UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HOFFMAN PLSTCS

v.

NLRB


98-1570a

D.C. Cir. 2000


*	*	*


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


I


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


II


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


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


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


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


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


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


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


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


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


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


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


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


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


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


[T]he Court of Appeals "estimated" an appropriate peri- od of backpay
without any evidence whatsoever as to the  period of time these
particular employees might have  continued working before apprehension
by the INS and  without affording petitioners any opportunity to
provide  mitigating evidence. In the absence of relevant factual 
information or adequate analysis, it is inappropriate for  us to
conclude, as does Justice Brennan, that the Court  of Appeals had
estimated the proper minimum backpay  award "with a fair degree of


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


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


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


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


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


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


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


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


not address the issue whether undocumented workers re- maining at work
in the United States throughout the backpay  period are entitled to
backpay awards. Sure-Tan barred  from backpay only those undocumented
workers who were  unavailable for work in the backpay period because
they were  outside the United States without entry papers." 795 F.2d
at  722. To be sure, in a later case also upholding an award of 
backpay to undocumented workers, the Ninth Circuit added a  footnote
speculating whether the enactment of IRCA might  "change[] the mix of
policy considerations underlying the case  law which supports our
conclusion that undocumented em- ployees may recover backpay." EEOC v.
Hacienda Hotel,  881 F.2d 1504, 1517 n.11 (9th Cir. 1989). As we
explain in the  following section, however, IRCA's enactment did not
alter  the labor and employment law protections afforded undocu-
mented workers. The Ninth Circuit, moreover, has never  repudiated
Felbro's and Hacienda Hotel's holdings that back- pay can be awarded
to undocumented workers. Indeed, the  Ninth Circuit and its district
courts have consistently reaf- firmed that undocumented workers
continue to be protected  by labor and employment laws after IRCA and
have contin- ued to award them backpay. See, e.g., Kolkka, 170 F.3d
937;  Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.  Supp.
2d 1053 (N.D. Cal. 1998); Escobar v. Baker, 814 F.  Supp. 1491, 1498
(W.D. Wash. 1993); EEOC v. Tortilleria  "La Mejor," 758 F. Supp. 585
(E.D. Cal. 1991). Likewise, in  A.P.R.A. Fuel, the Second Circuit held
that Sure-Tan bars  awards of backpay only to those undocumented
employees  who are unavailable for work because they are outside the 
country and unable to lawfully reenter. See A.P.R.A. Fuel,  134 F.3d
at 54-55. But see Del Rey Tortilleria, 976 F.2d at  1120-21
(interpreting Sure-Tan as imposing a blanket prohi- bition on backpay


* * *


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


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


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


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


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


dation without excessive emphasis upon its immediate  task.


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


If undocumented alien employees were excluded from  participation in
union activities and from protections  against employer intimidation,
there would be created a  subclass of workers without a comparable
stake in the  collective goals of their legally resident co-workers, 
thereby eroding the unity of all the employees and  impeding effective
collective bargaining. Thus, the  Board's categorization of
undocumented aliens as pro- tected employees furthers the purposes of


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


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


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


* * *


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


First, unlike the Seventh Circuit's six-month minimum  award in
Sure-Tan, the Board's award of backpay to Castro  was not at all
speculative. The Board limited backpay to the  period of time during
which Castro could have continued  working but for Hoffman's unfair
labor practice. This repre- sents precisely the kind of individual
tailoring demanded by  Sure-Tan. And unlike in Sure-Tan, the Board had


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


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


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


III


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


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


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


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


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


IV


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


So ordered.


APPENDIX A


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


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


Analysis


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


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


The Supreme Court explicitly rejected the position taken  by the NLRB
and the majority in today's decision when it  held, "[s]imilarly, in
computing backpay, the employees must  be deemed 'unavailable' for
work (and the accrual of backpay  therefore tolled) during any period
when they were not  lawfully entitled to be present and employed in
the United  States." Id. at 903. It is difficult to see how the Court
could  more clearly have decided the question oppositely to the 
Board's resolution in the decision we now review.


Read in context, the sentence speaks even more plainly:


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


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


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


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


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


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


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


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


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


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


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


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


Conclusion


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