffman may deplore Cas-
tro's conduct, ABF Freight stands for the proposition that
balancing Castro's misconduct against Hoffman's is the
Board's responsibility, not ours. Had the Board ruled that
Castro's behavior disqualified him from any backpay, we
would have deferred to that decision as well. "Most impor-
tant," said ABF Freight, and most important here, "is Con-
gress' decision to delegate to the Board the primary responsi-
bility for making remedial decisions that best effectuate the
policies of the Act when it has substantiated an unfair labor
practice." 510 U.S. at 323-324.

Hoffman argues that the Board's accommodation of IRCA
fails for another reason: the remedy gives undocumented
discriminatees an incentive to remain in the country to contin-
ue accumulating backpay. It could also be argued that by
making U.S. jobs more attractive, awarding backpay to un-
documented discriminatees actually encourages illegal immi-
gration. Even if this is so, of course, the Board's providing a
purely compensatory remedy for unfair labor practices could
not make illegal immigration more attractive than it would be
if employers never committed unfair labor practices. Our
job, however, is not to resolve, or as the dissent puts it, to
"mediate" such issues, Dissenting Op. at 11. So long as the
Board neither misinterprets IRCA, see New York Shipping,
854 F.2d at 1365, "ignore[s]" the statute's policies, nor places
"excessive emphasis" on the NLRA, Southern Steamship, 316
U.S. at 47, we will not upset its precise accommodation of the
statutory schemes.

In sum, the NLRB has fully satisfied its New York Ship-
ping obligation. The Board crafted the limited backpay
remedy to avoid conflict with IRCA and to implement its
understanding of the purposes of both IRCA and the NLRA.
According to the Board, the limited backpay award reduces

employer incentives to prefer undocumented workers
(IRCA's goal), reinforces collective bargaining rights for all
workers (the NLRA's goal), and protects wages and working
conditions for authorized workers (the goal of both Acts).
Far from "ignor[ing] other and equally important Congres-
sional objectives," Southern Steamship, 316 U.S. at 47, the
Board, fully enforcing its own statute, carefully considered
IRCA and modified its traditional backpay remedy according-
ly. If, as Hoffman believes, undocumented discriminatees
should receive no backpay at all, its remedy lies in Congress,
not this court.

IV

Hoffman's final argument requires little discussion. The
company claims that "[b]y awarding undocumented aliens
backpay without any consideration 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."
Brief for Pet'r at 33. Not only does Hoffman lack standing to
assert equal protection rights of third parties, see, e.g., Pow-
ers v. Ohio, 499 U.S. 400, 410-16 (1991), but it points to no
evidence that the Board applies a different mitigation stan-
dard to undocumented discriminatees. In any event, the
Board found that Castro both sought and obtained interim
employment, thus fulfilling his duty to mitigate. The Board
subtracted Castro's interim earnings of almost $4,000 from
his backpay award.

Finally, we think it worth pointing out that Hoffman itself
could have mitigated its backpay liability either by making
Castro a bona fide reinstatement offer--although it did offer
to rehire him, the Board found the offer inadequate--or by
complying promptly with the Board's reinstatement order
issued before Castro's undocumented status became known.
See Hoffman Plastic, 1998 WL 663933, at *2, *5. INS
regulations promulgated pursuant to IRCA expressly permit
reinstatement after unlawful discharge without requiring the

employer to reverify the employee's documents. 8 C.F.R.
s 274a.2(b)(viii)(A)(5).

V

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

So ordered.

 Sentelle, Circuit Judge, dissenting, with whom
Henderson and Randolph, Circuit Judges, join, and Gins-
burg, Circuit Judge, joins in part: 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 who had falsely and illegally represented himself to
be Jose Castro. Thereafter, an administrative 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 recommended neither reinstatement
nor backpay. Hoffman Plastic Compounds, Inc., 314
N.L.R.B. 683 (1994). Upon review, the Board agreed with
the ALJ that reinstatement of an undocumented alien was
beyond its authority, but ordered backpay from the time of
the discriminatory discharge until the revelation of Castro's
undocumented status. Hoffman Plastic Compounds, Inc.,
326 N.L.R.B. 86, 1998 WL 663933 at *2-4. I would reverse
the Board and restore the ALJ's recommended result.

As it would be unlawful for Hoffman to employ the illegal
and pay him earned wages, it defies the logic of the Immigra-
tion Reform and Control Act of 1986 ("IRCA") 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. The

Supreme Court has offered clear guidance 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 ("NLRA") 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 mean-
ing of [29 U.S.C. s 152(3)]." Sure-Tan, 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 assigned primarily to the agency created by Congress to
administer the Act.' " Id. at 891 (quoting NLRB v. Hearst
Publications, 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 Supreme 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 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 conclude that Sure-Tan
counsels us to vacate the Board's decision overruling 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. Thus, the Supreme Court very clearly
directed the appropriate response to the issue before the
Board in the present case and did so directly opposite the
disposition reached by the Board.

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 [Immigration and Nationality Act]. By conditioning
the offers of reinstatement on the employees' legal reen-
try, 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 back-
pay 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). 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."

Thus, the Supreme Court has definitively answered the
question before us. Castro was not lawfully entitled to be
present and employed in the United States. "[E]mployees
must be deemed 'unavailable' for work (and the accrual of
backpay therefore tolled)" when they are so situated. There-
fore, the award of backpay to Castro for that period must be

vacated. The majority advances a complex of theories for
avoiding what seems to be the plain import of the Supreme
Court's language in Sure-Tan. It starts by asserting that
"the Seventh Circuit crafted the restriction to deal with the
precise problem it faced," that is, "undocumented discrimina-
tees ... returning to the country illegally to claim their
backpay." Maj. Op. at 9. This analysis fails for two reasons.
First, we are not controlled by the origin of the instructive
sentence in the Seventh Circuit. The Supreme Court's con-
text is the governing context without regard to the original
coinage of the sentence. Cf. Anderson v. City of Bessemer
City, 470 U.S. 564, 572-73 (1984) (explaining that a district
judge's findings of fact and conclusions of law are the findings
and conclusions of that court despite the fact they are drawn
from the submissions of the parties). More importantly, the
Supreme Court's statement and its context give no indication
that it meant other than what it said: not simply that there is
some sort of unique bar applicable to illegal immigrants who
have left the country and might unlawfully return, but that
the same bar extends to all not lawfully entitled to be present
and employed in the United States.

Expanding on its first attempt at distinction, the majority
opines that when the Supreme Court "generally approve[d]
[of] the Board's original course of action in this case by which
it ordered the conventional remedy of reinstatement and
backpay" it somehow had created other language inconsistent
with the broad effect of the Court's language in the disputed
sentence. Maj. Op. at 9. The majority then relies on the
principle drawn from our decision in Aka v. Washington
Hospital Center, 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en
banc), that the Supreme "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
intent and with other language in the same opinion." (Em-
phasis supplied.) I have no quarrel with the principle; I
simply do not agree that its application in this case compels
the result reached by the majority. Indeed, I think it cuts to
the contrary. The language from the Sure-Tan decision cited

by the majority blesses in general terms the remedies of
reinstatement and backpay. It no more compels us to uphold
a backpay award to an employee not lawfully entitled to
employment than it compels us to uphold illegal reinstate-
ment of the same employee.

I suggest that the most important "other words" of the
Supreme Court are those immediately preceding the sentence
of contention. Those I have quoted above. That is, that "[i]n
devising remedies for unfair labor practices, the Board is
obliged to take into account ... the objective of deterring
unauthorized immigration that is embodied in the INA." As
the Supreme Court makes plain, there is no inherent conflict
between the labor statute and the INA. The conflict arises
only if the Board imposes remedies inconsistent with the
immigration law. That is, the conflict arises not between two
statutes, but between the remedial preferences of an adminis-
trative board and the higher authority of statutory enact-
ment. In fact, in the following paragraph, the Supreme
Court took care to note the "probable unavailability" of
backpay "in light of the practical workings of the immigration
laws." Sure-Tan, 467 U.S. at 904. Following this "other
language" of the Supreme Court, we should reach no other
conclusion than the reversal of what the Board has done in
the present case.

The majority further attempts to define the qualifying
language away from its apparent meaning by extracting from
a footnote the Supreme Court's observation that "the order's
main deficiency" was that it "was 'develop[ed] in the total
absence of any record evidence as to the circumstances of the
individual employees.' " Maj. Op. at 9 (quoting Sure-Tan, 467
U.S. at 900 n.9). Far from supporting the majority's proposi-
tion, that language of the Supreme Court read in context
actually supports the application of the eligibility language by
its terms. In footnote 9, the Supreme Court is discussing the
assertion of a dissenter that its review should be conducted
deferentially, as if the Board rather than the Court of Ap-
peals had developed the remedial order. Footnote 9 rejects
that proposition as not going to the defect in the order. The
language concerning the "total absence of any record evi-

dence" is wholly consistent with the proposition that if the
circumstances of an employee are that he was not lawfully
eligible to be present and employed in the United States, then
he does not receive a backpay recovery. Indeed, it is difficult
to see what else the Supreme Court could have been referring
to.

Today's majority opinion reads Sure-Tan as holding that
the fired employees were entitled to backpay because it
ordered a compliance proceeding "to determine the amount of
backpay actually due." Maj. Op. at 10. This assertion
misconstrues the posture of the case and the Court's holding.
Prior to the Court's decision in Sure-Tan, nobody had offered
any evidence concerning what happened to the employees
after they were deported. There was no question that the
employees left the United States, but there was no way to
know whether they had legally returned during the appropri-
ate backpay period. As the original NLRB opinion explained,
"[T]here is no evidence in the record that they have not
returned to the United States. The appropriate forum for
determining issues relating to their availability for work is a
compliance proceeding." Sure-Tan, Inc., 234 N.L.R.B. 1187,
1187 (1978), reh'rg denied, NLRB v. Sure-Tan, Inc., 677 F.2d
584 (7th Cir. 1982), aff'd in part, rev'd in part, 467 U.S. 883
(1984). Accordingly, the Supreme Court ordered that the
case be remanded for the NLRB to determine "whether any
of the discharged employees will be able ... to establish at
the compliance proceedings that they were lawfully available
for employment during the backpay period." Sure-Tan, 467
U.S. at 904. As the Court explained, "these compliance
proceedings provide the appropriate forum where the Board
and petitioners will be able to offer concrete evidence as to
the amounts of backpay, if any, to which the discharged
employees are individually entitled." Id. at 901 (emphasis
added).

The majority's interpretation is inconsistent with the Sure-
Tan Court's instruction and holding. The Court acknowl-
edged that the employees could be eligible for a backpay
remedy, but it stressed that when computing their actual
backpay awards, "the employees must be deemed 'unavail-

able' 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," a factual issue
that had not been addressed. Id. at 903. In other words, the
Sure-Tan employees could be eligible for some backpay, but
only if (and only for periods in which) they could prove that
they were legally eligible to work in the United States.1
Unlike in Sure-Tan, in Hoffman's case there is no factual
question--Castro was lawfully unavailable throughout the
backpay period and, thus, consistent with the Court's instruc-
tion in Sure-Tan, not entitled to receive any backpay.

Finally, the majority argues that "the sentence ... form[s]
no part of Sure-Tan's holding...." Maj. Op. at 8. I take
this as being a tactful way of saying: "All right, the Supreme
Court said it, but it's just dicta, we don't have to go by it." I
find that singularly unimpressive. As we have observed in
the past, "because 'carefully considered language of the Su-
preme Court, even if technically dictum, generally must be
treated as authoritative,' this court cannot ignore the unmis-
takable import of [a Supreme Court decision's] analysis."
United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)
(citations omitted). Or, as we have elsewhere stated, "Su-
preme Court dicta tends to have somewhat greater force--
particularly when expressed so unequivocally." Bangor Hy-
droelectric Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

__________
1 The majority's assertion that the Supreme Court "made clear
... that [a compliance] hearing would determine 'the period of time
these particular employees might have continued working before
apprehension by the INS,' " Maj. Op. at 10 (quoting Sure-Tan, 467
U.S. at 902), is founded on a quotation uprooted from all context.
The Supreme Court phrase encompassed in the majority's text
comes from footnote 11 and was not in a discussion of what a future
compliance hearing would have determined, but rather a descriptive
passage setting forth what had transpired before the Supreme
Court's review. It was specifically offered to rebut the conclusion
of dissenting Justice Brennan "that the Court of Appeals had
estimated the proper minimum backpay award with a fair degree of
precision." Id. (quoting Sure-Tan, 467 U.S. at 909) (internal quotes
omitted).

 In a different context, prior dissenters to an en banc
decision once lamented that the majority had discarded Su-
preme Court language "as mere 'dicta,' " saying, "In our view
it is quite presumptuous for members of an inferior court to
dismiss a decision of the Supreme Court in so cavalier a
manner." Hubbard v. Administrator, EPA, 982 F.2d 531,
540 (D.C. Cir. 1992) (en banc) (Edwards, J., dissenting). Just
so here. The Supreme Court has told us that "employees
must be deemed unavailable for work and the accrual of
backpay tolled during any period when they were not lawfully
entitled to be present and employed in the United States."
Indeed, this statement is more than dicta--rather, it was an
unequivocal instruction for the Board to follow in its compli-
ance proceeding on remand. I would not dismiss the Su-
preme Court's instruction in so cavalier a manner as does the
majority.

In the end, I submit the Supreme Court has made clear the
state of the law: "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 and to be employed.

The majority's construction of the phrase "not lawfully
entitled to be present and employed in the United States" is
tantamount to rewriting it to read "not present, and not
lawfully entitled to be present, in the United States." In

effect, 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 erroneous construction of Sure-Tan endorsed by the
majority appears 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 undoc-
umented 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, Ware-
house & Office Workers' Union v. NLRB, 795 F.2d at 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 ... de-
prive[s] undocumented employees of any effective remedy for
unlawful discrimination...."); 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. Saga-
ser, 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 Ninth Circuit was reviewing an arbitrator's award;
the issue was whether the arbitrator's decision showed a
"manifest disregard of the law," and the court was not
entitled to reverse simply 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 consid-
ered whether the aliens in that case were lawfully entitled to
be employed. The Bevles court 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 considered the effect of section 2805 of the
California Labor Code, which prohibited employers from

knowingly employing undocumented 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 grant employment contin-
ued in Felbro. The Ninth Circuit there again relied on the
fact that it was not illegal for an employer to hire undocu-
mented 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." Fel-
bro, 795 F.2d at 719. The court reasoned that being illegally
present in the United States did not create unavailability
because "[t]here is no provision 'in the INA making it unlaw-
ful for an employer to hire an alien who is present or working
in the United States without appropriate authorization.' " Id.
(quoting Sure-Tan, 467 U.S. at 892-93).

Since the passage of IRCA, both the Second and the 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.

In Sure-Tan the Court emphasized, "[W]e remain bound to
respect the directives of the INA as well as the NLRA and to
guard against judicial distortion of the statutory limits placed
by Congress on the Board's remedial authority." Sure-Tan,
467 U.S. at 904 n.13. Likewise, we are bound by the statuto-
ry directives of IRCA. Those directives prohibit employers
from hiring illegal aliens, see 8 U.S.C. s 1324a(a)(1)-(2), (e),
(f), and make it a crime for illegal aliens to obtain employ-
ment using "an identification document knowing (or having
reason to know) that the document was not issued lawfully for
the use of the possessor, [or] ... that the document is false,"
18 U.S.C. s 1546(b); see also 8 U.S.C. s 1324a(b)(c)(ii) (1988).
The majority opinion essentially ignores these directives,
instead pointing out that "employee misconduct" and an
employee's providing a "false excuse for tardiness" while
under oath, ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317,
324 (1994), do not necessarily bar backpay awards. These
points are inapposite--in this case, federal statutes clearly
prohibited Castro from even obtaining a job.2

Instead of confronting these statutes directly, the majority
chooses to mediate between statutory "goals." This Court's
divination of what were the legislature's goals should never be
allowed to trump what the legislature actually said. And
what the legislature has said is clear. Despite what this
Court's policy preferences may be, those preferences "cannot
justify the judicial arrogation of remedial authority not fairly

__________
2 This distinguishes the circumstance before us from that in ABF
Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994), relied upon by the
majority. See Maj. Op. at 18. The perjury statute provides for
criminal sanctions; it does not forbid a present or potential perjurer
from obtaining a job.

encompassed within the [NLRA]" as interpreted by the Su-
preme Court in Sure-Tan. 467 U.S. at 904.

Conclusion

The majority discusses at length the incentives and
counter-incentives of backpay awards to illegal aliens from
employers who could not legally employ them. While I do
not think that law-and-economics analysis to be controlling or
particularly helpful in this case, I would observe that it seems
at least passing strange to think that Congress would outlaw
the making of a particular type of contract between two types
of individuals (United States employers and undocumented
aliens) and then expect the courts to impose remedies that
compel one of the parties to the disfavored contract to pay
money to the other. I cannot see how those incentives could
be much other than a complete wash.

For the reasons set forth above, I respectfully dissent.

 Ginsburg, Circuit Judge, dissenting: I join Judge Sen-
telle's dissent insofar as he demonstrates that in Sure-Tan,
Inc. v. NLRB, 467 U.S. 883 (1984), "the Supreme Court has
definitively answered the question before us." Dissent at 3.
The court today simply cannot convincingly evade the High
Court's clear statement that "in computing backpay, the
employees must be deemed 'unavailable' for work (and the
accrual of back pay therefore tolled) during any period when
they were not lawfully entitled to be present and employed in
the United States." 467 U.S. at 903.

Because I believe that Sure-Tan is controlling, I do not
think it necessary to reach the question whether the Board
reasonably reconciled the remedial scheme of the NLRA with
the policies embodied in the IRCA.