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			      United States Court of Appeals


                Argued En Banc September 27, 2000

                     Decided January 16, 2001

                           No. 98-1570

                Hoffman Plastic Compounds, Inc., 


                 National Labor Relations Board, 

          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, en-
tered 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 

     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 documenta-
tion.  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, Sure-
Tan supports backpay awards to undocumented discrimina-
tees 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 

     * Senior Judge Silberman was in regular active service at the 
time of oral argument.  Judge Garland took no part in this matter.

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.


     Petitioner Hoffman Plastic Compounds, Inc., manufactures 
custom-formulated polyvinylchloride pellets for use by cus-
tomers who produce pharmaceutical, construction, and house-
hold 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, distribut-
ed union authorization cards to coworkers.  Following what 
the Board later described as "coercive and restraining" inter-
rogation 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 ac-
tivities and sympathies, but also that "in order to rid itself of 
known union supporters, [the company] discriminatorily se-
lected union adherents for layoff" in violation of sections 
8(a)(1) and (3) of the NLRA, 29 U.S.C. s 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 inter-
preter.  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 undocu-
mented workers and for employees to use fraudulent docu-
ments 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, order-
ing 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, how-
ever, the Board applied its well-established after-acquired 
evidence rule and ended backpay liability the moment Hoff-
man became aware of Castro's undocumented status.  Hoff-
man 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 commit-
ted 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.


     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 em-
ployees 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 sen-
tence, Hoffman claims, "plainly prohibits" the NLRB from 
awarding even limited backpay to undocumented workers 
victimized by unfair labor practices.  Read literally and di-
vorced from Sure-Tan's factual and legal context, the sen-
tence could well be interpreted to support that view.  But the 
Supreme Court has warned against "dissect[ing] the sen-
tences 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 Cir-
cuit originally crafted the sentence, which the Supreme Court 
merely repeated, to deal with unique circumstances of Sure-
Tan 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 7.  

.Moreover, extending the sentence beyond the facts of Sure-
Tan, 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 discrimi-
natee's actual loss.

     The employer in Sure-Tan committed an unfair labor prac-
tice 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, 424 U.S. 
351, 359 (1976)).  Citing these prohibitions, the dissenters 
would have limited the remedy to avoid "encourag[ing] a 
discriminatee to reenter the country illegally."  Sure-Tan, 
246 N.L.R.B. at 789.

     Echoing the dissenting members' concerns, the Seventh 
Circuit "modif[ied the Board's] remedy in some aspects."  See 
NLRB v. Sure-Tan, Inc., 672 F.2d 592, 603-06 (7th Cir. 1982).  
The court allowed Sure-Tan to remind the discriminatees in 
the reinstatement offer that without obtaining proper docu-
mentation they could not reenter the United States to reclaim 
their jobs.  Id. at 605-606.  To reduce the appeal of illegal 
reentry, the court also modified the order "to require rein-
statement only if the discriminatees are legally present and 
legally free to be employed in this country when they offer 
themselves for reinstatement."  Id. at 606.

     Eliminating still another incentive for illegal reentry, the 
court added a clarification to the Board's backpay order, a 

.clarification that forms the basis for the sentence at issue in 
this case:  "[I]n computing backpay discriminatees will be 
deemed unavailable for work during any period when not 
lawfully entitled to be present and employed in the United 
States."  Id.  This limitation, which was based on the Board's 
standard practice of tolling backpay when discriminatees are 
physically unavailable, see Local 512, Warehouse & Office 
Worker's Union v. NLRB, 795 F.2d 705, 716 n.9 (9th Cir. 
1986) ("Felbro") (citing 3 NLRB Casehandling Manual 
ss 10,612, 10,656.9), including when out of the country, see 
NLRB v. Hickory's Best, Inc., 267 N.L.R.B. 1274, 1277 (1983), 
ensured that illegal reentry would not restart the accumula-
tion of backpay.

     Though the Seventh Circuit believed that these restrictions 
were needed to prevent violations of the INA, it worried that 
"in the circumstances of this case"--the Sure-Tan discrimina-
tees had been out of the country since the company's viola-
tion--the restrictions might result in no backpay at all.  See 
Sure-Tan, 672 F.2d at 606.  To solve this problem and to 
"effectuate the policies of the [NLRA]," the court ordered the 
employer to pay the discriminatees backpay for an "obviously 
conjectural" six-month period.  Id.

     The Supreme Court began by emphasizing that neither 
party challenged the "not lawfully entitled" restriction on 
which Hoffman now relies.  Sure-Tan had supported the 
restriction throughout, Sure-Tan, 467 U.S. at 898 n.8, and 
even the Board had come to accept it:

     Conditioning the offers of reinstatement on the employ-
     ees' legal reentry and deeming the employees "unavail-
     able" during any period when they were not lawfully 
     present are requirements that were in fact imposed by 
     the Court of Appeals in this case, and hence fully accept-
     ed by the Board....  The Board has clearly indicated its 
     agreement with these portions of the Court of Appeals' 
     remedial order by specifically noting that petitioners do 
     not challenge these parts of the order [and] by limiting 
     its own argument to the minimum backpay award issue 
.Id. at 903 n.12 (emphasis added);  see also Del Rey Tortille-
ria, Inc. v. NLRB, 976 F.2d 1115, 1123 (7th Cir. 1992) 
(Cudahy, J., dissenting).  Turning its attention to that limited 
issue--the "minimum backpay award"--the Supreme Court 
held that the Seventh Circuit had not only "exceeded its 
narrow scope of review" by substituting its own judgment for 
that of the Board, but also erred by not sufficiently tailoring 
its remedy "to the actual, compensable injuries suffered by 
the discharged employees." Sure-Tan, 467 U.S. at 900, 901.  
Although agreeing with the Seventh Circuit that these re-
strictions would mean that the Sure-Tan discriminatees would 
likely receive no backpay, id. at 903-04, the Court cautioned 
that "the probable unavailability of the [NLRA's] more effec-
tive remedies in light of the practical workings of the immi-
gration laws, however, simply cannot justify the judicial arro-
gation of remedial authority not fairly encompassed within 
the Act."  Id. at 904.  In reaching this conclusion, the Court 
mentioned the "not lawfully entitled" restriction on backpay 
simply to explain the Seventh Circuit's motive for imposing a 
six-month minimum award.  The additional sentence relied on 
by our dissenting colleagues, see Dissenting Op. at 2, adds no 
new restriction;  it merely summarizes the Court's holding 
that backpay awards must be tailored to the discriminatees' 
individual circumstances as determined by the Board.

     Not only does the sentence on which Hoffman relies thus 
form no part of Sure-Tan's holding or reasoning, but contrary 
to the company's claim, it presents no bar to awarding 
backpay to undocumented discriminatees.  As we explained 
above, the Seventh Circuit crafted the restriction to ensure 
that the Sure-Tan discriminatees who had left the country 
would not reenter illegally to claim backpay.  See supra at 6-
7.  In so interpreting the restriction, we rely not on the 
Seventh Circuit's intended meaning, cf. Dissenting Op. at 4, 
but rather on the Supreme Court's expression of precisely the 
same concern:

     [A]s the Court of Appeals recognized, the implementation 
     of the Board's traditional remedies at the compliance 
     proceedings must be conditioned upon the employees' 
.     legal readmittance to the United States.  In devising 
     remedies for unfair labor practices, the Board is obliged 
     to take into account another equally important Congres-
     sional objectiv[e]--to wit, the objective of deterring un-
     authorized immigration that is embodied in the INA.  
     By conditioning the offers of reinstatement on the em-
     ployees' legal reentry, a potential conflict with the INA is 
     thus avoided.  Similarly, in computing backpay, the em-
     ployees 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.
Id. at 902-03 (internal quotation marks and citation omitted) 
(emphasis added).

     It is true, as Hoffman points out, that the words "not 
lawfully entitled to be present and employed" sweep more 
broadly than necessary to deter undocumented discriminatees 
from reentering the country illegally.  But reading these 
words to impose an absolute bar to any award of backpay for 
undocumented discriminatees not only ignores the fact that 
the Seventh Circuit crafted the restriction to deal with the 
precise problem it faced--undocumented discriminatees re-
turning to the country illegally to claim backpay--but also 
conflicts with "other language" (our words in Aka, 156 F.3d at 
1291) making it clear that undocumented discriminatees are 
in fact entitled to backpay.  Specifically, the Court "generally 
approve[d of] the Board's original course of action in this case 
by which it ordered the conventional remedy of reinstatement 
and backpay," leaving calculation of the precise amount of 
backpay until the compliance proceeding.  Sure-Tan, 467 U.S. 
at 902.  The "main deficiency" in the Seventh Circuit's order, 
the Court explained, was not that it awarded backpay to 
undocumented discriminatees, but that the amount of back-
pay awarded was "develop[ed] in the total absence of any 
record evidence as to the circumstances of individual employ-
ees," thus violating the "cardinal" proposition "that a backpay 
remedy must be sufficiently tailored to expunge only the 
actual, and not merely speculative, consequences of the un-

.fair labor practices."  Id. at 899-900 n.9, 900.  The Court 

     [T]he Court of Appeals "estimated" an appropriate peri-
     od of backpay without any evidence whatsoever as to the 
     period of time these particular employees might have 
     continued working before apprehension by the INS and 
     without affording petitioners any opportunity to provide 
     mitigating evidence.  In the absence of relevant factual 
     information or adequate analysis, it is inappropriate for 
     us to conclude ... that the Court of Appeals had estimat-
     ed the proper minimum backpay award "with a fair 
     degree of precision."
Id. at 901-02 n.11.  If, as Hoffman argues, undocumented 
discriminatees may never be awarded backpay, the Court 
would not have mentioned "the proper minimum backpay 
award" or "the period of time these particular employees 
might have continued working."  Nor would there have been 
a need for more "relevant factual information or adequate 
analysis," much less for a compliance proceeding to determine 
the amount of backpay actually due.  According to the dis-
sent, the compliance proceeding was intended only to deter-
mine whether the discriminatees had legally returned to the 
country. See Dissenting Op. at 6-7.  The Supreme Court 
itself made clear, however, that such a hearing would deter-
mine "the period of time these particular employees might 
have continued working before apprehension by the INS." 
See Sure-Tan, 467 U.S. at 902 n.11.

     Hoffman next argues that IRCA's subsequent adoption of 
employer penalties for knowingly hiring undocumented aliens 
extended the Sure-Tan sentence to all undocumented discri-
minatees, including those who, like Castro, never leave the 
country.  According to Hoffman, Castro now falls squarely 
within the Sure-Tan sentence because he is no longer "legally 
entitled to be ... employed."  Had the sentence established a 
general rule of law, we might agree.  As we demonstrate 
above, however, the sentence is neither general (it addressed 
only the unique factual situation in Sure-Tan), nor a rule (it 
played no part in either the Court's holding or reasoning). 

.The Court, moreover, did not consistently describe the limita-
tion in terms of employment eligibility.  At one point, it 
referred to the sentence as conditioning backpay merely on 
"legal presence in this country";  elsewhere, it referred to 
being "lawfully present."  Id. at 898 n.8;  id. at 903 n.12.

     Two of the three Circuits that have addressed this issue 
agree with our interpretation of Sure-Tan.  In A.P.R.A. Fuel, 
the Second Circuit held that Sure-Tan bars awards of back-
pay only to undocumented discriminatees who were unavail-
able for work because they were outside the country and 
unable to lawfully reenter.  See A.P.R.A. Fuel, 134 F.3d 50, 
54-55 (2d Cir. 1997).  Likewise, in Felbro, the Ninth Circuit 

     In Sure-Tan, the Supreme Court did not address the 
     issue whether undocumented workers remaining at work 
     in the United States throughout the backpay period are 
     entitled to backpay awards.  Sure-Tan barred from 
     backpay only those undocumented workers who were 
     unavailable for work in the backpay period because they 
     were outside the United States without entry papers.
Felbro, 795 F.2d at 722.  To be sure, in a later case also 
upholding an award of backpay to undocumented workers, the 
Ninth Circuit added a footnote speculating whether the enact-
ment of IRCA might "change[ ] the mix of policy consider-
ations underlying the case law which supports our conclusion 
that undocumented employees may recover backpay."  EEOC 
v. Hacienda Hotel, 881 F.2d 1504, 1517 n.11 (9th Cir. 1989);  
see also Rios v. Enterprise Ass'n Steamfitters, 860 F.2d 1168, 
1172 n.2 (2d Cir. 1988) (noting, in a footnote, the passage of 
IRCA, but "not decid[ing] the effect of this provision on 
future claims").  Yet the Ninth Circuit and its district courts 
have consistently reaffirmed that undocumented workers re-
main protected by labor and employment laws after IRCA 
and have continued to award them backpay.  See, e.g., NLRB 
v. Kolkka, 170 F.3d 937 (9th Cir. 1999);  Contreras v. Corint-
hian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053 (N.D. 
Cal. 1998);  Escobar v. Baker, 814 F. Supp. 1491, 1498 (W.D. 
Wash. 1993);  EEOC v. Tortilleria "La Mejor," 758 F. Supp. 

.585 (E.D. Cal. 1991).  Only the Seventh Circuit has interpret-
ed Sure-Tan differently, though a strong dissent pointed out 
that the panel and the Supreme Court

     faced a significantly different scenario.  In Sure-Tan, the 
     aliens in question were not only undocumented, they 
     were not in the country.  They could not reenter for the 
     purpose of taking up employment without breaking the 
     law.  This was the Court's concern in Sure-Tan (and the 
     panel's concern before it).
Del Rey Tortilleria, 976 F.2d at 1123-24 (Cudahy, J., dissent-


     Hoffman argues that even if Sure-Tan does not bar back-
pay to undocumented discriminatees, IRCA does.  Yet noth-
ing in IRCA directly bars such an award.  As Hoffman itself 
acknowledges, IRCA neither amends nor repeals the NLRA 
or any other labor law.  IRCA's legislative history, moreover, 
shows that Congress did not intend the statute to limit the 
NLRA even indirectly.  The House Judiciary Committee 
Report stated that no provision of IRCA should

     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 exercis-
     ing 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 [NLRA], as amended, or of the rights and protec-
     tions stated in Sections 7 and 8 of that Act.
H.R. Rep. 99-682, pt. 1, at 58 (1986).  The Judiciary Commit-
tee relied on Sure-Tan to support its view that continued 
protection of undocumented workers under the NLRA is fully 
consistent with IRCA's goals:

.     As the Supreme Court observed in Sure-Tan, application 
     of the NLRA [to undocumented workers] "helps to as-
     sure 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 stan-
     dard terms of employment."
Id. (internal citation omitted).  Echoing this view, the House 
Education and Labor Committee Report stated that no provi-
sion of the law should

     limit the powers of State or Federal labor standards 
     agencies such as the Occupational Safety and Health 
     Administration, the Wage and Hour Division of the De-
     partment of Labor, the Equal Employment Opportunity 
     Commission, the National Labor Relations Board, or 
     Labor arbitrators, in conformity with existing law, to 
     remedy unfair practices committed against undocu-
     mented employees for exercising their rights before such 
     agencies or for engaging in activities protected by these 
     agencies.  To do otherwise would be counter-productive 
     of our intent to limit the hiring of undocumented employ-
     ees and the depressing effect on working conditions 
     caused by their employment.
H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986) (emphasis added).

     Absent a statutory bar to backpay for undocumented discri-
minatees, we turn to the alternative argument we understand 
Hoffman to be making:  that the Board's backpay award fails 
to accommodate IRCA's goal of limiting the hiring of undocu-
mented workers.  Two principles guide our consideration of 
this issue.  First, while the Board's formulation of remedies 
for NLRA violations merits the highest level of deference, see 
ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994), its 
interpretation of IRCA warrants no deference at all.  See, 
e.g., New York Shipping Ass'n v. Federal Maritime Comm'n, 
854 F.2d 1338, 1365 (D.C. Cir. 1988) (agency interpretation of 
a statute it does not administer is entitled to no deference).  
Second, in enforcing the NLRA, the Board may not

.     ignore other and equally important Congressional objec-
     tives.  Frequently the entire scope of Congressional 
     purpose calls for careful accommodation of one statutory 
     scheme to another, and it is not too much to demand of 
     an administrative body that it undertake this accommo-
     dation without excessive emphasis upon its immediate 
Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942).  If 
a conflict requires the Board "to accommodate the policies of 
another statutory regime within the framework of the legisla-
tion it administers," it "must fully enforce the requirements of 
its own statute, but must do so, insofar as possible, in a 
manner that minimizes the impact of its actions on the 
policies of the other statute."  New York Shipping, 854 F.2d 
at 1367.

     [A]n agency, faced with alternative methods of effectuat-
     ing the policies of the statute it administers, (1) must 
     engage in a careful analysis of the possible effects those 
     alternative courses of action may have on the functioning 
     and policies of other statutory regimes, with which a 
     conflict is claimed;  and (2) must explain why the action 
     taken minimizes, to the extent possible, its intrusion into 
     policies that are more properly the province of another 
     agency or statutory regime.  Id. at 1370.
     The Board's first opportunity to consider whether and to 
what extent traditional NLRA remedies might require modifi-
cation to account for IRCA's employer sanctions came in 
A.P.R.A. Fuel.  See 320 N.L.R.B. 408.  Beginning with New 
York Shipping's requirement that it "fully enforce the re-
quirements of its own statute," 854 F.2d at 1367, the Board, 
citing Sure-Tan, explained why NLRA policy calls for back-
pay for undocumented discriminatees.  320 N.L.R.B. at 414.  
Because "undocumented aliens are extremely reluctant to 
complain to the employer or to any of the agencies charged 
with enforcing workplace standards," they make easy targets 
for an employer's "unprincipled effort to stave off ... union 
representation."  Id. at 414.  Employers resisting unions 
could simply fire undocumented workers who try to organize 

.and then raise "the unlawful immigration status of their 
discharged employees in retaliation for protected activities";  
employers might even "consider the penalties of IRCA a 
reasonable expense more than offset by the savings of em-
ploying undocumented workers or the perceived benefits of 
union avoidance."  Id. at 415.  The Board also found that 
denying backpay would harm the collective bargaining rights 
of authorized workers because "the continuous threat of 
replacement with powerless and desperate undocumented 
workers would certainly chill the American and authorized 
alien workers' exercise of their Section 7 rights."  Id. at 414.

     We recognize that there may be different views on the 
extent to which awarding backpay to undocumented discrimi-
natees reduces employer incentives to violate the NLRA.  It 
could be argued, for example, that employers would not likely 
risk criminal penalties for knowingly hiring undocumented 
workers simply to gain the increased leverage that would flow 
from reduced remedies for unfair labor practices.  But even if 
this is true, employers who merely suspect their workers are 
undocumented will still have reason to test the boundaries of 
the NLRA.  In the end, however, we need not resolve these 
policy questions, for it is the Board that possesses expertise 
in this area and it is to the Board that we owe deference.  See 
New York Shipping, 854 F.2d at 1364 (holding that courts 
must defer to an agency "interpretation of its own organic 
legislation" even where there are competing statutory 
schemes).  Indeed, the very existence of competing views 
reinforces the need for reliance on the Board's experience.

     We have the same reaction to Hoffman's argument that the 
Board lacked authority to award backpay here because "none 
of the 'parade of horribles' " the Board identified in A.P.R.A. 
Fuel--including employer exploitation of workers' undocu-
mented status to chill union activity--"could have occurred in 
this case."  In order to take advantage of undocumented 
workers, Hoffman claims, the employer must be aware of 
their undocumented status, and "[i]t is beyond dispute" the 
company did not "[know] that Castro was an undocumented 
alien" at the time of the unfair labor practice.  See Supp. Br. 
for Pet'r at 14.  According to the Board, however, denying 

.undocumented workers remedies for retaliation would chill 
participation in union activities "regardless of whether the 
employer knew of the undocumented worker's immigration 
status."  Supp. Br. for Resp. at 4.  Hoffman provides no 
reason for believing that the Board's position on this issue 
represents an unreasonable interpretation of the NLRA.

     Having explained its reasons for believing that NLRA 
policy requires remedies for undocumented discriminatees, 
the A.P.R.A. Fuel Board addressed its second New York 
Shipping obligation:  the accommodation of immigration poli-
cy.  It began by observing that the NLRA and IRCA share 
"virtually identical policy objectives with respect to the Amer-
ican workplace .... [W]e believe that we can best achieve 
this mutuality of purpose and effect by vigorously enforcing 
the NLRA, including providing traditional Board remedies, 
with respect to all employees, to the extent that such enforce-
ment does not require or encourage unlawful conduct by 
either employers or individuals."  A.P.R.A. Fuel, 320 
N.L.R.B. at 411.  As the Board noted, Sure-Tan itself recog-
nized that preserving N.L.R.A. protection

     eliminates the distinct economic advantage and thus the 
     incentive to employers of hiring illegal aliens in prefer-
     ence to American citizens or alien employees working 
     lawfully.  A reduction in the availability of jobs to undoc-
     umented aliens, the Court found, would in turn discour-
     age many aliens from entering the United States illegal-
Id. at 412.  Citing the legislative history of IRCA quoted 
above, the Board observed that a similar concern explained 
Congress' insistence that the Act not "be used to undermine 
or diminish in any way labor protections in existing law."  Id. 
at 413 (quoting H.R. Rep. 99-682, pt. 1, at 58);  see also 
A.P.R.A. Fuel, 134 F.3d at 56.

     The Board then applied these NLRA and IRCA policies to 
formulate a remedy for the specific unfair labor practices it 
had found.  To accomplish the NLRA's purposes, the Board 
ordered reinstatement with backpay.  But in order to avoid 
conflict with IRCA's prohibition on knowingly hiring undocu-

.mented aliens, it conditioned reinstatement on the discrimina-
tees' production of proper documents.  A.P.R.A. Fuel, 320 
N.L.R.B. at 415.  It also ordered a limited period of backpay 
to give the discriminatees the opportunity to obtain this 

     In crafting a remedy for Castro, the Board relied on 
A.P.R.A. Fuel's accommodation of NLRA and IRCA policies, 
adding an additional limit to the remedy to account for the 
fact that unlike A.P.R.A. Fuel, Hoffman had no knowledge of 
Castro's illegal status when it hired him.  Applying its after-
acquired evidence rule, the Board relieved Hoffman of its 
reinstatement obligation altogether and cut off backpay at the 
moment Castro's status was discovered.  Hoffman Plastic, 
314 N.L.R.B. at 685-86.  Rather than "pay[ing] Castro for 
doing nothing," Dissenting Op. at 1, the NLRB backpay 
award compensates him for lost work "in aid of the Board's 
authority to restrain violations" that harm all workers, see 
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 220 (1938)--
and even that award was limited in recognition of Castro's 
undocumented status.  Because the Board had no need to 
adopt A.P.R.A. Fuel's other remedy--the award of backpay 
while the discriminatees attempted to obtain documentation--
the propriety of such an award is not before us.

     Hoffman argues that the Board should have gone further 
and denied Castro backpay altogether.  As it points out, 
IRCA criminalizes the false use of documents to obtain 
employment.  Yet the Board has long held that employee 
misconduct does not completely immunize employers from 
their backpay obligations, even when the discriminatees 
would not have been hired but for their own wrongful con-
duct.  Cf. Dissenting Op. at 1.  In John Cuneo, for example, 
the discriminatee falsified his job application.  298 N.L.R.B. 
856 (1990). Instead of denying backpay altogether, as the 
employer had urged, the Board limited backpay to the period 
between the illegal discharge and the moment the employer 
learned of the employee's falsification.  In doing so, the 
Board applied the after-acquired evidence rule to "balance 
[its] responsibility to remedy the Respondent's unfair labor 

.practice against the public interest in not condoning [the 
employee's] falsification of his employment application."  Id. 
at 856.  The Supreme Court has itself used the after-acquired 
evidence rule as a means of "deter[ring]" labor law violations 
and "compensat[ing]" discriminatees, without disregarding 
the "prerogatives" of employers.  See McKennon v. Nashville 
Banner Publishing Company, 513 U.S. 352, 362 (1995).

     Even where, as here, the discriminatee violates the law, the 
Supreme Court has refused to require the Board to deny all 
backpay.  In ABF Freight System v. NLRB, 510 U.S. 317 
(1994), the discriminatee perjured himself during the compli-
ance proceeding--an act which, like Castro's fraudulent con-
duct, violated federal criminal law, see 18 U.S.C. s 1621, cited 
in ABF Freight, 510 U.S. at 328-29.  Although declaring that 
"[f]alse testimony in a formal proceeding is intolerable," and 
that "perjury should be severely sanctioned," id. at 323, the 
Court rejected the company's argument that such behavior 
should preclude the employee from receiving backpay:

     [The company's] contention, though not inconsistent with 
     our appraisal of [the employee's] misconduct, raises coun-
     tervailing concerns.  Most important is Congress' deci-
     sion to delegate to the Board the primary responsibility 
     for making remedial decisions that best effectuate the 
     policies of the Act when it has substantiated an unfair 
     labor practice.
Id. at 323-24.  Writing separately to emphasize that the 
Board's failure to adopt an unclean hands policy "undermines 
and dishonors the courts," id. at 329, two concurring Justices 
nevertheless agreed that the Board acted within its remedial 
discretion.  Id. at 326 (Kennedy, J., concurring), 329 (Scalia, 
J., concurring in judgment).

     Attempting to distinguish ABF Freight, the dissent says 
that unlike the perjury statute, IRCA forbade Castro "from 
obtaining a job."  Dissenting Op. at 11 n.2.  This misreads 
IRCA.  The statute makes it unlawful for employers to 
knowingly hire undocumented aliens, 8 U.S.C. s 1324(a), and 
for undocumented aliens to knowingly use false documents to 

.obtain jobs, 8 U.S.C. s 1324c(a)(3).  IRCA does not explicitly 
make it unlawful for undocumented aliens to work.  True, 
Castro could have been prosecuted for his fraud, but there 
was nothing illegal about his actual employment.  So when 
the Board ordered limited backpay, it was not compensating 
Castro for the loss of wages IRCA prohibited him from 
earning.  No matter how much Hoffman may deplore Cas-
tro's conduct, ABF Freight stands for the proposition that 
balancing Castro's misconduct against Hoffman's is the 
Board's responsibility, not ours.  Had the Board ruled that 
Castro's behavior disqualified him from any backpay, we 
would have deferred to that decision as well.  "Most impor-
tant," said ABF Freight, and most important here, "is Con-
gress' decision to delegate to the Board the primary responsi-
bility for making remedial decisions that best effectuate the 
policies of the Act when it has substantiated an unfair labor 
practice."  510 U.S. at 323-324.

     Hoffman argues that the Board's accommodation of IRCA 
fails for another reason:  the remedy gives undocumented 
discriminatees an incentive to remain in the country to contin-
ue accumulating backpay.  It could also be argued that by 
making U.S. jobs more attractive, awarding backpay to un-
documented discriminatees actually encourages illegal immi-
gration.  Even if this is so, of course, the Board's providing a 
purely compensatory remedy for unfair labor practices could 
not make illegal immigration more attractive than it would be 
if employers never committed unfair labor practices.  Our 
job, however, is not to resolve, or as the dissent puts it, to 
"mediate" such issues, Dissenting Op. at 11.  So long as the 
Board neither misinterprets IRCA, see New York Shipping, 
854 F.2d at 1365, "ignore[s]" the statute's policies, nor places 
"excessive emphasis" on the NLRA, Southern Steamship, 316 
U.S. at 47, we will not upset its precise accommodation of the 
statutory schemes.

     In sum, the NLRB has fully satisfied its New York Ship-
ping obligation.  The Board crafted the limited backpay 
remedy to avoid conflict with IRCA and to implement its 
understanding of the purposes of both IRCA and the NLRA.  
According to the Board, the limited backpay award reduces 

.employer incentives to prefer undocumented workers 
(IRCA's goal), reinforces collective bargaining rights for all 
workers (the NLRA's goal), and protects wages and working 
conditions for authorized workers (the goal of both Acts).  
Far from "ignor[ing] other and equally important Congres-
sional objectives," Southern Steamship, 316 U.S. at 47, the 
Board, fully enforcing its own statute, carefully considered 
IRCA and modified its traditional backpay remedy according-
ly.  If, as Hoffman believes, undocumented discriminatees 
should receive no backpay at all, its remedy lies in Congress, 
not this court.


     Hoffman's final argument requires little discussion.  The 
company claims that "[b]y awarding undocumented aliens 
backpay without any consideration regarding whether these 
individuals can mitigate their damages, the Board treats 
illegal aliens more favorably than documented workers and, 
by doing so, the Board violates the equal protection clause of 
the Fifth Amendment to the United States Constitution."  
Brief for Pet'r at 33.  Not only does Hoffman lack standing to 
assert equal protection rights of third parties, see, e.g., Pow-
ers v. Ohio, 499 U.S. 400, 410-16 (1991), but it points to no 
evidence that the Board applies a different mitigation stan-
dard to undocumented discriminatees.  In any event, the 
Board found that Castro both sought and obtained interim 
employment, thus fulfilling his duty to mitigate.  The Board 
subtracted Castro's interim earnings of almost $4,000 from 
his backpay award.

     Finally, we think it worth pointing out that Hoffman itself 
could have mitigated its backpay liability either by making 
Castro a bona fide reinstatement offer--although it did offer 
to rehire him, the Board found the offer inadequate--or by 
complying promptly with the Board's reinstatement order 
issued before Castro's undocumented status became known.  
See Hoffman Plastic, 1998 WL 663933, at *2, *5.  INS 
regulations promulgated pursuant to IRCA expressly permit 
reinstatement after unlawful discharge without requiring the 

.employer to reverify the employee's documents.  8 C.F.R. 
s 274a.2(b)(viii)(A)(5).


     The petition for review is denied and the cross-application 
for enforcement is granted.

                                                             So ordered.

.     Sentelle, Circuit Judge, dissenting, with whom 
Henderson and Randolph, Circuit Judges, join, and Gins-
burg, Circuit Judge, joins in part:  In May of 1988, an 
undocumented alien having illegally entered the United 
States compounded his illegality when he fraudulently used 
the name and birth certificate of Jose Castro to obtain 
employment in the production plant of Hoffman Plastic.  On 
January 31, 1989, the company laid off a number of employ-
ees supportive of a union organizing effort, including the 
employee who had falsely and illegally represented himself to 
be Jose Castro.  Thereafter, an administrative law judge, 
following an evidentiary hearing, found that Hoffman had 
engaged in unfair labor practices including the discriminatory 
selection of union adherents in the layoffs which included the 
illegal alien known as Castro.

     After the disclosure of the undocumented worker's illegal 
status and his fraudulent use of the birth certificate, the 
administrative law judge recommended neither reinstatement 
nor backpay.  Hoffman Plastic Compounds, Inc., 314 
N.L.R.B. 683 (1994).  Upon review, the Board agreed with 
the ALJ that reinstatement of an undocumented alien was 
beyond its authority, but ordered backpay from the time of 
the discriminatory discharge until the revelation of Castro's 
undocumented status.  Hoffman Plastic Compounds, Inc., 
326 N.L.R.B. 86, 1998 WL 663933 at *2-4.  I would reverse 
the Board and restore the ALJ's recommended result.

     As it would be unlawful for Hoffman to employ the illegal 
and pay him earned wages, it defies the logic of the Immigra-
tion Reform and Control Act of 1986 ("IRCA") that the 
employer could be compelled by law to pay to the illegal 
unearned wages which he could not lawfully earn and to 
which he would have no claim but for his prior successful 
fraud.  If this were a case of first impression I would find it 
simple.  I would hold that by no theory of law or equity could 
the federal government compel an employer to employ an 
illegal alien to do nothing and pay him for doing nothing when 
it could not lawfully employ him to work and pay him for 
working.  But this is not a case of first impression.  The 

.Supreme Court has offered clear guidance which makes the 
case an even easier one.


     In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the 
Supreme Court reviewed a Seventh Circuit decision which 
had modified an NLRB order applying the National Labor 
Relations Act ("NLRA") to unfair labor practices committed 
against undocumented aliens, see NLRB v. Sure-Tan, Inc., 
672 F.2d 592 (7th Cir. 1982).  The High Court concluded that 
the Circuit was correct in upholding the Board's position 
"that undocumented aliens are 'employees' within the mean-
ing of [29 U.S.C. s 152(3)]."  Sure-Tan, 467 U.S. at 891.  The 
Court reached this conclusion based on the deference owed 
the Board in "defining the term 'employee,' " a task "that 'has 
been assigned primarily to the agency created by Congress to 
administer the Act.' "  Id. at 891 (quoting NLRB v. Hearst 
Publications, Inc., 322 U.S. 111, 130 (1944));  cf. Chevron 
U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-45 (1984).  That said, 
the Supreme Court nonetheless vacated the remedial portion 
of the Seventh Circuit decision, which had ordered the Board 
to award an irreducible minimum of six months backpay to 
each of the affected employees in the face of the employees' 
illegal entry and presence in the United States.  In vacating 
that portion of the Seventh Circuit decision, the Supreme 
Court held, "[b]y directing the Board to impose a minimum 
backpay award without regard to the employees' actual eco-
nomic losses or legal availability for work, the Court of 
Appeals plainly exceeded its limited authority under the Act."  
Sure-Tan, 467 U.S. at 904-05 (emphasis added).  Based on 
that italicized phrase, even if this were all the Supreme Court 
had held on the question, I would conclude that Sure-Tan 
counsels us to vacate the Board's decision overruling the 
logical result reached by the administrative law judge.  But, 
the Supreme Court did not stop there.

     The Supreme Court explicitly rejected the position taken 
by the NLRB and the majority in today's decision when it 
held, "[s]imilarly, in 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."  Id. at 903.  Thus, the Supreme Court very clearly 
directed the appropriate response to the issue before the 
Board in the present case and did so directly opposite the 
disposition reached by the Board.

     Read in context, the sentence speaks even more plainly:

     Nonetheless, as the Court of Appeals recognized, the 
     implementation of the Board's traditional remedies at the 
     compliance proceedings must be conditioned upon the 
     employees' legal readmittance to the United States.  In 
     devising remedies for unfair labor practices, the Board is 
     obliged to take into account another equally important 
     Congressional objective--to wit, the objective of deter-
     ring unauthorized immigration that is embodied in the 
     INA [Immigration and Nationality Act].  By conditioning 
     the offers of reinstatement on the employees' legal reen-
     try, a potential conflict with the INA is thus avoided.  
     Similarly, in computing backpay, the employees must be 
     deemed "unavailable" for work (and the accrual of back-
     pay therefore tolled) during any period when they were 
     not lawfully entitled to be present and employed in the 
     United States.
Id. at 902-03 (emphasis added) (internal quotation marks and 
citation omitted).  The Supreme Court in a rather concise 
paragraph makes it plain that it is dealing with the possibility 
of affording a backpay remedy to illegal aliens.  It further 
makes it plain that such a remedy is not an option when the 
employees are "deemed unavailable" for work and that such a 
period of deemed unavailability occurs "during any period 
when they were not lawfully entitled to be present and 
employed in the United States."

     Thus, the Supreme Court has definitively answered the 
question before us.  Castro was not lawfully entitled to be 
present and employed in the United States.  "[E]mployees 
must be deemed 'unavailable' for work (and the accrual of 
backpay therefore tolled)" when they are so situated.  There-
fore, the award of backpay to Castro for that period must be 

.vacated.  The majority advances a complex of theories for 
avoiding what seems to be the plain import of the Supreme 
Court's language in Sure-Tan.  It starts by asserting that 
"the Seventh Circuit crafted the restriction to deal with the 
precise problem it faced," that is, "undocumented discrimina-
tees ... returning to the country illegally to claim their 
backpay."  Maj. Op. at 9.  This analysis fails for two reasons.  
First, we are not controlled by the origin of the instructive 
sentence in the Seventh Circuit.  The Supreme Court's con-
text is the governing context without regard to the original 
coinage of the sentence.  Cf. Anderson v. City of Bessemer 
City, 470 U.S. 564, 572-73 (1984) (explaining that a district 
judge's findings of fact and conclusions of law are the findings 
and conclusions of that court despite the fact they are drawn 
from the submissions of the parties).  More importantly, the 
Supreme Court's statement and its context give no indication 
that it meant other than what it said:  not simply that there is 
some sort of unique bar applicable to illegal immigrants who 
have left the country and might unlawfully return, but that 
the same bar extends to all not lawfully entitled to be present 
and employed in the United States.

     Expanding on its first attempt at distinction, the majority 
opines that when the Supreme Court "generally approve[d] 
[of] the Board's original course of action in this case by which 
it ordered the conventional remedy of reinstatement and 
backpay" it somehow had created other language inconsistent 
with the broad effect of the Court's language in the disputed 
sentence.  Maj. Op. at 9.  The majority then relies on the 
principle drawn from our decision in Aka v. Washington 
Hospital Center, 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en 
banc), that the Supreme "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 
intent and with other language in the same opinion."  (Em-
phasis supplied.)  I have no quarrel with the principle;  I 
simply do not agree that its application in this case compels 
the result reached by the majority.  Indeed, I think it cuts to 
the contrary.  The language from the Sure-Tan decision cited 

.by the majority blesses in general terms the remedies of 
reinstatement and backpay.  It no more compels us to uphold 
a backpay award to an employee not lawfully entitled to 
employment than it compels us to uphold illegal reinstate-
ment of the same employee.

     I suggest that the most important "other words" of the 
Supreme Court are those immediately preceding the sentence 
of contention.  Those I have quoted above.  That is, that "[i]n 
devising remedies for unfair labor practices, the Board is 
obliged to take into account ... the objective of deterring 
unauthorized immigration that is embodied in the INA."  As 
the Supreme Court makes plain, there is no inherent conflict 
between the labor statute and the INA.  The conflict arises 
only if the Board imposes remedies inconsistent with the 
immigration law.  That is, the conflict arises not between two 
statutes, but between the remedial preferences of an adminis-
trative board and the higher authority of statutory enact-
ment.  In fact, in the following paragraph, the Supreme 
Court took care to note the "probable unavailability" of 
backpay "in light of the practical workings of the immigration 
laws."  Sure-Tan, 467 U.S. at 904.  Following this "other 
language" of the Supreme Court, we should reach no other 
conclusion than the reversal of what the Board has done in 
the present case.

     The majority further attempts to define the qualifying 
language away from its apparent meaning by extracting from 
a footnote the Supreme Court's observation that "the order's 
main deficiency" was that it "was 'develop[ed] in the total 
absence of any record evidence as to the circumstances of the 
individual employees.' "  Maj. Op. at 9 (quoting Sure-Tan, 467 
U.S. at 900 n.9).  Far from supporting the majority's proposi-
tion, that language of the Supreme Court read in context 
actually supports the application of the eligibility language by 
its terms.  In footnote 9, the Supreme Court is discussing the 
assertion of a dissenter that its review should be conducted 
deferentially, as if the Board rather than the Court of Ap-
peals had developed the remedial order.  Footnote 9 rejects 
that proposition as not going to the defect in the order.  The 
language concerning the "total absence of any record evi-

.dence" is wholly consistent with the proposition that if the 
circumstances of an employee are that he was not lawfully 
eligible to be present and employed in the United States, then 
he does not receive a backpay recovery.  Indeed, it is difficult 
to see what else the Supreme Court could have been referring 

     Today's majority opinion reads Sure-Tan as holding that 
the fired employees were entitled to backpay because it 
ordered a compliance proceeding "to determine the amount of 
backpay actually due."  Maj. Op. at 10.  This assertion 
misconstrues the posture of the case and the Court's holding.  
Prior to the Court's decision in Sure-Tan, nobody had offered 
any evidence concerning what happened to the employees 
after they were deported.  There was no question that the 
employees left the United States, but there was no way to 
know whether they had legally returned during the appropri-
ate backpay period.  As the original NLRB opinion explained, 
"[T]here is no evidence in the record that they have not 
returned to the United States.  The appropriate forum for 
determining issues relating to their availability for work is a 
compliance proceeding."  Sure-Tan, Inc., 234 N.L.R.B. 1187, 
1187 (1978), reh'rg denied, NLRB v. Sure-Tan, Inc., 677 F.2d 
584 (7th Cir. 1982), aff'd in part, rev'd in part, 467 U.S. 883 
(1984).  Accordingly, the Supreme Court ordered that the 
case be remanded for the NLRB to determine "whether any 
of the discharged employees will be able ... to establish at 
the compliance proceedings that they were lawfully available 
for employment during the backpay period."  Sure-Tan, 467 
U.S. at 904.  As the Court explained, "these compliance 
proceedings provide the appropriate forum where the Board 
and petitioners will be able to offer concrete evidence as to 
the amounts of backpay, if any, to which the discharged 
employees are individually entitled."  Id. at 901 (emphasis 

     The majority's interpretation is inconsistent with the Sure-
Tan Court's instruction and holding.  The Court acknowl-
edged that the employees could be eligible for a backpay 
remedy, but it stressed that when computing their actual 
backpay awards, "the employees must be deemed 'unavail-

.able' 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," a factual issue 
that had not been addressed.  Id. at 903.  In other words, the 
Sure-Tan employees could be eligible for some backpay, but 
only if (and only for periods in which) they could prove that 
they were legally eligible to work in the United States.1  
Unlike in Sure-Tan, in Hoffman's case there is no factual 
question--Castro was lawfully unavailable throughout the 
backpay period and, thus, consistent with the Court's instruc-
tion in Sure-Tan, not entitled to receive any backpay.

     Finally, the majority argues that "the sentence ... form[s] 
no part of Sure-Tan's holding...."  Maj. Op. at 8.  I take 
this as being a tactful way of saying:  "All right, the Supreme 
Court said it, but it's just dicta, we don't have to go by it."  I 
find that singularly unimpressive.  As we have observed in 
the past, "because 'carefully considered language of the Su-
preme Court, even if technically dictum, generally must be 
treated as authoritative,' this court cannot ignore the unmis-
takable import of [a Supreme Court decision's] analysis."  
United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) 
(citations omitted).  Or, as we have elsewhere stated, "Su-
preme Court dicta tends to have somewhat greater force--
particularly when expressed so unequivocally."  Bangor Hy-
droelectric Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

     1 The majority's assertion that the Supreme Court "made clear 
... that [a compliance] hearing would determine 'the period of time 
these particular employees might have continued working before 
apprehension by the INS,' " Maj. Op. at 10 (quoting Sure-Tan, 467 
U.S. at 902), is founded on a quotation uprooted from all context.  
The Supreme Court phrase encompassed in the majority's text 
comes from footnote 11 and was not in a discussion of what a future 
compliance hearing would have determined, but rather a descriptive 
passage setting forth what had transpired before the Supreme 
Court's review.  It was specifically offered to rebut the conclusion 
of dissenting Justice Brennan "that the Court of Appeals had 
estimated the proper minimum backpay award with a fair degree of 
precision."  Id. (quoting Sure-Tan, 467 U.S. at 909) (internal quotes 

.     In a different context, prior dissenters to an en banc 
decision once lamented that the majority had discarded Su-
preme Court language "as mere 'dicta,' " saying, "In our view 
it is quite presumptuous for members of an inferior court to 
dismiss a decision of the Supreme Court in so cavalier a 
manner."  Hubbard v. Administrator, EPA, 982 F.2d 531, 
540 (D.C. Cir. 1992) (en banc) (Edwards, J., dissenting).  Just 
so here.  The Supreme Court has told us that "employees 
must be deemed unavailable for work and the accrual of 
backpay tolled during any period when they were not lawfully 
entitled to be present and employed in the United States."  
Indeed, this statement is more than dicta--rather, it was an 
unequivocal instruction for the Board to follow in its compli-
ance proceeding on remand.  I would not dismiss the Su-
preme Court's instruction in so cavalier a manner as does the 

     In the end, I submit the Supreme Court has made clear the 
state of the law:  "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."  Read in context, read out of 
context, or read both ways and compared, the majority is left 
with no way of dealing with the High Court's plain statement.  
I invite the reader to review the phrase "not lawfully entitled 
to be present and employed" in its original context.  I further 
suggest that contextual illumination for this sentence of the 
High Court's opinion is supplied in the Court's analysis of the 
Seventh Circuit decision that it was reversing.  The High 
Court described that decision as "[r]ecognizing that the dis-
charged employees would most likely not have been lawfully 
available for employment and so would receive no backpay 
award at all...."  Sure-Tan, 467 U.S. at 890 (emphasis 
added).  Thus, the governing factor in determining eligibility 
for backpay awards is not mere presence, but also the lawful 
entitlement to be present and to be employed.

     The majority's construction of the phrase "not lawfully 
entitled to be present and employed in the United States" is 
tantamount to rewriting it to read "not present, and not 
lawfully entitled to be present, in the United States."  In 

.effect, it adds the "not present" limitation and deletes the 
"not lawfully entitled to be ... employed" requirement.  That 
rewriting of Sure-Tan leads the majority astray.

     The erroneous construction of Sure-Tan endorsed by the 
majority appears to have first occurred in Bevles Co. v. 
Teamsters Local 986, 791 F.2d 1391, 1393 (9th Cir. 1986).  
Before that time, even its critics believed that Sure-Tan 
meant what it said.  See Sure-Tan, 467 U.S. at 911 (Brennan, 
J., dissenting) (criticizing the majority for holding that undoc-
umented aliens "are effectively deprived of any remedy");  
Felbro, Inc., 274 N.L.R.B. 1268, 1269 (1985) (stating that the 
undocumented aliens in Felbro, who had remained in the 
country, would be affected by Sure-Tan);  Local 512, Ware-
house & Office Workers' Union v. NLRB, 795 F.2d at 705, 
725 (9th Cir. 1986) ("Felbro") (Beezer, J., dissenting in part);  
Terry A. Bethel, Recent Labor Law Decisions of the Supreme 
Court, 45 Md. L. Rev. 179, 196 (1986) ("Sure-Tan ... de-
prive[s] undocumented employees of any effective remedy for 
unlawful discrimination....");  Lucinda M. Cardinal, Note, 
Immigration Reform:  Solving the "Problem" of the Illegal 
Alien in the American Workforce, 7 Cardozo L. Rev. 223, 244 
(1985) ("Sure-Tan mandates that illegal aliens do not receive 
the remedies granted their legal coworkers.");  John W. Saga-
ser, Note, Rights Without a Remedy--Illegal Aliens Under 
the National Labor Relations Act, 27 B.C. L. Rev. 407, 452 
(1986) ("By denying a minimum backpay award, the Court in 
effect deprives illegal alien workers of any remedy.").  In 
Bevles, the Ninth Circuit was reviewing an arbitrator's award;  
the issue was whether the arbitrator's decision showed a 
"manifest disregard of the law," and the court was not 
entitled to reverse simply erroneous legal conclusions.  See 
791 F.2d at 1392-93 & n.2.  In not following Sure-Tan, the 
court ignored the lawful presence requirement and consid-
ered whether the aliens in that case were lawfully entitled to 
be employed.  The Bevles court relied on the fact that--prior 
to the passage of IRCA--it was not a criminal act for 
employers to hire undocumented aliens.  See id. at 1393.  
The court also considered the effect of section 2805 of the 
California Labor Code, which prohibited employers from 

.knowingly employing undocumented aliens if it would affect 
lawful workers.  Because an unreversed state court decision 
had previously held section 2805 unconstitutional, the court 
did not fault the arbitrator for disregarding it.  See id. at 

     The focus on the lawful right to grant employment contin-
ued in Felbro.  The Ninth Circuit there again relied on the 
fact that it was not illegal for an employer to hire undocu-
mented aliens.  Because the Sure-Tan employees could not 
lawfully reenter the United States, the court noted that they 
were "unavailable for work during the backpay period."  Fel-
bro, 795 F.2d at 719.  The court reasoned that being illegally 
present in the United States did not create unavailability 
because "[t]here is no provision 'in the INA making it unlaw-
ful for an employer to hire an alien who is present or working 
in the United States without appropriate authorization.' "  Id. 
(quoting Sure-Tan, 467 U.S. at 892-93).

     Since the passage of IRCA, both the Second and the Ninth 
Circuits have registered concern over IRCA's effect on their 
misguided attempts to limit Sure-Tan.  In Rios v. Enterprise 
Ass'n Steamfitters Local Union 638, 860 F.2d 1168 (2d Cir. 
1988), the Second Circuit was careful to explain that recovery 
was only permissible because the claimants were "available 
for employment during the entire period covered by the 
backpay order, since such employment would have violated no 
immigration law."  Id. at 1173.  The court explicitly reserved 
the question of whether IRCA would affect later claims.  See 
id. at 1172 n.2.  The Ninth Circuit likewise has questioned 
the viability of its Felbro decision after IRCA.  See EEOC v. 
Hacienda Hotel, 881 F.2d 1504, 1517-18 n.11 (9th Cir. 1989).  
In a further Second Circuit case postdating the enactment of 
IRCA, that circuit continued to follow its pre-enactment 
precedent.  See NLRB v. A.P.R.A. Fuel Oil Buyers Group, 
Inc., 134 F.3d 50 (2d Cir. 1997).  However, as Judge Jacobs 
clearly demonstrated on dissent, without the slender reed of 
the employer's legal capacity to hire undocumented aliens, 
"an undocumented alien is not 'lawfully available for employ-
ment.' " Id. at 62 (Jacobs, J., dissenting) (quoting Sure-Tan, 
emphasis supplied by Judge Jacobs).  As Judge Jacobs point-

.ed out, the remedy of backpay to the alien ineligible for 
employment "is foreclosed by Sure-Tan and IRCA."  Id.

     Like the Second Circuit in A.P.R.A. Fuel, the majority 
today offers nothing that should lead us to believe that the 
Supreme Court in Sure-Tan meant anything other than what 
it said;  and what it said disqualifies the illegal alien in this 
case from an award of backpay.

     In Sure-Tan the Court emphasized, "[W]e remain bound to 
respect the directives of the INA as well as the NLRA and to 
guard against judicial distortion of the statutory limits placed 
by Congress on the Board's remedial authority."  Sure-Tan, 
467 U.S. at 904 n.13.  Likewise, we are bound by the statuto-
ry directives of IRCA.  Those directives prohibit employers 
from hiring illegal aliens, see 8 U.S.C. s 1324a(a)(1)-(2), (e), 
(f), and make it a crime for illegal aliens to obtain employ-
ment using "an identification document knowing (or having 
reason to know) that the document was not issued lawfully for 
the use of the possessor, [or] ... that the document is false," 
18 U.S.C. s 1546(b);  see also 8 U.S.C. s 1324a(b)(c)(ii) (1988).  
The majority opinion essentially ignores these directives, 
instead pointing out that "employee misconduct" and an 
employee's providing a "false excuse for tardiness" while 
under oath, ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 
324 (1994), do not necessarily bar backpay awards.  These 
points are inapposite--in this case, federal statutes clearly 
prohibited Castro from even obtaining a job.2

     Instead of confronting these statutes directly, the majority 
chooses to mediate between statutory "goals."  This Court's 
divination of what were the legislature's goals should never be 
allowed to trump what the legislature actually said.  And 
what the legislature has said is clear.  Despite what this 
Court's policy preferences may be, those preferences "cannot 
justify the judicial arrogation of remedial authority not fairly 

     2 This distinguishes the circumstance before us from that in ABF 
Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994), relied upon by the 
majority.  See Maj. Op. at 18.  The perjury statute provides for 
criminal sanctions;  it does not forbid a present or potential perjurer 
from obtaining a job.

.encompassed within the [NLRA]" as interpreted by the Su-
preme Court in Sure-Tan.  467 U.S. at 904.


     The majority discusses at length the incentives and 
counter-incentives of backpay awards to illegal aliens from 
employers who could not legally employ them.  While I do 
not think that law-and-economics analysis to be controlling or 
particularly helpful in this case, I would observe that it seems 
at least passing strange to think that Congress would outlaw 
the making of a particular type of contract between two types 
of individuals (United States employers and undocumented 
aliens) and then expect the courts to impose remedies that 
compel one of the parties to the disfavored contract to pay 
money to the other.  I cannot see how those incentives could 
be much other than a complete wash.

     For the reasons set forth above, I respectfully dissent.

.     Ginsburg, Circuit Judge, dissenting:  I join Judge Sen-
telle's dissent insofar as he demonstrates that in Sure-Tan, 
Inc. v. NLRB, 467 U.S. 883 (1984), "the Supreme Court has 
definitively answered the question before us."  Dissent at 3.  
The court today simply cannot convincingly evade the High 
Court's clear statement that "in computing backpay, the 
employees must be deemed 'unavailable' for work (and the 
accrual of back pay therefore tolled) during any period when 
they were not lawfully entitled to be present and employed in 
the United States."  467 U.S. at 903.

     Because I believe that Sure-Tan is controlling, I do not 
think it necessary to reach the question whether the Board 
reasonably reconciled the remedial scheme of the NLRA with 
the policies embodied in the IRCA.



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