Hoffman Plastic Compounds v. Nat'l Labor Bd.

• Decision Date: 17 March 2000
• Docket Number: No. 98-1570,98-1570
• Citation: 208 F.3d 229
• Parties: (D.C. Cir. 2000) Hoffman Plastic Compounds, Inc. Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 229

208 F.3d 229 (D.C. Cir. 2000)

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 October 13, 1999

Decided March 17, 2000

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

Maurice Baskin argued the cause and filed the briefs for petitioner.

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

Marsha S. Berzon argued the cause for amicus curiae American Federation of Labor and Congress of Industrial Organizations. With her on the brief were Jonathan P. Hiatt and James B. Coppess.

Before: Sentelle, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Sentelle.

Tatel, Circuit Judge:

Petitioner illegally fired several workers in retaliation for attempting 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 of these employees was an undocumented alien, it denied him reinstatement and terminated his backpay as of the date the employer discovered he was unauthorized to work. Challenging even this reduced award, the employer claims that awarding any backpay to undocumented workers conflicts with immigration law. Because the Supreme Court has held that undocumented workers are protected by the National Labor Relations Act, and because the limited remedy awarded here is within the Board's discretion and furthers the purposes of both labor and immigration law, we deny the petition for review and grant the cross-application for enforcement.

I

This case lies at the intersection of two statutory schemes:labor and immigration. Enacted in 1935, the National Labor Relations Act encourages collective bargaining, promotes industrial peace, and protects workers' rights of association, self-organization, and representation. See, e.g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 182-85 (1941). The statute vests the NLRB with broad discretion to enforce the Act and to remedy unfair labor practices. See 29 U.S.C. § 160(c). Not limited to "the correction of private injuries" or the "adjudication of private rights," the Board "acts in a public capacity to give effect to the declared public policy of the Act." Phelps Dodge, 313 U.S. at 192-93. "Making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces." Id. at 197. Awards of backpay not only make discriminatees whole, but "also achieve a public purpose by deterring future similar unlawful practices, and by depriving employers of any competitive advantage they may have secured by acting unlawfully." Local 512, Warehouse and Office Workers' Union v. NLRB, 795 F.2d 705, 718 (9th Cir. 1986) ("Felbro").

Like the NLRA, the nation's immigration laws preserve jobs and safeguard American workers' wages and employment conditions. See INS v. National Ctr. for Immigrants' Rights, 502 U.S. 183, 194 & n.8 (1991); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984). Until 1986, the Immigration and Nationality Act was primarily concerned "with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country." Sure-Tan, 467 U.S. at 892 (quoting DeCanas v. Bica, 424 U.S. 351, 359 (1976)). The Immigration Reform and Control Act of 1986 focused new immigration control efforts on employers. The Act makes it unlawful to employ anyone known to be an unauthorized alien, requires employers to verify and document the work eligibility of new hires, and authorizes sanctions against employers who violate the Act. See 8 U.S.C. S 1324a.

The NLRB and the courts have sought to ensure that labor and immigration laws operate in tandem. They have held that all employees, regardless of immigration status, have the right to organize and are entitled to protection from unfair labor practices. In Sure-Tan, for example, the Supreme Court affirmed a Board decision that extended the protections of the NLRA to undocumented workers. In addition to relying on the text of the Act, which broadly defines covered employees, the Court pointed to the common policies driving both labor and immigration law:

Application of the NLRA [to undocumented workers]helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment. If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly 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.

467 U.S. at 893-94. According to the Court, protecting undocumented aliens from unfair labor practices not only is "clearly reconcilable with," but indeed "serves the purposes of" the immigration laws. Id. at 894; see also NLRB v. Kolkka, 170 F.3d 937, 940 (9th Cir. 1999). At the same time, the Court emphasized that while the NLRA protects undocumented workers, the Board's remedies for unfair labor practices must not conflict with immigration law. See Sure-Tan, 467 U.S. at 902.

Petitioner Hoffman Plastic Compounds, Inc. manufactures custom-formulated polyvinylchloride pellets for use by customers who produce pharmaceutical, construction, and household products. In May, 1988, 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 the 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. After what the Board later described as "coercive and restraining" interrogation of union supporters, Hoffman laid off each employee who had engaged in organizing activities, including Castro. Hoffman Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992).

When Hoffman received notice from the NLRB that the Union had filed a representation petition, it made some attempt to recall the discharged workers. A March 10, 1989 letter from Hoffman to Castro stated "[i]t looks like we'll need a few men soon" and asked him to contact his former supervisor "no later than 4 P.M., Monday, March 13, 1989."Hoffman Plastic Compounds, Inc., 326 N.L.R.B. No. 86 (1998). Castro never responded.

After one of the discharged employees filed charges with the Board, an Administrative Law Judge found that Hoffman had engaged in multiple unfair labor practices. The Board adopted the ALJ's findings, concluding not only that the company had unlawfully interrogated employees about their union activities and sympathies, but that "in order to rid itself of known union supporters, [Hoffman] 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 those union supporters it had illegally fired.

When a dispute arose as to the proper computation of backpay, a compliance proceeding was held before another ALJ. Castro appeared at the hearing, testifying through an interpreter. When Hoffman's attorney began to question Castro about his citizenship and authorization to work in the United States, 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 for Castro. See Hoffman Plastic Compounds, Inc., 314 N.L.R.B. 683, 685 (1994).

While the ALJ's recommendation was under consideration by the NLRB, the Board decided another case involving undocumented discriminatees, A.P.R.A. Fuel Oil Buyers Group, 320 N.L.R.B. 408 (1995), enforced 134 F.3d 50 (2d Cir. 1997). There, the Board modified its standard remedy of reinstatement with backpay to account for the fact that the illegally fired workers lacked documentation. The Board conditioned its reinstatement order on the discriminatees' ability to verify their eligibility to work. It also ordered that the backpay period terminate either when the discriminatees were lawfully reinstated or when they failed to produce the necessary employment eligibility documents within a reasonable period of time.

Issuing its Second Supplemental Decision and Order in this case, the Board adapted the remedy it had developed in A.P.R.A. Fuel to Castro's situation, denying reinstatement due to his undocumented status and awarding only limited backpay. See Hoffman Plastic Compounds, Inc., 326 N.L.R.B. No. 86 (1998). To determine the backpay period, the Board first considered whether Hoffman's "[i]t looks like we'll need a few men soon" letter amounted to a specific and unequivocal offer of reinstatement that would toll backpay.Answering this question in the negative, the Board nonetheless allowed Hoffman the benefit of the after-acquired evidence defense and terminated the backpay period as of June...