concurring in part; dissenting in part:
I concur in that portion of the majority opinion which holds that the superior court did not abuse its discretion in refusing to defer to the jurisdiction of the Arizona Agricultural Employment Relations Board. See Agricultural Employment Relations Board v. United Farm Workers, 26 Ariz. App. 336, 548 P.2d 429 (1976). If I were in agreement with the majority’s analysis concerning the availability of unconditional reinstatement as a remedy, I would also concur with the majority’s treatment of the question whether the trial court abused its discretion in issuing a preliminary injunction.
The focus of my disagreement with the majority concerns its analysis and discussion of the effect of the holding of the United States Supreme Court in Sure-Tan, Inc. v. National Labor Relations Board, 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984). In Sure-Tan, the Court recognized that although the Immigration and Nationality Act did not entirely preclude the application of the National Labor Relations Act to aliens illegally working in the United States,3 it did require that the availability to them of remedies ordering back pay or reinstatement be severely restricted. Thus, the Court stated:
“[T]he implementation of the Board’s traditional remedies at the compliance proceedings must be conditioned upon the employees’ legal readmittance to the United States____ 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.” 104 S.Ct. at 2815.
The essence of the Court’s holding is that unqualified availability of back pay and reinstatement remedies to illegal aliens would be contrary to the objectives upon which the Immigration and Nationality Act is based, i.e., “the objective of deterring unauthorized immigration that is embodied in the INA.” Id.
Whether the Supreme Court’s resolution of the conflict it found between the policies underlying the Immigration and Nationality Act and those underlying the National Labor Relations Act be stated in terms of “comity” or “accommodation” is immaterial, since the Court’s inescapable conclusion was that, as a matter of federal law, these remedies would not be allowed because they would be contrary to the Immigration and Nationality Act. If these remedies are contrary to the Immigration and Nationality Act so as to preclude utilization by another federal agency, the National Labor *419Relations Board, then a fortiori, under the supremacy clause, the Immigration and Nationality Act would preclude the use of the same remedies by a state agency to enforce state law.
I recognize that because the National Labor Relations Act has exempted agricultural labor from its provisions, Arizona is not precluded from enacting its own laws regulating farm labor. This exemption, however, does not support the majority’s holding. The important point is that agricultural laborers are not exempted from the Immigration and Nationality Act, and it is that Act which under Sure-Tan precludes the availability of the questioned remedies. To me the underlying rationale would be the same, regardless of the type of labor involved.
The majority states:
“One purpose of INA is to deter illegal immigration. Sure-Tan v. NLRB, 104 S.Ct. at 2815. Therefore, we must determine whether a court’s order of reinstatement to illegal aliens stands as an obstacle to the accomplishment of this goal.”
I cannot understand why this court must determine whether the trial court’s order of reinstatement to illegal aliens stands as an obstacle to the accomplishment of the goals of the Immigration and Nationality Act, since this was the precise legal issue considered and determined by the Supreme Court in Sure-Tan.4 This court is not empowered to review the United States Supreme Court’s decision on the issue of what action conflicts with the policies underlying the Immigration and Nationality Act. I can only state that the arguments advanced by the majority arguably might have some validity, if the United States Supreme Court had not already ruled to the contrary.
Although not mentioned by the majority, argument has been advanced by the appellees that Sure-Tan can be distinguished because in Sure-Tan the employees had voluntarily departed from the United States. The argument is that the Sure-Tan preclusion on reinstatement and back pay applies only when reentry of the illegal alien is required, and not to those situations where the alien has remained illegally in the United States in the interim period. While the facts in Sure-Tan did involve illegal aliens who had voluntarily left the United States, I do not find anything in Sure-Tan which indicates that the Court’s rationale would support this limitation. In fact, the employees in Sure-Tan might well have already reentered the United States prior to the entry of the order of reinstatement, since the Court noted that at the time of the Board’s decision “the record contained no evidence that the employees had not since returned to the United States.” Based upon this record, I cannot believe that the Supreme Court intended to give undue significance to whether the proposed reinstatement order would be an inducement to illegally reenter as opposed to inducing continued illegal presence. In any event, Justice O’Connor, the author of the Sure-Tan decision, obviously did not have such a limitation in mind. In her subsequent decision in Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), referring to Sure-Tan, she stated:
“But while he maintains the status of an illegal alien, the employee is plainly not entitled to the prospective relief—reinstatement and continued employment— that probably would be granted to other victims of similar unfair labor practices.” 104 S.Ct. at 3489 n. 4 (1984).
In summary on this issue, I would hold that Sure-Tan precludes the unqualified order of reinstatement entered by the trial judge in this case. I do, however, seriously question whether Phoenix Vegetable is entitled to the reversal it seeks in this court. Two other issues have been raised which *420have not been decided by the majority. The first issue relates to the sufficiency of the evidence to support a finding that the appellee employees were aliens not legally entitled to work in the United States. As to only one employee is the record arguably sufficient. Since the majority does not reach this issue, I see no need to discuss it further. As to the remaining issue, whether a state court has jurisdiction to determine the status of an employee as an illegal alien in litigation of the nature involved in these proceedings, I am of the opinion that it clearly has.
For the foregoing reasons I dissent in part and concur in part with the majority opinion.
. Sure-Tan left intact the availability to illegal aliens of the "cease and desist" remedy with its attendant enforcement by contempt proceedings and other penalties. See id. at 104 S.Ct. 2815 n. 13.
. I interpret the majority’s use of the phrase "order of reinstatement” as a shorthand reference to an order of reinstatement not qualified by a requirement that at the time of reinstatement the employee be lawfully present and entitied to employment in the United States. In this appeal, Phoenix Vegetable has not argued that a properly qualified reinstatement order would not be an available remedy.