Sure-Tan, Inc. And Surak Leather Co.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sure-Tan, Inc. and Surak Leather Co. and Chicago Leather Workers Union, Local 43L, United Food and Commercial Workers International Union, AFL-CIO. Cases 13-CA-16117 and 13- CA-16229 12 November 1985 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON The Supreme Court' has upheld the Board's findings,2 enforced by the Court of Appeals,3 that the Respondent violated Section 8(a)(3) of the Act by constructively discharging its undocumented alien employees through reporting them to the Im- migration and Naturalization Service in retaliation for participating in union activities. However, the Court held that the court of appeals exceeded its reviewing authority by modifying several aspects of the Board's remedial Order. The Court reversed the judgment of the court of appeals in part and re- manded the proceeding to the court of appeals with instructions to remand it to the Board for for- mulation of an appropriate remedial order consist- ent with the Court's opinion. Pursuant to this latter remand the Board advised the parties that they could file statements of position. Both the General Counsel and the Respondent filed such statements and we have duly considered them. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. In the Board's original Order with respect to the 8(a)(3) discharges we entered a cease-and-desist order and the conventional remedy of reinstate- ment with backpay. The Board held that a compli- ance proceeding was the appropriate forum for re- solving issues relating to the discriminatees' avail- ability for work and entitlement to backpay.4 The Seventh Circuit enforced the Board's Order with several modifications. The first conditioned acceptance of a reinstatement offer and the accrual of backpay on an individual discriminatee's lawful presence in the United States. Consistent with this requirement the court modified the Board's Order to make clear that backpay is tolled during any period a discriminatee is not lawfully present and entitled to be employed in the United States and the court indicated that backpay need not be 1 Sure-Tan, Inc. v NLRB, 104 S.Ct 2803 ( 1984). 2 234 NLRB 1187 (1978) 3 672 F 2d 592 (7th Cir 1982) 4 See 246 NLRB 788 (1979), in which the Board affirmed its original Order and denied the General Counsel 's motion for clarification directed solely at the remedy. placed in escrow for more than 1 year. The court further expanded the Board's Order to require that the offers of reinstatement to the Mexican nationals be written in Spanish, be delivered in a verifiable fashion, and be held open for 4 years in order to afford the discriminatees a reasonable time to obtain lawful entry and working papers. The court also decided that the Board should set a minimum amount of backpay that the Company must pay in any event and suggested an amount equal to 6 months' backpay. The Board agreed with all the court's modifications, specifically accepting this latter suggestion, and our final Order approved by the court included this provision. The Respondent challenged before the Supreme Court only those portions of the court's final order which provided for 6 months' backpay and which detailed the language, acceptance period, and veri- fication method of the reinstatement offers. The Court held that the court of appeals exceeded both its reviewing authority and the limits imposed by Section 10(c) of the Act by modifying the Board's Order to provide a minimum backpay award in the absence of evidence as to the discriminatees' actual economic losses or legal availability for work. The Court further held that the court of appeals ex- ceeded its reviewing authority by requiring the Re- spondent to draft the reinstatement offers in Span- ish, to ensure verification of receipt, and to hold the offers open for 4 years. As to these latter en- largements of the Board's remedial Order, the Court held that the court of appeals should have instead remanded these issues to the Board for re- consideration. The Board is now mindful of the Court's holding that we may not order a minimum backpay award without specific regard to the discriminatees' actual economic losses or legal availability for work. With respect to the other provisions of the circuit court's final order which the Board defended before the Supreme Court we now formally reconsider them pursuant to the Court's direction.5 On reconsider- ation we agree with the circuit court that, in the circumstances of this case where the Spanish-speak- ing discriminatees' last known locations were in Mexico, it is at most, in the Supreme Court's words, a "trivial burden" on the Company to re- quire it to draft the reinstatement offers in Spanish and to verify their receipts We also agree with the 5 The Supreme Court affirmed that portion of the circuit court's order which conditioned the offers of reinstatement on the discriminatees' legal reentry into the United States, This provision was not in issue before the Court 6 The Respondent argues that the reinstatement offers it made to the discriminatees in March 1977 were valid offers of reinstatement. We reject that claim As the Seventh Circuit earlier found, these offers of re- Continued 277 NLRB No. 23 SURE-TAN, INC circuit court that 4 years is a reasonable period during which to hold the job offers open given the lengthy time normally required for Mexican nation- als to acquire immigrant visas. We accordingly provide a supplemental Order identical to the order of the circuit court with the minimum backpay provisions deleted as required by the Supreme Court.7 ORDER The National Labor Relations Board orders that the Respondent, Sure-Tana Inc. and Surak Leather Co., Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in, support for, or activities on behalf of Chicago Leather Workers Union, Local 43L, United Food and Commercial Workers International Union, AFL-CIO by: threatening to notify the Immigration Service be- cause of the employees' support for the Union; no- tifying the Immigration Service and requesting a check on their status because of their support for the Union and thereby resulting in their deporta- tion from the country and their constructive dis- charge; interrogating employees about their union sentiments and sympathies and that of their fellow employees; threatening employees with less work if they supported the Union; and promising employ- ees more work if they did not support the Union. (b) Verbally harassing employees and issuing them written reprimands because of their attempts to obtain Board assistance and because they sup- port the Union. (c) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Francisco Robles, Ernesto Arreguin, Sacramento Serrano, Arguimino Ruiz, and Juan P. Flores immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to instatement, which only remained open for some 34 days, did not give the discriminatees a reasonable time to consider the offer or to make ar- rangements for legally entering the United States. The Respondent also argues that the failure to draft its reinstatement offers in Spanish and to send them in a manner allowing verification of receipt was in accord with the Board 's decision in General Iron Corp 218 NLRB 77 (1975) That case is distinguishable from the situation here In this case, the discriminatees returned to Mexico, which is their last known address, and it is not reasonable to assume, as the Board did in General Iron, that they will have ready access to English-speaking rela- tives or acquaintances Moreover, in light of the fact that the offers of reinstatement will be sent to a foreign country, the requirement of verifi- cation of receipt is also reasonable. ° Member Dennis accepts the 1 -year escrow period as the law of the case 303 their seniority or any other rights and privileges. These offers must be written in Spanish, must pro- vide that they remain open for 4 years after re- ceipt, and must be delivered in a manner allowing verification of receipt. These offers must advise the discriminatees that the Respondent has no obliga- tion to reinstate them unless they are legally present in the United States and legally free to be' employed when they offer themselves for reinstate- ment. (b) Make these discriminatees whole for wages lost as a result of their unlawful discharge, subject to the following conditions: (1) Before awarding any backpay, the Board will determine whether any of the discriminatees were lawfully available for employment during the back- pay period (i.e., between the date of their illegal constructive discharge and the date the Respondent mails valid offers of reinstatement). (2) Backpay is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). (See generally Isis Plumbing Co., 138 NLRB 716 (1962).) (3) The Respondent's backpay liability shall be tolled from the date valid offers of reinstatement are mailed to the discriminatees in accordance with the requirements of section 2(a), above. The Board will hold a hearing to determine backpay liability shortly after these offers are made. The Respond- ent will place in escrow money sufficient to satisfy its potential backpay liability for those employees who do not appear at the Board hearing, but such money will be refunded if the disciminatee has not been located within 1 year. (c) Expunge from the personnel record of Albert Strong the letter of reprimand dated 11 February 1977. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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 premises in Chicago, ]Illinois, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 8 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 Nation- al 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 " 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In addition, the Respondent will mail a copy of such notice to the discriminatees at their last known address. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT cause the constructive discharge of employees by requesting the Immigration and Naturalization Service to investigate the status of known illegal aliens because of their selection of and support for the Chicago Leather Workers Union, Local 43L, United Food and Commercial Workers International Union, AFL-CIO, or any other union, with knowledge that such employees have no papers or work permits. WE WILL NOT interrogate employees about their union sentiments and sympathies or that of other employees. WE WILL NOT threaten employees who are ille- gal aliens with notification of the Immigration and Naturalization Service because of their selection or support of a union. WE WILL NOT promise employees more work if they do not support the Union. WE WILL NOT verbally harass employees or issue them written reprimands if they attempt to use the Board's processes or if they support the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Francisco Robles, Arguimino Ruiz, Juan P. Flores, Ernesto Arreguin, and Sacra- mento Serrano immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions of employment without prejudice to their seniority or other rights and privileges, and pay them for loss of earnings suffered because of being constructively discharged on 18 February 1977, less any net interim earnings, plus interest. WE WILL notify Albert Strong that we have re- moved from our files any reference to his repri- mand of 11 February 1977 and that the reprimand will not be used against him in any way. SURE-TAN, INC. AND SURAK LEATH- ER CO.