Amay's Bakery & Noodle Co., Inc.

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amay's Bakery & Noodle Co., Inc. and Produce, Refrigerated & Processed Foods & Industrial Workers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases 21-CA-14187, 21-CA-14214, and 21-CA-14370 December 10, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On August 4, 1976, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief; the Respondent filed an answenng brief, and the General Counsel filed a motion to strike portions of the Respondent's brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 The Administrative Law Judge ordered that certain of the discriminatees be placed on a preferential hiring list based on his belief that the recent U.S. Supreme Court decision of DeCanas et al. v. Bica et at, 424 U.S. 351 (1976), precluded him from granting reinstatement with full backpay to aliens without working papers. The General Counsel excepted to the proposed remedy, arguing that the Administrative Law Judge erred in concluding that the DeCanas decision authorized the State of California to enforce its law prohibiting the knowing employment of illegal aliens. We agree with the General Counsel and modify the proposed Order accordingly. The Board consistently has held that illegal aliens are employees within the meaning of the Act and are entitled to the protection of the Act. Aliens without working papers have been permitted to vote and have been accorded protection in the exercise of Section 7 rights.3 It follows from this line of cases that illegal aliens who are discharged in violation of Section 8(a)(3) normally are entitled to the conventional remedy of reinstatement with backpay. Although the Administrative Law Judge recognized the Board precedents relating to illegal aliens, he declined to order reinstatement in this case. He reasoned that under principles of accommodation the Board should not order action that would place a party in direct violation of a valid state law.4 He further concluded that, based on DeCanas, section 2805 was a valid state law, and therefore the Respondent could not be ordered to reinstate the discriminatees. Section 2805 of the California Labor Code pros- cribes the knowing employment of aliens "not entitled to lawful residence in the United States. . . ." The constitutionality of the statute has been challenged in two state court cases. The first, Dolores Canning Co. v. Howard, 40 Cal.App.3d 673, 115 Cal.Rptr. 435 (1974), was a declaratory judgment action brought by a group of employers seeking to have section 2805 declared unconstitutional and its enforcement enjoined. The superior court found that the statute was unconstitutional and permanently enjoined its enforcement. The court of appeals affirmed the decision, both because it was an attempt by the State to legislate in an area of exclusive Federal jurisdiction and because it interfered with the Federal scheme of regulation of aliens under the Immigration and Naturalization Act. The second case, DeCanas v. Bica, supra, was an action brought by farm workers for damages and injunctive relief against farm labor contractors for violation of section 2805. The employers demurred on the basis that the statute was an unconstitutional attempt by the State to legislate in a field preempted by the Federal Government. The superior court sustained the demurrer and dismissed the complaint, and the court of appeals affirmed. The California Supreme Court denied review, and the case was then appealed to the United States Supreme Court. The sole issue on appeal was whether the Immigra- tion and Naturalization Act of 1952, as amended in 1965,5 precluded all state regulation of the employ- ment of illegal aliens . The Court held that it did not and reversed and remanded the DeCanas decision. i We grant the General Counsel's motion to stake the Respondent's recitation of events which have occurred since the date of the hearing herein 8 The Administrative Law Judge inadvertently omitted from his recom- mended Order an affirmative order to bargain in good faith upon request. Additionally, in par. 1(f) of his recommended Order, the Administrative Law Judge used the narrow cease-and-desist language , "in any like or related manner," rather than the broad injunctive language, "in any other manner," which the Board traditionally provides in cases involving serious 8(aX3) discrimination conduct See N LR.B v Entwistle Mfg Co, 120 F 2d 532, 536 (CA. 4, 1941), Electrical Fittings Corporation, a Subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975) Accordingly, we shall modify 227 NLRB No. 38 the recommended Order to require the Respondent to cease and desist from in any other manner infringing upon employees rights and to bargain in good faith upon request 3 See Handling Equipment Corp, 209 NLRB 64 (1974), Lawrence Rigging, Inc, 202 NLRB 1094 (1973). See also Dan Logan and J R Paxton, Co- Partners, d/b/a Logan and Paxton, 55 NLRB 310 (1944) 4 Since we disagree with the Administrative Law Judge's interpretation of the status of sec. 2805, it is not necessary to the disposition of this case to decide whether the Board is limited by "pnnciples of accommodation" in fashioning remedies for violations of the Act. 5 81] SC § 1101, et seq (INA) AMAY'S BAKERY & NOODLE CO. However, the Court left open the question of whether section 2805 was unconstitutional as an obstacle to accomplishment of the aims of the comprehensive Federal scheme of regulation of immigration. The Court pointed out that, as worded, the statute appears to conflict with the INA since some aliens who are not entitled to legal residence under the INA are nonetheless permitted to work. However, the imple- menting regulations may remove this conflict, and it is the province of the state courts to construe the statute in light of the regulations and determine whether it conflicts with Federal Law. The current status of section 2805 is therefore unsettled. There has as yet been no final determina- tion by the -California Supreme Court as to whether section 2805 is constitutionally valid and can be enforced. To the extent that the decision in Dolores Canning is based on -the holding that no state regulation of the employment of illegal aliens is permissible, it is no longer good law. However, the court in Dolores Canning additionally based its decision on a holding that the statute as construed did interfere with the Federal scheme. Since that issue was not before the U.S. Supreme Court, and in fact was expressly left open by the Court, the Dolores Canning decision and its permanent injunction prohi- biting enforcement of section 2805 appear to remain intact. A conventional reinstatement order thus would not place the Respondent in clear violation of a valid state statute. Rather, it would return Respondent to a position in which it had placed itself earlier, and, but for the illegal discharges, in which it would still be. If there is any risk in that position, it is a risk that the Respondent by its' earlier wrongdoing voluntarily assumed. Moreover, in the event that the California Supreme Court finally determines that section 2805 can be enforced, -the Respondent may petition for modification of the Order at the compliance stage. Based on the foregoing, we find that the Adminis- trative Law Judge erred in failing to grant the conventional remedy of reinstatement to the discrimi- natees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of- the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Amay's Bakery & Noodle Co., Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(f): 215 "(f) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Delete paragraphs 2(b) and (c), substitute the following for paragraph 2(a) and reletter paragraph 2(d) as 2(b): "(a) Reinstate Jesus Ayon, Antonio Rodriguez, Manuel Casanova, Francisco Flores, Juan Melesio, Raphael Padilla, Hipolito Rodriguez, Luis Rosales, Jose Rubio, Sagrario Vargas, Miguel Vidrio, and Sam Villegas to their former jobs or, if such jobs no longer exist, to substantially equivalent positions of employ- ment, and make them whole for any loss of earnings incurred as the result of being discharged on Novem- ber 17, 1975, or December 4, 1975." 3. Insert the following as paragraph 2(c) and reletter the subsequent paragraphs accordingly: "(c) Bargain, upon request, with Produce, Refriger- ated & Processed Foods & Industrial Workers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as exclusive representative of employees in the following unit: "All production and maintenance employees, including bakery, shipping and receiving, and truckdrivers employed by Respondent at its facility located in Los Angeles, California; but excluding office clerical employees, guards, pro- fessional employees and supervisors as defined in the Act." 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD - An Agency of the United States .Government WE WILL NOT discharge or otherwise discrimi- nate against any employee because of activities on behalf of Produce, Refrigerated & Processed Foods & Industrial Workers Local 630, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,- or any other union. WE WILL NOT interrogate employees concerning their activities on behalf of any union. WE WILL NOT threaten to discharge employees or to make other reprisals for joining or assisting any union. WE WILL NOT promise employees pay increases in order to discourage their support for any union. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL reinstate Jesus Ayon, Antonio Rodri- quez, Manuel Casanova, Francisco Flores, Juan Melesio, Raphael Padilla, Hipolito Rodriguez, Luis Rosales, Jose Rubio, Sagrario Vargas, Miguel Vidrio, and Sam Villegas to their former jobs or, if such jobs no longer exist, to substantially equiva- lent positions of employment, and make them whole for any loss of earnings incurred as the result of being discharged on November 17, 1975, or December 4, 1975. WE WILL bargain, upon request, with Produce, Refrigerated & Processed Foods & Industrial Workers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as exclusive representative of employ- ees in the following unit: All production and maintenance employees, including bakery, shipping and receiving, and truckdrivers employed by us in Los Angeles, California; but excluding office clerical employees, guards, professional em- ployees and supervisors as defined in the Act. unwarranted withdrawal of the Union's recognition as exclusive bargaining representative for such employees. Upon the entire record, including my observation of the witnesses, and upon consideration of briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation located in Los Angeles, California, manufactures Chinese cookies, pastries, and noodle products. It annually sells goods and products valued in excess of $50,000 to customers in California, each of which annually purchase and receive, or sell and ship, other goods and products valued in excess of $50,000 directly from their suppliers, or to their customers, respec- tively, located outside California. Further, it annually purchases goods and products valued in excess of $50,000 from suppliers in California, each of which purchased and received such goods and products directly from other suppliers located outside California. I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5). WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights protected under the National Labor Relations Act. AMAY'S BAKERY & NOODLE CO., INC. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Los Angeles, California, during April 13- 15, 1976, based upon charges (and one amended charge) filed on various dates from November 26, 1975, to February 9, 1976, and amended consolidated complaint issued on March 16, 1976, alleging that Amay's Bakery & Noodle Co., Inc., called Respondent, engaged in various conduct which violated Section 8(a)(1) of the National Labor Relations Act, as amended, that on I November 18 and December 4 it discharged 12 named employees in violation of Section 8(a)(3), and that during November it violated Section 8(a)(5) by failure to bargain collectively in good faith with Produce, Refrigerated & Processed Foods & Industrial Workers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, called the Union, through refusal to sign an assertedly reached agreement, through direct bargaining with employees of an appropriate unit, and through I All dates and named months hereafter are in 1975, unless indicated otherwise 2 Nardi had prepared a handprinted statement contemplating Respon- dent's acknowledgment that cards so verified were "authentic" and the Union was recognized as "bargaining representative" of production and H. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion On October 28 a number of Respondent's employees signed authorization cards in the course of an evening meeting with Union Business Agents Juan Barra and Nick Nardi. On October 30 Barra and Nardi appeared at Respondent's place of business and spoke with its vice president and part-owner, Jim Hom, claiming to represent a majority of employees and desiring to discuss further significance of the matter. Hom interposed legal counsel and on November 5 Barra and Nardi met with Attorneys Michael Chang and Albert C. Lum, the latter serving as principal spokesman for Respondent. By arrangement a card check was conducted the following day at Cathay Bank, whose officer advised that 12 authorization cards were "verified" upon comparison with 19 W-4 forms as "electing for" the Union. Lum signed an arithmetical summation of this information.2 On November 10 Barra and Nardi met Lum at his office, presented a recently reached contract with Kwan Lee Lung Company, and offered its terms (other than as to wages) for the initial contract with Respondent. An hourly rate range of $3 to $3.50 for truckdrivers and $2.30 to $2.50 for other employees was expressly agreed upon, with further 25-cent general hourly increases on anniversary dates of a 3-year term. The topic of health and welfare was discussed but not fully concluded since Lion chose to "check into whether or not his insurance company ... could come up with a package similar" as an alternative to the group insurance at maintenance employees, including bakery, shipping and receiving, and truckdrivers. Lum's signature appeared on this sheet following enclosed writing which separately depicted numerical outcome of the count. The plantwide bargaining unit involved, fully and formally phrased in the amended consolidated complaint, is presumptively appropriate AMAY'S BAKERY & NOODLE CO. 217 Kwan Lee Lung Company which utilized "the Los Angeles Prepackers & Food Processors with Dental Plan included." Barra and Nardi met again withLum on November 13 at the Dynasty Club where, as testified to by Nardi, Lum agreed to "the L.A. Prepackers insurance" and further discussion committed the Union to preparation of neces- sary contract documents and Respondent to installation of a timeclock-. During -November Hom had spoken individually and collectively with employees. Jesus Ayon testified that on November 5 Hom; accompanied by his brother-in-law Victor Lomeli as translator, approached at Ayon's work- place and said that if he "hadn't signed the Union card" he would continue to be given work (but at a lower salary). Juan Melesio -testified -that close to this time Horn ques- tioned him about a Union card, stating Melesio would be fired if he had signed a card. Also in early November Horn assembled about 10 employees and, using an employee named'Joaquin as translator, stated he did not want the Union and would "report "illegal" employees to "Immigra- tion." On November 15 Hom spoke individually with a series of employees using Lomeli as translator. Raphael Padilla testified that Hom said he didn't want "the Union to get in" and would "pay us a little bit better." Manuel Casanova testified that during his individual discussion Hom expressed similar opposition to the Union and said he would give the same benefits. Hipolito Rodriguez corrobo- rated Padilla and Casanova. On November 17 Ayon and Antonio Rodriguez, both fortune cookie makers, were given final paychecks by Horn's father.3 Each employee returned on subsequent days to ascertain reasons for the action from Hom, Jr. Ayon testified that Hom (Lomeli translating) said he "let me go" because of being "the person that had headed the Union movement." A. Rodriguez testified that Hom responded to his request for explanation on November 18 by indicating the discharge was because he "had signed the card with the Union people." On December 4 Hom spoke with employees preparing to depart as a group at, quitting time. He stated that those possessing a "green card" should return to work normally the next day, while those without it should return only for their paycheck.4 Melesio, Padilla, Casanova, H. Rodriguez, and Sam Villegas testified that they did not attempt further employment with Respondent after December 4 on the basis of Horn's statement, since none of them possessed a green card. Hom testified that after the business agents' visit he addressed (Joaquin translating) the employees "all togeth- er" and said it was their decision whether to join the Union, however, competition was strong and that consequence would require him to raise prices. Subsequently about November 15 he spoke (Lomeli translating) individually with employees, reiterating their privilege to decide whether to unionize, alluding to the recent closing of the similar s The senior Hom is half-owner of Respondent. Ayon testified that part of this episode on November 17 was a remark by Hom, Sr. that "no more work was available 1 because he had problems with the Union." 4 The meaning of vernacularly known "green card(s)" is discussed in Handling Equipment Corp., 209 NLRB 64, 65 (1974), in terms of basic significance as the showing of U.S. Immigration and Naturalization Service permission that a particular alien may lawfully hold employment . Also see Monarch Tape Duplicating, 205 NLRB 520,524 (1973). Nam Wah business, and offering to "match what the current Union wages be if we have to." Still later he learned from private sources of a continuing national concern with the entry of illegal aliens and determined on this basis (in agreement with his father), "to take care of this matter." In March Respondent had purchased two fortune cookie- making machines (with related automatic folding ma- chines) on "eight to nine months" quoted delivery. Hom testified that on "two or three" occasions he informed Ayon and A. Rodriguez of this intention, which he perceived as a change no longer requiring job skills in making this product. He consequently discharged them, and for a few weeks time purchased fortune cookies from an outside source as installation of new equipment progressed. Respecting the issue of recognition, General Counsel correctly argues that doctrine of Fred, Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709 (1961), controls. The Union's business agents were channeled to Respondent's legal counsel and upon amicable arrange- ments an impartial functionary of the latter's choice confirmed the requisite majority showing. Respondent's subsequent position, manifested in a letter dated November 21 from Lunt to the Union, that doubts had arisen concerning the employees' desires, is without reasonable validity under circumstances of the previously freely chosen route. Respondent's further contention that Lum's actions were of a nonagency character is rejected as actual agency, without supportive reference to statutory agency under Section 2(13) of the Act, was exhibited in dealings at the place where card check was made Lum's written conces- sion of the configuration toward majority showing only cements this conclusion further. Accordingly, the alleged exclusive representative status of the Union has been shown from the evidence. See Snow et at. v. N.L.RB., 308 F.2d 687 (C.A. 9, 1962), enfg. 134 NLRB 709 (1961); Kellogg's Inc., d/b/a Kellogg Mills, 147 NLRB 342 (1964), enfd. 347 F.2d 219 (C.A. 9, 1965); Harding Glass Industries, Inc., etc., 216 NLRB 331 (1975). Testimony respecting whether Respondent reached agreement on contract terms, in the manner contemplated in Section 8(d) of the Act, was given by Barra and Nardi. The latter's was more detailed and traced happenings at the two meetings perceived by the business agents as negotiat- ing sessions.5 Nardi testified that initial discussion with Lum traversed all subjects of the Kwan Lee Lung contract, as to each of which (excepting insurance) agreement was reached via expressly articulated assent on behalf of Respondent. The second discussion looking to contract agreement was for the limited purpose of "find[ing] out about" how Respondent would carry employee group insurance. Although facts that relate to this issue are uncontradicted, the evidence as a whole does not show requisite meeting of the minds as to-create an identifiable collective-bargaining agreement. It must be accepted that Lute functioned with adequate apparent authority to bind 5 Respondent's statement of position on this issue, submitted in lieu of evidence, contends that Lum served only within authority to "informally meet with the union representatives [and] discuss possible contractual terms." In this process it is here denied that "any specific contractual terms [were ] agreed upon between employer's attorney and the union representa- tives." 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, subject only to disclosed conditions. Barra and Nardi differ in their perception of whether limiting qualifications existed. Barra understood that any proposed agreement "had to [be shown] to Hom," while Nardi viewed Lum's capacity as generally "representing the company." But beyond this matter, there is inadequate showing that the wholly integrated language of a contract document was ever agreed upon. Nardi depicts unresisting acceptance of the full Kwan Lee Lung contract, and it is his version that would support a finding of an 8(d) type agreement. However, his testimony is belied both by tangible documentary content and by Barra's version of the facts. Nardi claimed agreement (among all other matters) on the subject of holidays, yet he demonstrated such insufficient grasp of the Kwan Lee Lung contract itself in this area as to misstate the holidays there in effect. More importantly, Barra could not identify the holidays suppos- edly agreed upon and described discussion only in the vague sense of being "modeled . . . more or less" on the Kwan Lee Lung document. Most telling of all is Barra's testimony that he "took it for granted" that Lum would sign "after having the language finalized." In this circumstance of ambiguity respecting precisely what was being agreed upon, with the indication that actual substantive and connective phraseology was yet to be scrutinized, it is unrealistic to conclude that a collective-bargaining agree- ment as that basic tool of the labor-management process is known and understood was effectively reached through this brief course of superficial dealings. Cf. J. W. Praught Company, 212 NLRB 482 (1974). This conclusion is reached with awareness of a passage in Lum's November 21 letter that contractual terms "appeared reasonable to my client," since this does not intrinsically constitute unequivocal agreement and the quoted language was purely tangential to primary purposes of this communication. Issues of this case relating to 8(a)(1) and (3) allegations are susceptible to confident resolution. The testimony of General Counsel's witnesses as detailed above is convinc- ing, mutually consistent, and worthy of general credible- ness respecting Horn's remarks to employees.6 Horn's testimonial denials were extremely unreliable in nature and, 6 I disregard Ayon's recollection concerning the "lower salary" qualifica- tion to continued employment (if not having signed a union card) as probable misperception of verbal meaning In addition I expressly credit Melesio as to Horn's nontranslated threat of discharge since Hom claimed minimal ability to make himself understood to employees notwithstanding language barriers r None of this testimony establishes, as separate doctrinal matters, that Hom engaged "in direct bargaining" with employees or "created the impression" of surveillance of employees' union activities, as alleged in par. I I and 16, respectively , of the amended consolidated complaint I therefore find that sufficient evidence in support of these allegations is not present and appropriate partial dismissal is warranted Cf. Romo Paper Products Corp., 208 NLRB 664 (1974), Berton Kirshner, Inc, 209 NLRB 1081 (1974) Furthermore, the wage increases allegedly "granted . to discourage support for the Union" (par 18 of the amended consolidated complaint) occurred around early November, but were inconclusively shown from the testimony as related to organizing activities in progress at the time However, a threat of reprisal is present ; namely that of giving notification to the Immigration Service strictly for the reason that employees espoused the Union. In Mike Yurosek & Sons, 225 NLRB No 20(1976) the Board stated its belief that "illegal aliens naturally experience some fear of detection and deportation as a consequence of their unauthorized presence in the U.S," in holding that "circumstances of this case in the light of the entire record" warranted overruling an objection to election conduct grounded in threats to more importantly, neither translator testified on behalf of Respondent. The upshot is that testimony respecting Interrogation, threats, and unlawful promises was essential- ly uncontradicted. Thus General Counsel established that Respondent interrogated Melesio about his signing a card, threatened both Ayon and Melesio for such signing, and promised pay increases to several employees comparable to what they might expect in the course of collective represen- tation.7 In this context, plus a specific showing of animus, I find that Respondent discharged employees for the particu- lar reason that they had solicited representation from the Union and that assigned • reasons for the two discharge groupings are wholly pretextual. This conclusion is lent substantial support by credible testimony of Ayon and A. Rodriguez that Hom admitted unlawful reasons, plus A. Rodriguez recalling Horn's father had predicted the very consequence through a remark earlier in November that for having "already signed" he would "get us laid off."8 Finally, the November 17 discharges were premature in terms of installation sequence for new machinery and, more significantly, not revoked upon abrupt termination of numerous employees only several weeks later based on the request for green cards. Ayon and A. Rodriguez each had upwards of 7 years' service with Respondent and were presumptively satisfacto- ry workers and clearly capable of adaptation to other production tasks had Respondent been free of intention to exclude them from further employment for seeking repre- sentation by the Union. The group terminations of Decem- ber 4 were patently discriminatory, effected in a growing atmosphere of coercive conduct and demonstrated hostility to the desires of an employee majority. Horn's contrary explanation is wholly rejected as self-serving fabrication, designed only to attempt concealment of actual motivating reasons that caused him to confront alien employees with a demand for documentation that would not otherwise have arisen .9 CONCLUSIONS OF LAW 1. The Union, at all times since November 6, has represented a majority of employees in an appropriate unit cause deportation of certain employees. Respondent's conduct here, con- trasted with the free (election) choice rationale of Yurosek, was in deliberate "exacerbat[ion]" of such fears with intent and effect of violating Section 8(a)(1) 8 While the father was not formally alleged to be Respondent's supervisor and agent, the current ownership configuration and coordinated decision- making between him and his son may properly be considered in determining that pretextual action was engaged in by the latter 9 California Labor Code §2805(a), effective March 24, 1972, provides that "No employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers " Secs (b) and (c) set forth penalty and enforcement provisions. At this point in time , §2805 had been controllingly interpreted as unconstitutional. While not necessarily disposi- tive of the posture to be assumed by a prudent employer respecting alien employees, such adjudication at least neutralized the consequences of otherwise "knowing employment [etc 1 " It suffices to summarize this aspect with the view that total circumstances, including the timing of conduct on December 4 that would naturally result in elimination of undocumented alien workersjust as Respondent was heightening efforts to shake loose from the Union's prospective implementation of representational rights, make these terminations fully as pretextual as earlier ones concerning specialty employees AMAY'S BAKERY & NOODLE CO. consisting of all Respondent's production and maintenance employees, including bakery, shipping and receiving, and truckdrivers, but excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. 2. - Respondent, by interrogating employees concerning their activities on behalf of the Union, by threatening to discharge employees or make other reprisals in order to discourage - their joining or assisting the Union, and by promising wage increases in order to discourage employees from supporting the Union, has engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(1) and 2(6),and (7) of the Act. 3. Respondent, by discharging certain employees on November -17 and December 4 because they engaged in protected, concerted activities on behalf of the Union, has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and 2(6) and (7) of the Act. 4. Respondent, by refusing to recognize the Union as exclusive collective-bargaining representative of employees in the unit defined in paragraph 1 above, has engaged in unfair labor practices affecting commerce within the meaning - of Sections 8(a)(5) and 2(6) and (7) of the Act. 5. Respondent has not violated the Act in any respect other than as specifically found. REMEDY Remedial aspects of this case must be treated on two planes. The first is scope of matters litigated respecting the alleged discriminatees named in the amended consolidated complaint. Five (Francisco Flores, Luis Rosales, Jose Rubio, Sagrario Vargas, and Miguel Vidrio) did not testify with General Counsel, explaining they "were unavailable ... and did not receive the subpoenas" since the "where- abouts" of each was unknown.General Counsel asserts that each was discharged on December 4 in the same manner as other alien employees without green cards. Given back- ground matters of record, there is a proper basis to agree with General Counsel's position. The missing five were named in a first amended charge filed on January 26, 1976, in time to be included in the original complaint dated January 29, 1976. This complaint was formally answered on March 2, 1976, by admission, inter alia, that all persons of then paragraph 12 (amended to become par. 13 with addition of Villegas' name) had been discharged on or about December 4 and not thereafter reinstated. In curing the lack of formal answer to, amended consolidated complaint, Respondent's amendment of record at hearing made no modification to the prior admission in this regard. Noting that Hom remembered "asking all my employees to show their green card" and that supporting evidence indicates complete dissemination of the request, it is believable that the missing five were an integral part of group dynamics on December 4 and immediately subse- quent days. Thus, I include them within the scope of 8(a)(3) violations established' here and, extend them the same remedy as attaches to each undocumented alien that did testify. Concerning the second general branch, much emphasis has been placed on Lawrence Rigging, Inc., 202 NLRB 1094 219 (1973), and Handling Equipment Corp., 209 NLRB 64 (1974), as authority to extend customary remedial relief in this matter. However, neither case is suitable to analysis of the issue. In Lawrence Rigging the Board dealt with the situation of an alien working in New York State during 1971 on student visa but not possessing a greed card, by holding that nothing in the Act would warrant his denial of employee status within the Act's meaning as eligibility of aliens to vote in a Board election "is well established." In support of the conclusion American Smelting and Refining Company, 102 NLRB 1489, 1493 (1953), was cited. Actually American Smelting is a consolidated representation case devoid of the topic, whereas the succeeding case of that volume, Morris Seidmon, Goldie Seidmon, Harry Henkin and Leonard Seidmbn, d/b/a Southwester Co., 102 NLRB 1492 (1953), was presumably the intended reference. In South- wester Co. a contention that employed citizens of Estonia should be excluded from a representation proceeding as "enemy aliens" was summarily overruled. As to Handling Equipment, a major factual aspect of that case related to discharge of 12 employees for failure to produce green cards upon request, the prompt reinstatement of 7 when this condition was fulfilled, and the subsequent reinstate- ment of an additional 4 even without the production of such cards (a 12th person was not further involved). In this context "official notice" was taken of both California Labor Code §2805 and Dolores Canning Co., Inc., et al. v. Milias, as at that time a decision given July 24, 1972, by the Los Angeles Superior Court in Case C-16928 to the effect that- §2805 was unconstitutional. The Administrative Law Judge in Handling Equipment sifted certain speculative possibilities concerning the sequence of events in his case and, in the course of finding that none of the 12 discharges were discriminatorily motivated, found these persons to be "employees" within the meaning of the Act without reaching "the question whether [they] are entitled to the protection of the Act." The Board adopted the recommend- ed Order of Handling Equipment, adding its express assent to finding that the 12 aliens were employees by statutory definition, but concluding separately, based on Lawrence Rigging, that had they been unlawfully discriminated against protection of the Act was available. In truth, both Lawrence Rigging and Handling Equipment have limited significance since neither deals squarely with the question presented here. It is more illuminating to point out that originating rationale of the Board in this general area is found in Logan and Paxton, 55 NLRB 310 (1944), where a Direction of Elections was footnoted as follows: While no direct issue was made at the hearings as to the inclusion in the units of non-citizen employees and their eligibility to participate in the elections, it is evident from the record that such an issue may arise at the time of the elections. The Act does not differentiate between citizens and non-citizens. In order to effective- ly carry out the purposes of the Act, we conclude that no distinction should be drawn on such a basis [citation omitted]. Non-citizenship of an employee shall not, consequently, constitute a disqualification for participa- tion in the elections. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The ultimate issue is whether the recent DeCanas case affects disposition here.10 I conclude that it does. DeCanas was an action arising in California by immigrant migrant farmworkers against farm labor contractors alleging contin- uing refusal to employ due to a surplus of labor resulting from defendants' knowing employment, in violation of §2805(a), of aliens not lawfully admitted to residence in the United States. The Superior Court dismissed and the California Court of Appeal affirmed, holding the §2805 was an attempt to regulate conditions for admission of foreign nationals and therefore usurped an exclusively Federal area. The Supreme Court of California denied review. On appeal the U.S. Supreme Court treated fundamental doctrines of Federal preemption, discussed congressional intent relative to immigration legislation, analogized sub- ject areas touching employment and decided, while noting "questions of construction of §2805(a) [yet Ito be settled by the California courts," that it sufficed to reverse as error the holding which "precluded any state authority to regulate the employment of illegal aliens." The opinion footnoted an assumption, arguendo, that in the context of litigation terminology "illegal aliens," the prohibition of §2805 would apply only "to aliens who would not be permitted to work in the United States under pertinent federal laws and regulations." The Court emphasized this point was an issue open to appropriate "correct construction" by the state courts on remand. Related to DeCanas is Dolores Canning Co., Inc. v. Howard, 40 C.A. 3d 673; 115 Cal. Rptr. 435 (decided July 17, 1974, on appeal from No. C-16928). In Dolores Canning the court affirmed, holding §2805 unconst- itutional because INA (Immigration and Nationality Act of 1952 as amended in 1965 - 8 U.S.C. § 1101, et seq.) is an expression of congressional judgment that state action be subordinated to uniform Federal regulation in matters affecting employment of aliens and nonimmigrants and because this state legislation encroached upon and inter- fered with a comprehensive regulatory scheme enacted by Congress in the exercise of its exclusive power over immigration The court of appeal, in agreeing with the trial court, expressly declined to treat the statutory phrase "not entitled to lawful residence" to mean the same as "illegal alien." A decision of further significance is Alonso v. State of Cal fornia, 50 C.A. 3d 242; 123 Cal. Rptr. 536 (1975). Here both Dolores Canning and DeCanas were each distinguished on grounds that plaintiff Alonso, admittedly an alien, had been collaterally found to be illegally in the country. Demal of unemployment compensation benefits because plaintiff was not "available for work" was affirmed on grounds that an unlawfully present alien is without usual constitutional rights and the statute under which benefits were sought is in harmony with Federal legislation pertain- ing to immigration. The court traced a "common thread" running through U.S. Supreme Court cases involving aliens ii DeCanas et at v Bica et al , 424 U S. 351 (1976) 11 A period of 2 years in length is chosen because it reasonably constitutes an adequate period for governmental implementations under §2805, with practical limitation on the future extent to which such a conditional obligation must run i2 The date of March I, 1976, is chosen to cut off backpay for the 10 employees in recognition of a 4-day period following decision reasonably necessary for advice of U S. Supreme Court action in DeCanas to be disseminated, during which time the discrimmatees otherwise would have and found it to be the factor of "lawfully resident" (emphasis supplied) aliens; holding that an alien "unlawfully" in the country "has no right to work." The composite significance ofjudicial and administrative law holdings in the area dictates a result highly limiting of ordinary remedial entitlement. It is not enough to rely on doctrine that aliens generally have been accorded the standing of employees within meaning of the Act. What is truly involved is a more fundamental matter of accommo- dation within the Federal system. At present, based on DeCanas, the State of California is authorized to enforce §2805. The "questions" noted by the U.S. Supreme Court for future refinement do not affect basic enforceability. It is contrary to the principle of accommodation for Board processes to order action that would directly violate state law. The preferred approach is to acknowledge valid state authority in this regard, preserving only insofar as possible the preventative benefits of relief favoring unlawfully discharged employees. See Stein Printing Company, 204 NLRB 17 (1973). Cf. National League of Cities v. Usery, 44 LW 4974, 22 WH Cases 1064 (decided June 24, 1976) 23 WH Cases 38 (1977); Emerald Maintenance, Inc., 188 NLRB 876 (1971). Accordingly, for the 10 employees named in paragraph 13 of the amended consolidated complaint, I shall fashion a requirement that Respondent place them on preferential hiring status, for a period of 2 years, reinstating them to their former or substantially equivalent positions immediately upon condition that at any time during such period it shall become lawful to do so.it Having found that Respondent has engaged in certain unfair labor practices affecting commerce, I shall further recommend that it cease and desist therefrom, that it reinstate Ayon and A. Rodriguez to their former or substantially equivalent positions and make them whole from being discharged, that it make whole an additional 10 discharged employees for losses until March 1, 1976, that it recognize and, upon request bargain, with the Union, and that it post an appropriate notice.12 Backpay due employ- ees shall be computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 Respondent, Amay's Bakery & Noodle Co., Los Angeles, California, Inc., its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees to discourage protected , concerted activities for enjoyed a continuing right of reinstatement Because a substantial number of persons affected by this remedy are Spanish spealung, the notice shall also be printed in that language See Monarch Tape Duplicating, 205 NLRB 520 i3 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes AMAY'S BAKERY & NOODLE CO. the purpose of collective bargaining or other mutual aid or protection, or to discourage membership in Produce, Refrigerated & Processed Foods & Industrial Workers Local 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. (b) Interrogating employees concerning their activities on behalf of the Union. (c) Threatening employees with discharge and other reprisals in order to discourage them from joining or assisting the Union. (d) Promising wage increases to employees in order to discourage their support for the Union. (e) Refusing to bargain collectively with the Union as exclusive representative of the following unit: All production and maintenance employees, including bakery, shipping and receiving, and truckdrivers em- ployed by Respondent at its facility located in Los Angeles, California; but excluding office clerical em- ployees, guards, professional employees and supervisors as defined in the Act. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Reinstate Jesus Ayon and Antonio Rodriguez to their former or substantially equivalent positions of employment and make them whole for any loss of earnings incurred as the result of being discharged on November 17, 1975. 14 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant 221 (b) Place Manuel Casanova, Francisco Flores, Juan Melesio, Raphael, Padilla, Hipohto Rodriguez, Luis Ro- sales, Jose Rubio, Sagrario Vargas, Miguel Vidrio, and Sam Villegas on a preferential hiring list for a period of 2 years and, at any time during that 2-year period that it becomes lawful to do so, reinstate them to their former or substan- tially equivalent positions of employment. (c) Make whole the 10 individuals named in paragraph 2(b) above for any loss of earnings incurred by them from December 4, 1975, to March 1, 1976. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Los Angeles, California, facility copies of the attached notice marked "Appendix." 14 Copies of said notice, in both English and Spanish, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be conspicuously posted by it immediately upon receipt and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "