Agri Processor Co., Inc. v. N.L.R.B., 06-1329.

• Decision Date: 04 January 2008
• Docket Number: No. 06-1349.,No. 06-1329.,06-1329.,06-1349.
• Citation: 514 F.3d 1
• Parties: AGRI PROCESSOR CO., INC., Petitioner. v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

514 F.3d 1

AGRI PROCESSOR CO., INC., Petitioner. v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 06-1329.

No. 06-1349.

United States Court of Appeals, District of Columbia Circuit.

Argued October 19, 2007.

Decided January 4, 2008.

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

Jefery A. Meyer argued the cause for petitioner. On the brief was Carmelo Grimaldi.

Julie B. Broido, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, and Kira Dellinger Vol, Attorney. Linda Dreeben, Deputy Assistant General Counsel, entered an appearance.

Before: HENDERSON, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the. Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

TATEL, Circuit Judge:

A company whose workers recently voted to unionize refuses to bargain with them, claiming that most of those who voted are undocumented aliens. The company argues that undocumented aliens are prohibited from unionizing because they do not qualify as "employees" protected by the National Labor Relations Act. Because the company's argument ignores both the Act's plain language and binding Supreme Court precedent, we deny its petition for review.

I.

Petitioner Agri Processor Co. is a wholesaler of kosher meat products based in Brooklyn, New York. In September 2005, the company's employees voted to join the United Food and Commercial Workers union. When the company refused to bargain, the union filed an unfair labor practice charge with the National Labor Relations Board.

The Board's General Counsel issued a complaint charging that Agri Processor's refusal to bargain violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 151-169, which make it "an unfair labor practice for an employer—(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [the Act]; ... [or] (5) to refuse to bargain collectively with the representatives of his employees." Id. § 158(a)(1), (5). In a hearing before an administrative law judge, the company claimed that after the election it put the Social Security numbers given by all the voting employees into the Social Security Administration's online database and discovered that most of the numbers were either nonexistent or belonged to other people. Based on this evidence, the company alleged that most of the workers who had voted in the election were aliens unauthorized to work in the United States. Arguing that undocumented workers do not count as "employees" protected by the NLRA, the company claimed the election was invalid. The company also asserted that undocumented aliens may not belong to the same bargaining unit as legal workers, rendering improper the bargaining unit created by the Board.

Relying on Supreme Court precedent and the Board's decision in Concrete Form Walls, Inc., 346 N.L.R.B. No. 80 (Apr. 13, 2006), the ALJ rejected the company's arguments, sustained the charged violations, and ordered Agri Processor to bargain with the union. Agri Processor Co., 347 N.L.R.B. No. 107, at 3 (Aug. 31, 2006). The Board unanimously adopted the ALJ's recommendations. Id. at 1. Though one Board member noted that "the average person" might find it peculiar that an employer must bargain with illegal aliens, he acknowledged that the NLRA compelled this result. Id. at 1 n. 2.

The company petitions for review, still arguing that undocumented aliens are not employees under the NLRA and may not belong to the same bargaining unit as legal workers. The Board cross-petitions for enforcement.

II.

According to the Board, Agri Processor's contention that undocumented aliens are not "employees" protected by the NLRA ignores the Act's plain language and the Supreme Court's decision in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984). We agree.

The NLRA defines the term "employee" expansively and lists only a few limited exceptions:

The term "employee" shall include any employee . . ., but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act . . ., or by any other person who is not an employer as herein defined.

29 U.S.C. § 152(3). In Sure-Tan, the Supreme Court held that this definition clearly includes undocumented aliens:

The breadth of [the NLRA's] definition [of "employee"] is striking: the Act squarely applies to "any employee." The only limitations are specific exemptions for agricultural laborers, domestic workers, individuals employed by their spouses or parents, individuals employed as independent contractors or supervisors, and individuals employed by a person who is not an employer under the NLRA. See 29 U.S.C. § 152(3). Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of "employee."

467 U.S. at 891-92, 104 S.Ct. 2803 (emphasis added).

Remarkably, Agri Processor's brief neither acknowledges this controlling language in Sure-Tan nor even quotes the NLRA's definition of "employee." Instead, the company focuses exclusively on the Immigration Reform and Control Act of 1986 (IRCA), Pub.L. No. 99-603, 100 Stat. 3359, which made it illegal for companies knowingly to employ undocumented aliens, 8 U.S.C. § 1324a(a)(1), and on Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), which held that IRCA bars the Board from awarding backpay to undocumented aliens. Though Agri Processor never articulates this clearly, its argument seems to be that IRCA, passed after Sure-Tan, somehow amended the NLRA to exclude undocumented aliens from its coverage, and that Hoffman Plastic overruled Sure-Tan. In fact, however, neither IRCA nor Hoffman Plastic supports the company's argument.

To begin with, nothing in IRCA's text alters the NLRA's definition of "employee." NLRA section 2(3), 29 U.S.C. § 152(3), continues to define "employee" exactly the same way it did when the Sure-Tan Court held that "undocumented aliens ... plainly come within the broad statutory definition of `employee.'" 467 U.S. at 892, 104 S.Ct. 2803. Thus, Agri Processor must be arguing that IRCA and the NLRA conflict, requiring us to read IRCA as implicitly repealing the NLRA's definition of "employee" to the extent that it includes undocumented aliens. But "where two statutes are `capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.'" Ruckelshaus v. Monsanto, Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (quoting Reg'l, Rail Reorganization Act Cases, 419 U.S. 102, 133-34, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)). Thus, courts should not infer that one statute has partly repealed another "unless the later statute expressly contradicts the original act or unless such a construction is absolutely necessary ... in order that the words of the later statute shall have any meaning at all." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, ___ U.S. ___, 127 S.Ct. 2518, 2532, 168 L.Ed.2d 467 (2007) (citations and internal quotation marks omitted). Neither condition is even arguably met here. Because IRCA no-where states that undocumented aliens no longer qualify as employees under the NLRA, it does not "expressly contradict the original act." And IRCA has meaning without being read as partly repealing the NLRA: it prohibits employers from hiring undocumented aliens, which would otherwise be legal. See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) ("The rarity with which we have discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue." (citations and internal quotation marks omitted)).

Moreover, "[a]mendments by implication, like repeals by implication, are not favored," United States v. Welden, 377 U.S. 95, 102 n. 12, 84 S.Ct. 1082, 12 L.Ed.2d 152 (1964), "and will not be found unless an intent to repeal [or amend] is `clear and manifest.'" Rodriguez v. United States, 480 U.S. 522, 524, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (quoting United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181 (1939)). Here, not only is there no clear indication that Congress intended IRCA implicitly to amend the NLRA, but all available evidence actually points in the opposite direction. The House Judiciary Committee Report on IRCA is clear:

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 protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair 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 [104 S.Ct. 2803, 81 L.Ed.2d 732] (1984)[,] application of the NLRA "helps to assure that the wages and...