N.L.R.B. v. A.P.R.A. Fuel Oil Buyers Group, Inc., 1324

• Decision Date: 05 December 1997
• Docket Number: No. 1324,D,1324
• Citation: 134 F.3d 50
• Parties: 157 L.R.R.M. (BNA) 2001, 134 Lab.Cas. P 10,104 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A.P.R.A. FUEL OIL BUYERS GROUP, INC., Prudential Transportation, Inc., and Amer-National Heating Service, Inc., Respondents. ocket 96-4123.
• Court: U.S. Court of Appeals — Second Circuit

Page 50

134 F.3d 50

157 L.R.R.M. (BNA) 2001, 134 Lab.Cas. P 10,104

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A.P.R.A. FUEL OIL BUYERS GROUP, INC., Prudential

Transportation, Inc., and Amer-National Heating

Service, Inc., Respondents.

No. 1324, Docket 96-4123.

United States Court of Appeals, Second Circuit.

Argued April 23, 1997.

Decided Dec. 5, 1997.

Fred L. Cornnell, Supervisory Attorney, National Labor Relations Board, Washington, DC (Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, of counsel), for Petitioner.

Lionel Alan Marks, New York City, for Respondents.

Jonathan P. Hiatt, James Coppess, AFL-CIO, Washington, DC; David M. Silberman, Laurence Gold, Bredhoff & Kaiser, Washington, DC; Max Zimny, Catherine Waelder, Unite, New York, NY; Judith A. Scott, Betty Grdina, International Brotherhood of Teamsters, Washington, DC; and Robert H. Gibbs, Gibbs, Houston & Pauw, Seattle, WA, for AFL-CIO as Amicus Curiae in support of Petitioner.

Before OAKES, ALTIMARI and JACOBS, Circuit Judges.

OAKES, Senior Circuit Judge:

In the simplest terms, this appeal raises the question whether an employer who knowingly hires undocumented aliens can use the immigration laws as a shield to avoid liability for the employer's later retaliatory discharge of the employees in violation of the National Labor Relations Act, 29 U.S.C. §§ 151-168 (1994) ("NLRA" or "the Act"). We conclude that the National Labor Relations Board ("NLRB" or "the Board") does have the power to remedy such employer misconduct, and that the remedy it fashioned in this case properly balanced the various federal policies implicated by the employer's illegal actions.

At an earlier stage of this proceeding, this Court affirmed, by unreported summary order, all of the Board's unfair labor practice findings, including its findings that the Company unlawfully discharged two undocumented aliens, Victor Benavides and Alberto Guzman. N.L.R.B. v. A.P.R.A. Fuel Oil Buyers Group, 28 F.3d 103 (2d Cir.1994). We now must consider an issue that the Board severed from the earlier appeal, namely, the nature of the remedy, if any, that should be granted to Benavides and Guzman.

I.

The Board's Factual Determinations.

A. Employer Hires Benavides and Guzman with Full Knowledge that They Lack Proper Work Authorization.

The Board found the following facts. A.P.R.A. Fuel Oil Buyers Group, Inc. ("the Company" or "the Employer"), which operates from a facility in Brooklyn, New York, purchases and transports heating oil and performs repairs on oil and gas burners. The Company hired Benavides and Guzman after each of them had explained that he was not eligible for lawful employment in the United States because of his immigration status.

Employee Victor Benavides, whose real name is Jose Ciudad, worked as a boiler mechanic. Before Benavides began work on August 15, 1990, he told Vincent Latora, President of Respondent Prudential Transportation, Inc., that he had entered the country on a six-month visitor's visa, and that he lacked the required "green card" to work in the United States. Latora told Benavides that he must have a legal name so that the Company could put him in its books. Benavides explained to Latora that the real Victor Benavides, who was leaving the country, had given Benavides his social security card to use to obtain employment.

Employee Guzman, whose real name is Jorge Bianey Diaz, worked for the Company as a truck mechanic at various times between June 1989 and January 1991. When Latora first interviewed Guzman, Guzman told him that he, Guzman, was in the United States illegally and had no working papers. Latora directed him to get a social security card, and he obtained one in the name of Alberto Guzman.

B. Benavides and Guzman Participate in a Union Organizing Campaign and the Company Discharges Them and Four Other Union Supporters.

In the fall of 1990, the Company's employees began an organizing campaign seeking representation by Local 533, International Brotherhood of Teamsters, AFL-CIO ("the Union"). Benavides and Guzman signed union authorization cards and Guzman attended a union meeting. On January 8, 1991, Latora handed Benavides and Guzman prepared affidavits stating that they disavowed their signatures on those cards and that they did not want to be represented by the Union. Latora ordered them to sign, saying that they would lose their jobs if they did not. Benavides and Guzman both signed the affidavits. Latora later asked Guzman to identify the leaders of the organizing campaign, and asked why he, Guzman, was "knifing me in the back." The Board also found that the Company authorized further unlawful, coercive anti-union activity aimed at Guzman and other employees who supported the union.

The Company discharged Guzman on January 14, 1991, and Benavides on February 3, 1991. In an earlier decision of the Board, which was affirmed by this court, the Board found that neither Guzman nor Benavides would have been discharged but for the ongoing union activities of the Company's employees and that their discharges therefore violated Section 8(a)(3) of the Act. A.P.R.A. Fuel Oil Buyers Group, Inc., 309 N.L.R.B. 480 (1992), aff'd, 28 F.3d 103 (2d Cir.1994). On March 6, 1991, the Board conducted an election; on November 12, 1992, the Board overruled the challenges to the ballots of Guzman, Benavides and several other employees, and the Regional Director subsequently determined that the Union had won the election by a margin of 11 to 8. The union was then certified as the employees' collective bargaining unit.

C. The Conditional Reinstatement and Backpay Order.

The Board's order of November 12 also required the Company to reinstate Guzman and Benavides and pay them compensation for the period of their illegal termination. In an unpublished order issued on July 28, 1993, the Board sua sponte decided that "the issue of whether Victor Benavides and Alberto Guzman are entitled to reinstatement and backpay merits further consideration." The Board, accordingly, severed the remedy portion of its decision with respect to Benavides and Guzman. ¹

On December 21, 1995, the Board issued a Supplemental Decision and Order in which it sought to accommodate its affirmative remedy for Benavides and Guzman to the requirements of the federal immigration laws, including the Immigration Reform and Control Act of 1986, Pub.L. No. 99-203, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.) ("IRCA"). A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408, 414-16 (1995). The Board (Chairman Gould and Member Truesdale, Member Browning dissenting in part, and Member Cohen dissenting in part) ordered the Company to offer reinstatement to Benavides and Guzman, but conditioned the Company's obligation to reinstate them on their satisfaction of the normal verification of eligibility requirements prescribed by IRCA. Id. at 415. Specifically, the Board held that the company would be obligated to reinstate them only if they completed the INS Form I-9 and presented the appropriate supporting documents "within a reasonable time" so that the Company could "meet its obligations under IRCA." Id.

The Board also ordered the Company to pay Benavides and Guzman backpay from the date of their unlawful discharges until "the earliest of the following: their reinstatement by the Company, subject to compliance with the Company's normal obligations under the IRCA, or their failure after a reasonable time to produce the documents enabling the Company to meet its obligations under IRCA." Id. at 416. In addition, the Board ordered the Company to remove from its files any reference to their unlawful discharges and to post appropriate notice. Id. at 417. The Board's order is a final order under § 10(e) of the Act, 29 U.S.C. § 160(e) (1994). This court has jurisdiction pursuant to § 10(e) because the unfair labor practice occurred in New York.

II.

Discussion.

A. Standard of Review.

It is settled law that the Board's power to issue remedial orders " 'is a broad discretionary one, subject to limited judicial review.' " NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 960 (2d Cir.1988) (quoting Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964)). Accordingly, we will not disturb a Board remedial order " 'unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.' " NLRB v. Katz's Delicatessen, Inc., 80 F.3d 755, 769 (2d Cir.1996) (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)).

In crafting its remedies, however, the Board must take into account other federal laws. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 903, 104 S.Ct. 2803, 2814, 81 L.Ed.2d 732 (1984); Southern S.S. Co. v. NLRB, 316 U.S. 31, 47, 62 S.Ct. 886, 894, 86 L.Ed. 1246 (1942). This appeal raises a question concerning one aspect of the interaction of the NLRA and the Immigration and Nationality Act, 18 U.S.C. 1101 (1994) ("the INA"), as amended by IRCA. Where the Board has accounted for the goals of another statute in ordering its remedy, a reviewing court will affirm that remedy if the Board has "reconciled the two statutes in a reasonable way." NLRB v. Lee Hotel Corp., 13 F.3d 1347, 1351 (9th Cir.1994). This standard of review, while still affording the Board considerable deference to the extent it is advancing the purposes of the NLRA, is more stringent with respect to the other statutes that Congress has not committed to the Board's charge. Indeed, it has been said that the Board's interpretation of the INA is entitled to no deference at all. Bevles Co. v. Teamsters Local 986, 791 F.2d 1391, 1393 n. 3 (9th Cir.1986).

B. Sure-Tan and the Pre-IRCA Case law.

Although Congress has modified the INA several times since 1984, the Supreme...