Sure-Tan, Inc. v. Nlrb, 467 U.S. 883 (1984)

Sure-Tan, Inc. v. National Labor Relations Board

No. 82-945

Argued December 6, 1983
Decided June 25, 1984
467 U.S. 883

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

A certain union was elected as the collective bargaining representative of employees of petitioners, two small firms that constitute a single integrated employer for purposes of the National Labor Relations Act (NLRA). Petitioners then filed objections to the election with the National Labor Relations Board (Board), asserting that six of the seven eligible voters were illegal aliens. After being notified that their objections were overruled, petitioners’ president sent a letter to the Immigration and Naturalization Service (INS) asking that it check into the status of a number of petitioners’ employees. As a result of the INS’s investigation, five employees voluntarily left the country to avoid deportation. Subsequently, the Board held that petitioners had committed an unfair labor practice, in violation of § 8(a)(3) of the NLRA, by reporting their employees, known to be undocumented aliens, to the INS in retaliation for the employees’ union activities. Concluding that petitioners’ conduct constituted a "constructive discharge" of the employees, the Board entered a cease-and-desist order, and directed the "conventional remedy of reinstatement with backpay," thereby leaving until subsequent compliance proceedings the determination whether the employees had in fact been available for work so as not to toll petitioners’ backpay liability. On appeal, the Court of Appeals enforced the Board’s order as modified by the court to require that petitioners’ reinstatement offers to the employees be left open for a period of four years to allow them a reasonable time to make arrangements for legal reentry, and that the offers be written in Spanish and delivered so as to allow for verification of receipt. Although recognizing that the employees would not be entitled to backpay for the period when they were not legally entitled to be present and employed in the United States, the court decided that it would serve the NLRA’s policies to set a minimum amount of backpay that petitioners must pay in any event, and suggested that the Board consider whether six months’ backpay would be an appropriate amount. The Board accepted the suggestion, and its final order, approved by the court, included the minimum award of six months’ backpay.

Held:

1. The Board’s interpretation of the NLRA as applying to unfair labor practices committed against undocumented aliens is reasonable, and thus will be upheld. Pp. 891-894.

(a) The NLRA’s terms -- defining "employee" to include "any employee," and not listing undocumented aliens among the few groups of specifically exempted workers -- fully support the Board’s interpretation. Similarly, extending the NLRA’s coverage to undocumented aliens is consistent with its purpose of encouraging and protecting the collective bargaining process. Pp. 891-892.

(b) There is no conflict between application of the NLRA to undocumented aliens and the mandate of the Immigration and Nationality Act (INA), which does not make the employment relationship between an employer and an undocumented alien unlawful. Enforcement of the NLRA with respect to undocumented alien employees is compatible with the INA’s purpose in restricting immigration so as to preserve jobs for American workers, since, if there is no advantage as to wages and employment conditions in preferring illegal alien workers, any incentive for employers to hire illegal aliens is lessened. In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation of the federal immigration laws. Pp. 892-894.

2. The Court of Appeals properly held that petitioners committed an unfair labor practice under § 8(a)(3) of the NLRA by constructively discharging their undocumented alien employees through reporting the employees to the INS in retaliation for participating in union activities. There is no merit in petitioners’ contention that, although they acted with "anti-union animus," nevertheless their conduct did not force the undocumented alien workers’ departure from the country, and that the employees’ status as illegal aliens instead was the "proximate cause" of their departure. The evidence showed that the letter of petitioners’ president to the INS was the sole cause of the investigation that resulted in the employees’ departure, and that the president foresaw precisely this result. Although the reporting of any violation of the criminal laws ordinarily should be encouraged, not penalized, the Board’s view that § 8(a)(3) is violated only when the evidence establishes that the reporting of the presence of an illegal alien employee is in retaliation for the employee’s protected union activity is consistent with the policies of both the INA and the NLRA. Nor is there merit in petitioners’ claim that their request for enforcement of the federal immigration laws was an aspect of their First Amendment right "to petition the Government for a redress of grievances," and therefore could not be burdened under the guise of enforcing the NLRA. Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, distinguished. Pp. 894-898.

3. The Court of Appeals erred in its modification of the Board’s remedial order. Pp. 898-906.

(a) By directing the Board to impose a minimum backpay award without regard to the employees’ actual economic losses or legal availability for work, the court exceeded its limited authority of review under the NLRA, and also effectively compelled the Board to take action that does not lie within the Board’s powers. A backpay remedy must be tailored to expunge only actual, not speculative, consequences of an unfair labor practice. The probable unavailability of the Act’s more effective remedies in light of the practical workings of the immigration laws cannot justify the judicial arrogation of remedial authority not fairly encompassed within the NLRA. Pp. 898-905.

(b) The Court of Appeals also exceeded its limited authority of judicial review by modifying the Board’s order so as to require petitioners to draft the reinstatement offers in Spanish and to ensure verification of receipt. Such matters call for the Board’s superior expertise and long experience in handling specific details of remedial relief, and if the court believed that the Board had erred in failing to impose such requirements, the appropriate course was to remand to the Board for reconsideration. The court’s requirement that the reinstatement offers be held open for four years is vulnerable to similar attack. Pp. 905-906.

672 F.2d 592, affirmed in part, reversed in part, and remanded.