Mezonos Maven Bakery

360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mezonos Maven Bakery, Inc. and Latino Justice PRLDEF.1 Case 29–CA–025476 March 27, 2015 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA This case is on remand from the United States Court of Appeals for the Second Circuit. The sole question is whether the Board should order the conditional rein- statement of employees who, at the time they were un- lawfully discharged by the Respondent, lacked proper documentation to work in the United States. On August 9, 2011, the National Labor Relations Board issued a Supplemental Decision and Order in this case. 357 NLRB 376.2 The Board held that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), precluded the Board from awarding backpay to the discriminatees because they were undocumented workers, even though it was the Respondent and not the employees who had violated the Immigration Reform and Control Act (IRCA).3 The Board, however, did not address the question whether it could order reinstatement subject to the employees pre- senting to the Respondent, within a reasonable time, documentation that they are now authorized to work in the United States. Thereafter, the United States Court of Appeals for the Second Circuit affirmed the Board’s finding that backpay was not appropriate, but remanded the case to the Board for “consideration of issues relating to petitioners’ request for conditional reinstatement.” Palma v. NLRB, 723 F.3d at 187. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 The original charge was filed by Puerto Rican Legal Defense and Education Fund, which later changed its name to LatinoJustice PRLDEF. 2 On November 3, 2011, the Board denied the Charging Party’s mo- tion for reconsideration. 3 IRCA makes it unlawful for an employer to hire or continue to em- ploy an “unauthorized alien,” knowing that he or she is unauthorized, 8 U.S.C. § 1324a(a)(1)(A), (2), or to hire any person without verifying his or her authorization to work in the United States, id. § 1324a(a)(1)(B)(i), and for an individual knowingly to present fraudu- lent documents to an employer to obtain or continue employment, id. § 1324c(a)(2). As recognized by the Board in its supplemental decision and by the Second Circuit in its decision, the record reveals that the Respondent “violated IRCA by hiring and continuing to employ peti- tioners without obtaining the required documentation, and that petition- ers had not violated IRCA because they had not obtained their jobs by presenting fraudulent documents.” Palma v. NLRB, 723 F.3d 176, 180 (2d Cir. 2013). Member Miscimarra does not here reach or pass on questions regarding conditional reinstatement where discriminatees presented fraudulent documents in violation of IRCA. The Board has considered the remanded issue in light of the parties’ statements of position.4 For the following reasons, the Board has decided that a conditional rein- statement order is appropriate in this case. Procedural Background The discriminatees are former employees of the Re- spondent who engaged in protected concerted activity and were unlawfully discharged for that activity in 2003. On February 2, 2005, pursuant to a formal settlement stipulation, the Board issued an unpublished Decision and Order, ordering the Respondent to “make [the dis- criminatees] whole” with respect to “the amount of backpay due, if any,” and to “offer [the discriminatees] unconditional reinstatement . . . except that [the Re- spondent] may avail itself of a compliance proceeding and therein attempt to establish that one or more of the alleged discriminatees is not entitled to an unconditional offer of reinstatement.” On March 15, 2005, the Second Circuit enforced the Board’s consent Order. The General Counsel subsequently issued a compli- ance specification seeking backpay and unconditional offers of reinstatement. In the compliance proceedings, the Respondent contended that the Supreme Court’s de- cision in Hoffman, supra, 535 U.S. 137, precluded back- pay and reinstatement because the discriminatees were not legally authorized to work in, or to be present in, the United States. At the evidentiary hearing before the judge, the Respondent sought to examine the discrimi- natees as to their immigration status, but counsel for the discriminatees objected. The first witness refused to answer any questions relating to his immigration status, invoking his Fifth Amendment privilege against self- incrimination. The judge ruled the questioning appropri- ate, and he adjourned the hearing in order to request that the Board order the discriminatees to answer the ques- tions. Before the Board ruled on that request, however, the General Counsel agreed to proceed on the assumption that the discriminatees were undocumented.5 When the judge asked whether that assumption altered the General Counsel’s “request for a remedy,” counsel for the Gen- eral Counsel answered affirmatively and modified the request to seek conditional, rather than unconditional, reinstatement. In his decision, the judge recommended backpay for seven discriminatees, finding the case distinguishable 4 Only the General Counsel and the discriminatees filed statements of position. 5 The General Counsel stated, “[F]or the purposes of this proceeding, and only this proceeding, the General Counsel will proceed on the assumption that the discriminatees are undocumented. We have decid- ed not to contest the issue of [the discriminatees’ immigration] status in this proceeding for the purposes of expediting this matter.” 362 NLRB No. 41 MEZONOS MAVEN BAKERY, INC. 361 from Hoffman. In Hoffman, the judge reasoned, the dis- criminatee had violated IRCA by presenting the employ- er with fraudulent documents, and the employer was un- aware of the fraud, whereas here, the Respondent was the IRCA violator because it knowingly employed undocu- mented workers. 357 NLRB at 392–393. The judge ultimately determined that Hoffman was not inconsistent with conditional reinstatement of the sort the Board or- dered in A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408, 417 (1995), enfd. 134 F.3d 50, 56 (2d Cir. 1997), and therefore that such an order was appropriate here.6 Despite this finding, the judge failed to include a condi- tional reinstatement provision in his recommended Or- der. Neither the General Counsel nor the Charging Party filed exceptions to his failure to do so. The Respondent, however, filed exceptions to the judge’s discussion of conditional reinstatement, as well as to the recommended backpay order. In its Supplemental Decision and Order, the Board re- versed the judge’s grant of backpay, finding it precluded by Hoffman. 357 NLRB at 379. The Board did not ad- dress whether the Respondent should be required to offer conditional reinstatement.7 Five of the discriminatees jointly filed a petition for review with the Court of Appeals for the Second Circuit, arguing, as relevant here, that the Board erred in reject- ing, without explanation, the “ALJ’s reinstatement order” recommending that the Respondent be required to offer the discriminatees conditional reinstatement. On July 10, 2013, the Second Circuit remanded the issue of condi- tional reinstatement to the Board. Palma, supra, 723 F.3d at 187. In ordering the remand, the court stated that it did not “understand the Board to have ruled that petitioners were not entitled to offers of reinstatement conditioned upon their presentation to Mezonos of IRCA-compliant docu- mentation to show that they are lawfully present in, and authorized to work in, the United States. The Board’s decision simply did not address that question . . . .” Id. at 185. The court stated further that it was “skeptical” of the Respondent’s contention that conditional reinstate- ment is not an appropriate remedy after Hoffman. Id. at 6 357 NLRB at 388–389. In A.P.R.A., supra, the Board ordered the employer to offer the discriminatees immediate and full reinstatement, provided that they complete, within a reasonable time, INS Form I-9, including the presentation of the appropriate documents, in order to allow the employer to meet its obligations under IRCA. 320 NLRB at 417. 7 On September 6, 2011, the Charging Party filed a motion for re- consideration concerning the denial of backpay, but that motion made no reference to conditional reinstatement. The Board denied the mo- tion on November 3, 2011. 186. The court observed that although Hoffman “did not directly deal with an issue of reinstatement, its discussion plainly did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee’s sub- mission of documentation as required by IRCA.” Id. at 187. Concerning the petitioners’ failure to except to the omission of a conditional reinstatement order, the court surmised that the parties might have “simply assumed from the findings made in the ALJ decision that the ALJ had in fact granted petitioners’ request for conditional reinstatement.” Id. at 186. Indeed, the court noted that the Respondent’s exceptions “repeatedly challenged the ALJ’s views on reinstatement.” Id. The court summa- rized its findings as follows: In sum, given (a) that the ALJ Order did not recom- mend conditional reinstatement despite the findings in the ALJ Decision that reinstatement offers would be appropriate and that Mezonos had not met its obliga- tion to make such offers, and despite an explicit re- quest by the General Counsel for an order requiring of- fers of conditional reinstatement, (b) that petitioners did not file any exceptions with the Board despite the failure of the ALJ Order to recommend conditional re- instatement, and (c) that the Board did not consider whether an order requiring offers of conditional rein- statement would be appropriate despite Mezonos’s ex- plicit argument that the decision in Hoffman Plastic foreclosed any orders for conditional reinstatement, we conclude that this matter should be remanded to the Board for consideration, in the first instance, of issues relating to that form of relief—including issues of waiver, estoppel, and appropriateness. Id. at 187. On March 26, 2014, the Board invited the parties to “file statements of position with respect to the issues raised by the remand.” The General Counsel and the five discriminatees filed statements of position. The Re- spondent and LatinoJustice PRLDEF did not. Discussion Waiver and Estoppel As a threshold issue, we must decide whether the ap- propriateness of a conditional reinstatement order is properly before us. That is, in accordance with the court’s instruction to consider “issues of waiver [and] estoppel,” we must resolve whether the General Counsel and the discriminatees waived this argument by failing to file exceptions to the judge’s omission of a conditional reinstatement order or are otherwise estopped from seek- ing that remedy at this stage of the proceeding. We find that the General Counsel and the discrimi- natees are not estopped from seeking a conditional rein- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362 statement order in this case. The General Counsel ex- plicitly requested conditional reinstatement at the hear- ing. The judge made a specific finding that Hoffman “did not disturb” the conditional reinstatement part of the order in A.P.R.A., and he found that the Respondent had an obligation to make valid reinstatement offers. The Respondent excepted to the judge’s discussion of the appropriateness of a conditional reinstatement remedy. Although neither the General Counsel nor the discrimi- natees excepted to the judge’s failure to include a condi- tional reinstatement remedy in his recommended Order, and the Board’s decision focused only on the backpay issue, the issue of conditional reinstatement was suffi- ciently raised and litigated before the Board. We further find that neither the General Counsel nor the discriminatees waived their right to seek conditional reinstatement. It is well settled that the Board has “broad discretionary” authority under Section 10(c) to fashion appropriate remedies that will effectuate the policies of the Act. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262–263 (1969); Indian Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996). Remedial matters are tra- ditionally within the Board’s province and may be ad- dressed by the Board in the absence of exceptions. Id. The Board is “not precluded from ordering [a particular remedy] by either the ALJ’s decision not to recommend that remedy, or the absence of an exception on that point by the General Counsel—or by those two factors taken together.” Longshoremen ILA Local 1814 v. NLRB, 735 F.2d 1384, 1404 fn. 26 (D.C. Cir. 1984), cert. denied 469 U.S. 1072 (1984). See also Schnadig Corp., 265 NLRB 147, 147 (1982); R. J. E. Leasing Corp., 262 NLRB 373, 373 fn. 1 (1982) (order granting motion and modifying decision and order). Thus, the failure of the General Counsel or the discriminatees to except to the judge’s omission of a conditional reinstatement order does not constitute a waiver of that issue. We find that no party will be prejudiced by our con- sideration of conditional reinstatement. The parties were given an opportunity to file position statements on re- mand, and the Respondent has not argued that the Board is precluded from granting conditional reinstatement or that it would be prejudiced by our doing so. According- ly, we find no procedural impediment to our considera- tion of the appropriateness of the remedy. Appropriateness of a Conditional Reinstatement Order We find that conditional reinstatement is an appropri- ate remedy where, as here, an employer knowingly em- ploys individuals who lack authorization to work in the United States and then discharges them in violation of the NLRA. Such a remedy is consistent with the policies of both the Act and IRCA. In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the Supreme Court approved of the use of a conditional rein- statement remedy in cases involving unlawfully dis- charged undocumented workers. The Court reasoned that making a reinstatement order conditional on compli- ance with Federal immigration laws eliminated any po- tential inconsistency with those laws. 467 U.S at 902– 903. Although Sure-Tan was decided under the Immi- gration and Nationality Act (INA), later superseded by IRCA, the Board in A.P.R.A., supra, 320 NLRB at 415, 417, subsequently reaffirmed the appropriateness of con- ditional reinstatement orders in cases involving undocu- mented employees under IRCA.8 A.P.R.A.’s conditional reinstatement remedy was enforced by the Second Cir- cuit, which held that “IRCA did not diminish the Board’s power to craft remedies for violations of the NLRA, pro- vided that the Board’s remedies do not conflict with the requirements of IRCA.” 134 F.3d at 56. The court fur- ther stated that a conditional reinstatement order “pro- vides a measure of compensatory relief that is properly gauged to [the discriminatees’] right (or lack thereof) to work in the United States” and “felicitously keeps the Board out of the process of determining an employee’s immigration status, leaving compliance with IRCA to the private parties to whom the law applies.” 134 F.3d at 57. The court concluded that a conditional reinstatement order requiring discriminatees to complete Federal Form I-9 and present appropriate documentation “promotes the shared policy goals of IRCA and the NLRA, and avoids any conflict with the specific provisions of IRCA.” Id. We agree with the administrative law judge and the Second Circuit that Hoffman, supra, 535 U.S. 137, did not cast doubt on the use of conditional reinstatement orders in cases involving undocumented discriminatees. In Hoffman, the Court held that “allowing the Board to award backpay to illegal aliens would unduly trench up- on explicit statutory prohibitions critical to federal immi- gration policy, as expressed in IRCA.” 535 U.S. at 151 (emphasis added). The Court did not, however, address the appropriateness of conditional reinstatement reme- dies because it was not faced with such a remedy in that case. Therefore, as observed by the Second Circuit in remanding this case, the Hoffman Court’s “discussion plainly did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee’s sub- mission of documentation as required by IRCA.” 723 F.3d at 187. Following Hoffman, the Board has found conditional reinstatement orders appropriate in cases involving un- 8 See also Regal Recycling, Inc., 329 NLRB 355, 357 (1999) (order- ing conditional reinstatement, relying on A.P.R.A.). MEZONOS MAVEN BAKERY, INC. 363 documented workers. See, e.g., Tuv Taam Corp., 340 NLRB 756, 759 fn. 5 (2003).9 The Supreme Court in Sure-Tan squarely held that conditional reinstatement orders are appropriate in the immigration context, this holding was undisturbed by the Supreme Court’s deci- sion in Hoffman, and the Respondent has provided us with no reason to conclude otherwise.10 Conditional reinstatement accommodates the interests protected by the Federal immigration laws, as it allows reinstatement only if the employee provides the neces- sary documentation under IRCA. We agree with the General Counsel’s argument that conditional reinstate- ment is important in the immigration context in order to provide a meaningful remedy for the Respondent’s unfair labor practices. Because Hoffman limits the Board’s authority to order backpay, conditional reinstatement is the only means available to the Board to provide relief to the discriminatees and the principal means of deterring future unfair labor practices. Finding conditional reinstatement orders appropriate in the immigration context is also consistent with the Board’s practice in other nonimmigration-related cir- cumstances where reinstatement “would require the re- moval of a legal disability.” A.P.R.A., supra, 320 NLRB at 415. In cases in which an unlawfully discharged em- ployee lacks a prerequisite to reinstatement to his or her former position, the issuance of a reinstatement order conditioned upon the meeting of the prerequisite has been found to effectuate the policies of the Act. See, e.g., NLRB v. Future Ambulette, Inc., 903 F.2d 140, 145 (2d Cir. 1990) (conditioning reinstatement of a driver whose license had been suspended on his presentation of a valid driver’s license within a reasonable period of time); Consolidated Bus Transit, Inc., 350 NLRB 1064, 1067 (2007) (ordering employer to offer reinstatement contingent upon demonstration that employee reestab- lished, within a reasonable time of the offer, state certifi- cation to drive schoolbus), enfd. 577 F.3d 467 (2d Cir. 2009); Epic Security Corp., 325 NLRB 772, 774 (1998) (reinstatement of employee to armed guard position con- ditioned upon his regaining gun license); De Jana Indus- tries, 305 NLRB 845 (1991) (ordering employer to offer 9 The General Counsel has taken the same position. See General Counsel Memorandum 02–06, Procedures and Remedies for Discrimi- natees Who May Be Undocumented Aliens after Hoffman Plastic Compounds, Inc. (July 19, 2002) (“[T]he Hoffman decision does not preclude the Board from imposing a conditional reinstatement order against employers who flout both the Act and IRCA by hiring and firing known undocumented workers.”). 10 As noted previously, only the General Counsel and the discrimi- natees filed statements of position on remand; none was filed by the Respondent. reinstatement to a driver position once employee estab- lished that he had a valid driver’s license). We agree with the judge’s conclusion that Hoffman does not preclude us from ordering conditional rein- statement, and we find that it would effectuate the poli- cies of the Act to do so in this case.11 Consistent with A.P.R.A., our conditional reinstatement order will require the Respondent to provide the discriminatees with a rea- sonable period of time to meet the condition for rein- statement.12 ORDER The National Labor Relations Board orders that the Respondent, Mezonos Maven Bakery, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days of the date of this Order, offer the discriminatees full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any oth- er rights or privileges previously enjoyed, provided that they complete, within a reasonable time, USCIS Form I- 9, including the presentation of the appropriate docu- ments, in order to allow the Respondent to meet its obli- gations under the Immigration Reform and Control Act (IRCA). (b) Within 14 days after service by the Region, post at its facility in Brooklyn, New York, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper 11 We also find it appropriate to require the Respondent to post no- tices to employees to inform its work force that conditional reinstate- ment has now been ordered for the discriminatees in this case. 12 We will not, in this decision, decide what constitutes a reasonable period, as that determination “will depend essentially on the situation in which an employee finds himself.” Esterline Electronics Corp., 290 NLRB 834, 834 (1988); see also Sure-Tan, 277 NLRB 302, 302–303 fn. 6 (1985) (34 days “did not give the discriminatees a reasonable time to consider the offer or make arrangements for legally entering the United States,” and 4 years was a reasonable period during which to hold open the job offers “given the lengthy time normally required for Mexican nationals to acquire immigrant visas”). Any matters relating to “reasonable time” may be resolved in subsequent compliance pro- ceedings, if necessary. 13 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since February 12, 2003. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL, within 14 days of the date of the Board’s Order, offer the discriminatees full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed, provided that they complete, within a reasonable time, USCIS Form I-9, including the presentation of the appropriate documents, in order to allow us to meet our obligations under the Immigration Reform and Control Act. MEZONOS MAVEN BAKERY, INC. The Board’s decision can be found at www.nlrb.gov/case/29-CA-025476 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.