320 NLRB 408
A.P.R.A. Fuel Oil Buyers Group
408
320 NLRB No. 53
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 309 NLRB 480.
2 As discussed below, the Board found that the Respondent had,
inter alia, interrogated employees, threatened them with discharge,
denied them raises and vacation pay, threatened them with plant clo-
sure, conveyed to them the impression that choosing union represen-
tation would be futile, and promised employees benefits if they re-
nounced their support for the Union. The Board also ordered that
challenged ballots be opened, directed that the Union be certified if
a new tally showed that a majority of votes had been cast for the
Union and that the election be set aside if the Union lost the tally,
and issued a Gissel bargaining order based on the Respondent’s un-
fair labor practices. On December 9, 1992, a certification of rep-
resentative issued. On September 28, 1993, the Board found that the
Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to
bargain with the certified Union. A.P.R.A. Fuel Oil, 312 NLRB 471
(1993).
3 8 U.S.C. Sec. 1324a et seq. As discussed more fully below,
IRCA prohibits an employer from hiring or continuing to employ an
alien knowing that he/she is not authorized to work in this country.
4 309 NLRB 480 fn. 4. The majority noted that under Board prece-
dent, the Respondent’s arguments that Benavides and Guzman were
not eligible for backpay and reinstatement were without merit. Mem-
ber Oviatt would have denied reinstatement. Id.
5 The Respondent also filed a motion to dismiss this proceeding
based on alleged agency misconduct involving the General Counsel’s
submission of the judge’s decision and certain pages of the transcript
to the Immigration and Naturalization Service (INS) for consider-
ation of whether the Respondent had violated IRCA by hiring un-
documented aliens. The Respondent contends that the General Coun-
sel’s action demonstrates that the Board is not impartial in this pro-
ceeding. In opposing the motion, the General Counsel asserts that,
when the facts of a case indicate that another Federal statute may
have been violated, it is permissible to cooperate with the Federal
agency that investigates such violations. We deny the Respondent’s
motion. Although the Board generally has no involvement in the en-
forcement of statutes other than the NLRA, we find that referral of
possible violations to other agencies is a matter within the discretion
of the General Counsel. More importantly, we find that the action
of the General Counsel, who is before the Board as a party in this
proceeding and whose role is thus clearly distinguishable from that
of the Board, has no bearing on the Board’s ability to render an im-
partial decision concerning the matters presented in this case.
A.P.R.A. Fuel Oil Buyers Group, Inc., Prudential
Transportation, Inc., and Amer-National Heat-
ing Service, Inc. and Local 553, International
Brotherhood of Teamsters, AFL–CIO and
Jesus Campos and Alberto Guzman and
Damaris Gomez. Cases 29–CA–15517, 29–CA–
15589, 29–CA–15446, 29–CA–15459, 29–CA–
15571, 29–CA–15518, 29–CA–15467, 29–CA–
15482
December 21, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS
BROWNING, COHEN, AND TRUESDALE
On November 12, 1992, the Board issued a Deci-
sion, Order, and Direction1 adopting the judge’s find-
ings that the Respondent had committed numerous vio-
lations of Section 8(a)(1) of the National Labor Rela-
tions Act2 and had violated Section 8(a)(3) of the Act
by discharging six employees, including Victor
Benavides and Alberto Guzman, based on their union
activities. The Board ordered the Respondent to offer
to reinstate with backpay the unlawfully discharged
employees, including Benavides and Guzman, rejecting
the Respondent’s argument that these two discrim-
inatees are aliens lacking documents enabling them to
obtain employment lawfully in the United States and
are therefore ineligible for reinstatement, in accordance
with the Immigration Reform and Control Act of 1986
(IRCA).3 The Board majority, noting that the case in-
volved a 10(j) injunction and a Gissel bargaining
order, decided to ‘‘leave to another case any reconsid-
eration of the Board’s law’’ respecting the effect of
Benavides’ and Guzman’s alleged status as undocu-
mented workers on the extent of the make whole rem-
edies available to them.4 Subsequently, by Order dated
July 28, 1993, the Board sua sponte severed for recon-
sideration the portion of its original Order providing
for reinstatement offers and backpay for Benavides and
Guzman. The Board solicited briefs from all parties
concerning the propriety of the Board’s Order concern-
ing these remedies for Benavides and Guzman. The
General Counsel and the Respondent filed briefs and
the International Ladies’ Garment Workers Union
(ILGWU) filed an amicus brief.5 In an unpublished
Order dated May 20, 1994, the United States Court of
Appeals for the Second Circuit enforced the remainder
of the Board’s original November 12, 1992 Order. In
addition, the court enforced the Board’s September 28,
1992 Order in the refusal-to-bargain proceeding. NLRB
v. A.P.R.A. Fuel Oil, No. 93–4263 (2d Cir. 1994).
After carefully considering the briefs and reviewing
the record, we find that IRCA and the NLRA can and
must be read in harmony as complementary elements
of a legislative scheme explicitly intended, in both
cases, to protect the rights of employees in the Amer-
ican workplace. We reject the Respondent’s reading of
IRCA as requiring the Board to deny its traditional
make-whole remedies to unlawfully discharged em-
ployees because they have not provided documents
necessary for legal employment in the United States.
On reconsideration, for the reasons below, we modify
our earlier remedy in this proceeding. We shall order
the Respondent to offer reinstatement to Benavides and
Guzman; however, we condition the Respondent’s ob-
ligation to reinstate these individuals on the individ-
uals’ production, within a reasonable time, of docu-
ments enabling the Respondent to meet its obligation
under IRCA to verify their eligibility for employment
in the United States. Backpay shall be tolled as of the
date the discriminatees are reinstated or when, after a
reasonable period of time, they are unable to produce
the documents enabling the Respondent to meet its ob-
ligations under IRCA to verify their eligibility for em-
ployment in the United States.
409
A.P.R.A. FUEL OIL BUYERS GROUP
6 Although the Respondent asserts in its brief that an INS inves-
tigation revealed no violation of IRCA, it has provided no evidence
to support that assertion. We rely on the facts found by the judge
and adopted by the Board in its earlier decision.
7 In its earlier decision in this case, the Board adopted the judge’s
finding that the three Respondents constitute a single employer with-
in the meaning of the Act.
8 The General Counsel cites De Jana Industries, 305 NLRB 845
(1991) (reinstatement of employee to truck driver position condi-
tional on employee’s establishing that he has a valid driver’s license,
when license lost during period of unemployment).
9 See, e.g., New Foodland, 205 NLRB 418 (1973) (discriminatee
awarded backpay for entire interim period, including portion when
she was underage for employment in liquor store).
10 See Sheet Metal Workers v. EEOC, 478 U.S. 420 (1986).
I. FACTS
The relevant facts are not in dispute. The Respond-
ent hired Benavides and Guzman after each of them
explicitly informed it that he was not eligible for law-
ful employment in the United States based on immi-
gration status.6 Before Benavides began working for
the Respondent as a boiler mechanic on August 15,
1990, Vincent Latora (referred to in the earlier deci-
sion and herein as Vincent), president of Respondent
Prudential Transportation, personally interviewed him.7
Benavides informed Vincent that his real name was
Jose Cuidad and that he had entered the country on a
6-month visitor’s visa and lacked the necessary ‘‘green
card’’ to work legally in the United States. Vincent
told Benavides that to work for the Respondent, he
must have a ‘‘legal’’ name so that the Respondent
could put him on its books. Benavides told Vincent
that the real Victor Benavides was leaving the country
and had given Benavides his social security card to use
to obtain employment.
Guzman, who had worked for the Respondent pre-
viously from mid-1989 until January 1990, was rehired
in June 1990 as a truck mechanic. When Vincent first
interviewed him, Guzman told Vincent that his real
name was Jorge Bianey Diaz and that he was in the
United States illegally and had no working papers.
Vincent directed him to get a social security card, and
he obtained one in the name of Alberto Guzman.
The Respondent discharged Guzman on January 14,
1991, and Benavides on February 3, 1991. In its earlier
decision, the Board found that neither Guzman nor
Benavides would have been discharged but for the on-
going union activities of the Respondent’s employees
and that their discharges thus violated Section 8(a)(3)
of the Act. Both discharges occurred about 1 month
after the Respondent learned of its employees’ union
activities and in an atmosphere of flagrant and perva-
sive unfair labor practices, including threats of plant
closure, the unlawful discharges of four more employ-
ees and threats to fire still others, coercive interroga-
tions, promises of benefits if employees voted against
the Union, and coercion in obtaining affidavits revok-
ing authorization cards. The Board found that on Janu-
ary 8, 1991, Vincent interrogated Benavides and
Guzman concerning their union activities and told
them to sign already prepared affidavits falsely attest-
ing, inter alia, that they had never signed authorization
cards, or ‘‘look for a job elsewhere.’’ The Respondent
directed further unlawful and coercive conduct toward
Guzman, also within days of his discharge, including
interrogations by Vincent and his brother Robert, the
Respondent’s general manager, who threatened to close
the business down because of the union activity and
told Guzman that he ‘‘could go back to his country.’’
As noted above, to remedy these unlawful discharges,
the Board initially ordered the Respondent to offer the
customary remedies of immediate reinstatement with
backpay to Benavides and Guzman, along with the
other discriminatees.
II. POSITIONS OF THE PARTIES
In his initial brief following the Board’s decision to
reconsider the remedies for Benavides and Guzman,
the General Counsel contended that, at a minimum, the
Board should order the Respondent to offer Guzman
and Benavides reinstatement, conditioned on the estab-
lishment of their eligibility to work in the United
States under IRCA, and to provide backpay from the
date of their unlawful discharges until the date they are
offered such conditional reinstatement. The General
Counsel asserted that these remedies comport with
prior Board cases involving discriminatees no longer
qualified for their jobs.8 The General Counsel argued
that the Board should also date the backpay period
from the discharge until the offer of conditional rein-
statement, noting that the Board has awarded backpay
even when a discriminatee had been employed in vio-
lation of state or local law.9
In a supplemental brief, the General Counsel reiter-
ates his position that the Board should order the Re-
spondent to offer the discriminatees reinstatement and
further contends that the offer should be kept open for
a reasonable period to provide the employees an op-
portunity to complete a valid INS Form I–9, Employ-
ment Eligibility Verification, or make other arrange-
ments with the INS to begin work. In the event that
the discriminatees are unable to come forward with
documents the inspection of which would satisfy the
Respondent’s duties under IRCA, the General Counsel
urges that the Board order the Respondent to hire an
applicant named by the Union, analogizing this remedy
to the affirmative race-conscious relief ordered in cases
of patterns of discrimination found under Title VII of
the Civil Rights Act of 1964.10 Without such relief, the
General Counsel argues, the Respondent’s violations of
Section 8(a)(3) would be essentially unremedied and
thereby accomplish for the Respondent its unlawful
goal of ridding itself of unwanted union supporters and
410
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346
(1953).
12 As discussed in detail below, Sure-Tan, like the present proceed-
ing, involved the treatment under the Act of undocumented aliens.
13 Local 1976, Carpenters v. NLRB (Sand Door & Plywood Co.),
357 U.S. 93, 111 (1958). Sand Door itself, by implication, admon-
ishes the Board not to ‘‘weaken the effectiveness of a statutory pro-
hibition,’’ which it viewed as ‘‘an abuse of discretion in giving a
remedy.’’ Id. But the Court in Sand Door also notes that it contains
no ‘‘suggestion that the Board should abandon an independent in-
quiry into the requirements of its own statute and mechanically ac-
cept standards elaborated by another agency under a different stat-
diluting union support in the bargaining unit. Further,
Benavides’ and Guzman’s rights as employees under
the Act would not be vindicated. In addition, the Gen-
eral Counsel asserts that the discriminatees are entitled
to backpay from the date of discharge until the earliest
of the following: their lawful reinstatement; their fail-
ure within a reasonable time to seek approval from the
INS to work; the INS’s rejection of their request for
permission to work; or the Union’s failure, within 14
days of a request by the Respondent, to refer an appli-
cant for hire. If the Union chooses to refer an appli-
cant, the General Counsel contends that backpay
should continue until the applicant is hired.
The Respondent argues that IRCA renders unauthor-
ized aliens legally ineligible to be employed in the
United States and that the Board therefore should not
treat them as employees within the coverage of the
Act. Thus, according to the Respondent, IRCA pre-
empts the Board’s authority to order reinstatement or
backpay for unauthorized aliens discharged from em-
ployment, even as a remedy for employer unfair labor
practices. Moreover, the Respondent contends that the
equities of the present case warrant denial of relief to
Benavides and Guzman, because, it alleges, they en-
tered the United States illegally and obtained employ-
ment using false social security cards. The Respondent
opposes the General Counsel’s position that, if
Benavides and Guzman are not eligible for lawful rein-
statement in compliance with IRCA, the Board should
order the Respondent to hire an applicant referred by
the Union, arguing that this remedy is a penalty be-
yond the authority of the Board.
In its amicus brief, the ILGWU agrees with the
General Counsel that the Board should order reinstate-
ment and backpay for Benavides and Guzman. The
ILGWU urges the Board, as a general policy, to order
reinstatement when appropriate without conditioning it
on the discriminatee’s proof of lawful status, but to
ask, as it does in other types of cases, whether the em-
ployee is available in fact for work rather than legally
eligible for employment. The employer would be free
at any time to raise the defense of ineligibility based
on immigration status. If the employer is successful
and the employee cannot be lawfully reinstated, the
ILGWU contends that the Board should fashion other
remedies, such as backpay until the employee obtains
work authorization and is lawfully reinstated or until
the employer establishes that the employee would have
been terminated for nondiscriminatory reasons. When
the discharge occurs in the environment of union orga-
nizing activities, the ILGWU asserts that the Board
should order extraordinary relief, which may include
such measures as a bargaining order, union access, or
reimbursement of union organizing expenses. In addi-
tion, the ILGWU maintains that the Board should
award backpay from the date of discharge until rein-
statement or until the Respondent provides a successful
defense to reinstatement. It urges the Board not to toll
backpay if a discriminatee has not been able to
produce adequate documentation of legal status within
a reasonable time, because employers may view a lim-
ited backpay award as a quite reasonable cost of union
avoidance. Thus, according to the ILGWU, only a con-
tinuing backpay obligation would deter employers
from repeatedly violating the Act with respect to un-
documented employees.
III. DISCUSSION
A. The Board’s Remedial Authority
Congress has vested the Board with broad authority
to remedy unfair labor practices. Section 10(c) of the
Act directs the Board, upon finding that an unfair labor
practice has been committed, to issue ‘‘an order requir-
ing such person to cease and desist from such unfair
labor practice, and to take such affirmative action in-
cluding reinstatement of employees with or without
back pay, as will effectuate the policies of [the] Act.’’
The Supreme Court has consistently recognized that
the Act addresses the expansive public policy goals of
maintaining and promoting industrial peace, and leaves
‘‘the adaptation of means to end to the empiric process
of administration.’’ Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 194 (1941). In Phelps Dodge, the Court fur-
ther states that ‘‘[t]he exercise of the process was com-
mitted to the Board . . . . [b]ecause the relation of
remedy to policy is peculiarly a matter for administra-
tive competence.’’ Id. (Emphasis added.)11 Indeed,
more recently, the Court has reaffirmed the Board’s
discretion in remedial matters in Sure-Tan v. NLRB,
467 U.S. 883 (1984), when it found that the Seventh
Circuit Court of Appeals had exceeded the limitations
of its review of a Board remedy by sua sponte modify-
ing it, rather than remanding the case to the Board.12
In exercising our broad authority to remedy viola-
tions of the Act, however, we are fully cognizant of
our obligation to consider with care Congressional
mandates in other areas of public policy. As the Court
pointed out in Southern Steamship v. NLRB, 316 U.S.
31 (1942), the Board may not ‘‘apply the policies of
its statute so single-mindedly as to ignore other equally
important Congressional objectives.’’13
411
A.P.R.A. FUEL OIL BUYERS GROUP
ute.’’ Id. at 111. We believe that our result here satisfies the obliga-
tion to view Federal policy as a broad spectrum, reflecting many
policies and purposes, rather than as a patchwork of unrelated and,
when viewed superficially, conflicting elements. The latter approach,
unfortunately, can result in the frustration of congressional purposes
if various statutory schemes are permitted to cancel each other out.
In fashioning our remedy with respect to Guzman and Benavides, we
have consciously sought not only to serve the congressional objec-
tives of our own statute, but to strengthen the underpinnings of Con-
gress’ policy choices in enacting IRCA.
14 Sure-Tan, Inc., 234 NLRB 1187 (1978).
15 NLRB v. Sure-Tan, Inc., 672 F.2d 592 (7th Cir. 1982).
16 Id. at 606.
17 Id.
18 Id.
19 424 U.S. 351, 356–357 (1976).
20 Sure-Tan, 467 U.S. at 892.
21 Id.
In our view, this case raises the issue whether the
language and legislative intent of IRCA conflict with
or override our statutory authority to remedy unfair
labor practices and to exercise our judicially recog-
nized discretion in determining what form such rem-
edies should take. With respect to the remedial issues
raised in the instant case, we find that Congress has
enacted both the NLRA and the statutes regulating im-
migration, specifically IRCA, to further virtually iden-
tical policy objectives with respect to the American
workplace. Furthermore, we find that Congress has ex-
pressly indicated that the policies underlying these stat-
utes reinforce each other. Thus, for the reasons below,
we believe that we can best achieve this mutuality of
purpose and effect by vigorously enforcing the NLRA,
including providing traditional Board remedies, with
respect to all employees, to the extent that such en-
forcement does not require or encourage unlawful con-
duct by either employers or individuals.
B. Sure-Tan
In Sure-Tan, the Supreme Court recognized the
intertwining of labor law protections and immigration
policy under IRCA’s predecessor, the Immigration and
Nationality Act (INA). The INA prohibited unlawful
entry into the United States but, unlike IRCA, did not
specifically prohibit employers from hiring persons
who had entered the country illegally. In Sure-Tan,
which arose under the INA, on the day after a union
victory at its facility, the employer requested an INS
investigation of its employees’ immigration status,
which resulted in the arrest and placement in custody
of five employees for living and working illegally in
the United States. Rather than face deportation, the
five employees left the United States that day. The
Board found that the employer had violated Section
8(a)(3) and (1) by calling in the INS because the em-
ployees had voted in a union.14 To remedy the viola-
tions, the Board ordered the employer to reinstate the
employees with backpay, leaving to compliance the
question whether they were in fact available for work
during the backpay period.
The Court of Appeals for the Seventh Circuit modi-
fied the Board’s remedy in several respects.15 It pro-
vided that the employees may be reinstated only if
they were ‘‘legally present and legally free to be em-
ployed’’ in the United States.16 The Seventh Circuit
also directed that the reinstatement offers remain open
for 4 years, a period it deemed a reasonable time for
the employees to arrange for legal reentry, and that the
employees be considered unavailable for work for the
purposes of computing backpay when they were not
‘‘lawfully entitled to be present and employed in the
United States.’’17 Recognizing that the latter conditions
might serve to deny backpay to the discriminatees, the
court ordered that the employer pay a minimum of 6
months’ backpay, because, in the court’s view, the em-
ployees could reasonably have remained employed for
such a period without apprehension by the INS had the
employer not caused them to lose their jobs.18
In reviewing the Seventh Circuit’s decision, the Su-
preme Court examined the complex and close connec-
tion between the flow of illegal immigrants into the
United States and the terms and conditions of employ-
ment in this country. The Court cited its decision in
De Canas v. Bica,19 in which it had found that ‘‘ac-
ceptance by illegal aliens of jobs on substandard terms
as to wages and working conditions can seriously de-
press wage scales and working conditions of citizens
and legally admitted aliens.’’20 The Sure-Tan Court
further found:
If undocumented alien employees were excluded
from participation in union activities and from
protections against employer intimidation, there
would be created a subclass of workers without a
comparable stake in the collective goals of their
legally resident co-workers, thereby eroding the
unity of all the employees and impeding effective
collective bargaining.21
The Court held, in agreement with the Board and the
Seventh Circuit, that the Act’s policies ‘‘fully support’’
the view that undocumented aliens are employees
under Section 2(3) of the Act, and that extending to
them the Act’s protections furthers the purposes of the
statute.
The Court also determined that applying the NLRA
to undocumented aliens presented no conflict with the
INA. Initially, the Court noted that the INA prohibited
neither the hiring of undocumented aliens nor the ac-
ceptance of employment by the aliens. Moreover, the
Court found that a key purpose of immigration restric-
tions is to preserve jobs for American workers. Cov-
erage of undocumented workers by the NLRA, the
Court reasoned, helps to ensure reasonable working
412
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Id. at 903. The Court found that even if these conditions de-
prived the employees of reinstatement and backpay, the violations
would still be remedied by the cease-and-desist order, which would
subject the employer to contempt sanctions for further violations.
23 Id. at 902 fn. 11. Similarly, the Court remanded for Board con-
sideration the determination that the reinstatement offers must re-
main open for 4 years. Id. at 905.
24 INS v. Lopez-Mendoza, 468 U.S. 1032, 1047 fn. 4 (1984) (em-
phasis added).
25 Felbro, 795 F.2d at 717. The Ninth Circuit relied on the Su-
preme Court’s statements that Board estimates of backpay had been
upheld in cases when the Board had applied ‘‘a reasonable formula
for determining the probable length of employment and compensa-
tion due and permitted the employer to come forward with evidence
mitigating liability.’’ Sure-Tan, 467 U.S. at 902–903 fn. 11. The
Court found that, in contrast, the Seventh Circuit had imposed a
minimum 6-month backpay period ‘‘without any evidence whatso-
ever as to the period of time these particular employees might have
continued working before apprehension by the INS.’’ Id.
26 Among the decisions cited by the court are Justrite Mfg. Co.,
238 NLRB 57, 65–68 (1978) (underage discriminatee); Local 57,
International Union of Operating Engineers, 108 NLRB 1225,
1227–1228 (1954) (engineer without valid state license); and Robin-
son Freight Lines, 129 NLRB 1040, 1042 (1960) (truck driver with-
out valid driver’s license).
conditions by decreasing competition from aliens will-
ing to accept substandard wages and employment con-
ditions. It also eliminates the distinct economic advan-
tage and thus the incentive to employers of hiring ille-
gal aliens in preference to American citizens or alien
employees working lawfully. A reduction in the avail-
ability of jobs to undocumented aliens, the Court
found, would in turn discourage many aliens from en-
tering the United States illegally.
The Court further agreed with the Board and the
Seventh Circuit that the employer there had violated
the Act by requesting the INS investigation in retalia-
tion for the employees’ union activities. The Court re-
versed the court of appeals, however, and remanded
the case to the Board with respect to the remedies,
noted above, as to which the court of appeals had re-
versed the Board. The Court held that the Seventh Cir-
cuit had exceeded its limited judicial review under the
Act and had ordered remedies outside the Board’s au-
thority by imposing a minimum backpay period. The
Court approved instead the Board’s approach of deter-
mining at compliance the employer’s exact backpay li-
ability.
In view of the employees’ departure from the United
States and in order to avoid a conflict with the INA’s
prohibition on illegal entry, the Court agreed with the
appeals court that reinstatement must be conditioned
on legal reentry, and that the employees must be con-
sidered unavailable for backpay purposes during peri-
ods when they were not ‘‘lawfully entitled to be
present and employed in the United States.’’22 Signifi-
cantly, the Court did not find that the employees’
original unlawful presence in the United States itself
foreclosed them from receiving backpay. In fact, in re-
versing the award of 6-month minimum backpay, the
Court criticized the approach, not because of the em-
ployees’ immigration status, but because of the lack of
evidence that the employer would have continued to
employ the illegal aliens for such a period before the
INS apprehended and deported them.23
In a case decided 10 days after Sure-Tan, the Su-
preme Court characterized its holding there as permit-
ting the imposition of retrospective sanctions under the
Act against an employer that commits an unfair labor
practice with respect to an undocumented alien, but not
entitling such aliens to prospective relief, ‘‘reinstate-
ment and continued employment,’’ while they remain
undocumented.24
Then 2 years after the Supreme Court’s decision in
Sure-Tan, the Ninth Circuit, in Local 512, Warehouse
& Office Workers’ Union v. NLRB (Felbro), 795 F.2d
705 (9th Cir. 1986), found that the Supreme Court had
not resolved the backpay eligibility of undocumented
aliens who, unlike the illegal entrants in Sure-Tan, re-
mained in the United States. In Felbro, the employer
had reinstated the undocumented discriminatees, leav-
ing for determination only their entitlement to backpay.
The Ninth Circuit found that Sure-Tan addressed—and
rejected on the separate grounds of speculativeness—
only the Seventh Circuit’s 6-month minimum backpay
period for aliens who had left the country. The Ninth
Circuit read Sure-Tan as implying that if the employ-
ees had been present in the United States, backpay
would have been available to them, because Sure-Tan
suggested that a backpay period may be based on the
time that the employees might have worked before
being apprehended by the INS.25 Moreover, the Ninth
Circuit pointed out that the Supreme Court did not
overrule a line of precedent conditioning backpay on
an employee’s availability in fact rather than on his
legal status. The court cited its own decision in NLRB
v. Apollo Tire Co., 604 F.2d 1180 (9th Cir. 1979), in
which six undocumented aliens were reinstated with
backpay, and numerous Board decisions in which
backpay was also ordered despite a legal disability,
such as the lack of a necessary license or failure to
meet the legal age requirements, that rendered the
discriminatorily discharged employee unable to work
legally.26
In Felbro, the Ninth Circuit concluded further that
awarding backpay to undocumented aliens who remain
in this country helps to achieve the purposes of the Act
by deterring unfair labor practices and removing the
economic advantages gained by employers that violate
the Act. Conversely, the court reasoned, conditioning
backpay for undocumented workers on the demonstra-
tion of lawful immigration status would, for all prac-
tical purposes, effectively deny backpay. The court fol-
lowed the rationale in Sure-Tan in reasoning that such
a policy would also penalize legal workers, because
413
A.P.R.A. FUEL OIL BUYERS GROUP
27 The Second Circuit agreed with this view of Sure-Tan in a pre-
IRCA case involving Title VII of the Civil Rights Act of 1964. Rios
v. Enterprise Association Steamfitters Local 638, 860 F.2d 1168
(1988) (undocumented aliens who remained in the United States held
eligible for backpay).
28 The court further stated in dicta that, in cases arising after the
enactment of IRCA, the statute’s prohibition against hiring undocu-
mented aliens would preclude backpay awards when such employees
are discriminatorily discharged.
29 976 F.2d at 1124 (Cudahy, J., dissenting).
30 8 U.S.C. Sec. 1324a(a).
31 8 U.S.C. Sec. 1324a(b).
32 H.R. Rep. No. 99-682 Part 1 at 46 (1986)(H.R. Rep.). See also
S. Rep. No. 99–132 at 1 (1986) (S. Rep.).
33 H.R. Rep. at 56.
employers would find it financially advantageous to
hire undocumented workers who could be denied nor-
mal labor safeguards. Moreover, whereas an award of
backpay in Sure-Tan would clearly have encouraged
the discriminatees to reenter the country, presumably
in violation of the INA, backpay in cases when the
employees were already present in the United States
would not promote illegal action on the part of the
discriminatees. Instead, granting backpay to discrim-
inatees regardless of their immigration status would
equalize an employer’s liability for its unlawful con-
duct toward undocumented workers with that toward
lawfully employed workers unquestionably entitled to
the full range of the Board’s remedies.27 Finally, the
Ninth Circuit noted that requiring employees to dem-
onstrate their legal status in order to qualify for back-
pay would put the Board in the position of resolving
this issue through compliance, a task clearly outside
the Board’s special expertise.
The Ninth Circuit’s approach was criticized by the
Seventh Circuit in Del Rey Tortilleria v. NLRB, 976
F.2d 1115 (1992). Like Felbro, Del Rey involved only
the backpay remedy available to undocumented dis-
criminatees who remained in the United States. The
Board had adopted the remedy recommended by the
administrative law judge, including backpay from the
date of discharge to the employees’ reinstatement, un-
less the employer could prove their illegal presence in
this country by means of a final INS deportation order.
In denying enforcement of the Board’s Order, the court
majority found that, because they failed to meet the lit-
eral language of Sure-Tan that employees must be
‘‘lawfully entitled to be present and employed in the
United States,’’ the discriminatees had not been
harmed in a legal sense and thus had no entitlement
to backpay. The Del Rey court held, therefore, that
even undocumented workers physically available for
work in the United States are ineligible for backpay.28
The court further held that it was the employee’s bur-
den to demonstrate legal immigrant status in order to
receive backpay, rather than the employer’s duty to
produce a deportation order to avoid backpay liability.
In a strong dissent, Judge Cudahy found that the
phrase ‘‘lawfully entitled to be present and employed
in the United States’’ was intended to address the spe-
cific circumstances in Sure-Tan, which he distin-
guished from those in Del Rey. Judge Cudahy noted
that he spoke with authority on this point, because he
had crafted the phrase in writing for the Seventh Cir-
cuit majority in Sure-Tan. In Judge Cudahy’s view,
once an individual had crossed the border into the
United States, his acceptance of employment or an em-
ployer’s providing employment to him did not con-
stitute a further legal offense. Pointing out that the Su-
preme Court rejected the backpay remedy in Sure-Tan
on the grounds that the 6-month minimum period was
speculative rather than prohibited, Judge Cudahy dis-
tinguished between ‘‘having to break the law to reach
the workplace and lacking a formal entitlement to
work.’’29 He also found that the backpay remedy in
cases such as Del Rey, like other cases involving legal
obstacles to employment, is strictly remedial in that it
gives back to the discriminatees what they would have
earned in the absence of the unfair labor practice.
Moreover, in compliance with the framework set out
by the Supreme Court in Lopez-Mendoza, he character-
ized backpay, as opposed to reinstatement, as a stand-
ard retrospective remedy.
C. IRCA: Legislative Purpose and Applicable
Provisions
In undertaking to reform Federal immigration law
by enacting IRCA in 1986, Congress clearly recog-
nized, as had the Supreme Court in Sure-Tan, the
unseverable connection between the flow of illegal im-
migrants, the availability of jobs for them in the
United States, and the working conditions of American
and alien employees. IRCA for the first time estab-
lished sanctions for employer conduct, prohibiting em-
ployers from knowingly hiring or continuing to employ
undocumented aliens.30 To meet its IRCA obligations,
an employer must examine the documents prescribed
by the statute and required to be presented by each
newly hired employee to verify his/her identity and eli-
gibility to work, and must attest that it has examined
the documents and that they appear to be genuine and
to relate to that employee.31
IRCA’s legislative history demonstrates that Con-
gress decided to require employers to close the work-
place door to illegal immigrants because ‘‘employment
is the magnet that attracts aliens here illegally.’’32
Through imposing civil and, in extraordinary cases,
criminal penalties on employers that knowingly em-
ploy undocumented workers, Congress intended to dis-
courage employers from hiring undocumented aliens
and thereby to gain control of the flow of illegal work-
ers into this country.33 Both houses of Congress ex-
plicitly noted that the hiring of undocumented workers
414
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 S. Rep. at 5; H.R. Rep. at 47.
35 H.R. Rep. at 58.
36 H.R. Rep. at 56.
adversely affects American employees because alien
workers, out of desperation, will work in substandard
conditions and for starvation wages. Particularly af-
fected, Congress found, are low-income and low-
skilled Americans, including many members of minor-
ity groups, who compete most directly with undocu-
mented aliens for jobs.34
Consistent with its objective to deter the employ-
ment of undocumented aliens in preference to Amer-
ican and other documented workers, Congress ex-
pressly approved the view of the Supreme Court in
Sure-Tan that undocumented workers are entitled to
established labor protections, and that any other policy
would put such workers even more at the mercy of
their employers and thus increase the unfair economic
advantages gained from hiring them. The House Com-
mittee Report stated:
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 protec-
tions in existing law, or to limit the powers of
federal or state labor relations boards, labor stand-
ards agencies, or labor arbitrators to remedy un-
fair practices committed against undocumented
employees for exercising their rights before such
agencies or for engaging in activities protected by
existing law. In particular, the employer sanctions
provisions are not intended to limit in any way
the scope of the term ‘‘employee’’ in Section 2(3)
of the National Labor Relations Act (NLRA), as
amended, or of the rights and protections stated in
Sections 7 and 8 of that Act. As the Supreme
Court observed in Sure-Tan, Inc. v. NLRB, 467
U.S. 883 (1984) application of the NLRA ‘‘helps
to assure that the wages and employment condi-
tions of lawful residents are not adversely affected
by the competition of illegal alien employees who
are not subject to the standard terms of employ-
ment.’’ 467 U.S. at 893.35
This unequivocal statement indicates clearly that Con-
gress believed that providing the aliens, once they are
hired, the same protections, most prominently those
provided under the National Labor Relations Act, af-
forded to American employees was the most effective
means of eliminating the economic incentives for em-
ployers to hire undocumented aliens. We note espe-
cially that the House Report explicitly disclaims any
limitation on the power to remedy employers’ avoid-
ance of workplace protections.
D. Conclusions
The legislative history of IRCA provides the Board
with explicit guidance in our endeavor to fulfill our
own mandate under the NLRA without impeding con-
gressional intent as expressed in other statutes. Con-
gress clearly directed the Board to persist in applying
the protections and remedies of the Act to employees,
including those hired despite their lack of authorization
to enter the United States or to work here. As the
House Report emphasized, ‘‘as long as job opportuni-
ties are available to undocumented aliens, the intense
pressure to surreptitiously enter this country or violate
status once admitted as a nonimmigrant in order to ob-
tain employment will continue.’’36
As recognized by Congress and the Supreme Court
in Sure-Tan, the appeal of undocumented workers to
employers is that aliens will often accept wages and
conditions of employment considered unconscionable
in this country. A ready supply of individuals willing
to work for substandard wages in unsafe workplaces,
with unregulated hours and no rights of redress, en-
ables the unscrupulous employers that depend on ille-
gal aliens to turn away Americans and legally working
alien applicants who hesitate to accept the same condi-
tions. In addition, the continuous threat of replacement
with powerless and desperate undocumented workers
would certainly chill the American and authorized
alien workers’ exercise of their Section 7 rights. We
recognize, as have both Congress and the Supreme
Court, that this chain of events wreaks havoc with
Federal policies concerning both labor and immigra-
tion. Granting unlawful aliens full redress for viola-
tions of their Section 7 rights, then, should act as a de-
terrent to such unprincipled and opportunistic employ-
ers, and level the competitive playing field between
them and the vast majority of employers in the United
States that recognize and respect the rights of their em-
ployees and that carefully follow the procedures IRCA
requires.
Moreover, if full remedies are not granted, the ille-
gitimate economic advantage to unscrupulous employ-
ers that knowingly employ undocumented workers has
an even deeper corrosive effect on congressional poli-
cies respecting the workplace; undocumented aliens are
extremely reluctant to complain to the employer or to
any of the agencies charged with enforcing workplace
standards for fear that they will lose their jobs or risk
detection and ultimately deportation by the INS. Thus,
workplace abuses can occur in secret and with relative
impunity.
This case and other cases discussed above dem-
onstrate the harsh realities on which workers’ fears are
based. Here, as part of an unprincipled effort to stave
off the union representation its employees sought, the
Respondent aimed several serious unfair labor prac-
tices at Benavides and Guzman, including interroga-
tions and a threat that the Respondent would shut
down and that Guzman could go back to his country,
415
A.P.R.A. FUEL OIL BUYERS GROUP
37 See also Apollo Tire, supra (undocumented aliens laid off for
complaining about the nonpayment of overtime).
38 It is not difficult to envision a scenario in which, whenever em-
ployees exhibit interest in a union, the employer discharges them, se-
cure in the knowledge that the Board can generally do no more than
require it to cease and desist and post a notice. Such an outcome
would be especially unfortunate in this case, in which the Respond-
ent colluded with the aliens in facilitating their unlawful employ-
ment.
39 We are imposing this condition because the Respondent knew
at the time of their hire that Benavides and Guzman were ineligible
for employment. In the ordinary case, when the IRCA requirements
have been met, there may be no need for this additional condition.
Employers, of course, will be entitled to raise questions with respect
to the continued eligibility of individuals for employment. These
issues, however, can only be raised under conditions that comply
with the provisions of IRCA.
40 424 U.S. at 359.
41 This remedy is also fully consistent with the Supreme Court’s
statement in Lopez-Mendoza, supra, that an employee is not entitled
to prospective relief, including reinstatement, ‘‘while he maintains
the status of an illegal alien.’’ 468 U.S. at 1047–1048 fn. 4.
directed at pressuring Benavides and Guzman to with-
draw their support for the Union. Finally, the Respond-
ent exercised the ultimate weapon against them: it dis-
charged them when they withstood its coercion. Simi-
larly, in Sure-Tan, the employer requested an inves-
tigation of its employees by the INS 1 day after the
union won the election.37
Under IRCA, some employers may hesitate to risk
liability by raising the unlawful immigration status of
their discharged employees in retaliation for protected
activities. Other employers, however, may consider the
penalties of IRCA a reasonable expense more than off-
set by the savings of employing undocumented work-
ers or the perceived benefits of union avoidance. Pre-
serving employees’ rights to organize for collective
bargaining, on the other hand, induces employers to
maintain reasonable standards and conditions in the
workplace.
Despite the obvious congressional intent that IRCA
and the NLRA operate in tandem, the practical imple-
mentation of this objective requires that the Board
make policy choices. After considering the many com-
plexities 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 incen-
tives for some unscrupulous employers to play the pro-
visions of the NLRA and IRCA against each other to
defeat the fundamental objectives of each, while profit-
ing from their own wrongdoing with relative impunity.
Thus, these employers would be free to flout their ob-
ligations under the Act, secure in the knowledge that
the Board would be powerless fully to remedy their
violations.38
For this reason, we shall order the Respondent to
offer reinstatement to Benavides and Guzman. We
shall, however, condition the Respondent’s obligation
to reinstate them on their satisfaction of the normal
verification of eligibility requirements prescribed by
IRCA.39 This approach is consistent with the Supreme
Court’s admonition in Sure-Tan that the Board may
not order remedies that entail conduct in violation of
immigration statutes.
We note further that the present case is distinguish-
able from Sure-Tan in several important respects that
render a different outcome appropriate. We agree with
the view of the Ninth Circuit in Felbro that the Sure-
Tan Court was particularly concerned that the employ-
ees in that case, having voluntarily left the United
States, were unavailable for reinstatement and their re-
entry into the country would constitute a violation of
the INA. The Court was not required to deal with the
implications of reestablishing the employment relation-
ship between Sure-Tan and the discriminatees, not only
because the employees were physically unavailable,
but also because the INA did not prohibit the employ-
ment of undocumented aliens. As noted by the Su-
preme Court in De Canas v. Bica, above, the INA in-
volved only the terms of admission into the country.40
In the present case, the unlawfully discharged em-
ployees may well have remained in the United States
and may be available to resume employment. In ac-
cordance with IRCA, however, the Respondent may
not knowingly employ an undocumented alien. Thus,
we temper our traditional reinstatement remedy so that
IRCA’s provisions are satisfied. Accordingly, the Re-
spondent is ordered to offer discriminatees Benavides
and Guzman reinstatement, provided that they present,
within a reasonable time, INS Form I–9 and the appro-
priate supporting documents, in order to allow the Re-
spondent to meet its obligations under IRCA.
Such conditional remedies have been used in other
cases when reinstatement would require removal of a
legal disability. For example, in NLRB v. Future
Ambulette, Inc., 903 F.2d 140, 145 (2d Cir. 1990), the
Second Circuit modified the Board’s remedy to condi-
tion the reinstatement of a driver whose license had
been suspended on his presentation of a valid driver’s
license within a reasonable period of time. Particularly
in light of the fact that legal immigrant status is much
more difficult to obtain than the driver’s license at
issue in Future Ambulette, we find that a conditional
remedy strikes a balance between the policies underly-
ing our normal reinstatement remedy and the practical
circumstances of this case. A conditional remedy also
permits us to approximate as nearly as possible the
Board’s traditional reinstatement remedy without pro-
moting unlawful action under IRCA.41
In addition, we continue to believe that awarding
backpay to Benavides and Guzman effectuates the
416
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 Sure-Tan, 467 U.S. at 903.
43 Contrary to Member Cohen’s reliance on Del Rey, we agree
with the reasoning of the Ninth Circuit in Felbro that backpay may
be awarded despite a discriminatee’s legal disability, and that failure
to order such a remedy in cases such as this provides employers an
incentive to disregard their obligations under Federal labor and im-
migration laws.
44 Under established Board law, ‘‘if an employer satisfies its bur-
den of establishing that the discriminatee engaged in unprotected
conduct for which the employer would have discharged any em-
ployee, reinstatement is not ordered and backpay is terminated on
the date the employer first acquired knowledge of the misconduct.’’
Marshall Durbin Poultry Co., 310 NLRB 68, 70 (1993) (citing, inter
alia, John Cuneo, 298 NLRB 856, 856–857 (1990)), affd. in part 39
F.3d 1312 (5th Cir. 1994). In this case, however, in view of the Re-
spondent’s knowledge of the employees’ unauthorized immigration
status at the time of their initial employment, the Respondent is pre-
cluded from alleging that it would have terminated them on this
basis.
45 Chairman Gould believes that the Board does not have the au-
thority in the circumstances of this case to grant the additional rem-
edy urged by Member Browning. See NLRB v. Seven-Up Bottling
Co., 344 U.S. 244 (1953); Phelps Dodge Corp. v. NLRB, 313 U.S.
177 (1941); Consolidated Edison Co. of New York v. NLRB, 305
U.S. 197, 235–236 (1938).
Member Cohen believes that the Board lacks the power to order
an employer to hire an employee (other than a discriminatee) whom
the employer, for nondiscriminatory reasons, does not wish to hire.
In addition, even assuming arguendo that the Board has that power,
Member Cohen believes that the exercise of such power would be
unnecessary and inappropriate in this case.
46 Transmarine Navigation Corp., 170 NLRB 389 (1968).
policies of the Act. Backpay under the circumstances
of this case provides a measure of compensatory relief
for the Respondent’s unlawful discharges without re-
quiring the reestablishment of an employment relation-
ship in contravention of the policies of IRCA. The
Board found in its previous decision that Benavides
and Guzman informed the Respondent of their unau-
thorized immigration status when they were inter-
viewed and that their discharges were the result not of
that status but rather of their support for the Union.
Therefore, we conclude that these employees would
have retained their jobs with the Respondent but for
their union activities and the Respondent’s unlawful
retaliation for them.
In Sure-Tan, the Supreme Court did not foreclose
the possibility of backpay for unlawfully discharged
undocumented aliens. Rather, the Court criticized the
Seventh Circuit for selecting a 6-month minimum
backpay period without an evidentiary basis, and found
that the employees there, who had left the country,
were to be deemed unavailable for backpay during any
period when they were not ‘‘lawfully entitled to be
present and employed in the United States.’’42 Unlike
Sure-Tan, however, in which the Court sought to avoid
sponsoring a violation of the INA by encouraging the
employees to reenter the country illegally, the award of
backpay in this case, in which the employees may re-
main in the United States, does not promote illegal re-
entry. Nor does the backpay, as limited by this deci-
sion, induce the Respondent to illegally rehire the
discriminatees in order to terminate its backpay liabil-
ity. Instead, the backpay remedy serves to place the
employees for a limited time in the position that they
would have been but for the Respondent’s unlawful
conduct.43
With these purposes in mind, we shall order that the
Respondent pay the employees backpay from the dates
of their discharges to the earliest of the following: their
reinstatement by the Respondent, subject to compliance
with the Respondent’s normal obligations under IRCA,
or their failure after a reasonable time to produce the
documents enabling the Respondent to meet its obliga-
tions under IRCA to verify their eligibility for employ-
ment in the United States.44
We deny the additional remedy requested by the
General Counsel, i.e., ordering the Respondent to hire
applicants referred by the Union to replace Benavides
and Guzman in the event that they are unable to be eli-
gible for reinstatement. Although, as Member Brown-
ing points out, the remedies available in the absence
of reinstatement may be an imperfect means of dem-
onstrating to employees the vindication of the
discriminatees’ rights and restoring the Union to its
prior level of employee support, we nonetheless con-
clude that they are sufficient under the circumstances
of this case.45
Contrary to Member Browning’s view, we do not
find the present situation analogous to the cir-
cumstances
in
which
the
Board’s
established
Transmarine46 remedy is applied. The Transmarine
remedy is directed at a situation involving a direct and
unlawful refusal to bargain, not a discriminatory dis-
charge. It is ordered where an employer has violated
Section 8(a)(5) by failing to notify and bargain with
the union as the representative of its employees before
closing its facility. In that context, the Transmarine
construct is meant to ensure that the union has some
leverage for meaningful bargaining even though the fa-
cility has been closed and the employees terminated. In
contrast to the virtually complete vitiation of the
union’s ability to bargain on behalf of a unit when no
employees are currently working that characterizes
Transmarine cases, the present case entails only a
speculative loss of union strength resulting from the
Respondent’s discharge of two individual employees in
violation of Section 8(a)(3). Although we recognize
that the Respondent’s unlawful discharges have some
implications for the remaining employees and the
Union, we find that the rationale supporting the
Transmarine remedy does not support the proposed ad-
ditional remedy.
ORDER
The National Labor Relations Board orders that the
Respondent, A.P.R.A. Fuel Oil Buyers Group, Inc.,
417
A.P.R.A. FUEL OIL BUYERS GROUP
47 If this 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 to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Prudential Transportation, Inc., and Amer-National
Heating Service, Inc., Brooklyn, New York, its offi-
cers, agents, successors, and assigns, shall take the fol-
lowing affirmative action necessary to effectuate the
policies of the Act.
(a) Offer Victor Benavides and Alberto Guzman im-
mediate and full reinstatement to their former positions
of employment or, if these positions no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, provided that they complete, within a
reasonable time, INS Form I–9, including the presen-
tation of the appropriate documents, in order to allow
the Respondent to meet its obligations under the Immi-
gration Reform and Control Act of 1986, and make
Victor Benavides and Alberto Guzman whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set
forth in this decision. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
(b) Remove from its files any reference to the dis-
charges of Victor Benavides and Alberto Guzman, and
notify these employees in writing that this has been
done and that the evidence of this unlawful activity
will not be used as a basis for future personnel action
against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at it facility in Brooklyn, New York, copies
of the attached notice marked ‘‘Appendix.’’47 Copies
of the notice on forms provided by the Regional Direc-
tor for Region 29, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER BROWNING, dissenting in part.
I agree with Chairman Gould and Member
Truesdale that the Respondent should be ordered to
offer discriminatees Benavides and Guzman condi-
tional reinstatement, but I disagree with one of the lim-
itations my colleagues place on the discriminatees’
backpay. In addition, because I believe that reinstate-
ment and backpay remedies are insufficient under the
circumstances of the instant case to restore fully the
status quo ante, I dissent from my colleagues’ failure
to order the additional remedy set forth below.
I.
The plurality tolls backpay as of the date the
discriminatees are lawfully reinstated or ‘‘when, after
a reasonable period of time, they are unable to produce
the documents enabling the Respondent to meet its ob-
ligations under IRCA.’’ The latter limitation on back-
pay is not consistent with the position of the General
Counsel. As stated in his supplemental brief concern-
ing remedy, it is the General Counsel’s position that
if, within a reasonable period of time, a discriminatee
seeks the permission of the INS to work, backpay
should at least continue until the INS acts on the
discriminatee’s request.
I agree with the General Counsel. In cases when un-
documented discriminatees timely apply to INS for
permission to work, backpay should continue until the
INS acts on the employees’ request. The plurality deci-
sion allows for the possibility that backpay may lapse
during the application process, even if the INS ulti-
mately grants the discriminatee permission to work.
Such a result is not only inequitable, but also it is in-
consistent with the plurality’s own findings that the
discriminatees ‘‘would have retained their jobs with
the Respondent but for their union activities’’ and that
the discriminatees are entitled to ‘‘full redress for [the]
violations of their Section 7 rights’’ so long as the
Board does not require ‘‘the reestablishment of an em-
ployment relationship in contravention of the policies
of IRCA.’’ To the extent there are uncertainties and
ambiguities, it is a well-established remedial principle
that ‘‘the backpay claimant should receive the benefit
of any doubt rather than the Respondent, the wrong-
doer responsible for the existence of any uncertainty
and against whom any uncertainty must be resolved.’’
United Aircraft Corp., 204 NLRB 1068 (1973). Ac-
cordingly, I dissent from the plurality’s unwarranted
limitation on the employees’ backpay.
II.
In his supplemental brief concerning remedy, the
General Counsel submits that in the event that
Benavides and Guzman are unable to become eligible
for reinstatement, the Respondent should be required to
hire applicants referred by the Union in place of the
418
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel states that there is a ‘‘substantial prob-
ability’’ that Guzman and Benavides will be unable to become eligi-
ble for lawful reinstatement in view of their status as undocumented
aliens.
2 I would limit the Union’s right to refer applicants to situations
when vacancies actually exist (i.e., I would not require the Respond-
ent to displace employees currently working by union-referred appli-
cants). I would further require that the union-referred applicants be
otherwise qualified for the position.
Contrary to the Respondent’s contention, there is little to be
gained by engaging in a semantic ‘‘debate about what is ‘remedial’
and what is ‘punitive.’ It seems more profitable to stick closely to
the direction of the Act by considering what order does . . . and
what order does not, bear appropriate relation to the policies of the
Act.’’ NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 348 (1953).
As discussed infra, because the General Counsel’s referral remedy
bears a close ‘‘relation to the policies of the Act,’’ it falls within
the Board’s remedial authority under Seven-Up Bottling Co.
3 Transmarine Navigation Corp., 170 NLRB 389 (1968).
4 Id. at 390.
5 O. L. Willis, Inc., 278 NLRB 203, 205 (1986).
6 In its original decision, the Board characterized the Respondent’s
unfair labor practices as ‘‘flagrant,’’ ‘‘numerous,’’ and ‘‘pervasive.’’
Further, the Board stated: ‘‘[M]ost of the misconduct in this case
discriminatees.1 The General Counsel’s position is that
the Union’s right to refer applicants would be triggered
by: (1) the discriminatee’s failure, within a reasonable
period of time, to seek the permission of the INS to
work; or (2) the INS’s rejection of the discriminatee’s
request for permission to work.
For the following reasons, I agree with the General
Counsel that such a remedy is appropriate under the
circumstances of the instant case. I begin with the
proposition relied upon by my colleagues that the
Board has ‘‘broad discretionary’’ authority to fashion
appropriate remedies that will best effectuate the poli-
cies of the Act. NLRB v. J. H. Rutter-Rex Mfg. Co.,
396 U.S. 258, 262–263 (1969). The Board’s remedies
should, to the extent possible, restore the parties to the
status quo ante by providing redress for all of the harm
done by the Respondent. Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 194 (1941).
In order to determine the status quo ante and the ex-
tent of harm done by the Respondent, we must look
to the situation as it existed before Benavides and
Guzman were unlawfully discharged. The employees
were engaged in a successful organizing drive and
Benavides and Guzman were union supporters. By un-
lawfully discharging Benavides and Guzman, the Re-
spondent not only harmed Benavides and Guzman, but
also chilled other unit employees in the exercise of
their Section 7 right to engage in union activity. In ad-
dition, the unlawful removal from the unit of two
union supporters diluted the Union’s strength and con-
sequently had a detrimental effect on the Section 7
right of the employees remaining in the unit ‘‘to bar-
gain collectively through representatives of their own
choosing.’’
In the usual Board case, the adverse effects of dis-
criminatory discharges on the Section 7 rights of other
unit employees tend to be remedied by the traditional
Board Order of reinstatement with backpay. The very
presence of the discriminatee at his old job reassures
others that the law protects their right to engage in
union activity and that, if their rights are infringed, the
Board is able to come to their aid. In addition, by re-
turning a union adherent to the plant, the reinstatement
remedy restores the Union’s support among bargaining
unit employees.
By contrast, in this case, when the discriminatees are
not likely to be lawfully reinstated, the remedies or-
dered by my colleagues are simply insufficient to rem-
edy the harm done to the Section 7 rights of the re-
maining employees in the unit. In order to restore ade-
quately the status quo ante and remedy the effects of
the unlawful conduct on the remaining unit employees,
in the event these two discriminatees cannot be law-
fully reinstated, I agree with the General Counsel that
their positions should be filled by other employees re-
ferred by the Union. In my view, such a remedy is not
punitive and would not adversely impact on the Re-
spondent’s ability to manage its work force.2 Rather,
it effectuates two important policies of the Act: ensur-
ing meaningful bargaining and protecting employee ex-
ercise of the rights guaranteed by Section 7.
Although this remedy is novel, it is supported by
analogy to the Transmarine3 remedy the Board pro-
vides for a violation of the statutory obligation to bar-
gain over the effects of a decision to cease operation.
That remedy ‘‘is designed both to make whole the em-
ployees for losses suffered as a result of the violation
and to recreate in some practicable manner a situation
in which the parties’ bargaining position is not entirely
devoid of economic consequences for the Respond-
ent.’’4 The Board subsequently stated that restoring the
union’s bargaining strength is the more important ob-
jective.5
I believe that in the instant case, the remedy advo-
cated by the General Counsel can best ‘‘recreate in
some practicable manner’’ the situation that existed
prior to the Respondent’s unlawful conduct. Here, the
unlawful discharge of Benavides and Guzman has had
a direct impact on the unit employees’ exercise of their
Section 7 rights to engage in union activity and to bar-
gain collectively through representatives of their own
choosing. Because of the likelihood that Benavides and
Guzman will not be able to return to the unit, a condi-
tional reinstatement remedy alone will not, in my
view, serve to ‘‘undo the effects of [the] violations of
the Act.’’ Seven-Up Bottling Co., supra, 344 U.S. at
346. The loss of two union adherents could be dev-
astating in the circumstances of this case in which the
unit consists of only 19 employees and the Union will
be attempting to negotiate an initial contract with an
employer harboring a virulent antiunion animus.6 Al-
419
A.P.R.A. FUEL OIL BUYERS GROUP
was committed by the Respondent’s highest officials, who are still
in charge of the Respondent’s operations, and the breadth of their
unfair labor practices shows that the Respondent, through these offi-
cials, is deeply committed to opposing the Union without regard to
the lawfulness of its means and is not likely to retreat from that
strategy.’’ A.P.R.A. Fuel Oil, 309 NLRB 480, 481 (1992), enfd. 28
F.3d 103 (2d Cir. 1994).
1 My colleagues spend a considerable amount of time speaking of
the evils of the unlawful conduct involved herein. I agree that the
conduct is forbidden and must be stopped. As noted, however, the
cease-and-desist order does precisely that. It is enforceable by court
decree and by contempt sanctions. The issue is whether it is nec-
essary and appropriate to use backpay as a further discouragement
of unlawful activity. I conclude that it is not. Backpay is a remedial
measure to compensate victims. It is not a punitive sanction to deter
future misconduct. Further, as discussed supra, such backpay is in-
consistent with principles and policies of immigration law.
lowing the Union to refer applicants in lieu of
Benavides and Guzman will effectively restore some
of the union support lost as a result of the Respond-
ent’s misconduct and will provide some way to remedy
the chilling effect on unit employees’ exercise of their
Section 7 rights. Accordingly, because I believe that
the General Counsel’s requested union referral remedy
would best effectuate the policies of the Act, I dissent
from my colleagues’ failure to grant it.
MEMBER COHEN, dissenting in part.
I agree with my colleagues’ conditional reinstate-
ment of discriminatees Benavides and Guzman, who
are undocumented aliens. I dissent, however, with re-
spect to awarding them backpay. In my view, it would
be inappropriate to award backpay to Benavidez and
Guzman for periods when they cannot establish their
legal eligibility to work.
In Del Rey, supra, the court agreed with the view
expressed in Judge Beezer’s partial dissent in Local
512, supra, that
[A]n undocumented alien has not been legally
harmed by a lay-off or termination. An alien who
had no right to be present in this country at all,
and consequently had no right to employment, has
not been harmed in a legal sense by the depriva-
tion of employment to which he had no entitle-
ment. It may promote the purpose of the NLRA
to guarantee the collective bargaining rights of the
NLRA to every employee, regardless of immi-
grant status. But the award provisions of the
NLRA are remedial, not punitive, in nature, and
thus should be awarded only to those individuals
who have suffered harm.
The Del Rey court, applying the Supreme Court’s
decision in Sure-Tan, supra, went on to hold that the
Del Rey discriminatees could not receive backpay for
any period when they were not lawfully entitled to be
present and employed in the United States. Id. at 1121.
The court further held that the Immigration Reform
and Control Act of 1986, which makes it unlawful for
an employer to hire an undocumented alien, clearly
bars the Board from awarding backpay to undocu-
mented aliens who are unlawfully discharged after its
enactment, id. at 1122, and that aliens seeking backpay
under the NLRA have the burden of coming forward
with documents establishing their lawful entitlement to
be present in the United States. Id. at 1122–1123.
In Sure-Tan, the Supreme Court noted that the
Board, in devising remedies for unfair labor practices,
is obliged to take into account the equally important
Congressional objective of deterring unauthorized im-
migration. Sure-Tan, supra, at 903. In computing back-
pay, the Court stated, employees must be deemed un-
available for work (and the accrual of backpay there-
fore tolled) during any period when they were not law-
fully entitled to be present and employed in the United
States. Id. The Court stated that it shared ‘‘the Court
of Appeals’ uncertainty concerning whether any of the
discharged employees will be able . . . to establish at
the compliance proceedings that they were lawfully
available for employment during the backpay period.’’
Id. at 904. Nevertheless, the Court said, any perceived
deficiencies in the NLRA’s existing remedial arsenal
can be addressed only by Congressional action. Id.
Disagreeing with Justice Brennan’s view that the
discriminatees were effectively deprived of any rem-
edy, the Court noted that its decision left intact the
cease-and-desist order imposed by the Board and that
if the employer were to engage in similar illegal con-
duct, it would be subject to contempt proceedings and
penalties, which would be significant deterrents to fu-
ture violations. Id.1
In
my
view,
it
is
immaterial
whether
the
discriminatees had left the country. They had done so
in Sure-Tan, but not in Del Rey. The result was the
same, i.e., no backpay for periods when the
discriminatees were not lawfully entitled to work.
Thus, the policy arguments marshaled by the majority
are simply beside the point. Benavides and Guzman
were unavailable for work as a matter of law during
any period when they were not lawfully entitled to be
present and employed in the United States.
My colleagues’ award of backpay is inconsistent
with their limitations on reinstatement. They correctly
say that reinstatement is to be conditioned on the em-
ployee’s demonstration of eligibility for lawful em-
ployment. Phrased differently, there is to be no rein-
statement unless and until such eligibility is estab-
lished. My colleagues, however, nonetheless award
backpay for periods when the employee has not dem-
onstrated such eligibility. This position is directly con-
trary to backpay principles. Under established prin-
ciples, backpay is awarded for periods when lawful
employment is available for the discriminatee, and
420
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 My colleagues limit this period to a ‘‘reasonable period of time.’’
However, this does not cure the problem. During that ‘‘reasonable
period,’’ the discriminatee is, at best, seeking documented status but
has not secured it. At worst, the discriminatee is doing nothing to
acquire documented status.
such employment is being withheld. In the instant case,
my colleagues award backpay for periods when lawful
employment for the discriminatee is not available, i.e.,
for periods when the discriminatee lacks certification
or other permission to work.2
Finally, my colleagues rely on a House Committee
Report for the proposition that IRCA was not intended
to limit the remedial powers of the NLRB. Although
there is generalized language that may support this
view, the particularized language does not do so. In
this regard, I note that the Report says:
In particular, the employer sanctions provisions
are not intended to limit in any way the scope of
the term ‘‘employee’’ in Section 2(3) of the Na-
tional Labor Relations Act (NLRA), as amended,
or of the rights and protections stated in Sections
7 and 8 of the Act.
Thus, the particularized language of the Report sim-
ply says that the Sure-Tan principle (undocumented
aliens are employees) continues to apply.
In sum, applying the principles of Del Rey and Sure-
Tan to the facts of this case, I would not award back-
pay to Benavides and Guzman for any period when
they were not lawfully entitled to be present and em-
ployed in the United States, and I would place the bur-
den of coming forward with documents establishing
any such entitlement on the General Counsel.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE
WILL
offer Victor Benavides and Alberto
Guzman immediate and full reinstatement to their
former positions of employment or, if these positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, provided that they
complete, within a reasonable time, INS Form I–9, in-
cluding the presentation of the appropriate documents,
in order to allow us to meet our obligations under the
Immigration Reform and Control Act of 1986. WE
WILL make Victor Benavides and Alberto Guzman
whole for any loss of earnings and other benefits they
suffered as a result of the discrimination against them
in the manner set forth in the Board’s Supplemental
Decision.
WE WILL remove from our files any reference to the
discharges of Benavides and Guzman, and will notify
them, in writing, that this has been done and that evi-
dence of this unlawful action will not be used as a
basis for future personnel action against them.
A.P.R.A. FUEL OIL BUYERS GROUP,
INC.,
PRUDENTIAL
TRANSPORTATION,
INC., AND AMER-NATIONAL HEATING
SERVICE, INC.