ORAL ARGUMENT SCHEDULED FC

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No. 98-1570
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UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

HOFFMAN PLASTIC COMPOUNDS, INC

Pet!tioner/Cross-Respondent

V°

NATIONAL LABOR RELATIONS BOARD

Respondent/Cross-Petitioner

ON PETITION FOR REVIEW

AND CROSS-APPLICATION FOR ENFORCEMENT
OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

BRIEF FOR THE AMERICAN FEDERATION OF LABOR AND CONGRESS

OF INDIJSTRIAL ORGANIZATIONS AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT/CROSS-PETITIONER

Marsha S. Berzon Jonathan P. Hiatt

Altshuler, Berzon, Nussbaum, James B. Coppess
Berzon & Rubin Jeffrey B. Fannell
177 Post Street, Suite 300 AFL-CIO
San Francisco, CA 94103 815 - 16th Street, NW
Telephone: 415/421-7151 Washington, DC 20006
Telephone: 202/637-505'3
 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to Rule 28 of the Circuit Rules of this Court, counsel forAmici

provides this Certificate as to Parties, Rulings, and Related Cases.

A. Parties and Am ici: Except for Amicus American Federation of Labor

and Congress of Industrial Organizations, all parties, intervenors and amici

appearing before the district court and in this Court are listed in the Briefs for the

parties.

B. Rulings Under Review: References to the rulings at issue appear in

the Brief for Petitioner.

C. Related Cases: Counsel for Amicus Curiae knows of no related cases.

Marsha S. Berzon
Altshuler, Berzon, Nussbaum,
Berzon & Rubin
177 Post Street, Suite 300
. °

San Francisco, CA 94108

(415) 421-7151
 TABLE OF CONTENTS

Page(s)

Statutes and Regulations ............................................ 1

Summary of Argument ' 1

ARGUMENT .................................................... 4

Introduction ................................................. 4
J

I,
A Backpay Award to Undocumented Employees Who
Are Discharged In Violation of the NLRA is Fully
Consistent with the Role of Backpay Remedies in
Effectuating the Policies of the Act ............... .. .......... 10

II. The Board's Backpay Remedy Does Not Conflict With

and Indeed Advances the Policies of the Immigration
Laws, Including IRCA ................................... 19

III. Sure-Tan Does Not Foreclose An Award of Backpay to

All Undocumented Workers ......... ' ...................... 24

IV. The Board's A.P.R.A. Remedy Was Properly Applied in

this Case ........ ...................................... 33

Conclusion ..................................................... 38
 TABLE OF AUTHORITIES

Page(s)

CASES

ABF Freight System, Inc. v. NLRB

510 U.S. 317 (1994) ......................................... 36

*A.P.R.A. Fuel Oil Buyers Group, Inc.

320 NLRB 408 (1995) ................................... passim

Albermarle Paper Co. v. Moody

422 U.S. 405 (1975) ...................................... ".... 13

Amay's Bakery & Noodle Co.

227 NLRB 214 (1976) ....................................... 11

Apollo Tire Co.

236 NLRB 1627 (1978), enf'd, 604 F.2d 1180 (9th Cir. 1979) ...... 11, 37

Axelson, Inc.
285 NLRB 862 (1977) ....................................... 33

Camp v. Jeffer, Mangels, Butler & Marmaro

35 Cal. App. 4th 620 (1995) ................................... 36

Del Rey Tortilleria, Inc. v. NLRB

976 F.2d 1115 (7th Cir. 1992) ............................ 29, 31, 32
..

Duke City Lumber Co.

251 NLRB 53 (1980) ........................................ 11

Handling Equipment Corp.

• 209 NLRB 64 (1974) ........................................ 12

* Authorities on which we chiefly rely are marked with asterisks.

Hasa Chemical, Inc.
235 NLRB 903 (1978) ....................................... 12

Hickory's Best, Inc.

267 NLRB 1274 (1983) ....................................... 14

I.N.S.v. Lopez-Mendoza
468 U.S. 1032 (1984) ........................................ 30

John Cuneo, Inc.

298 NLRB 856 (1990) .................................... 33, 34

John Dory Boat Works, Inc.

229 NLRB 844 (1977) ............................. i ..... : ..... 7

Justrite ManufacttLring Co.

238 NLRB 57 (1978) ........................................ 17

Lawrence Rigging, Inc.

202 NLRB 1094 (1973) ............................ : .......... 12

Local 57, International Union of Operating Engineers

108 NLRB 1225 (1954) ....................................... 15

*Local 512, Warehouse & Office Workers v. NLRB (Felbro, Inc.)

795 F.2d 705 (9th Cir. 1986) ............................... passim

Marshall Durbin Poultry-. Co.

310 NLRB 68 (1993) ........................................ 33

Mastro Plastics Corp.

145 NLRB 1710 (1964) ....................................... 14

*McKennon v. Nashville Banner Publishing Co.

513 U.S. 352 (1995) .................................... 4, 35, 36

iii
M Restaurants, Inc.
238 NLRB 1575 (1978), enfd, 621 F.2d 336 (9th Cir. 1980) ........... 14

N_ithanson v. NLRB
344 U.S. 22 (1952) .................................... 12, 13, 15

New Foodland, Inc.

205 NLRB 418 (1973) ....................................... 16

NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc.

134 F.3d 50 (2d Cir. 1997) ..................................... 6

NLRB v. Rutter-Rex Mfg. Co.

396 U.S. 258 (1969) ....................................... 4, 13

N.L.R.B.v. Sure-Tan, Inc.

672 F.2d 592 (1982) ......................................... 27

Patel v. Quality Inn South

846 F.2d 700 (llth Cir. 1988), cert. denied, 489 U.S. 1011 (1989) ...... 21

Phelps Dodge Corp. v. Labor Board

313 U.S. 177 (1941) ......................................... 14

Rios v. Enterprise Ass'n Steamfitters Local 638

860 F.2d 1168 (2d Cir. 1988) .................................. 31

Robinson, dba Robinson Freight Lines

129 NLRB 104() (1960) ....................................... 17

*Sure-Tan, Inc. v. NLRB

467 U.S. 883 (1984) ..................................... passim

Sure-Tan, Inc.
234 NLRB 1187 (1978) ........................ - ........... 25, 26

iv
Sure-Tan, Inc.
246 NLRB 788 (1979) ....................................... 26

The Embers of Jacksonville

157 NLRB 627 (1966) ....................................... 7

STATUTES

Age Discriminati.on in Employment Act ............................. 34, 35

Immigration and Nationality Act

8 U.S.C. § 1101 ............................................. 5
8 U.S.C. § 1324a(a) .......... . .............................. 20
8 U.S.C. § 1324c ............................................ 20

Immigration Reform and Control Act of 1986

Pub. L. 99-603, 99 Stat. 3359 .............................. passim

National Labor Relations Act

29 U.S.C. § 151 ........................................ passim
29 U.S.C. § 152(3) .......................................... 11
29 U.S.C. § 157 ............................................ 11
29 U.S.C. § 158(a)(3) ......................................... 4

PUBLICATIONS

H.R. Rep. No. 99-682 (I), 99th Cong. 2d Sess. 46 (1986) ............... 20, 24
°

I-I.R. Rep. No. 99-682 (II), 99th Cong. 2d Sess. 46 (1986) ................. 23

MISCELLANEOUS

3 NLRB Casehandling Manual § 10612 ............................. 9,10

 Statutes and Regulations

All applicable statutes and regulations are contained in the parties' briefs.

Summary_ of Argument

The National Labor Relations Board in A.P.R.A. Fuel Oil Buyers Group,

Inc., 320 NLRB 408 (1995), enf'd, 134 F.3d 50 (2d Cir. 1997) ("A.P.R.A.")

determined that, with certain limitations, workers who are not properly authorized

to work under the federal immigration laws may be awarded backpay if their

employer unlawfully discharges them for engaging in union activity. The central

question in this case is whether the Board's A.P.R.A.. remedy is within its

discretion.

I. Undocumented workers are "employees" within the meaning of the

NLRA, entitled to the full protections of tile Act. As part of its traditional

remedial scheme, the Board typically awards backpay to employees who are

unlawfully discharged or laid offbecause they support a anion or engage in other

protected concerted activities. The Board's backpay remedy advances two

-.

important policies of the Act: That remedy provides compensatory relief to

victims of unfair labor practices, while simultaneously deterring employers from

engaging in unlawful conduct. Consistent with the purposes of the backpay

remedy, the Board provides such a remedy to employees without regard to their
legal qualification for employment in the positions they held when discriminated

against. Doing so further the goals of the Act. The onl;€question in this case,

then, is whether there is some special, sui generis aspect of the federal immigration

laws that precludes the Board from providing backpay to undocumented workers.

II. Nothing in the federal immigration laws, including IRCA, addresses the

availability of a retrospective, monetary remedy paid to undocumented workers

who do work in the United States and suffer labor law violations. Nor is there

any direct conflict between the A.P.R.A. backpay remedy and IRCA. And there is

no irreconcilable policy conflict between a limited backpay award to

undocumented employees and federal immigration policy.

To the contrary, the availability of backpay advances federal hnmigration

policy: Once employers realize that there is absolutely no economic advantage in

employing undocumented workers, any incentive to seek out and hire such

workers is removed. This disincentive, in turn, protects the interests of lawful

U.S. workers, by reducing the supply of individuals who are willing to work for

substandard wages and in unsafe working conditions. Indeed, in enacting IRCA,

Congress expressly acknowledged the interplay between the nation's labor and

immigration laws; IRCA's legislative history clearly evinces Congress' intention

to preserve the Board's 'authority to remedy unfair labor practices committed

against undocumented workers.. Accordingly, the Board's backpay award in this

case was squarely within its remedial authority, and serves to advance the shared

policy goals of the NLRA and IRCA.

III. The Company's arguments to the contrary notwithstanding, the

Supreme Court in Sure-Tan did not indicate otherwise. Rather, as the Ninth and

Second Circuits have concluded, Sure-Tan.'s limited discussion of the availability

of a backpay remedy for undocumented workers does not. foreclose all such

remedies, but does so only where the remedy does not reflect the employee's

actual economic loss or pertains to an employee physically unavailable for work in

the United States after voluntarily departing to avoid deportation.

IV. The Board applied its A.P.R.A. remedy to this case and. properly

determined that Castro was entitled to backpay. However, upon finding that the

Company did not learn of Castro's undocumented status until after they

discharged him, the Board denied reinstatement and limited Castro's backpay

award in accordance with its established after-acquired knowledge rule. This rule

faithfitlly balances the Board's responsibility to remedy unfair labor practices

against the countervailing public interest in deterring employee misconduct. The

rule also duly acknowledges the Company's legitimate concerns in employing a

lawful workforce. Accord McKennon v. Nashville Banner Publishing Co., 513

U.S. 352 (1995).

ARGUMENT

Introduction

The National Labor Relations Act ("NLRA"), 29 U.S.C. 151 et se_,

provides that where the National Labor Relations Board ("NLRB" or "the Board")

finds that an unfair labor practice proscribed by the Act has been committed, the

Board may, in addition to a cease and desist order, require the wrongdoer "to take

such affirmative action, including reinstatement of employees With or without

back pay, as will effectuate the policies of" the Act. Ordinarily, in cases of

discriminatory discharges based on antiunion animus in violation of the NLRA (29

U.S.C. § 158(a)(3)), the Board issues an order requiring that the employer reinstate

the discriminatee and pay backpay until the reinstatement. NLRB v. Rutter-Rex

Mfg. Co., 396 U.S. 258, 265 (1969).

In A.P.R.A. Fuel Oil Buyers Group, Inc., 320 NLRB 408 (1995), enf'd, 134

F.3d 50 (2d Cir. 1997) ("A.P.R.A."), the Board carefully considered the

application of its traditional remedies of reinstatement and backpay to

circumstances in which noncitizen employees lacking documents authorizing them

4
to work in the United States ("undocumented workers") are unlawfully discharged

because of their support of union activity. As the Board explained:

After considering the many complexities of the policies

underlying both statutes, we conclude that the most
effective way for the Board to accommodate -- and
indeed to further -- the immigration policies IRCA
embodies is, to the extent possible, to provide the
protections and remedies of the NLRA to undocumented
workers in the same manner as to other employees. To
do otherwise 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
the_ 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 4151.

To "promote[] the shared policy goals of the [ the Immigration and Nationality Act

("INA'), 8 U.S.C. §§ 1101 et se_, as amended by the Immigration Reform and

Control Act of 1986, Pub. L. 99-603, 99 Stat. 3359 ("IRCA")] and the NLRA, and

avoid[] any conflict with the specific provisions of IRCA" (NLRB v. A.P.R.A.

Fuel Oil Buyers Group, Inc., 134 F.3d 50, 57 (2nd Cir. 1997)), the Board therefore

provided that the traditional backpay and reinstatement remedies are available for

undocumented workers but (1) modified its usual reinstatement remedy for

unlawful discriminatory discharges by providing for reinstatement only if the

undocumented employee becomes able to present the employer with the necessary

evidence of legal Work authorization, in compliance with IRCA; and (2) modified

the ordinary backpay remedy by terminating backpay as of the time 'the employee

is either reinstated or is not able to be reinstated because he or she fails within a

reasonable time after the Board's order to present the documents necessary to

allow the employer to comply with IRCA.

The Second Circuit in NLRB v. A.P.R.A. Fuel Oil affirmed the Board's

decision, finding that the Board's backpay remedy promoted the shared goals of

the immigration laws and labor laws in several ways ,- by reducing .the economic

incentive for unscrupulous employers to employ undocumented immigrants,

strengthening the rights of lawful U.S. workers under the NLRA, and

compensating the employees for their economic losses resulting from their

unlawful discharges without requiting the reestablishment of an employment

relationship in violation of IRCA. 134 F.3d at 57-58. The central question in this

case is whether, as the Second Circuit (the only court of appeals to review the

remedial scheme developed in A.P.R.A.) held, the Board's nuanced A.P.R.A.

remedy is proper as within the Board's broad remedial authority under §10(c).

The factual circumstances that give rise to the current case can be quickly

summarized: On January 31, 1989, Hoffman Plastic Compound, Inc. ("Hoffinan"

or "the Company") laid off Jose Castro and several other employees. The Board

subsequently found that the Company unlawfully laid off Castro and the other

employees because of their support of a union organizing campaign, and ordered

that Castro and the other employees be reinstated with backpay. 326 NLRB No.

86 (1998); see also Resp. Br. at 3-4. At the Board's compliance proceeding,

Castro testified that he is not a citizen of the United States and that he had

presented the Company with a false birth certificate in order to obtain employment

with the Company. t The Board, following its A.P.R.A. ruling, ordered the

i We note that while the question is not before this Court because not
preserved by the exceptions filed before the Board (see Brief of the National
Labor Relations Board (Board Br.) at 6 n.2), it was improper for the
Administrative Law Judge to allow any questioning about the discriminatee's
immigration status at the compliance proceeding and to rely on the results of that
questioning in devising the appropriate remedy. See NLRB Office of the General
Counsel, Mem. No. GC 98-15, "Reinstatement and Backpay Remedies for
Discriminatees Who May be Undocumented Aliens in Light of Recent Board and
Court Proceedings," at 4.
Such questioning is not necessary to resolve any issue properly determined
at that hearing, since IRCA does not require reverification of the work
authorization of a continuing employee. At the same time, permitting such
questioning may sanction a violation of IRCA's anti-discrimination provisions, 8
U.S. §1324b(a)(6), since the questioning will often by triggered by the employee's
citizenship or national origin. See John Dory_ Boat Works, Inc., 229. NLRB 844
(197.7). Further, as the Ninth Circuit concluded in Local 512, Warehouse & Office
Workers v. NLRB (Felbro), 795 F.2d 705, 719 (9th Cir. 1986), a rule permitting
an emPloyer who has been held to have committed unfair labor practices freely to
challenge its workers' ."unmigration status would "chill severely the inclination of
any unlawfully treated undocumented worker to vindicate his or her rights before
the NLRB" by making "deportation proceedings.., a likely consequence of filing
Company to pay Castro backpay for a portion of the period he was unemployed

after his illegal discharge. The Board did, however, vary the backpay remedy

somewhat fi'om the one issued in A.P.R.A.: Because the Company in this case,

unlike the employer in A.P.R.A.., did not learn of the discrimmatee's

undocumented status until the compliance hearing, the Board applied its after-

acquired knowledge rule to deny Castro any reinstatement remedy and to cut off

the backpay period as of the date the Company first discovered his illegal

immigration status, the date of the compliance hearing.

Despite this slight variation -- favoring the employer -- between the remedy

ordered in this case and in A.P.R.A., the Company's arguments in this case are for

the most part simply a reprise of those raised by the employer and carefully

considered and resolved by the Board and the Second Circuit in A.P.R.A.:

Hoffinan contends that IRCA and the Supreme Court's decision in Sure-Tan, Inc.

..

a successful unfair labor practice charge." Finally, enmeshing the NLRB in often-
complex determinations concerning the work authorization status of any worker
whose status the employer chooses to challenge disregards the IRCA enforcement
scheme, which entrusts enforcement to the private parties to whom the statute
applies and to the Immigration and Nationalization Service. A.P.R.A. Fuel Oil.,.
su__gp__,
134 F.3d at 57 (affirming Board policy on unfair labor practice remedies on
the ground, among others, that that policy "felicitously keeps the Board out of the
process of determining an employee's immigration status").
v. NLRB, 467 U.S. 883 (1984), preclude awarding any backpay at all to

undocumented employees when an employer illegally terminates them.

As the Second Circuit held in A.P.R.A. Fuel Oi!, however, and as we show

below, the limited backpay remedy approved in A.P.R.A. is fully consistent with

the purposes of backpay awards under the NLRA, and with NLRA precedents

forwarding those purposes in other circumstances in which the employee

discriminatorily discharged was legally precluded from working at his or her job

but was nonetheless employed. Nothing in IRCA, explicit or implicit, precludes

the usual remedy of backpay in cases such as this one.

Further, Sure-Tan is generally supportive -- not critical -- of the proposition

that full enforcement of the NLRA furthers rather than detracts from the

enforcement of the federal immigration laws. And while Sure-Tan did indicate

that a backpay remedy is inappropriate where, as in that case, the discriminatees

are unavailable for work in the United States because they have been deported,

that limitation was simply a variant on the Board's own factual availability

limitation on backpay remedies generally, and has no application here.

 I. A Backpay Award to Undocumented Employees Who Are
Discharged In Violation of the NLRA is Fully Consistent with the
Role of Backpay Remedies in Effectuating the Policies. of the Act.

The Company's central argument in this case, reduced to its essence, is that

the NLRB's usual broad authority to devise remedies that implement the policies

underlying the NLRA, including backpay remedies for illegal discriminatory

discharges of employees for engaging in activities protected by the Act, is limited

by some provision or policy of the immigration laws. That provision or policy,

Hoffinan maintains, requires that employers may not be assessed a purely

retrospective, monetary remedy as partial recompense for causing actual economic

injury to undocumented employees for engaging in union activity, even though the

employees would have remained employed, and not suffered anyeconomic injury,

had they not engaged in that activity.

That this is in fact the Company's contention follows from three established

.NLRA principles, not here at issue, concerning the substantive coverage of the Act

and the role of the backpay remedy in enforcing the Act's substantive provisions.

First, Castro, like other undocumented immigrants who are hired by and

perform work for an employer, was an "employee" for purposes of the NLRA,

fully protected by the Act and entitled to engage in protected concerted activity (or

not) while employed. That this is so is one of the lessons of Sure-Tan, the case on

10
Which the Company places its principal reliance. Sure-Tan noted that NLRA

§2(3), 29 U.S.C. §152(3), provides that "[t]he term 'employee' shall include any

employee," 29 U.S.C. § 152(3), subject only to certain specifically enumerated

exceptions. 2 As the Court stated in Sure-Tan_ 467 U.S. at 892: "Since

undocumented aliens are not among the few groups of workers that are expressly

exeml_ted by Congress, they plainly come within the broad statutory definition of

°employee'."

The Sure-Tan Court further found that "extending the coverage of the Act to

such workers is consistent with the Act's avowed purpose of encouraging and

px:otecting the collective-bargaining process.': 467 U.S. at 892. Thus, as

employees, undocumented workers enjoy with all other workers the full panoply

of rights afforded by NLRA § 7, 29 U.S.C. § 157, including the right to "self-

organization, to form, join or assist labor organizations." It therefore follows, and

the Board has so held, that it is an "unfair labor practice" for an employer to

discharge an undocumented employee for exercising those rights)

-.

2 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 Act. Se_._ee29 U.S.C. § 15.2(3).

3 E.__g_.,
Duke City Lumber Co., 251 NLRB 53 (1980); Apollo Tire Co., 236
NLRB 1627 (1978), enid, 604 F.2d 1180 (9th Cir. 1979); Amay's Bakery &

11
 Hoffman, understandably, does not contend Otherwise. Consequently, the

Company's argument depends upon finding in the immigration laws a limitation

on the Board's retrospective remedy for an acknowledged legal violation of a

separate federal statute.

Second., as a general matter, Congress has vested the Board with broad

authority to remedy unfair labor practices, a key component of which is the

Board's authority to award backpay. Traditionally, the Board has awarded

backpay as a matter of course when an employee is discharged in violation of the

Act. Indeed, the award ofbackpay has been the Board's "practically uniform

policy" _om the very first. NLRB, First Annual Report at 124 (1936).

Backpay awards further two principal aims of the NLRA. First, backpay

provides compensatory relief to the victims of unfair labor practices. As the

Supreme Court has stated, "a backpay order is a reparation order designed to

vindicate the public policy of the statute by making employees whole for losses

suffered on account of an unfair labor practice." Nathanson w NLRB, 344 U.S.

.°
ii

22, 27 (1952). Backpay thus serves to "restore, so far as possible, the status quo

Noodle Co., 227 NLRB 214 (1976); Handling Equipment Corp., 209 NLRB 64
(1974); Lawrence Rigging, Inc., 202 NLRB 1094 (1973); Hasa Chemical, Inc..,
235 NLRB 903 (1978).

12
that would have obtained but for the wrongful act." NLRB v. Rutter-Rex M_fg.

Co., 396 U.S. 258, 265 (1969).

Backpay awards also achieve the public purpose of deterring future

unlawful practices, while at the same time depriving employers of any competitive

advantage they may have secured through their unlawful conduct. Nathanson v..

NLRB, 344 U.S. at 27. What the Supreme Court has said in the context of Title

VII applies with equal force under the NLRA: "[i]f employers faced only the

prospect of an injunctive order, they would have little incentive to shun practices

of dubious legality." Albe'rmarle Paper Co. v. Moody, 422 U.S. 405,417 (1975).

Rather, "[i]t is the reasonably certain prospect of a backpay award," id., that the

NLRB assumes will encourage compliance with the law.

Given these purposes of backpay awards, to preclude such an award entirely

for any class of cases in which employees are discharged for acting to forward

union organization or activity is both to sanction the infliction of economic injury

on employees for enga__ng in activities protected by the Act and to eliminate the'
.°

remedy most likely to deter illegal employer coercion.

Third, the Board has, in light of the twin purposes of the backpay remedy,

deve!oped standards for determining the availability of that remedy in particul_

circumstances. Applying those standards here, and leaving aside for now any

13
special prohibition purportedly inhering in the immigration laws, Castro could and

should, consistently with established NLRA principles, receive backpay on

account of Hoffinan's illegal discharge.

As a general matter, the compensatory elements of the backpay remedy are

sufficiently weighty that backpay can be awarded only for "actual losses." Phelp__s

Dodge Corp. v. Labor Board, 313 U.S. 177 at 198 (1941). As a result, "[w]hen a

discriminatee becomes unavailable [for work].., backpay does not accrue until

[the] discriminatee becomes available again." 3 NLRB Casehandling Manual §

10612. That rule covers situations in which a discriminatee would not have

earned money in any event, even if the discriminatee were still employed by the

wrongdoing employer -- for example, when the discriminatee is injured or

becomes ill after having been discharged or leaves the area for personal reasons. 4

By tolling backpay for such periods, the rule thus serves to prevent the

4 Compare Mastro Plastics Corp., 145 NLRB 1710 (1964) (backpay not
available for period after discfiminatee left the employer's geographic area for
personal reasons and therefore would not have been physically available to work
for the employer any longer had she not been fired) and Hickory's Best, Inc., 267
NLRB 1274 (1983) (backpay not available for period the discriminatee was out of
the country as a tourist) with M Restaurants, Inc., 238 NLRB 1575 (1978), enf'd, .
621 F.2d 336 (9th Cir. 1980) (backpay available for period the discriminatee was
out of the country looking for work after discharge, where there was no
impediment to returning to the country to work for the employer.)

14
discriminatee from realizing a windfall while still providing compensation for all

of the wages the discriminatee would have earned but for the unlawful discharge.

Here, however, precisely because the Company was prepared to continue to

employ Jose Castro were it not for his union activity, the asserted "unavailability"

is not of a type which would as a matter of actual fact have precluded him from

continuing to earn money from his employer. Castro would have continued to

earn his pay but for his lawful union activity and the employer's unlawful act in '

firing him for engaging in that protected conduct. Consequently, if backpay is

denied in this context, Castro would end up suffering an economic detriment on

account of having exercised his rights under NLRA. Practically speaking, then,

there is no question that backpay is required to make Castro whole for losses

directly caused by the employer's unfair labor practice. Nathanson v. NLRB, 344

U.S. at 27.

That Castro could not have been legally hired because of his undocumented

status (Pet. Br. at 23) does not alter this outcome. The Board has long and

consistently found that a discriminatee's availability to work as opposed to his or

her legal status or legal qualification to work is paramount in dete_g the

discriminatee's eligibility for back pay.

15
 For example, in Local 57, International Union of Operating Engineers, 108

NLRB 1225 (1954), the Board faced a situation in which a discriminatee had been

working without a required license, but was discharged for union activity, not for

his failure to have a license. The Board did not order reinstatement, but did order

backpay. In doing so, the Board explained, first, that the backpay order, since it

only required the payment of money, did not "require reinstatement of a man who

lacks a license.., nor [was it] any order to perform any illegal act," and therefore

was not in direct conflict with the licensing law. Id____.

at 1227. And the Board also

emphasized, on the other hand, that where the evidence indicates that the

dlscriminatee would have remained employed, despite the legal disability, had the

employer not illegally discharged him for antiunion reasons, a backpay award

comports with that remedy's usual purposes, by placing the discriminatee in an

economic position approximating that which would as a matter of actual fact have

ensued had there been no unlawful discrimination. Id_____.

at 1228-29. See also id. at

1229 (Member Farmer, concurring) (the discriminatee "would still have been
.°

employed but for his unlawful discharge," and although "I would not order [the

discriminatee] reinstated without a license,... I see nothing in our back-pay order

16
which can in any way be construed as in derogation of the State's [licensing]

policy.") 5

In contrast, a rule that treated legally disqualified employees as per se

unavailable, and thus ineligible for backpay, would leave employers "free to flout

their obligations under the Act [with respect to such NLRA-covered employees],

secure in the knowledge that the Board would be powerless fully to remedy their

violations." A.P.R.A., su__up__,

320 NLRB at 415; see also.Felbro., su__u.p__,
795 F.2d

at 719 ( if employers know that they will incur no backpay liability with regard to

a group of their employees, "they will have less incentive to obey the NLRA.").

Moreover, such a rule would discourage workers who are in fact employed

but who lack some legal qualification for employment from exercising their

statutory rights, including the right to join or assist labor organizations, to

s See also for similar Board holdings, e.g_.,New Foodland, Inc., 205 NLRB
41.8, 420-21 (1973) (providing backpay for a period in which the discriminatee
was underage and legally ineligible to work in a store in which liquor is sold,
because "[t]here is nothing in the state or local law which would limit Respondent
in paying backpay to [the former employee]."); Robinson, dba Robinson Freight
Lines, 129 NLRB 1040 (1960) (backpay awarded despite lack of necessary
license); The Embers of Jacksonville, 157 NLRB 627 (1966) (granting backpay to
legally underage discriminatees); of. Justrite Manufacturing Co., 238 NLRB 57
(1978) '(same).

17
participate in the collective bargaining process, and to pursue other workplace

fights, for fear that they could be fired for doing so at no economic cost to the

employer and without any hope of recompense. Yet, the NLRA is a statute that

depends upon and protects collective decisionmaking by employees, beginning

with the choice by a majority of the workers regarding union representation. If a

group of employees declines to support or vote for the union out of fear rather than

conviction, the NLRA right to collective action and union.representation of all

employees, not only those who are undocumented or otherwise lack a legal

employment qualification, is affected. Felbro, 795 F.2d at 719. To paraphrase the

Supreme Court in Sure-Tan:

If [legally unqualified] 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 [employed]
co-workers, thereby eroding the unity of all the
employees and impeding effective collective bargaining.
[467 U.S. at 892.]

The short of the matter;then, is that the Board's general rule limiting

backpay.where the discriminatee is actually unavailable for work but not where

the employee, although lacking a legal qualification, would have been working but

for the unlawful discrimination, is well-grounded in the NLRA's remedial

18
purposes and within the Board's broad remedial discretion• The only possible

basis for disapproving the Board's.A.P.R.A. backpay remedy, consequently,

would have to be some special, immigration-law-specific consideration. As we

now show, there is no such sui generis aspect of the immigration laws that

demands that the Board abandon a backpay remedy well-calculated to advance the

purposes of the NLRA.

II. The Board's Backpay Remedy Does Not Conflict With and Indeed
Advances the Policies of the Immigration Laws, Including IRCA.

(A) In addressing the question whether the immigration laws in particular

invalidate the Board's A.P.R.A. backpay remedy, it is critical at the threshold to

recognize that nothing in IRCA or any other part of the federal immigration

statutes addresses in express terms the availability of backpay payments to

undocumented workers. Nor can any c.laim be made that the Company would

violate any provision of IRCA by paying back wages to Castro. IRCA sets

requirements for employers when they employ individuals, not when they make

money payanents for-periods the employees did no___!t

in fact work, and the Board's

backpay.order "does not require the reestablishment of an employment

relationship in contravention of .IRCA." NLRB v. A.P.R.A. Fuel Oil., su__u_p__,

134

19
F.3d at 58. Instead, the backpay award compensates Castro for the actual

economic losses he suffered stemming from the Company's unlawful conduct. 6

(B) Consequently, respondent's attack on the backpay award necessarily

rests on an appeal to the policies - rather than the express provisions of- IRCA.

But the policy considerations underlying IRCA, far from undermining the Board's

authority to provide an economically meaningful remedy for employer unfair labor

practices, are enhanced by such a remedy. As the Court explained in Sure-Tan:

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 [the United
States] in violation of the federal immigration laws."
[467 U.S. at 893-94].

6 It is worth noting, additionally, that in this case, neither the employer's

original employment of Castro nor Castro's use of another person's birth
certificate to gain employment violated IRCA. IRCA penalizes employers who
knowlingly hire or continue to employ undocumented workers, not employers who
do so unknowingly. 8 U.S.C. §1324a(a). And, although IRCA was amended in
1990 to penalize employees', use of fraudulent documents, Castro was both hired
and fired before 1990. Immigration Act of 1990, §544(a), 8 U.S.C. §1324c; see
NLRB v. A.P.R.A. Fuel Oil, su_u_p__, 134 F.3d at 58-59 (declining to consider the
impact of the 1990 and later immigration act amendments proscribing document
fraud on the validity of the Board's A.P.R.A. remedy because not alSplicable to the
actions of the employees in that case.)

20
 Two years after Sur'e-Tan, Congress enacted IRCA, which for the first time

prohibited employers from knowingly hiring or continuing to employ

undocumented workers. Se___ee

8 U.S.C. §1324a(a). Congress adopted these

"employer sanctions" based on its reasoned finding that "employment is the

magnet that attracts aliens here illegally." H.R. Rep. No. 99-682 (I), 99th Cong.

2d Sess. at 46 (1986). IRCA's prohibition on the employment oftmdocumented

immigrants reflects a larger goal of protecting employment opportunities for, and

the labor standards of, American workers -- a goal that the immigration and labor

laws share in common. Remedies that further the policies of the NLRA thus

generally further the policies of IRCA; rules that thwart the NLRA's ends

generally frustrate IRCA as well That is true here in two interrelated ways.

First, under the NLRA, an employer found guilty of discharging a

documented worker for union organizing will be liable for backpay.. Precluding

the Board from providing a like remedy to an undocumented worker discharged

for union activity would, in the words of the Ninth Circuit in Felbr__....._o,
create a

powerful -- and perverse -- incentive to "hire undocumented workers for the

21
 competitive advantage that an environment relatively free of labor safeguards may

offer." 795 F.2d at 719.7

Second, as we have seen, a rule denying backpay to illegally discharged

undocumented employees would ultimately serve to make those employees more

docile and less willing to organize to improve the terms of their employment. As a

result, the competitive threat to labor standards in this country posed by

undocumented aliens would be magnified as those undocumented workers who

found employment would be even more likely to accept substandard conditions

without protest, and less likely to join their fellow American and properly

documented immigrant workers in protected collective action to improve those

conditions. Moreover, "the continuous threat of replacement with powerless and

desperate undocumented workers would certainly chill the American and

7 The Eleventh Circuit made the same point in an analogous context in

Patel v. Quality Inn South. 846 F.2d 700, 704-05 (llth Cir. 1988), cert. denied,
" 489 U.S. 1011 (1989), in holding that undocumented workers were covered by --
and entitled to backpay under -- the Fair Labor Standards Act ("FLSA"). The
court there reasoned-.

If the FLSA did not cover undocumented aliens, employers would

have an incentive to hire them. Employers might find it economically
advantageous to hire and underpay undocumented workers and run
the risk of sanctions under the IRCA .... By reducing the incentive to
hire such workers the FLSA's coverage of undocumented aliens helps
discourage illegal immigration and is thus fully consistent with the
objectives of the IRCA. [emphasis in original].

22
authorized alien workers' [own] exercise of their Section 7 rights." A.P.R.A., 320

NLRB at 414. Both of these results are the very antithesis of what IRCA R and

the NLRA -- were designed to accomplish.

(C) The Company nevertheless maintains that IRCA necessarily prohibits

the Board from awarding backpay to undocumented workers discharged in

violation of the NLRA. According to the Company, since IRCA prohibits the

employment of undocumented immigrants, "it follows that. an employee who could

not have been legally hired.., is not entitled to backpay from employment that he

could not and would not have otherwise lawfully obtained." Pet. Br.. at 23-24.

This simplistic conclusion not only does not "follow" from anything actually

contained in IRCA, but was explicitly repudiated by the congressional committees

that considered IRCA before its enactment.

As the Second Circuit observed in A.P.R.A. Fuel Oil., the straightforward

purpose of the IRCA employer sanctions was simply "to make it more difficult to

employ undocumented workers and to punish the employers who offer jobs to
oo

these workers," nothing more. 134 F.3d at 55. IRCA's legislative history explains

that Congress saw the employer sanctions "as one of the many elements in the

federal government's strategy to protect U.S. labor markets from the effects of.

illegal immigration," and understood that enforcement of the usual NLRA

23
 remedies with respect to unfair labor practices committed againstundocumented

workers was another such strategy.. Id..___.

Thus, the House Judiciary Committee Report accompanying IRCA states:

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 labor
relations boards.., to remedy unfair labor practices
Q °,
committed against Undocumented,employees for...
engaging in activities protected by existing law. [H.R..
Rep. No. 99-682 (I), su_.p_m, at 58, emphasis supplied].

See also H.R. Rep. No. 99-682 (II), 99 thCong., 2d Sess. 8-9 (1986) (the House

Education and Labor Committee "does not intend that any provision of this Act

would limit the powers.., of agencies such as... the National Labor Relations

Board... in conformity with existing law, to remedy unfair labor practices

committed against undocumented employees.")

The upshot is that the particular policies underlying IRCA support, rather

than detract from, the considerations that justify the Board's backpay remedy in
..

analogous, employee legal disability situations, and certainly provide no basis for

viewing the undocumented worker situation as in any way sui generis.

24
 III. Sure-Tan Does Not Foreclose An Award of Backpay to
All Undocumented Workers.

In its attack on the Board's A.P.R.A. remedy, Hoffman's ultimate position is

that all of the foregoing notwithstanding, a single sentence in the Supreme Court's

Sure-Tan opinion "plainly prohibits" any NLRB award of backpay to

undocumented workers who are the victim of employer unfair labor practices. Pet.

Br. at 22. In fact, when Sure-Tan is read as a whole and in light of the entire

course of the Sure-Tan litigation, it becomes clear that the Court's backpay

discussion in Sure-Tan.. is fully consistent with the above analysis, and with the

Board's A.P.R.A. remedy. Specifically, Sure-Tan recognized that back-pay

ordinarily would have been available for the period that the discharged

undocumented workers would have remained employed absent the discharge, had

the dischargees not departed the country under threat of deportation and become

unavailable for work under the Board's backpay unavailability doctrine.

In Sure-Tan, the'discriminatees' employment terminated when they

accepted the INS's grant of voluntary departure in lieu of threatened deportation.

As a consequence, the discriminatees were out of the country right away for

reasons other than seeking work in lieu of their former employment, and, as the

Administrative Law Judge originally found, were physically unavailable for work

25
under established Board backpay principles during that period. Sure-Tan, Inc.,

234 NLRB 1187, 1187 (1978); se____ee

discussion of the Board's unavailability

doctrine at pp. 15-18, su__u_p_ra.

This .circumstance -- that the discriminatees were,

because of their voluntary departure on threat of deportation, out of the country

and unavailable for work for some or all of the backpay period -- was the key

dilemma addressed by the backpay discussions at the various levels of the Sure-

Tan litigation.

The Board, for example, was unwilling, despite the discriminatees'

departure from the country, to preclude entirely a backpay remedy, noting that it

was possible that the discriminatees had returned to the United States after their

deportation and were in fact available for work. Id____.

The Board therefore

concluded that it would in its initial order award the "conventional remedy of

reinstatement with backpay," reserving for the compliance proceeding all issues

relating to these employees' "availability for work." 234 NLRB at 1187; see also

Sure-Tan, Inc., 246 NLRB 788 (1979) (reconsidering and reaffirming the remedy
-.

and reiterating that "[d]iscriminatees who are located but found to be unavailable

for work (including unavailability because of enforced absence from the country)

will have their backpay tolled accordingly."); id_.___.,

at 789 n. J 2 (Member Penello,

dissenting) (distinguishing NLRB v. Appollo Tire Co., Inc.., 604 F.2d 1180 (9th

26
Cir. 1979), in which the Ninth Circuit had approved a backpay remedy for

undocumented workers because, in that case, the employees had not been

deported); id. at 790 n. 15 (Member Murphy, dissenting) (arguing that the remedy

should be altered to permit backpay from the date of discharge to the date of

deportation but not thereafter, based on the need "to differentiate between illegal

aliens situated in this Country and those who were deported.")

On appeal, the Court of Appeals -- fearing that the workers in question

would in fact not qualify for _ backpay relief due to their departure and the

"unavailability" doctrine -- proposed "to set a minimum amount of backpay which

the employer must pay" in order to "better effectuate the policies of the .Act."

NLRB v. Sure-Tan, Inc., 672 F.2d 592, 606 (1982). 8 The Sure-Tan Supreme

Court majority, however, faulted the Court of Appeals' remedy on the ground

that, by mandating such a minimum backpay award "without any evidence

whatsoever as to the period of time these particular employees might have

continued working before apprehension by the INS," id. at 902 n.11 (emphasis

supplied), the Court of Appeals had effectivelyordered a remedy that was not

8..With respect to the question of liability, the Sure-Tan Court, as already

noted, unanimously agreed with the Board and the Court of Appeals that
undocumented workers were protected by the NLRA, and that the employer had
violated that Act by calling the INS in retaliation for the union organizing activity.

27
"tailored to the actual, compensable injuries suffered by the discharged

employees," and hence which "does not lie within the Board's own powers," id___,
at

900-01. And Sure-Tan then proceeded to state that "[w]e generally a_p_provethe

Board's original course of action in this case by which it ordered the conventional

remedy of reinstatement with backpay, leaving until the compliance proceedings

more specific calculations as to the amounts ofbackpay, if an3r, due these

employees." Id.___.
at 902 (emphasis supplied). The plain import of the Supreme

Court's Sure-Tan discussion up to this point -- and, indeed, common ground

among all the decisionmakers who reviewed the remedy in Sure-Tan -- was that

the discharged employees would have been entitled to the usual backpay remedy

for the period they would otherwise have remained at work, despite their

undocumented status, had they not left the country immediately after the discharge

due to their apprehension by the INS.

Thereafter, in a much-discussed dictum., the Court ventured its views as to

the considerations that should inform the compliance process in Sure-Tan:

[T]he implementation of the Board's traditional remedies

at the compliance proceedings must be conditioned upon
the employees' legal readmittance to the United States.
In devising remedies for unfair labor practices, the Board
.. is obliged to take into account another "equally
important Congressional objectiv[e]," -- to wit, the
objective of deterring unauth.orized immigration that is

28
 embodied in the 1NA. 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. Cf. 3 NLRB Caseshandling Manual
§§10612, 10656.9 [Id. at 902-03 (citation omitted).] 9

The Company here, like the Seventh Circuit in Del Rey Tortilleria v. NLRB,

976 F.2d 1115 (7th Cir. 1992), would divorce the last sentence in the quoted

paragraph from the three preceeding sentences, and from the factual and legal

context of the case as a whole. Using that technique, the Company would read the

sentence to state a general rule that applies not just to undocumented workers who

9 The citation to the Casehandling Manual is to the portions of that Manual

dealing with the Board's unavailability doctrine, confirming once again that the
Court's central remedial concern was with the discriminatees' absence from the
country, not their undocumented status. As noted (pp. 15-18, su__up_._), the Board
has always differentiated _ and physical availability, tolling backpay for the
latter but not the former reason. As both the Ninth Circuit in Felbro and the
Second Circuit in A.P.R.A. Fuel Oil recognized, it is unlikely that Sure-Tan, by
citing and relying on the Board's own account of its backpay tolling standards,
intended to overrule-the line of precedent that "disregards a discriminatee's
status, as opposed to availability to work." Felbro, 795 F.2d at 722; A.P.R.A. Fuel
Oil, 134 F.3d at 54. Much more likely, in the context of the opinion and the
litigation as a whole, is that the Court intended, by its reference to workers
"lawfully entitled to be present .and employed in the United States" to limit
backpay after voluntary departure to employees who legally return to the .country, ..
so as to assure that the remedy itself does not induce a second round of illegal
immigration activity, in addition to the illegal activity that made possible the
i_iiitialemployment.

29
are out of the country and unavailable as a consequence of INS action (and whose.

employment terminated as a consequence of INS action) but to all undocumented

workers, including those who have remained in the United States throughout the

backpay period.

• That Sure-Tan did not pose any such sweeping issue, and the Court did not

issue any such sweeping ruling, is con_finned,first, by the discussions earlier in the

opinion indicating that ordinarily, backpay is available to undocumented workers,

as long as they remain in the country and available to work, and second, by the

Supreme Court's own characterization of Sure-Tan in another opinion, issued ten

days after Sure-Tan and authored by the same justice, Justice O'Connor. In I.N.S.

v. Lopez-Mendoza, 468 U.S. 1032, 1047 n.4 (1984), the Court had this to say

about Sure-Tan:

[I]n Sure-Tan... the Court concluded that an

employer can be guilty of an unfair labor practice in his
dealings with an alien notwithstanding the alien's illegal
presence in this country. Retrospective sanctions against
the employer may accordingly be imposed by the Labor
Relations Board to further the public policy against
unfair labor practices. But while he maintains the status
of illegal alien, the employee is plainly not entitled to the
prospective relief-- reinstatement and continued
employment -- that probably would be granted to other
victims of similar unfair labor practices.

30
Since a cease and desist order, the other remedy granted in Sure-Tan, is surely

prospective rather than retroactive, I.N.S.v. Lopez could only have had in mind,

as "[r]etrospective sanctions," backpay for undocumented discriminatees who

remain in the country rather than departing under threat of deportation.

The Second and Ninth Circuits have, in carefully reasoned opinions, agreed

with this conclusion, rejecting the contention that Sure-Tan's dictum states a rule

of general applicability which precludes backpay to _ undocumented workers.

Felbr___.__._o,
795 F.2d at 717 ("Sure-Tan does not address the question whether an

undocumented worker who remains in the United States, and who has iao__._t
been the

subject of any INS deportation proceedings, is barred from receiving backpay to

remedy an NLRA violation." (emphasis in original)); Rios v. Enterprise Ass'n

Steamfitters Local 638, 860 F.2d 1168, 1173 (2d Cir. 1988) (the court, in a Title

VII case,"conclude[d], in agreement with the Ninth Circuit [in Felbro], that

undocumented workers who have remained in the country are eligible for backpay

as of the time of a violation."); A.P.R.A. Fuel Oil, su__Bp__,(

"Sure-Tan...
.o

address[es] only awards of backpay to undocumented employees who have left the

country.") t°

to The Seventh Circuit concluded otherwise in Del Re¥ Tortilleria, su__u_p__.

Judge Cudahy -- the author of the Seventh Circuit opinion in Sure-Tan, which
used essentially the same "lawfully... present" language as the Supreme Court did

31
 The short of the matter is this. As Judge Cudahy concluded in his dissent in

Del Rey Tortilleria, "no[] ... policy is served" by precluding the award of backpay

to illegally discharged undocumented employees. 976 F.2d at 1125. "Certainly,

the purposes of the NLRA are not served by allowing employers to get off lightly

just because they commit an unfair labor practice against an employee who

happens to be an illegal alien." Id__._..

And such a rule would be "bad immigration

policy" as well: "When we deny backpay to illegal aliens, we tell employers to

hire more of them; for aliens who cannot claim monetary damages for unfair labor

practices are less expensive to hire and less trouble that their native counterparts.

Id.

The Supreme Court in Sure-Tan was well aware of this need to structure

NLRA remedies so as not to encourage employers to hire illegal workers. It

would have been strange, in light of that recognition, for the Court in a single, off-

in describing the limits of a traditional backpay calculation -- dissented, noting

that he himself was the probable source of the Supreme Court's language, and that
both he and the Court intended it to apply only where the undocumented workers
were initially physically unavailable for work because out of the country for INS
reasons. Id____.
at 1123-24 (Cudahy, J., dissenting) ("In Sure-Tan, the aliens in
question were not only undocumented, they were not in the country.' They could
not reenter for the purpose of taking up employment without breaking the law.
This was the Court's concern in Sure-Tan ... the NLRB must not undermine the
INA by awarding backpay in a way that would encourage aliens to break the
law.") (emphasis in original).

32
hand sentence vastly to limit the NLRB's authority to structure backpay remedies

so as to forward both the NLRA and immigration policies. For all the reasons

summarized above, by far the better reading of Sure-Tan is that the Court did not

do so, but instead imposed on the Board a much narrower remedial limit, directed.

at the particular, deported discriminatee circumstances before the Court.

IV. The Board's A.P.R.A. Remedy Was Properly Applied in thi._ Case.

Hoffinan maintains that the A.P.R.A. backpay remedy may not lie in this

case because, unlike the employer in A.P.R.A., the Company here was unaware of

Castro's tmlawful status until the Board's compliance hearing. Pet. Br. at 20-21,

27. In applying A.P.R.A to this case, however, the Board did take that difference

in circumstance into account, narrowing the usual A.P.R.A. remedy in accordance

with another of the Board's remedial doctrines, the after-acquired knowledge rule.

By doing so, the Board adequately adjusted for the fact that Hoffman did not'

violate IRCA when it hired Castro, while at the same time not absolving I-Ioffrnan

of all economic consequences of the legal violation it did commit, violating the

NLRA.

(A) Under established Board law, "if an employer satisfies its burden of

establishing that the discriminatee engaged in unprotected conduct for which the

employer would have discharged any employee, reinstatement is not ordered and

33
backpay is terminated on the date that the employer first acquired knowledge of

the misconduct." Marshall Durbin Poultry Co., 310 NLRB 68, 70 (1993); John

Cuneo, Inc., 298 NLRB 856 (1990); Axelsom Inc., 285 NLRB 862 (1977). The

Board's "after-acquired knowledge" rule balances the NLRB's responsibility to

remedy unfair labor practice charges against the public interest of deterring

misconduct by discriminatees.

For example, in John Cuneo., the Board found that the respondent employer

would not have hired the discharged discriminatee had the employer known that

the employee had falsified his employment application. The Board .ordered

reinstatement and limited backpay, but terminated the backpay period on the date

the employer first learned of the fraud. 298 NLRB at 856. The Board explained

its decision this way:

Under these circumstances we would be granting "an

tmdue windfall to [the discriminatee] if we failed to take
into account his misconduct and granted him.., full
backpay. On the other hand, relieving Respondent of all
backpay liability, including for that period when the
Respondent had no knowledge of [the discriminatee's].
misstatement and had no lawfifl reason to fire him,
would provide an undue windfall for the Respondent.
[Id.l
In this case, the Board's award ofbackpay properly furthers the policies of..

the Act by providing a measure of compensatory relief for the Company's

34
unlawful conduct, while at the same time fully acknowledging the pflblic interest

in not rewarding employees who, unbeknownst to the employer, furnish fraudulent

employment documents. The Board's award also prevents the Company from

economically profiting from its unlawful conduct.

(B) Despite the Board's careful balancing of the equities, the Company

nevertheless contends that the fact that the company did not know of Castro's

undocumented status until the compliance proceeding should serve as a complete

rather than partial bar to recovery of back pay in this case. Pet Br. at 27-32. In

support of its position, the Company cites McKennon v. Nashville Banner

Publishing Co., 513 U.S. 352 (1995), incorrectly stating that the Court

"specifically acknowledged" that the after-acquired evidence rule could, in

appropriate circumstances, preclude an award ofbackpay. Pet. Br. at 28. To the

contrary, the Court in McKennon in fact held that after-acquired evidence in no__At
a

c.omplete bar to recovery under the Age Discrimination in Employment Act. 513

U.S. at 357.
o

A_sthe Court noted, employment discrimination statutes are enacted both to

compensate employees for harm occasioned by unlawful discrimination and to

deter employers from engaging in such conduct. 513 U.S. at 358. An individual

who brings an employment discrimination action"vindicates both of these

35
objectives," the Court said, and it would eviscerate the statutory scheme "if after-

acquired evidence of [employee] wrongdoing barred all relief." Id..___.

Expressly

addressing the issue ofbackpay, the Court went on to state:

The beginning point in formulating a remedy should...

be calculation of backpay from the date of unlawful
discharge to the date the new information was
discovered. The court can also consider any
extraordinary equitable circumstances that affect the
legitimate interests of either party. An absolute rule
barring any recovery_ ofbackpay, however, would
undermine the ADEA's objective of forcing employers
to consider and examine their motivations, and of
penalizing them for employment decisions that spring
from age discrimination. [513 U.S at 362, emphasis
supplied]. 11

(C) Finally, to support its contention that backpay should be precluded, the

Company makes much of the fact that Castro provided false testimony before the

Board. In ABF Freight System, Inc. v. NLRB, 510 U.S. 317 (1994), however, the

Supreme Court addressed the impact of employee falsehoods at Board proceedings

-.

H The Company also'relies on Camp v. Jeffer, Mangels, Buffer & Marmaro,

35 Cal. App. 4th 620 (1995). Caml2, however, simply determined that as a matter
of California law the state tort of termination in violation of public policy does not
lie where the plaintiffs seeking to vindicate public policy have themselves violated
public policy by holding a job for which they were legally d.isqualified because of
their own prior felony convictions. Nothing in Camp_ implicates _ federal law
question, much less any question concerning the limits of the NLRB's remedial
authority under the NLRA.

36
upon the Board's remedial authority and concluded that a discriminatee's false

testimony under oath before an ALJ, standing alone, does not preclude the Board

from awarding a backpay remedy. 510 U.S. at 324-25. Specifically, ABF Freight

held that an employee's falsehood before the Board does not detract from the fact

that the employer's discriminatory discharge was an unfair labor practice, and that

even in such circumstances the Board's traditional remedy of reinstatement and

backpay is a proper exercise of the Board's broad discretion because such a

remedial order promotes a "vital public interest." Id____

Similarly, in this case Castro's misrepresentation of his identity in the

original Board proceedings had no bearing on the question whether the

Company's decision to discharge him was motivated by antiunion animus, and, as

previously developed, the Board's backpay remedy in this case advances the

important public policies and purposes of IRCA and the NLRA. 12

x2 The Company's suggested rationales for precluding the A.P.R.A.

backpay remedy in this case also suffer from the defect that they will increase the
Board's involvement.in immigration law issues.
To turn the availability of backpay on whether the Company knowingly or
innocently accepted as valid work authorization documentation that turned out to
be fraudulent would encourage Board inquiry into immigration issues, a result to
be avoided. Apollo Tire Co. Inc., 604 F.2d 1180, 1183 (9th Cir. 1979) (courts
should "hesitate to require the Board to delve into immigration matters, out of its
field of expertise." because "[q]uestions concerning the status of an alien and the
validity of his papers are matters properly before the Immigration and
Natura,lization Service." Similarly, to take into account in providing for a backpay

37
 Conclusion

For the foregoing reasons, the petition for review should be denied and the

Board's order should be enforced in full.

Respectfully submitted,

Marsha S. Berzon
Altshuler, Berzon,.Nussbaum,
Berzon & Rubin

Jonathan P. Hiatt
James B. Coppess
Jeffrey B. Fannell
AFL-CIO

remedy whether a diseriminatee lied or produced fraudulent documents before the

Board about his or her immigration status would promote inquisition into
discriminatees' actual immigration status in many Board proceedings involving
employees that the employer suspects are Undocumented. To require employee.s to
subject themselves to s_ch fishing expeditions into their immigration status as a
condition of obtaining a backpay remedy would severely undermine the
enforcement of the NLRA. Se_....ee
n. 1, su__qp_ra.

38
 CERTIFICATE OF SERVICE

The undersigned hereby certifies that two (2) copies of the BriefAmicus

Curiae for the American Federation of Labor and Congress of Industrial

Organizations have been served in the manner indicated upon the following

counsel at the addresses listed below:

Ryan D. McCortney Arleen A. Armstrong

David A. Maddux Deputy Associate General Counsel
Sheppard, MuUin, National Labor Relations Board
Richter & Hampton 1099 - 14th Street, NW
650 Town Center Drive Washington, DC 20570
Costa Mesa, CA 92626 (by First Class Mail)
(by First Class Mail)

Maurice Baskin
Connie N. Bertram
Venable, Baetjer, Howard,
& Civiletti, LLP
1201 New York Avenue, NW
Suite 1000
Washington, DC 20005
(by First Class Mail)

Dated: July 9, 1999"

Marsha S. Berzon

F:\O02.00_IO_VICS.CKT
 CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 28(d)

I hereby certify that the Brief Amicus Curiae for the American Federation
of Labor and Congress of Industrial Organizations contains less than 8,750 words,
the number of words permitted by Circuit Rule 28(d).

Marsha S. Berzon

F:\0 0 2,0 0_-IOFFMAN_COMPLIANCE.CRT