Hoffman Plastic Compounds v. Nat'l Labor Relations Bd., 98-1570

• Citation: 237 F.3d 639
• Decision Date: 16 January 2001
• Docket Number: No. 98-1570,98-1570
• Parties: (D.C. Cir. 2001) Hoffman Plastic Compounds, Inc., Petitioner v. National Labor Relations Board, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 639

237 F.3d 639 (D.C. Cir. 2001)

Hoffman Plastic Compounds, Inc., Petitioner v. National Labor Relations Board, Respondent

No. 98-1570

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc September 27, 2000

Decided January 16, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Maurice Baskin argued the cause for petitioner. With him on the briefs was Ryan D. McCortney.

Sharon Block, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Leonard R. Page, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Fred L. Cornnell, Jr., Attorney. Linda R. Sher, Associate General Counsel, and John D. Burgoyne, Deputy Associate General Counsel, entered appearances.

James B. Coppess argued the cause for amicus curiae American Federation of Labor and Congress of Industrial Organizations. With him on the brief were Jonathan P. Hiatt and Laurence Gold.

Before: Edwards, Chief Judge, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel, Garland, Circuit Judges, and Silberman, Senior Circuit Judge.^*

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Sentelle, in which Circuit Judges Ginsburg, Henderson, and Randolph join.

Dissenting opinion filed by Circuit Judge Ginsburg.

Tatel, Circuit Judge:

Petitioner illegally fired several workers in retaliation for their attempts to organize a union. Finding multiple unfair labor practices, the National Labor Relations Board ordered its traditional remedy, reinstatement with backpay, for all discharged employees. When the Board learned that one discriminatee was an undocumented alien, it denied reinstatement and terminated backpay as of the date petitioner discovered the discriminatee's lack of documentation. Challenging even this reduced award, petitioner argues that both Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), and the Immigration Reform and Control Act of 1986 ("IRCA"), 100 Stat. 3359, bar awards of any backpay to undocumented discriminatees. We disagree. Properly understood, SureTan supports backpay awards to undocumented discriminatees so long as the awards reflect the discriminatees' actual losses. Moreover, because nothing in IRCA prohibits such limited backpay awards, and because the Board fashioned the award in this case not just to fulfill the objectives of the National Labor Relations Act, but also to avoid violations of IRCA, the award falls within the Board's broad remedial discretion. We therefore deny the petition for review and grant the cross-application for enforcement.

I

Petitioner Hoffman Plastic Compounds, Inc., manufactures custom-formulated polyvinylchloride pellets for use by customers who produce pharmaceutical, construction, and household products. In May 1998, JosE Castro began working in Hoffman's production plant earning minimum wage as a compounder, an operator of large blending machines that mix and cook plastic formulas ordered by customers. When the United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO began an organizing drive at Hoffman's factory, Castro, along with several other employees, distributed union authorization cards to coworkers. Following what the Board later described as "coercive and restraining" interrogation of union supporters, Hoffman laid off all employees who had engaged in organizing activities, including Castro. Hoffman Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992).

After one discharged employee filed charges with the Board, an Administrative Law Judge found that the company had engaged in multiple unfair labor practices. The Board adopted the ALJ's findings, concluding not only that Hoffman had unlawfully interrogated employees about their union activities and sympathies, but also that "in order to rid itself of known union supporters, [the company] discriminatorily selected union adherents for layoff" in violation of sections 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1), (3). Hoffman Plastic, 306 N.L.R.B. at 100. The Board ordered Hoffman to cease and desist from such unfair labor practices, to post a notice at the work site, and to reinstate and make whole the union supporters it had illegally fired.

When a dispute arose as to the proper computation of backpay, a compliance hearing was held before another ALJ. Castro appeared at the hearing, testifying through an interpreter. When Hoffman's attorney began questioning Castro about his citizenship, the Board's General Counsel objected.

The ALJ sustained the objection, but not before Castro had stated that he was a Mexican national and that the birth certificate he had used to gain employment at Hoffman was borrowed from a friend. On the basis of this admission, the ALJ recommended neither reinstatement nor backpay. In reaching this conclusion, the ALJ relied on IRCA, which makes it unlawful for employers to knowingly hire undocumented workers and for employees to use fraudulent documents to establish employment eligibility. See Hoffman Plastic Compounds, Inc., 314 N.L.R.B. 683, 685 (1994).

Expressly considering the policies of both IRCA and the NLRA, the Board agreed with the ALJ that reinstatement of an undocumented discriminatee would be inappropriate. See 326 N.L.R.B. No. 86, 1998 WL 663933, at *2-4 (Sept. 23, 1998). As the Board had explained in an earlier case, ordering reinstatement would force an employer to violate IRCA's prohibition against knowingly hiring undocumented aliens. See NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408, 415 (1995). The Board disagreed with the ALJ that IRCA prevented any award of backpay. To account for IRCA's prohibition on the fraudulent use of documents, however, the Board applied its well-established after-acquired evidence rule and ended backpay liability the moment Hoffman became aware of Castro's undocumented status. Hoffman Plastic, 1998 WL 663933 at *3-4.

Hoffman petitioned for review of the Board's order. The company did not challenge the Board's finding that it committed unfair labor practices, including the illegal discharge of known union organizers. It contested only Castro's limited backpay award, arguing primarily that awards of backpay to undocumented discriminatees are barred by Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), and, in the alternative, by IRCA. Cross-applying for enforcement, the NLRB, supported by amicus AFL-CIO, responded that the limited backpay award runs afoul of neither Sure-Tan nor IRCA and falls well within the Board's remedial discretion.

A divided panel of this court resolved all issues in the Board's favor. Hoffman Plastic Compounds, Inc. v. NLRB, 208 F.3d 229 (D.C. Cir. 2000). We then granted Hoffman's petition for rehearing en banc and vacated the panel opinion. Having now heard Hoffman's claims en banc, we again deny the petition for review and grant the Board's cross-application for enforcement.

II

We begin with Hoffman's argument, embraced by our dissenting colleagues, that this case is controlled by a single sentence from Sure-Tan: "[I]n computing backpay, the employees must be deemed 'unavailable' for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States." Sure-Tan, 467 U.S. at 903. This sentence, Hoffman claims, "plainly prohibits" the NLRB from awarding even limited backpay to undocumented workers victimized by unfair labor practices. Read literally and divorced from Sure-Tan's factual and legal context, the sentence could well be interpreted to support that view. But the Supreme Court has warned against "dissect[ing] the sentences of the United States Reports as though they were the United States Code." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). And as we have said, "[t]he Court's every word and sentence cannot be read in a vacuum; its pronouncements must be read in light of the holding of the case and to the degree possible, so as to be consistent with the Court's apparent intentions and with other language in the same opinion." Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc).

Read in context, the Sure-Tan sentence does not bar backpay to undocumented discriminatees. The Seventh Circuit originally crafted the sentence, which the Supreme Court merely repeated, to deal with unique circumstances of SureTan not present in this case. Contested by neither party, the restriction imposed by the sentence did not address an issue in dispute before the Court; nor did it play any part in either Sure-Tan's holding or reasoning. As such, the sentence is hardly "considered dict[um]." Cf. Dissenting Op. at 654. Moreover, extending the sentence beyond the facts of SureTan, as Hoffman urges, would conflict with the Court's holding that an undocumented discriminatee is entitled to backpay so long as it is appropriately tailored to the discriminatee's actual loss.

The employer in Sure-Tan committed an unfair labor practice when, in retaliation for its employees' success in electing a union, it alerted the Immigration and Naturalization Service that some of its employees might be undocumented. Rather than deport the workers, the INS allowed them to leave the country voluntarily. "By the end of the day, all five employees were on a bus ultimately bound for Mexico." Sure-Tan, 467 U.S. at 887. The Board ordered the traditional remedy of reinstatement with backpay. Sure-Tan, 246 N.L.R.B. 788 (1979). Two members dissented, fearing that these remedies could produce violations of the then-existing immigration law, the Immigration and Nationality Act. Id. at 789-90. The INA focused not on employment of undocumented workers-that came later when Congress enacted IRCA--but rather on "the terms and conditions of admission to the country." Sure-Tan, 467 U.S. at 892 (quoting DeCanas v. Bica,...