dissenting.
The majority decides this case by applying the “plain language” of Sure-Tan. But the language the majority applies was, of course, not directed to the present problem. I feel confident of this, since I was the first to use the language. Ante at 266 n. 3 (citing NLRB v. Sure-Tan, Inc., 672 F.2d 592, 606 (7th Cir.1982) (Cudahy, J.)). Given that Sure-Tan clearly does not decide this case, we may not reject the carefully reasoned decision of the NLRB. In addition, I believe that the majority’s holding undermines our national immigration policy. Accordingly, I respectfully dissent.
When the Court used the phrases “lawfully entitled to be present and employed in the United States” and “lawfully available for employment,” the majority reasons, it meant that an alien who wants backpay must have a green card. Sure-Tan, 467 U.S. at 903 & 904, 104 S.Ct. at 2814-15. But that question was not even before the Court. Indeed, it was not before this court either when I first wrote that “discrimina-tees will be deemed unavailable for work during any period when not lawfully entitled to be present and employed in the United States.” NLRB v. Sure-Tan, 672 F.2d at 606. Instead, both the Court and the panel for which I wrote 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 *1124taking up employment without breaking the law. This was the Court’s concern in Sure-Tan (and the panel’s concern before it): the NLRB must not undermine the INA by awarding backpay in a way that would encourage aliens to break the law. 467 U.S. at 903, 104 S.Ct. at 2814 (“the Board is obliged to take into account ... the objective of deterring unauthorized immigration”); see also Local 512, Warehouse and Office Workers’ Union v. NLRB, 795 F.2d 705, 717 (9th Cir.1986); and Rios v. Enterprise Ass’n Steamfitters Local 638, 860 F.2d 1168, 1172-73 (2d Cir.1988) (restriction on backpay to illegal aliens in Sure-Tan is addressed only to aliens who have left the country).
Once an alien has crossed the border, however, employment is not an additional offense (in fact, it is no crime at all). Sure-Tan, 467 U.S. at 893, 104 S.Ct. at 2809. Unlike the employees in Sure-Tan, Bravo and Paredez did not have to commit crimes in order to be physically available for work. This distinction between having to break the law to reach the workplace and lacking a formal legal entitlement to work is the only reading of Sure-Tan that makes sense of its footnote 11. There the Court accepts the view that the aliens in Sure-Tan would be entitled to backpay for the “period of time these employees might have continued working before apprehension by the INS_” 467 U.S. at 901 n. 11, 104 S.Ct. at 2814 n. 11. The footnote was indeed an “additional criticism” of my opinion for the panel, ante at 267, but its implications clearly support my interpretation of the Court’s opinion for present purposes.
The NLRB does not require discrimina-tees to show that they were legally entitled to work before awarding backpay. As the Ninth Circuit noted in Local 512, the NLRB has awarded backpay to truck drivers without licenses and to children too young to work. 795 F.2d at 717-18 (citing, inter alia, Justrite Mfg. Co., 238 NLRB 57, 65-67 (1978) (underage discriminatee); New Foodland, Inc., 205 NLRB 418, 420-21 (1973) (same); Robinson Freight Lines, 129 NLRB 1040, 1042 (1960) (unlicensed truck driver); and Local 57, Int’l Union of Operating Engineers, 108 NLRB 1225, 1227-28 (1954) (unlicensed engineer)). This is still the Board’s policy. De Jana Inds., Inc., 305 NLRB No. 122 at 3 (1991) (awarding backpay to unlicensed ambulance driver; length of backpay period depends on driver’s reasonably diligent efforts to seek license or obtain other employment); see also NLRB v. Future Ambulette, Inc., 903 F.2d 140, 145 (2d Cir.1990) (award of back-pay to unlicensed driver limited to period when company employed other unlicensed drivers). These awards are remedial in the strictest sense of the term: they give the discriminatee the earnings she would have earned if not for the unfair labor practice. We cannot deny backpay to Bravo and Par-edez without calling all of these awards into question.
The distinction I draw is reinforced by the Supreme Court’s comment on Sure-Tan in INS v. Mendoza-Lopez, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). There the Court noted that the NLRB has the authority to award “retrospective sanctions” against employers who commit unfair labor practices against illegal aliens but may not award “prospective relief— reinstatement and continued employment.” Id. at 1047-48 n. 4, 104 S.Ct. at 2808. The majority cites this reference to Sure-Tan, ante at 1120-21, and appears to believe that it undercuts the NLRB’s argument because it does not mention the word “backpay.” But backpay is a standard retrospective sanction. Further, I am not arguing for the propriety of an order of reinstatement for an illegal alien. And more importantly, the NLRB would not issue such an order. In the same cases I have already cited, the NLRB has made plain that it will not order reinstatement for discriminatees who are not entitled to work. See, e.g., De Jana, 305 NLRB No. 122 at 3 (“Respondent has no obligation to reinstate Barton as a driver until he demonstrates that he has an appropriate driver’s license.”).
I do not believe we have the authority to deny enforcement on the grounds that the NLRB may not make backpay awards to those who are not legally entitled to work. *1125The Supreme Court has repeatedly advised us that the NLRB has “primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review.” Sure-Tan, 467 U.S. at 898-99, 104 S.Ct. at 2812 (citations omitted). The NLRB’s legal conclusions are to be upheld so long as they are “not irrational or inconsistent with the [Act].” NLRB v. Financial Institution Employees, 475 U.S. 192, 202, 106 S.Ct. 1007, 1012, 89 L.Ed.2d 151 (1986). To be sure, the Court appears to have set a new limit on the NLRB’s remedial powers in Sure-Tan: a backpay remedy “must be sufficiently tailored to expunge only the actual, and not merely speculative, consequences of unfair labor practices,” Sure-Tan, 467 U.S. at 900, 104 S.Ct. at 2813 (citation omitted, emphasis in original). But there is no dispute here that Bravo and Paredez lost real wages from their real jobs when Del Rey fired them.
Frankly, I do not see what policy is served by the majority’s holding. Certainly the purposes of the NLRA are not served by allowing employers to get off lightly just because they commit an unfair labor practice against an employee who happens to be an illegal alien. The majority’s holding also undermines the remedial purposes of the Act by denying discrimina-tees the pay that they would have received if not for the unfair labor practice. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). Finally, I think the majority’s holding is bad immigration policy.
Illegal aliens do not come to this country in order to gain the protection of our labor laws. They come here for jobs. They can find jobs because they are often willing to work hard in rotten conditions for little money. Their willingness to work for less means that American workers too must settle for less, or risk settling for unemployment. When we deny backpay to illegal aliens, we tell employers to hire more of them; for aliens who cannot claim monetary damages for unfair labor practices are less expensive to hire and less trouble than their native counterparts. Sure-Tan, 467 U.S. at 912, 104 S.Ct. at 2819 (Brennan, J., dissenting); see also Patel v. Quality Inn South, 846 F.2d 700, 704-05 (11th Cir.1988) (concluding that Fair Labor Standards Act applies to undocumented aliens and permits recovery of unpaid minimum wages), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 182 (1989).
It is true that this policy analysis did not carry the day when applied to the backpay remedy at issue in Sure-Tan. But Justice O’Connor’s opinion can hardly be said to have rejected the point: “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. 467 U.S. at 893, 104 S.Ct. at 2809 (plurality opinion). More importantly, however, Congress has vindicated Justice Brennan’s views. The majority has quoted the committee report that accompanied the Immigration Reform and Control Act of 1986 (IRCA). Ante at 1121-22 (quoting H.R.Rep. No. 1,000, 99th Cong., 2d Sess. 58 (1986)). That report, in turn, quotes the same language from the plurality opinion in Sure-Tan that I have just noted. Id. The only argument the majority can make is that IRCA does not change the result in Sure-Tan. Ante at 1122. I agree that IRCA does not alter Sure-Tan, but the question before us is not whether Sure-Tan is good law. Rather, the question is whether Sure-Tan decides this case. The point is that Congress has recognized the importance of retaining labor law protections for illegal aliens, as a means of protecting the rights of persons legally entitled to work. The majority’s interpretation of Sure-Tan undermines the purposes of our immigration laws — exactly the result that the plurality in Sure-Tan would not permit. 467 U.S. at 883, 104 S.Ct. at 2804.
The language the Court used in Sure-Tan was not intended to cover this case. And if we read Sure-Tan to control this case, we must implicitly reject a long line of NLRB precedent that authorizes back-pay awards to employees who are not legally entitled to their jobs. I believe we should defer to the NLRB’s reading of *1126Sure-Tan, which furthers the purposes of the NLRA and the immigration laws. Accordingly, I respectfully dissent.