Agri Processor Co. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided January 4, 2008

No. 06-1329

AGRI PROCESSOR CO., INC.,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with
06-1349

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

Jeffery A. Meyer argued the cause for petitioner. On the
brief was Carmelo Grimaldi.

Julie B. Broido, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With her on
the brief were Ronald E. Meisburg, General Counsel, John H.
Ferguson, Associate General Counsel, and Kira Dellinger Vol,
Attorney. Linda Dreeben, Deputy Assistant General Counsel,
entered an appearance.
 2

Before: HENDERSON, TATEL, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

TATEL, Circuit Judge: A company whose workers recently
voted to unionize refuses to bargain with them, claiming that
most of those who voted are undocumented aliens. The
company argues that undocumented aliens are prohibited from
unionizing because they do not qualify as “employees” protected
by the National Labor Relations Act. Because the company’s
argument ignores both the Act’s plain language and binding
Supreme Court precedent, we deny its petition for review.

I.
Petitioner Agri Processor Co. is a wholesaler of kosher
meat products based in Brooklyn, New York. In September
2005, the company’s employees voted to join the United Food
and Commercial Workers union. When the company refused to
bargain, the union filed an unfair labor practice charge with the
National Labor Relations Board.

The Board’s General Counsel issued a complaint charging
that Agri Processor’s refusal to bargain violated sections 8(a)(1)
and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§
151-169, which make it “an unfair labor practice for an
employer—(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in [the Act]; . . . [or] (5)
to refuse to bargain collectively with the representatives of his
employees.” Id. § 158(a)(1), (5). In a hearing before an
administrative law judge, the company claimed that after the
 3

election it put the Social Security numbers given by all the
voting employees into the Social Security Administration’s
online database and discovered that most of the numbers were
either nonexistent or belonged to other people. Based on this
evidence, the company alleged that most of the workers who had
voted in the election were aliens unauthorized to work in the
United States. Arguing that undocumented workers do not
count as “employees” protected by the NLRA, the company
claimed the election was invalid. The company also asserted
that undocumented aliens may not belong to the same
bargaining unit as legal workers, rendering improper the
bargaining unit created by the Board.

Relying on Supreme Court precedent and the Board’s
decision in Concrete Form Walls, Inc., 346 N.L.R.B. No. 80
(Apr. 13, 2006), the ALJ rejected the company’s arguments,
sustained the charged violations, and ordered Agri Processor to
bargain with the union. Agri Processor Co., 347 N.L.R.B. No.
107, at 3 (Aug. 31, 2006). The Board unanimously adopted the
ALJ’s recommendations. Id. at 1. Though one Board member
noted that “the average person” might find it peculiar that an
employer must bargain with illegal aliens, he acknowledged that
the NLRA compelled this result. Id. at 1 n.2.

The company petitions for review, still arguing that
undocumented aliens are not employees under the NLRA and
may not belong to the same bargaining unit as legal workers.
The Board cross-petitions for enforcement.

II.
According to the Board, Agri Processor’s contention that
undocumented aliens are not “employees” protected by the
NLRA ignores the Act’s plain language and the Supreme
Court’s decision in Sure-Tan, Inc. v. NLRB, 467 U.S. 883
(1984). We agree.
 4

The NLRA defines the term “employee” expansively and
lists only a few limited exceptions:

The term “employee” shall include any employee
. . . , but shall not include any individual employed as
an agricultural laborer, or in the domestic service of
any family or person at his home, or any individual
employed by his parent or spouse, or any individual
having the status of an independent contractor, or any
individual employed as a supervisor, or any individual
employed by an employer subject to the Railway
Labor Act . . . , or by any other person who is not an
employer as herein defined.

29 U.S.C. § 152(3). In Sure-Tan, the Supreme Court held that
this definition clearly includes undocumented aliens:

The breadth of [the NLRA’s] definition [of
“employee”] is striking: the Act squarely applies to
“any employee.” The only limitations are specific
exemptions for agricultural laborers, domestic
workers, individuals employed by their spouses or
parents, individuals employed as independent
contractors or supervisors, and individuals employed
by a person who is not an employer under the NLRA.
See 29 U.S.C. § 152(3). Since undocumented aliens
are not among the few groups of workers expressly
exempted by Congress, they plainly come within the
broad statutory definition of “employee.”

467 U.S. at 891-92 (emphasis added).

Remarkably, Agri Processor’s brief neither acknowledges
this controlling language in Sure-Tan nor even quotes the
NLRA’s definition of “employee.” Instead, the company focuses
 5

exclusively on the Immigration Reform and Control Act of 1986
(IRCA), Pub. L. No. 99-603, 100 Stat. 3359, which made it
illegal for companies knowingly to employ undocumented aliens,
8 U.S.C. § 1324a(a)(1), and on Hoffman Plastic Compounds, Inc.
v. NLRB, 535 U.S. 137 (2002), which held that IRCA bars the
Board from awarding backpay to undocumented aliens. Though
Agri Processor never articulates this clearly, its argument seems
to be that IRCA, passed after Sure-Tan, somehow amended the
NLRA to exclude undocumented aliens from its coverage, and
that Hoffman Plastic overruled Sure-Tan. In fact, however,
neither IRCA nor Hoffman Plastic supports the company’s
argument.

To begin with, nothing in IRCA’s text alters the NLRA’s
definition of “employee.” NLRA section 2(3), 29 U.S.C. §
152(3), continues to define “employee” exactly the same way it
did when the Sure-Tan Court held that “undocumented aliens . . .
plainly come within the broad statutory definition of
‘employee.’” 467 U.S. at 892. Thus, Agri Processor must be
arguing that IRCA and the NLRA conflict, requiring us to read
IRCA as implicitly repealing the NLRA’s definition of
“employee” to the extent that it includes undocumented aliens.
But “where two statutes are ‘capable of co-existence, it is the
duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.’”
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984)
(quoting Reg’l Rail Reorganization Act Cases, 419 U.S. 102,
133-34 (1974)). Thus, courts should not infer that one statute
has partly repealed another “unless the later statute expressly
contradicts the original act or unless such a construction is
absolutely necessary . . . in order that the words of the later
statute shall have any meaning at all.” Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2532 (2007)
(citations and internal quotation marks omitted). Neither
condition is even arguably met here. Because IRCA nowhere
 6

states that undocumented aliens no longer qualify as employees
under the NLRA, it does not “expressly contradict the original
act.” And IRCA has meaning without being read as partly
repealing the NLRA: it prohibits employers from hiring
undocumented aliens, which would otherwise be legal. See
Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996)
(“The rarity with which we have discovered implied repeals is
due to the relatively stringent standard for such findings, namely,
that there be an irreconcilable conflict between the two federal
statutes at issue.” (citations and internal quotation marks
omitted)).

Moreover, “[a]mendments by implication, like repeals by
implication, are not favored,” United States v. Welden, 377 U.S.
95, 102 n.12 (1964), “and will not be found unless an intent to
repeal [or amend] is ‘clear and manifest.’” Rodriguez v. United
States, 480 U.S. 522, 524 (1987) (quoting United States v.
Borden Co., 308 U.S. 188, 198 (1939)). Here, not only is there
no clear indication that Congress intended IRCA implicitly to
amend the NLRA, but all available evidence actually points in
the opposite direction. The House Judiciary Committee Report
on IRCA is clear:

It is not the intention of the Committee that the
employer sanctions provisions of the bill 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
exercising 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 National Labor
 7

Relations Act (NLRA), as amended, or of the rights
and protections stated in Sections 7 and 8 of that Act.
As the Supreme Court observed in Sure-Tan Inc. v.
NLRB, 467 U.S. 883 (1984)[,] 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.”

H.R. Rep. No. 99-682, pt. 1, at 58 (1986), as reprinted in 1986
U.S.C.C.A.N. 5649, 5662. Similarly, the House Education and
Labor Committee Report says that no provision of IRCA

limit[s] the powers of State or Federal labor standards
agencies such as the Occupational Safety and Health
Administration, the Wage and Hour Division of the
Department 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 undocumented 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 employees
and the depressing effect on working conditions
caused by their employment.

Id. pt. 2, at 8-9, as reprinted in 1986 U.S.C.C.A.N. 5757, 5758.
These two passages are the only places in IRCA’s legislative
history where Congress discussed the NLRA. Rather than
showing that IRCA was “clear[ly] and manifest[ly]” intended to
amend the NLRA’s definition of “employee,” Rodriguez, 480
U.S. at 524, they show precisely the opposite.
 8

Perhaps Agri-Processor is arguing that in making it
unlawful for employers to hire undocumented aliens, Congress
must have intended to end job protections for such workers,
even though it never said as much anywhere in IRCA’s text or
history. But this hardly follows, for it is quite possible that even
as Congress barred employers from hiring undocumented aliens,
it still intended for the NLRA to apply to such aliens. The Sure-
Tan Court explained: “Application of the NLRA [to illegal
aliens] 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.” 467 U.S. at 893. And “[i]f 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.”
Id.

In sum, there is absolutely no evidence that in passing
IRCA Congress intended to repeal the NLRA to the extent its
definition of “employee” includes undocumented aliens. Thus,
the NLRA’s plain language, as applied by the Supreme Court
in Sure-Tan, continues to control after IRCA, as the Seventh,
Ninth, and Eleventh Circuits have all held. See NLRB v.
Concrete Form Walls, Inc., 225 Fed. App’x 837 (11th Cir. 2007)
(upholding the NLRB’s conclusion in Concrete Form Walls, 346
N.L.R.B. No. 80, that undocumented workers remain statutory
employees under the NLRA after IRCA); NLRB v. Kolkka, 170
F.3d 937, 941 (9th Cir. 1999) (holding that the NLRA continues
to define undocumented aliens as employees after IRCA); Del
Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1121 (7th Cir.
1992) (same); cf. Patel v. Quality Inn S., 846 F.2d 700, 704-05
(11th Cir. 1988) (rejecting the claim that IRCA implicitly
amended the Fair Labor Standards Act’s definition of
“employee”). No circuit court has reached a contrary
conclusion.
 9

The dissent, instead of attempting to show implied repeal
under the Supreme Court’s established rules for doing so,
creates its own rule. It claims we should read IRCA as
implicitly amending the NLRA not because of anything
Congress said in IRCA’s text or history, but rather because of
something the Sure-Tan Court said two years before IRCA’s
enactment in a passage Agri Processor never cites. Specifically,
after the Sure-Tan Court held that “undocumented aliens . . .
plainly come within the [NLRA’s] broad statutory definition of
‘employee,’” 467 U.S. at 892, it went on to explain why it found
no conflict between its holding and then-existing immigration
law. The Court said that because the law at that time did not bar
hiring undocumented aliens, “there [wa]s no reason to conclude”
that immigration law conflicted with the NLRA’s protection of
such employees. Id. at 893. According to the dissent, this
passage means that once IRCA made it unlawful to hire
undocumented aliens, immigration law had to conflict with the
NLRA’s broad definition of “employee.” See Dissenting Op. at
2. But this does not logically follow, as an example illustrates:
“Because it’s not cold outside, it’s not snowing. It is now cold
outside, therefore it must be snowing.” See PATRICK J. HURLEY,
A CONCISE INTRODUCTION TO LOGIC 323 (9th ed. 2005)
(explaining the fallacy of denying the antecedent, in which a
person reasons from a statement phrased as “because not p, not
q,” that once p happens q will necessarily follow). The dissent
claims its reading of this passage is necessary to prevent it from
being “entirely meaningless.” Dissenting Op. at 6. But the
Sure-Tan majority had an obvious reason for including the
passage that is far more plausible than the dissent’s theory that
the Court was holding how it would treat a hypothetical
immigration statute not before it: to refute the Sure-Tan
dissent’s claim that then-existing immigration law precluded
reading the NLRA as applying to undocumented aliens. See
Sure-Tan, 467 U.S. at 913 (Powell, J., dissenting).
 10

More fundamentally, even if the Supreme Court had said
immigration law would inevitably conflict with the NLRA’s
definition of “employee” if hiring undocumented aliens became
unlawful, the Court never explained how it would resolve such
a conflict. And rather than applying the Supreme Court’s rule
for determining whether two statutes irreconcilably conflict so
that we must read the later as implicitly repealing the earlier, the
dissent reverses the rule, stating: “if Congress in [passing IRCA]
wished to say that illegal immigrant workers . . . [remain]
‘employees’ protected by the NLRA, it would have said so in
the text of IRCA.” Dissenting Op. at 9. Thus, instead of making
“repeals by implication . . . disfavored,” Reg’l Rail, 419 U.S. at
133, and demanding that “the intention of the legislature to
repeal . . . be clear and manifest,” Posadas v. Nat’l City Bank of
N.Y., 296 U.S. 497, 503 (1936), the dissent presumes repeal
because Congress never expressly declared that it wanted to
avoid an implied repeal—all because of one paragraph from
Sure-Tan the dissent misreads. But the Supreme Court “ha[s]
never held that Congress must speak with different gradations of
clarity depending on the specific circumstances of the relevant
legislation.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 76
(2000). The dissent’s rule would lead to the absurd result that
the Supreme Court—or any court for that matter—could alter
the plain meaning of future legislation simply by announcing
what current legislation does not mean.

Of course, the dissent is correct that “[w]hen the Supreme
Court has issued a statutory decision and Congress then acts to
change the relevant law, it flouts congressional will for a lower
court to ignore the new statute and rely reflexively on the result
of the old Supreme Court case.” Dissenting Op. at 4. But this
principle has no application here because Congress never
“change[d] the relevant law.” As we have shown above, IRCA
neither explicitly nor implicitly amended the NLRA. Thus, this
case is nothing like the examples the dissent cites in which the
 11

Supreme Court interpreted a statute and Congress later amended
that statute. See id. at 5. In those examples, Congress obviously
overturned the Supreme Court’s decisions—it expressly changed
the statutory provision the Court had interpreted to achieve the
opposite result. By contrast, after the Sure-Tan Court read the
plain language of the NLRA’s definition of “employee” to cover
undocumented aliens, Congress did not change the NLRA to
“expressly exempt[]” undocumented aliens from its coverage.
Sure-Tan, 467 U.S. at 892. Instead, Congress changed
immigration law, never even hinting it intended to amend the
NLRA. Congress’s decision not to amend the NLRA’s
definition of “employee” is all the more striking given that it has
previously amended that definition when it disagreed with the
Supreme Court’s interpretation of the Act. See Labor
Management Relations Act, 1947, Pub. L. No. 80-101, § 2(3),
61 Stat. 136, 137-38 (amending the NLRA’s definition of
“employee” to exclude independent contractors and supervisors,
whom the Supreme Court had held covered under the original
version of the Act in NLRB v. Hearst Publications, Inc., 322
U.S. 111, 131-32 (1944), and Packard Motor Car Co. v. NLRB,
330 U.S. 485, 488-90 (1947), respectively); see also Kimbrough
v. United States, No. 06-6330, slip op. at 14 (U.S. Dec. 10,
2007) (“Drawing meaning from silence is particularly
inappropriate here, for Congress has shown that it knows how to
[address the question at issue] in express terms.”).

The dissent also criticizes our use of legislative history.
But because IRCA, by its terms, does not amend the NLRA, it
is the dissent that—at least under the Supreme Court’s rules for
implied repeal—must find in IRCA’s history “clear and
manifest” legislative intent to amend the NLRA. Rodriguez,
480 U.S. at 524. We cite legislative history only to demonstrate
how far Agri Processor and the dissent are from meeting this
standard. Thus, Shannon v. United States, 512 U.S. 573 (1994),
upon which the dissent relies, has nothing to do with this case.
 12

There the Court refused to “abandon altogether the text of the
statute” in order to “give effect to [a] snippet of legislative
history.” Id. at 583. Here, by contrast, we hew closely to the
text of the NLRA and IRCA, while the dissent seeks to
“abandon [it] altogether.”

Returning now to Agri Processor’s arguments, we think the
company’s reliance on Hoffman Plastic is entirely misplaced.
In that case, the Supreme Court addressed only what remedies
the Board may grant undocumented aliens when employers
violate their rights under the NLRA. Nowhere in Hoffman
Plastic did the Court hold that IRCA leaves undocumented
aliens altogether unprotected by the NLRA. Indeed, the Court
explicitly declined to revisit Sure-Tan’s holding that
undocumented aliens are employees under the NLRA, 535 U.S.
at 149 n.4, and said that remedies other than backpay—such as
cease and desist orders—can still be imposed for NLRA
violations committed against undocumented aliens, see id. at
152. Thus, neither IRCA nor Hoffman Plastic alters the
NLRA’s definition of “employee” as applied by the Supreme
Court in Sure-Tan.

Even were we less certain about the meaning of Hoffman
Plastic and IRCA, we would still reach the same result. First, if
we thought that Hoffman Plastic’s reasoning cast some doubt on
Sure-Tan’s clear holding—which we don’t—we would still
follow Sure-Tan, for as the Supreme Court held in Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989): “If
a precedent of [the Supreme] Court has direct application in a
case, yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case which
directly controls, leaving to [the Supreme] Court the prerogative
of overruling its own decisions.” Id. at 484. Sure-Tan, not
Hoffman Plastic, “directly controls” this case.
 13

Second, even were it unclear whether the NLRA’s
definition of “employee” included undocumented aliens—which
it isn’t—we would still defer to the Board’s decision to include
them. “Since the task of defining the term ‘employee’ is one
that ‘has been assigned primarily to the [Board],’ the Board’s
construction of that term is entitled to considerable deference,
and we will uphold any interpretation that is reasonably
defensible.” Sure-Tan, 467 U.S. at 891 (quoting Hearst, 322
U.S. at 130). Including undocumented aliens within the
meaning of “employee” is entirely reasonable because
“extending the coverage of the [NLRA] to such workers is
consistent with the Act’s avowed purpose of encouraging and
protecting the collective-bargaining process.” Id. at 892.
Leaving undocumented workers without the NLRA’s
protections would “create[] 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.” Id.

Finally, Agri Processor suggests that if neither Hoffman
Plastic nor IRCA requires the result it seeks, we should still rule
in its favor “in light of the recent policy changes and debate over
the burden of illegal immigration in this country.” Pet’r’s
Opening Br. 32. Given Sure-Tan and the NLRA’s broad
definition of “employee,” however, the company must make this
argument to Congress, not this court.

III.
This brings us to Agri Processor’s second argument—that
the Board may not place undocumented aliens and legal workers
in the same bargaining unit. NLRA section 9(b) “vests in the
Board authority to determine ‘the unit appropriate for the
purposes of collective bargaining.’” NLRB v. Action Auto., Inc.,
469 U.S. 490, 494 (1985) (quoting 29 U.S.C. § 159(b)). “[I]n
 14

defining bargaining units, [the Board’s] focus is on whether the
employees share a ‘community of interest.’” Id. at 494. The
community of interests test turns “on the interests of employees
as employees, not their interests more generally.” Speedrack
Prods. Group, Ltd. v. NLRB, 114 F.3d 1276, 1280 (D.C. Cir.
1997). The Board, moreover, has “broad discretion in making
unit determinations, and its unit determinations are accorded
particular deference by a reviewing court.” Id. at 1278.

Agri Processor argues that undocumented aliens and legal
workers lack a community of interest in two respects. First, the
company argues that “[t]he incorporation of the undocumented
workers with otherwise lawful and eligible workers as members
of the bargaining unit . . . caused the votes of the eligible
workers to become diluted, resulting in the disenfranchisement
of the bargaining unit’s lawful and eligible workers.” Pet’r’s
Opening Br. 33. As we have already explained, however,
undocumented aliens qualify as employees under the NLRA, so
their votes are just as valid as those of legal workers.

Second, Agri Processor maintains that because
undocumented aliens have no legitimate expectation of
continued future employment, their interests differ from those
of legal employees. But as the Board explains:

[U]ndocumented workers’ fear of detection and
termination does not prevent them from sharing a
community of interest with their coworkers. That fear
is counterbalanced by a hope of continuing their
employment indefinitely, giving them a similar
expectation of future employment as ‘regular’ at-will
employees who hold their jobs at the whim of their
employers.
 15

Resp’t’s Br. 21. The Board also correctly points out that
“expected tenure is not necessarily dispositive of the
community-of-interest inquiry.” Id. Indeed, the Board has
previously approved—and we have upheld—allowing workers
to vote even when, at the time of the election, the workers knew
they would soon leave for another job. See, e.g., Saint-Gobain
Indus. Ceramics, Inc. v. NLRB, 310 F.3d 778, 782-83 (D.C. Cir.
2002).

Furthermore, “the focus of the community of interests test
is on the interests of employees as employees, not their interests
more generally.” Speedrack, 114 F.3d at 1280. Thus, “to
determine if a community of interest exists,” the Board typically
looks at “the similarity of wages, benefits, skills, duties, working
conditions, and supervision of the employee.” Id. at 1278. With
regard to each of these factors, undocumented workers and legal
workers in a bargaining unit are identical. While undocumented
aliens may face penalties for violating immigration laws, they
receive the same wages and benefits as legal workers, face the
same working conditions, answer to the same supervisors, and
possess the same skills and duties.

In short, Agri Processor has failed to show that the interests
of undocumented workers as employees differ in any way from
those of legal workers. Indeed, the company has come nowhere
close to making the type of showing needed to overcome the
high degree of deference we owe the Board’s unit
determinations.
 16

IV.
For the reasons stated above, we deny Agri Processor’s
petition for review and grant the Board’s cross-petition for
enforcement.

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
It seems “somewhat peculiar” indeed, as Board Member
Kirsanow observed, to order an employer “to bargain with a
union representing employees that the [employer] would be
required to discharge under the Immigration Reform and Control
Act, 8 U.S.C. § 1324a.” Agri Processor Co., 347 N.L.R.B. No.
107, at 1 n.2 (2006). Moreover, as the dissent makes clear, it is
hard to ignore Sure-Tan’s reliance on the absence of any
provision in the Immigration and Naturalization Act making it
“a separate criminal offense for an alien to accept employment
after entering this country illegally,” Sure-Tan, Inc. v. NLRB,
467 U.S. 883, 893 (1984), and the fact that, shortly thereafter,
the Congress enacted IRCA, which does precisely that.
Nonetheless, Sure-Tan concluded that the broad statutory
definition of “employee” in the NLRA does not exclude an
illegal immigrant and we must follow Sure-Tan’s interpretation
until the Supreme Court otherwise directs or the Congress
expressly limits the term’s scope. See Welch v. Tex. Dep’t of
Highways & Pub. Transp., 483 U.S. 468, 478-79 (1987).
Accordingly, I join the majority opinion.
 KAVANAUGH, Circuit Judge, dissenting: Their
immigration status apparently unbeknownst to their employer,
illegal immigrant workers voted in a union election and
affected the election’s outcome. The employer later
discovered that the workers were illegal; terminated them as
required by federal immigration law; and sought to overturn
the tainted union election. The NLRB ruled that the union
election must stand because illegal immigrant workers are
“employees” under the National Labor Relations Act and thus
are entitled to vote in union elections. The majority opinion
agrees.

I respectfully dissent. The result reached by the majority
opinion not only is “somewhat peculiar,” as Judge Henderson
acknowledges, but also is inconsistent with Supreme Court
precedent and the Immigration Reform and Control Act of
1986. As the Supreme Court has explained, the term
“employee” in the NLRA must be interpreted in conjunction
with the immigration laws. See Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 892-93 (1984). Applying the Sure-Tan analysis, I
would hold that an illegal immigrant worker is not an
“employee” under the NLRA for the simple reason that, ever
since 1986, an illegal immigrant worker is not a lawful
“employee” in the United States. I would therefore vacate the
Board’s order and remand for the Board to determine how a
party can challenge a union election or certification upon
discovering after the fact that illegal immigrant workers voted
in the election and affected the outcome.

* * *

In 1984, the Supreme Court considered whether an
employer committed an unfair labor practice by reporting
illegal immigrant workers to immigration officials in response
to the workers’ union activity. Sure-Tan, Inc. v. NLRB, 467
U.S. 883 (1984). In an opinion by Justice O’Connor, the
Court explained that the NLRA’s definition of “employee”
 2
must be interpreted in conjunction with the immigration laws.
Id. at 892-93. The Court then held that illegal immigrant
workers were “employees” covered by the NLRA because –
“[c]ounterintuitive though it may be” – the immigration laws
as they stood in 1984 did not prohibit employment of illegal
immigrant workers. Id. at 892. The Court stated:

For whatever reason, Congress has not adopted
provisions 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. . . . Moreover,
Congress has not made it a separate criminal offense for
an alien to accept employment after entering this country
illegally. Since the employment relationship between an
employer and an undocumented alien is hence not illegal
under the INA, there is no reason to conclude that
application of the NLRA to employment practices
affecting such aliens would necessarily conflict with the
terms of the INA.

Id. at 892-93 (emphasis added and citation omitted).

As I read the decision, the Court in Sure-Tan thus applied
a straightforward analytical framework to govern the question
whether illegal immigrant workers are “employees” under the
NLRA. If federal law does not prohibit employment of illegal
immigrant workers, then the workers can be “employees”
under the NLRA. If on the other hand federal law prohibits
employment of illegal immigrant workers, then the workers
are not “employees” under the NLRA.1

1
In Sure-Tan, Justice Powell and Justice Rehnquist dissented,
arguing that even without a specific congressional prohibition
against employing illegal immigrant workers, it is “unlikely that
Congress intended the term ‘employee’ to include – for purposes of
 3
When it decided Sure-Tan in 1984, the Court was well
aware of the significance of tying the NLRA’s definition of
“employee” to the immigration laws’ prohibition or non-
prohibition on employment of illegal immigrant workers. The
Court decided Sure-Tan in the midst of an intense
congressional debate on immigration legislation. At oral
argument in Sure-Tan, moreover, one of the Justices asked a
direct question about proposed legislation banning
employment of illegal immigrant workers. See Transcript of
Oral Argument, Sure-Tan, 467 U.S. 883 (No. 82-945),
available at http://www.oyez.org/cases (Court: “There is
legislation pending in Congress to make it illegal, to make it
an unlawful act, a crime to hire an undocumented alien.”).
And just five days before the Court issued its decision, the
House of Representatives passed a bill to prohibit the
employment of illegal immigrants. See 130 CONG. REC.
12,794-95 (June 20, 1984). It would defy credulity to suggest
that the Supreme Court either was unaware of the significance
of its discussion of immigration law or intended it to be
meaningless.

Two years after Sure-Tan, as the Court had
foreshadowed, Congress passed and President Reagan signed
a comprehensive immigration bill that prohibited employment
of illegal immigrant workers. The landmark Immigration
Reform and Control Act of 1986, known as IRCA, “forcefully

being accorded the benefits of that protective statute [the NLRA] –
persons wanted by the United States for the violation of our
criminal laws.” Sure-Tan, 467 U.S. at 913 (Powell, J., concurring
in part and dissenting in part). The Sure-Tan majority reasoned,
however, that a congressional prohibition on employment of illegal
immigrants was necessary in order to conclude that illegal
immigrant workers were not “employees” under the NLRA. As a
result of passage of the Immigration Reform and Control Act in
1986, of course, such a prohibition now exists.
 4
made combating the employment of illegal aliens central to
the policy of immigration law.” Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 147 (2002) (internal quotation
marks and alteration omitted). Under IRCA, it is now a
criminal and civil violation for an employer to knowingly hire
an illegal immigrant. Pub. L. No. 99-603, § 101, 100 Stat.
3359, 3360 (codified as amended at 8 U.S.C. § 1324a). If an
employer hires a worker and later discovers that the worker is
in the United States illegally, the employer must fire the
worker immediately. 8 U.S.C. § 1324a(a)(2). And federal
law provides that an employee may not use fraudulent
identification documents in completing the immigration forms
that are required to be employed in the United States. 8
U.S.C. § 1324c(a).

IRCA “significantly changed” the “legal landscape” that
had existed in Sure-Tan. Hoffman, 535 U.S. at 147; see also
Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 188 (4th
Cir. 1998) (en banc) (IRCA brought about “monumental
change” in immigration law). Applying the straightforward
Sure-Tan analysis in the wake of IRCA, I would hold that an
illegal immigrant worker is not an “employee” under the
NLRA because Congress has now made it illegal for illegal
immigrants to be employed.

The majority opinion and the Board rely on the result in
Sure-Tan. See Maj. Op. at 3-4; Board Br. at 12-13. But Sure-
Tan explained that the interpretation of “employee” depends
on the status of the immigration laws. 467 U.S. at 892-93.
Congress then changed those immigration laws in 1986.
When the Supreme Court has issued a statutory decision and
Congress then acts to change the relevant law, it flouts
congressional will for a lower court to ignore the new statute
and rely reflexively on the result of the old Supreme Court
case. Relying on Sure-Tan’s pre-IRCA interpretation of
 5
“employee” is roughly like relying on District of Columbia v.
Carter to dismiss a § 1983 suit against a D.C. police officer
even though Congress later changed the statute to provide that
such suits are cognizable under § 1983. Compare Carter, 409
U.S. 418, 432-33 (1973), with Pub. L. No. 96-170, § 1, 93
Stat. 1284, 1284 (1979) (amending 42 U.S.C. § 1983). Or
relying on Hubbard v. United States to hold that 18 U.S.C.
§ 1001 does not prohibit false statements in judicial
proceedings even though Congress later changed the statute to
provide otherwise. Compare Hubbard, 514 U.S. 695, 715
(1995), with Pub. L. No. 104-292, § 2, 110 Stat. 3459, 3459
(amending 18 U.S.C. § 1001). Or relying on Westfall v.
Erwin to limit federal employees’ immunity from suit even
though Congress later passed the Westfall Act to ensure such
immunity. Compare Westfall, 484 U.S. 292, 300 (1988), with
Pub. L. No. 100-694, §§ 2, 5-6, 102 Stat. 4563, 4563-65
(amending 28 U.S.C. § 2679).2

Turning next to a logic textbook, the majority opinion
contends that Sure-Tan is not as clear as it could have been on
how the NLRA’s coverage of “employees” would be affected
by a change in the immigration laws. See Maj. Op. at 9. But
we nonetheless have to decide whether the better reading of
Sure-Tan is that the NLRA’s coverage of illegal immigrant
workers as “employees” (i) depends on whether illegal
immigrant workers may be lawfully employed in the United
States; or (ii) does not depend on whether illegal immigrant

2
The doctrine of Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989), has no application in this
case. That doctrine instructs lower courts not to assume that a
Supreme Court decision implicitly overruled one of the Court’s
prior precedents. In this case, however, we are not considering
whether a Supreme Court decision implicitly overruled an earlier
Supreme Court decision. Rather, we are considering the effect of a
congressional change in the governing law.
 6
workers may be lawfully employed in the United States. In
my judgment, the first reading – that the NLRA’s coverage of
illegal immigrant workers as “employees” depends on
whether illegal immigrant workers may be lawfully employed
in the United States – is far and away the better interpretation
of Sure-Tan. After all, under the majority opinion’s reading,
Sure-Tan’s discussion of the interaction of the NLRA and the
immigration laws would be entirely meaningless. See 467
U.S. at 892-93. I am reluctant to reach that conclusion about
Supreme Court decisions; I am especially reluctant to do so
here given that the Supreme Court was well aware of the
significance of its opinion in light of the congressional
proposals on illegal immigration then being considered and
debated.

The majority opinion also refers to the plain language of
the NLRA. See Maj. Op. at 3-4. But according to the
Supreme Court, that’s only half the equation. The other half
of the equation is the plain language of the immigration laws.
Sure-Tan established that the NLRA’s definition of
“employee” is not to be considered in isolation, but rather in
conjunction with the immigration laws and whether those
laws prohibit the employment of illegal immigrants. See 467
U.S. at 892-93. Since 1986, federal law has contained just
such a prohibition. The majority opinion would be correct if
the Supreme Court in Sure-Tan had said something like “we
interpret the NLRA’s definition of ‘employee’ without regard
to a worker’s employment status under the immigration
laws.” In fact, the Supreme Court said just the opposite.3

3
According to the majority opinion, we cannot read the
NLRA’s coverage of “employees” to be affected by the
immigration laws because that would suggest that the immigration
laws implicitly repealed the NLRA, which courts do not lightly
find. See Maj. Op. at 5-6. With respect, the majority opinion’s
 7
The majority opinion and the Board imply that Hoffman
reaffirmed Sure-Tan. See Maj. Op. at 5, 12-13; Agri
Processor Co., 347 N.L.R.B. No. 107, at 3 (2006); see also
Concrete Form Walls, Inc., 346 N.L.R.B. No. 80, at 4 (2006).
That is incorrect. The Hoffman Court did not hold that, after
IRCA, illegal immigrant workers are still “employees” under
the NLRA. Rather, the Hoffman Court stated that it was not
addressing the “employee” issue. See 535 U.S. at 150 n.4
(“Our first holding in Sure-Tan is not at issue here . . . .”); see
also Brief of Petitioner at 17, Hoffman, 535 U.S. 137 (No. 00-
1595), 2001 WL 1729616 (raising remedial issues and not
challenging whether illegal immigrant worker was an
“employee” under the NLRA). If anything, the language of
the Hoffman opinion is more consistent with a conclusion that
illegal immigrant workers are not employees under the
NLRA. After all, Hoffman made clear that, in the wake of
IRCA, illegal immigrant workers are not entitled to any
remedies under the NLRA, such as reinstatement or back pay,
even when unfair labor practices are committed against them.
535 U.S. at 151-52. The Hoffman Court explained that
providing illegal immigrant workers with remedies under the
NLRA “would unduly trench upon explicit statutory
prohibitions critical to federal immigration policy, as
expressed in IRCA.” Id. at 151.

The majority opinion also relies on two House committee
reports issued in connection with IRCA. See Maj. Op. at 6-7.
The usual cautions apply to this kind of legislative history:

discussion of the repeal-by-implication doctrine is a sideshow
because the Supreme Court has already taken the step that the
majority opinion here criticizes. In Sure-Tan, the Court explained
that the immigration laws can affect the NLRA’s coverage of
employees and that a prohibition on employment of illegal
immigrant workers means they are not employees under the NLRA.
See 467 U.S. at 892-93.
 8
Committee reports are highly manipulable, often unknown by
most Members of Congress and by the President, and thus
ordinarily unreliable as an expression of statutory “intent.”
Committee reports are not passed by the House and Senate
and presented to the President, as required by the Constitution
in order to become law. See U.S. CONST. art. I, § 7; see also
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005) (“[J]udicial reliance on legislative materials like
committee reports, which are not themselves subject to the
requirements of Article I, may give unrepresentative
committee members – or, worse yet, unelected staffers and
lobbyists – both the power and the incentive to attempt
strategic manipulations of legislative history to secure results
they were unable to achieve through the statutory text.”). The
two committee reports cited by the majority opinion here,
moreover, are from “one House of a politically divided
Congress” – the same category of legislative history that the
Hoffman Court rejected. 535 U.S. at 149 n.4. Indeed, one of
the reports cited by the majority opinion is the exact same
report that the Hoffman Court dismissed as a “rather slender
reed.” Id. at 149-50 n.4.

In considering the majority opinion’s legislative history
argument, it bears emphasis that the Court in Sure-Tan had
stated that the NLRA’s definition of “employee” depends on
whether Congress prohibits employment of illegal
immigrants. Given that analysis, Congress was necessarily
aware that prohibiting employment of illegal immigrants
could affect the NLRA’s coverage of illegal immigrant
workers. Indeed, someone on Capitol Hill in 1986 knew that
IRCA, analyzed in light of Sure-Tan, could remove illegal
immigrant workers from the NLRA’s definition of
“employee,” because one of the committee reports purports to
say that IRCA would not affect Sure-Tan’s holding. The
problem is that this committee report is “in no way anchored
 9
in the text” of IRCA, and we thus cannot rely on it. Shannon
v. United States, 512 U.S. 573, 583 (1994). As Justice
Kennedy has explained for the Court, legislative materials can
have a role in statutory interpretation “only to the extent they
shed a reliable light on the enacting Legislature’s
understanding of otherwise ambiguous terms.” Exxon Mobil
Corp., 545 U.S. at 568 (emphasis added). In a circumstance
similar to this case, the Supreme Court flatly rejected a
committee report that attempted to preserve a prior judicial
precedent, stating that reliance on the report would have
required the Court to “abandon altogether the text of the
statute as a guide in the interpretative process.” Shannon, 512
U.S. at 583. So too here. In light of Sure-Tan, if Congress in
1986 wished to say that illegal immigrant workers are
prohibited from being employees in the United States but
nonetheless are “employees” protected by the NLRA, it
would have said so in the text of IRCA.

Contrary to the suggestion in the majority opinion, since
IRCA only one other court of appeals has analyzed this issue
in an opinion; it reached the same conclusion as the majority
opinion here. See NLRB v. Kolkka, 170 F.3d 937 (9th Cir.
1999); Maj. Op. at 8. But the Ninth Circuit’s decision did not
grapple with the Supreme Court’s analysis in Sure-Tan and
how IRCA applies under that analysis. I thus disagree with
and would not follow the Ninth Circuit’s decision.

* * *

Applying Sure-Tan and Hoffman in the wake of IRCA, I
would hold that an illegal immigrant worker is not an
“employee” under the NLRA. I would vacate the Board’s
order upholding the union election because the Board’s order
rested on the incorrect conclusion that illegal immigrant
workers are “employees” under the NLRA. This particular
 10
case involves a union election and thus does not affect or
involve the illegal immigrant workers themselves because
they no longer work for the employer (the law prohibits their
employment) and because the Supreme Court has already held
that illegal immigrant workers are not entitled to any remedies
under the NLRA. See Hoffman, 535 U.S. at 151-52. But the
question whether these illegal immigrant workers’ votes
should count in the union election – the particular issue in this
case – is still important to (i) the legal workers, whose votes
may have been diluted or overridden in the union election by
the votes of illegal immigrant workers, and (ii) the employer,
who may have to bargain with a union that would not have
been certified but for the votes of the illegal immigrant
workers. I would remand for the Board to address how a
party may challenge a union election or certification upon
discovering after the fact that illegal immigrant workers voted
in the election and affected the outcome.