Flaum Appetizing Corp

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 2006 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 162
2006
Flaum Appetizing Corp. and Local 460/640, Industri-
al Workers of The World a/k/a Industrial
Workers of The World, New York City General
Membership Branch. Cases 29–CA–028502, 29–
CA–028675, 29–CA–028854, and 29–CA–028951
December 30, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
Pending before the National Labor Relations Board are
the Acting General Counsel’s motion for partial sum-
mary judgment and motion to strike portions of the Re-
spondent’s amended answer and bill of particulars, and
the Respondent’s opposition thereto. We address those
motions in turn below.
I. THE MOTION FOR PARTIAL SUMMARY JUDGMENT
Procedural Facts
On June 2, 2009, the Board issued an Order adopting,
in the absence of exceptions, the administrative law
judge’s decision finding that the Respondent, Flaum Ap-
petizing Corp., had violated the National Labor Relations
Act by, among other actions, discharging 17 of its em-
ployees for engaging in protected protest activity. As a
consequence, the Board ordered the Respondent, its of-
ficers, agents, successors, and assigns, to reinstate and
make whole the 17 employees, specifically, Olga Maria
Fabian Alonso, Bulmaro Arenas, Maria Corona, Herlinda
Cortez, Micaela Cortez, Veronica Cortez, Irma Juarez,
Nataniel Nava, Felipe Romero Perez, Justino Romero
Perez, German Romero, Jose Juan Romero, Placido
Romero, Gloria Torres, Juan Torres, Isidro Vargas, and
Gustavo (last name unknown),1 in addition to fulfilling
certain other remedial obligations. On August 6, 2009,
the United States Court of Appeals for the Second Cir-
cuit issued a judgment enforcing that Order in full.
On August 2, 2010, a controversy having arisen over
the amount of moneys owing under the Board’s Order,
the Regional Director of the Board for Region 29 issued
a compliance specification and notice of hearing, to
which the Respondent filed an answer on August 20,
2010. On August 26, 2010, the Regional Director filed
an amended compliance specification and notice of hear-
ing, and the Respondent filed an answer on September
14, 2010. In the amended compliance specification, the

1 Gustavo was later listed as Perez Gustavo in the amended compli-
ance specification.
Regional Director alleged that the Respondent owed var-
ying amounts of backpay to 15 of the discriminatees.2
By letter dated September 15, 2010, counsel for the
Acting General Counsel advised the Respondent’s attor-
ney that its September 14, 2010 answer did not satisfy
the standards set forth in Section 102.56(b) of the
Board’s Rules and Regulations. Counsel for the Acting
General Counsel further advised the Respondent’s attor-
ney that if the Respondent did not file an amended an-
swer by September 22, counsel would seek partial sum-
mary judgment from the Board covering the gross back-
pay allegations and computations contained in the
amended specification.
On September 20, 2010, the Respondent filed an
amended answer to the amended compliance specifica-
tion. The Respondent’s amended answer admits the
backpay period as alleged in paragraph I of the amended
compliance specification. Accordingly, we grant the
Acting General Counsel’s motion for partial summary
judgment as to paragraph I.
The Respondent’s amended answer denies the allega-
tions in paragraph II of the amended compliance specifi-
cation concerning the discriminatees’ gross backpay. For
the following reasons, we grant the Acting General
Counsel’s motion for partial summary judgment as to
paragraph II.
Analysis
Section 102.56(b) and (c) of the Board’s Rules and
Regulations provides that:

(b) Contents of answer to specification.—The an-
swer shall specifically admit, deny, or explain each
and every allegation of the specification, unless the
respondent is without knowledge, in which case the
respondent shall so state, such statement operating as
a denial. Denials shall fairly meet the substance of
the allegations of the specification at issue. . . . As to
all matters within the knowledge of the respondent,
including but not limited to the various factors enter-
ing into the computation of gross backpay, a general
denial shall not suffice. As to such matters, if the re-
spondent disputes either the accuracy of the figures
in the specification or the premises on which they
are based, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead specifi-
cally and in detail to backpay allegations of specifi-
cation.—If the respondent fails to file any answer to

2 The Acting General Counsel is not currently seeking backpay for
Nava or Gustavo.
FLAUM APPETIZING CORP. 2007
the specification within the time prescribed by this
section, the Board may, either with or without taking
evidence in support of the allegations of the specifi-
cation and without further notice to the respondent,
find the specification to be true and enter such order
as may be appropriate. If the respondent files an an-
swer to the specification but fails to deny any allega-
tion of the specification in the manner required by
paragraph (b) of this section, and the failure so to
deny is not adequately explained, such allegation
shall be deemed to be admitted to be true, and may
be so found by the Board without the taking of evi-
dence supporting such allegation, and the respondent
shall be precluded from introducing any evidence
controverting the allegation.

The Respondent’s amended answer does not meet the-
se criteria with respect to the gross backpay allegations
in the amended compliance specification. The amended
answer is simply a general denial of most of the allega-
tions regarding the gross backpay. A general denial is
not sufficient to refute allegations pertaining to gross
backpay calculations. See South Coast Refuse Corp.,
337 NLRB 841 (2002); U.S. Service Industries, 325
NLRB 485, 486 (1998). As the Board has stated:

It is well settled that a respondent’s general deni-
al of the backpay computations contained in a com-
pliance specification will be deemed insufficient if
the answer fails to specify the basis for the disa-
greement with the backpay computations contained
in the specification, fails to offer any alternative
formula for computing backpay, fails to furnish ap-
propriate supporting figures for amounts owed, or
fails adequately to explain any failure to do so.

Mining Specialists, Inc., 330 NLRB 99, 101 (1999), citing
Best Roofing Co., 304 NLRB 727 (1991); accord: Robin-
crest Landscaping & Construction, 303 NLRB 377 (1991).
As set forth above, the Respondent’s amended answer
generally denies the gross backpay calculations as al-
leged in paragraph II of the amended compliance specifi-
cation. The amended answer does not specify the basis
for its disagreement with the backpay computation. Nor
does the amended answer offer any alternative formula
for computing backpay, furnish appropriate supporting
figures for the amounts owed, or offer an explanation for
its failure to provide an adequate answer. Because the
Respondent has failed to deny the allegations in para-
graph II of the amended compliance specification as pre-
scribed in Section 102.56(b) of the Board’s Rules, and its
failure to do so has not been adequately explained, we
deem those allegations to be admitted to be true under
Section 102.56(c). Accordingly, the Board grants the
Motion for Summary Judgment as to allegation II of the
amended compliance specification, entitled Computation
of Gross Backpay. See Ybarra Construction Co., 347
NLRB 856, 857 (2006); Paolicelli, 335 NLRB 881, 883
(2001); Baumgardner Co., 298 NLRB 26, 27 (1990)
(partial summary judgment appropriate where respond-
ent’s answer to compliance specification fails to set forth
an alternative number of applicable hours), enfd. mem.
972 F.2d 1332 (3d Cir. 1992).
II. THE MOTION TO STRIKE THE RESPONDENT’S BILL OF
PARTICULARS AND PORTIONS OF ITS AMENDED ANSWER
Procedural Facts
In its amended answer to the amended compliance
specification, the Respondent asserts a series of affirma-
tive defenses. Specifically, the Respondent pleads, inter
alia:
First Affirmative Defense
The Compliance Specification, and each claim
purported to be alleged therein, is barred as the al-
leged discriminatees are undocumented aliens and
therefore, subject to the Supreme Court’s decision in
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.
137 (2002), not entitled to any backpay amount as
set forth in the Compliance Specification.
Second Affirmative Defense
The Compliance Specification, and each claim
purported to be alleged therein, is barred as the al-
leged discriminatees have willfully violated the Im-
migration Reform and Control Act of 1986 (8 U.S.C.
§ 1324a, et seq.) [“IRCA”] by perpetrating a fraud
upon the Respondent and therefore are not entitled to
be lawfully employed in the United States.
Third Affirmative Defense
The Compliance Specification, and each claim
purported to be alleged therein, is barred as the al-
leged discriminatees had unclean hands.

On September 23, 2010, counsel for the Acting Gen-
eral Counsel filed a motion for a bill of particulars, re-
questing that the Respondent plead with specificity the
facts in support of its affirmative defenses. On October
5, 2010, the associate chief administrative law judge is-
sued an Order in which he required that the Respondent
show cause as to why counsel for the Acting General
Counsel’s motion should not be granted. On October 6,
2010, the Respondent filed its opposition to the motion
for a bill of particulars, and on October 15, 2010, counsel
for the Acting General Counsel filed a reply to the Re-
spondent’s opposition. On October l5, 2010, the associ-
ate chief administrative law judge granted counsel for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2008
Acting General Counsel’s motion and ordered that the
Respondent provide counsel for the Acting General
Counsel with a bill of particulars separately setting forth
the names of the discriminatees and stating which af-
firmative defenses apply to each of them, together with a
brief statement of the facts constituting the offense each
discriminatee allegedly committed and when. By sup-
plemental order dated October 21, 2010, the associate
chief administrative law judge ordered that the Respond-
ent provide its bill of particulars to counsel for the Acting
General Counsel by November 2, 2010.
On November 2, 2010, the Respondent submitted its
bill of particulars. In that document, the Respondent
alleges that, at the commencement of their employment,
none of the discriminatees was entitled to work in the
United States under IRCA and therefore none was enti-
tled to backpay under Hoffman Plastics, supra. The Re-
spondent further asserted that each discriminatee provid-
ed it with facially valid but fraudulent documentation and
photo identification, thereby committing a willful viola-
tion of IRCA and demonstrating “unclean hands.” Final-
ly, the Respondent asserted that it “did not learn of said
fraudulent activity until a previous Board hearing(s)
when a number of the alleged discriminatees testified
under oath . . . that the documentation they proffered to
Respondent was in fact falsified, said conduct was perpe-
trated upon Respondent at the time of each alleged dis-
criminatee’s hire.” (Emphasis added.)3
By letter dated November 8, 2010, counsel for the Act-
ing General Counsel advised the Respondent that its bill
of particulars did not provide sufficient information to
satisfy its obligation under the associate chief administra-
tive law judge’s order, and requested that the Respondent
file an amended bill of particulars within 2 days from the
date of the letter.
The Respondent did not respond to that letter. There-
after, on November 24, 2010, counsel for the Acting
General Counsel filed its motion for partial summary
judgment and its motion to strike portions of the Re-
spondent’s amended answer and its bill of particulars.4

3 The Respondent also asserted that each of the discriminatees had
“failed to mitigate” damages. That assertion is not relevant at this stage
of the proceeding.
4 It is readily apparent that the Respondent failed to file the bill of
particulars contemplated by the associate chief administrative law
judge’s order. The Respondent failed to provide dates on which the
discriminatees allegedly committed the wrongdoings attributed to them
and failed to describe the nature of the documentation and photo identi-
fication submitted by each of the discriminatees or explain why it was
fraudulent. The Respondent did not name the discriminatees who al-
legedly admitted at Board hearings that they proffered false documents
and provided no description of their individual testimony beyond what
is quoted above. In fact, 11 of the 17 discriminatees had testified at the
unfair labor practice hearing, and only 4 of them testified that the signa-
In the meantime, on October 15, 2010, after the parties
had begun litigating the propriety of the bill of particu-
lars, the Respondent served identical subpoenas duces
tecum on each of the discriminatees. Each subpoena
sought the following items:

 All United States passports (“USA”) or from
other countries identifying you as the owner
of that passport.
ï‚· All permanent resident cards of United States
identifying you as the owner of that card.
ï‚· All receipts of registration card issued by
United States identifying you as the owner of
that card.
ï‚· Every photograph issued by the government
(federal, state or local) identifying you as the
owner of that card.
ï‚· Every driver license issued by any state iden-
tifying you as the owner of that license.
ï‚· All other documents from the department of
motor vehicle.
ï‚· Every authorization issued by the department
of Homeland Security identifying you as the
owner.
ï‚· Your Social Security card.
ï‚· Your birth certificate.
ï‚· Your marriage license (if you are married).
ï‚· Your vote registration.
ï‚· Your naturalization certificate issued by the
United States.
ï‚· Your documents verifying your education
level.
ï‚· All documentation from the government
submitted to Flaum Appetizing during your
employment in Flaum Appetizing.
ï‚· Every identification forms (visa, work permit,
etc.) submitted to Flaum Appetizing during
your employment.
ï‚· All documentation identifying the country of
your citizenship.
ï‚· All documentation about your trips outside of
the United States since 2004.

tures on the green cards they had provided to the Respondent were not
theirs. The remaining seven verified that the signatures on the cards
were genuine.
Nevertheless, we do not reach the motion to strike the bill of particu-
lars in its entirety as the striking of the affirmative defenses, see below,
renders it moot. As further specified at the end of this order, regarding
the four employees in relation to whom we do not strike the affirmative
defenses—employees Bulmaro Arenas, Felipe Romero Perez, Justino
Romero Perez, and Jose Juan Romero—we deny the motion but order
the Respondent to serve an amended bill of particulars complying with
the judge’s October 15, 2010 order.
FLAUM APPETIZING CORP. 2009
ï‚· Documentation of your citizenship of the
United States.
ï‚· Every correspondence related with your citi-
zenship of the United States.
ï‚· Every correspondence from the United States
confirming your right to work in the United
States.
ï‚· All documentation related with your right to
work in the United States.
Analysis
In Hoffman Plastic Compounds, Inc. v. NLRB, 535
U.S. 137 (2002), the Supreme Court held that IRCA
barred the Board from awarding backpay to an employee
who was not authorized to work in this country during
what would otherwise have been the backpay period.
The Court held that such an award “lies beyond the
bounds of the Board’s remedial discretion.” Id. at 149.5
However, the Supreme Court’s decision did not address,
much less resolve, the procedural questions raised by the
holding. Those questions include which party has the
burden of pleading lack of authorization, under what
circumstances may a party inquire into immigration sta-
tus through compelled production of documents or exam-
ination of witnesses, and which party has the burden of
proof on this issue. See, e.g., NLRB v. Domsey Trading
Corp., 636 F.3d 33 (2d Cir. 2011).
In its decision in Domsey, the Second Circuit did not
view the procedural questions at issue in that case as re-
solved by Hoffman Plastics. Rather, it analyzed the
judge’s exclusion of evidence concerning immigration
status under the generally applicable abuse of discretion
standard. Id. at 38. In Domsey, the employer pleaded
immigration status as an affirmative defense, and no par-
ty moved to strike the defense. Id. at 35. Thus, the ques-
tion before the court was what limitations could be
placed on a party’s efforts to adduce evidence relevant to
what was concededly a properly pleaded affirmative de-
fense. The court held that the Board abused its discretion
by permitting the exclusion of all evidence potentially
relevant to the defense. In so holding, the court stated
that, “[w]hile relevance is certainly not the only consid-
eration when deciding what evidence is admissible, an
affirmative defense would be illusory if all evidence that
could be used to prove it were categorically excluded.”
Id. at 38. But, the court did not hold that the Board was
precluded from structuring the inquiry into immigration

5 Contrary to the dissent’s use of the term “jurisdictional,” the Court
did not hold that the Board lacks jurisdiction (as that term is ordinarily
understood in the law) to award backpay under these circumstances, but
rather that the Board’s discretion to do so is eliminated by the policies
underlying IRCA.
status according to its ordinary rules of pleading and evi-
dence. To the contrary, the court made clear that in a
case where the employer had pleaded lack of work au-
thorization as an affirmative defense, “we find that em-
ployers may question discriminatees about their immi-
gration status, while also underscoring the Board’s legit-
imate interest in fashioning rules that preserve the integ-
rity of its proceedings.” Id. at 39.6
The Board itself has already addressed some of the
procedural questions raised by Hoffman Plastics. Of
particular importance to the question before us in this
case, the Board has held that lack of authorization to
work during the backpay period is an affirmative de-
fense, and several courts of appeals have agreed. See
Tortilleria La Poblanita, 357 NLRB No. 22, slip op. at 4
fn. 7 (2011); Domsey, supra at 37; NLRB v. C&C Roof-
ing Supply, Inc., 569 F.3d 1096, 1099 (9th Cir. 2009).
The procedural context in which the question is pre-
sented in this case is different from Tortilleria La
Poblanita and Domsey. Here, the Acting General Coun-
sel has moved to strike the affirmative defenses. The
question before us here, then, is whether a party must
articulate a basis for pleading an affirmative defense,
thereby opening up an avenue through which to subpoe-
na documents and examine witnesses in order to discover
evidence to support its defense. Without such a require-
ment, a party can plead an affirmative defense with the
mere hope of discovering evidence to support it. We do
not believe generally applicable rules of pleading permit
a pleading to be interposed for the purpose of engaging
in such open-ended inquiry, and we believe that permit-
ting such tactics in this specific context is contrary to the
policies underlying both IRCA and the NLRA.
The most closely analogous Board precedent is the de-
cision in Murcel Mfg. Corp., 231 NLRB 623 (1977). In
that case, the employer pleaded, as an affirmative de-
fense to a refusal-to-bargain charge, that the union en-
gaged in race and sex discrimination, and the employer
further served a subpoena seeking supporting evidence.
The General Counsel moved for a bill of particulars and
then, when the employer responded with unsupported,
general allegations, moved to strike the affirmative de-
fense. Id. at 624. While the Board held that an affirma-
tive defense of union discrimination did not lie in a re-
fusal-to-bargain proceeding, it also expressly upheld the
judge’s decision to strike the affirmative defense as
without factual foundation.

6 For convenience, and because the party challenging the immigra-
tion status of employees in NLRA cases is generally an employer, we
refer to that party as the employer. The same principles would apply
when the party contesting a reinstatement or backpay remedy is a un-
ion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2010
In Murcel, supra, the Board stated that the employer
was “in effect, contending that this Agency is under a
fundamental disability in the processing of this case” and
that therefore it was incumbent upon the employer to
“disclose the particular facts on which the disability is
based so that an intelligent evaluation of the contention
could be made.” Id. at 625 fn. 10. In Murcel, the em-
ployer argued that the Board could not grant relief in
favor of a union that engaged in discrimination barred by
Federal law, just as here, the Respondent argues that the
Board cannot grant backpay to an employee who has
violated IRCA. Yet when the employer could not articu-
late the basis for its defense in Murcel and, instead,
served a subpoena “whose provisions clearly indicated
[r]espondent was embarking on an investigatory proceed-
ing akin to discovery procedures for which the National
Labor Relations Act makes no provision,” the judge
properly struck the affirmative defense. Id. Murcel is
squarely on point.7
Federal courts have similarly granted motions to strike
affirmative defenses, holding that defendants “will not be
permitted to use the affirmative defense to engage in a
‘fishing expedition’” to discover the evidence needed to
support the defense. Securities & Exchange Commission
v. Rosenfeld, 1997 WL 400131 (S.D.N.Y. 1997).8 In an
analogous context, a backpay action brought by a Federal
employee, the Court of Claims held, “the trial commis-
sioner should require the Government to ‘demonstrate
that it has some concrete and positive evidence, as op-
posed to a mere theoretical argument, that there is some
substance to its (affirmative defense) and [it] is not a
mere fishing expedition’ or a method of discouraging
employees from seeking back pay on meritorious claims

7 The Board’s holding in Murcel followed a line of cases in which
the Board struck affirmative defenses pleaded solely in the hope of
finding supporting evidence through service of subpoenas. See, e.g.,
Master Slack and/or Master Trousers Corp., 221 NLRB 894, 897
(1975).
8 See also Palmer v. Oakland Farms, Inc., No. 5:10cv00029, 2010
WL 2605179, at *5 (W.D. Va. 2010) (striking certain affirmative de-
fenses); Hayne v. Green Ford Sales, 263 F.R.D. 647, 651–652 (D. Kan.
2009) (striking affirmative defenses on grounds that allegations must
show “that the pleader at least has some valid premise for asserting the
defense and is not merely tossing it into the case like a fish hook with-
out bait”); Sun Microsystems, Inc. v. Versata Enterprises., Inc., 630
F.Supp.2d 395, 408 (D. Del. 2009) (“a court is not required to accept
affirmative defenses that are mere ‘bare bones conclusory allegations,’
and may strike such inadequately pleaded defenses”); Mission Bay Ski
& Bike, Inc., 2009 WL 2913438, at *4 (Bankr. N.D. Ill. 2009) (“To
allege a defense, a defendant must assert that the plaintiff’s claim is
barred because certain affirmative matters are true, not merely that the
claim will be barred if they turn out to be true.”); Qarbon.com Inc. v.
eHelp Corp., 315 F.Supp.2d 1046, 1049–1050 (N.D. Cal. 2004 (strik-
ing estoppel defense where, inter alia, defendant failed to set forth the
factual basis for it).
because of the cost of proving readiness, willingness and
ability to perform since the adverse action.” Piccone v.
U.S., 407 F.2d 866, 876 (Ct.Cl. 1969) (footnote omitted)
(quoting Missouri Pac. R. Co. v. U.S., 338 F.2d 668, 672
(Ct. Cl. 1964), which applied that standard in determin-
ing whether to permit the Government to interpose a set-
off claim in an income tax refund case). Moreover, the
Respondent’s first, second, and third affirmative defenses
allege fraud or analogous conduct.9 It is well established
that a party alleging fraud—or claims sounding in
fraud—must do so with particularity, regardless of
whether the allegation is made in a complaint or an af-
firmative defense. See Fed.R.Civ.P. 9(b) (“In alleging
fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”); see also
Tyco Fire Products LP v. Victaulic Co., 777 F.Supp.2d
893, 901 (E.D.Pa. 2011) (“[T]he only exceptions to the
general pleading rule for affirmative defenses ‘are the
defenses that fall within the special pleading provisions
in Rule 9, especially Rule 9(b).’”) (quoting 5 Charles
Alan Wright et al., Federal Practice & Procedure,
§ 1274 (3d ed. 2010); United Fixtures Co. v. Base Mfg.,
No. 6:08–cv–506–Orl–28GJK, 2008 WL 4550212, at *5
(M.D.Fla. 2008) (striking an affirmative defense of fraud
where the defendant’s answer stated only the “conclusory
allegation[ ]” of “fraud/inequitable conduct”).
After all, Rule 11 of the Federal Rules of Civil Proce-
dure, applies to “[e]very pleading,” including answers
and affirmative defenses.10 Rule 11 provides that the
required signature on such pleadings certifies that, to the
best of the signer’s knowledge, the factual contentions in
such pleading “have evidentiary support or, if specifical-
ly so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or dis-
covery.” Fed.R.Civ.P. 11(a), (b)(3). Violation of Rule
11 may subject the signer to sanctions, and Federal
courts have sanctioned defendants for pleading frivolous
affirmative defenses. See, e.g., Heller Financial, Inc. v.
Midwhey Powder, supra at 1295.
Even in the absence of available evidence, a reasona-
ble belief that evidentiary support exists and can be ob-
tained through investigation and discovery (or, in the

9 The second affirmative defense expressly alleges fraud, and the
third, in referring to “unclean hands,” clearly relies on the fraud allega-
tion of the second. The first affirmative defense expressly invokes
Hoffman Plastic, in which the Court held that backpay could not be
awarded “for a job obtained in the first instance by a criminal fraud,”
535 U.S. at 149; the defense thus incorporates by reference an allega-
tion of criminal fraud.
10 Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286,
1294 (7th Cir. 1989) (“Affirmative defenses are pleadings and, there-
fore, are subject to all pleading requirements of the Federal Rules of
Civil Procedure.”).
FLAUM APPETIZING CORP. 2011
case of Board proceedings, through trial subpoenas),
requires some articulable reason to believe that is the
case. Courts have thus sanctioned defendants for plead-
ing affirmative defenses without any factual basis or ar-
ticulable reason to believe one can be established. For
example, in Gargin v. Morrell, 133 F.R.D. 504, 504–506
(E.D. Mich. 1991), the district judge sanctioned an attor-
ney under Rule 11 for not having, at the time of pleading,
a factual basis for multiple affirmative defenses, includ-
ing one for which the attorney admitted she did not have
a factual basis “but hoped to find some [evidence] on
discovery.” Id. at 505. The judge stated that it was im-
proper to plead affirmative defenses without a factual
basis merely to avoid waiver because the pleading must
have a factual basis at the time of filing. See also MHC
Investment Co. v. Racom Corp., 323 F.3d 620, 624–625
(8th Cir. 2003) (Rule 11 sanctions warranted in part be-
cause claims “did not have any basis in fact”).
Thus, ordinary rules of pleading support striking the
affirmative defenses here to the extent the Respondent
articulated no factual support (or reason to believe it
could obtain such factual support) for their application to
specific employees.
If we were, contrary to the foregoing precedent, to
permit the pleading of an affirmative defense based on
immigration status in the complete absence of any articu-
lable reason for the Respondent to believe the discrimi-
natees were not authorized to work, we would contravene
the policies underlying both IRCA and the NLRA. In
order to understand why this is so, it is important to re-
member that the Respondent had a legal obligation to
verify that the discriminatees were eligible to work in the
United States prior to hiring them and, thus, presumably,
did so. If, at any time after that, the Respondent had
some reason to believe any of its employees (including
the discriminatees here) were, in fact, not so eligible, it
would have been free, and, under certain circumstances,
would have been legally required, to reverify those spe-
cific employees’ work eligibility. But the Respondent
adduced no evidence of any such doubt, or evidence that
it sought to reverify the status of any of the discrimi-
natees before this proceeding commenced. Thus, it was
the filing of the unfair labor practice charge, the discrim-
inatees’ participation in this case, and the Board’s order
of reinstatement and award of backpay to the discrimi-
natees that motivated the pleading at issue and the in-
quiry that will follow if the pleading is permitted.
However, IRCA specifically provides that employers
are not required to reverify under these circumstances.
Regulations promulgated under IRCA make clear that
while an individual remains employed, the employer has
no obligation to reverify, and further make clear that an
individual is deemed to be “continuing” in his employ-
ment when the individual is reinstated after “wrongful
termination, found unjustified by any . . . administrative
body.” 8 CFR § 274a.2(b),(1),(viii),(A),(5). More perti-
nently, while an individual remains employed, IRCA
provides that reverification may be an unfair immigra-
tion-related employment practice. Specifically, IRCA
provides, “A person’s or other entity’s request, for pur-
poses of satisfying the requirements of section 1324a(b)
of this title, for more or different documents than are
required under such section or refusing to honor docu-
ments tendered that on their face reasonably appear to be
genuine shall be treated as an unfair immigration-related
employment practice if made for the purpose or with the
intent of discriminating against an individual in violation
of paragraph (1).” 8 U.S.C. § 1324b(a),(6). Paragraph 1,
8 U.S.C. § 1324b(1), (A), and (B), makes it an unfair
immigration-related practice for a person to discriminate
in respect to hiring or discharging an individual because
of such individual’s national origin or citizenship. Re-
questing additional documents not required by IRCA on
the basis of national origin makes it more difficult for
individuals to gain employment (or, in this case, to be
reinstated to employment) and thus violates these provi-
sions of IRCA. Cf. Robison Fruit Ranch, Inc. v. U.S.,
147 F.3d 798, 802 (9th Cir. 1998).
With that legal background in mind, it is evident that
the two most obvious courses of actions employers might
follow if permitted to plead immigration status as an af-
firmative defense without any articulable basis would
contravene the policies underlying both IRCA and the
NLRA.
First, as appears to be the case here, employers are
likely to plead the affirmative defense, serve subpoenas,
and elicit testimony whenever a discriminatee has a His-
panic surname. As explained above, such discrimination
in the selection of employees for reverification of em-
ployment status is unlawful under IRCA. Just as “award-
ing backpay to illegal aliens runs counter to policies un-
derlying IRCA,” as the Court held in Hoffman Plastics,
supra at 149, adopting a procedural rule that encourages
violation of IRCA “runs counter to policies underlying
IRCA.”
Alternatively, employers might respond to a decision
permitting the pleading of these affirmative defenses in
the absence of any factual foundation by pleading it in
every compliance case and then resorting to the service
of subpoenas and examination of adverse witnesses at
trial, in the hope of discovering evidence supporting the
defense. In other words, in every case in which the
Board has found that employees’ rights have been violat-
ed, in order to obtain any remedy for the injuries suf-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2012
fered, the employees would potentially be subject to
what is often an embarrassing and frightening inquiry
into their immigration status.11
Numerous Federal courts have recognized that such
formal inquiry into immigration status and facts arguably
touching on it is intimidating and chills the exercise of
statutory rights. For example, the Ninth Circuit ob-
served, “[e]ven documented workers may be chilled by
the type of discovery at issue here. Documented workers
may fear that their immigration status would be changed,
or that their status would reveal the immigration prob-
lems of their family or friends; similarly, new legal resi-
dents or citizens may feel intimidated by the prospect of
having their immigration history examined in a public
proceeding. Any of these individuals, failing to under-
stand the relationship between their litigation and immi-
gration status, might choose to forego civil rights litiga-
tion.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th
Cir. 2004), cert. denied 544 U.S. 905 (2005).12
In our view, subjecting every employee whose rights
have been violated to such an intrusive inquiry,13 even
when the party that has already been adjudged to have
violated the law can articulate no justification for the
inquiry, contravenes the purposes of the NLRA. Effec-
tuation of the purposes of the Act requires the Board to
vindicate public rights and to “neutralize discrimination”
by restoring “the situation, as nearly as possible, to that
which would have obtained but for the illegal discrimina-
tion.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 192–
194 (1941). Under Section 10(c) of the Act, the Board
has wide discretion in ordering affirmative action in or-
der to “expunge” the “effects of unfair labor practices.”
Virginia Electric Co. v. NLRB, 319 U.S. 533, 539 (1943).
Allowing employers, with no justification, to place hur-
dles in front of employees who come to the Board to

11 While the dissent suggests the judge can limit the scope of inquiry,
mere service of a subpoena, such as those served in this case, combined
with the knowledge that such an inquiry may be made in every case and
will have to be contested, would have a chilling effect on the exercise
of the fundamental right to file a charge with the Board.
12 See also Flores v. Amigon, 233 F.Supp.2d 462, 464–665
(E.D.N.Y. 2002), in which the court granted a protective order preclud-
ing discovery of the plaintiff’s immigration status in a suit for compen-
sation for work already performed. The court recognized “the potential
for prejudice,” noting that other courts have “found that discovery into
the plaintiffs’ immigration status . . . posed a serious risk of injury to
the plaintiffs, outweighing any need for disclosure.” Id. at 464 (cita-
tions omitted). The court emphasized that, “[e]ven if the parties were
to enter into a confidentiality agreement restricting the disclosure of
such discovery . . ., there would still remain ‘the danger of intimidation,
the danger of destroying the cause of action’ and would inhibit plain-
tiffs in pursuing their rights.” Id. (quoting Liu v. Donna Karan Interna-
tional, Inc., 207 F.Supp.2d 191, 193 (S.D.N.Y. 2002)).
13 The subpoenas served in this case provide a good example of what
victims of discrimination might be subjected to. See supra.
vindicate their rights and those of the public is contrary
to the purposes of the Act. Moreover, permitting the
pleading of immigration status affirmative defenses in
every compliance case, even in the absence of any factual
foundation, would inevitably lead to unwarranted delay,
abuse of the Board’s processes, and a waste of adminis-
trative resources.
Nothing in our decision today contravenes any express
provision of or policy underlying IRCA. As the Supreme
Court held in Hoffman Plastics, IRCA bars the Board
from ordering the reinstatement of and awarding backpay
to a discriminatee who was not authorized to work in the
United States during the backpay period. But IRCA does
not require that the Board permit baseless inquiry into
immigration status in every case in which reinstatement
or backpay is granted. To the contrary, as discussed
above, we believe that permitting such reverification and
intrusive inquiry without sufficient factual basis for do-
ing so would invite a form of abuse expressly prohibited
by IRCA, and would contravene ordinary rules of proce-
dure and undermine the policies of our Act.
Despite several opportunities to provide a factual basis
for its first, second, and third affirmative defenses, the
Respondent has failed to show sufficient justification for
raising those defenses with respect to discriminatees Ol-
ga Maria Fabian Alonso, Maria Corona, Herlinda Cortez,
Micaela Cortez, Veronica Cortez, Irma Juarez, German
Romero, Placido Romero, Gloria Torres, Juan Torres,
and Isidro Vargas. Accordingly, we grant the Acting
General Counsel’s motion to strike the first, second, and
third affirmative defenses from its amended answer as
they apply to those discriminatees. We also grant the
Acting General Counsel’s motion to strike the Respond-
ent’s bill of particulars. However, we shall not, at this
time, strike the Respondent’s first, second, and third af-
firmative defenses as to Bulmaro Arenas, Felipe Romero
Perez, Justino Romero Perez, and Jose Juan Romero,
who testified at the unfair labor practice hearing that the
signatures on the resident alien cards that they presented
to the Respondent were not theirs. Rather, we shall give
the Respondent another opportunity to attempt to justify
raising immigration-related affirmative defenses as to
those four discriminatees. Accordingly, we shall direct
the Respondent to file, within 14 days of the date of this
Order, an amended bill of particulars providing the in-
formation specified by the associate chief administrative
law judge’s October 15, 2010 order as to those four em-
ployees. If the Respondent fails to provide an adequate
bill of particulars as to Bulmaro Arenas, Felipe Romero
Perez, Justino Romero Perez, and Jose Juan Romero as
set forth above, the Respondent’s first, second, and third
affirmative defenses as to them shall be stricken by the
FLAUM APPETIZING CORP. 2013
administrative law judge upon a motion by the Acting
General Counsel.
ORDER
It is ordered that the Acting General Counsel’s motion
for partial summary judgment is granted with respect to
paragraphs I and II of the compliance specification.
IT IS FURTHER ORDERED that the Acting General Coun-
sel’s motion to strike portions of the Respondent’s
amended answer is granted in part and the Respondent’s
first, second, and third affirmative defenses are stricken
as to discriminatees Olga Maria Fabian Alonso, Maria
Corona, Herlinda Cortez, Micaela Cortez, Veronica Cor-
tez, Irma Juarez, German Romero, Placido Romero, Glo-
ria Torres, Juan Torres, and Isidro Vargas.
IT IS FURTHER ORDERED that, within 14 days of the
date of this Order, the Respondent shall provide the Act-
ing General Counsel with an amended bill of particulars
providing the information specified by the associate chief
administrative law judge’s October 15, 2010 order relat-
ing to discriminatees Bulmaro Arenas, Felipe Romero
Perez, Justino Romero Perez, and Jose Juan Romero.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 29 for fur-
ther action consistent with this Supplemental Decision
and Order, including arranging a hearing before an ad-
ministrative law judge limited to the issues of interim
earnings, expenses, and the Respondent’s net backpay
liability for all of the discriminatees, and issues relating
to the Respondent’s fourth affirmative defense alleging
the discriminatees’ failure to mitigate damages. In addi-
tion, if the Respondent provides the Acting General
Counsel with an adequate amended bill of particulars as
ordered above, the hearing may also include issues relat-
ing to the Respondent’s first, second, and third affirma-
tive defenses with respect to discriminatees Bulmaro
Arenas, Felipe Romero Perez, Justino Romero Perez, and
Jose Juan Romero.
IT IS FURTHER ORDERED that following the hearing, the
administrative law judge shall prepare and serve on the
parties a decision containing findings, conclusions, and
recommendations based on all the record evidence. Fol-
lowing the service of the administrative law judge’s deci-
sion on all the parties, the provisions of Section 102.46
of the Board’s Rules and Regulations shall apply.

MEMBER HAYES, dissenting in part.
Contrary to my colleagues, I would deny the Acting
General Counsel’s motion to strike the Respondent’s first
affirmative defense as to all the discriminatees. I find,
instead, that this defense—that the discriminatees are
precluded from backpay by Hoffman Plastics Compound
v. NLRB, 535 U.S. 137 (2002)—was sufficiently pled to
warrant a hearing, where a judge can determine the ap-
propriate scope of inquiry into the discriminatees’ legal
resident status during the backpay period under the usual
rules of evidence.1 My colleagues’ contrary view, which
subjects any Hoffman defense to extraordinary require-
ments of proof in support of pleading, is an obvious at-
tempt to minimize the impact of what they clearly view
as an erroneous decision by the Supreme Court. That is
an exercise for Congress to undertake, not this adminis-
trative agency.
In Hoffman Plastics, supra, the Supreme Court held
that the Board was barred from awarding backpay to an
employee who was not authorized to work in this coun-
try. Id. In NLRB v. Domsey Trading Corp., 636 F.3d 33
(2011), the Second Circuit stated that “[a]fter Hoffman, it
is now clear that undocumented immigrants are ineligible
for backpay under the NLRA and, therefore, that immi-
gration status is relevant to the question of backpay eli-
gibility.” Domsey, supra at 38. The Board has recently
endorsed this view, recognizing that “the Court’s opinion
in Hoffman forecloses backpay awards for undocumented
workers regardless of the circumstances of their hire.”
Mezonos Maven Bakery, 357 NLRB No. 47, slip op. at 4
(2011) [emphasis added]. Thus, it is clear that the Hoff-
man Plastics decision precludes the Board, essentially, as
a jurisdictional matter, from remedying unlawful conduct
against undocumented discriminatees by awarding them
backpay. See also my dissenting position in Tortilleria
La Poblanita, 357 NLRB No. 22, slip op. at 4 fn. 7
(2011).
So long as the Board lacks jurisdictional authority to
remedy unlawful conduct by awarding backpay to un-
documented workers, immigration status is relevant to
backpay eligibility for discriminatees. Accordingly, it is
sufficient for an employer to generally plead a Hoffman
Plastics affirmative defense. Nonetheless, citing to
Board and Federal court cases for support, the majority
applies general principles to find that a general denial is
insufficient. By doing so, the majority fails to
acknowledge that, as described above, Hoffman Plastics
changed the landscape for determining backpay eligibil-

1 For the reasons stated by my colleagues, I would grant the Acting
General Counsel’s motion for summary judgment as to allegation II of
the amended compliance specification, entitled Computation of Gross
Backpay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2014
ity where the legal status of discriminatees is at issue.
The cases cited by the majority do not deal with Hoffman
Plastics issues. Further, there are numerous circum-
stances in which a general pleading of an affirmative
defense, without more, is sufficient to preserve the issue
for hearing. I note in particular that the Board requires no
factual showing in support of the affirmative defense of
willful loss of earnings. The rationale that facts relevant
to this issue are generally within the knowledge of the
discriminatee is equally applicable to the issue of legal
residency.
In any event, the principles cited by the majority can-
not be applied to preclude the application of Hoffman
Plastics. See Mezonos Maven Bakery, supra, 357 NLRB
No. 47, slip op. at 4 fn. 25 (Board recognizing that the
Supreme Court’s holding in Hoffman Plastics is not lim-
ited to the specific facts of that case). Hoffman Plastics
principles plainly bar the Board from placing constraints
on inquiries made into the immigration status of discrim-
inatees, even in the guise of procedural and evidentiary
limits as my colleagues have decided. As the Domsey
court stressed, “an affirmative defense would be illusory
if all evidence that could be used to prove it were cate-
gorically excluded.”2 Domsey, supra at 38. In fact, it
was precisely for this reason that the Second Circuit in
Domsey remanded the case back to the Board, stating:

While Hoffman was not an evidentiary decision,
post-Hoffman, the immigration status of discrimi-
natees has become relevant to the issue of whether
backpay may be awarded. Although it is by no
means a simple issue, we find that employers may
question discriminatees about their immigration sta-
tus, while also underscoring the Board’s legitimate
interest in fashioning rules that preserve the integrity
of its proceedings.

2 I disagree with my colleagues that Domsey can be distinguished
because the then-General Counsel did not move to strike the employ-
er’s affirmative defense based on immigration status. Any fair reading
of the court’s opinion in that case leads to the conclusion that granting
such a prehearing motion would not be viewed any more favorably than
was the judge’s refusal to permit direct examination of the discrimi-
natees. In particular, the court stated:
Domsey does not argue on appeal that each of the discriminatees was
undocumented during the backpay period. Indeed, Domsey would be
hard-pressed to make such an argument given that, in most cases,
there is no direct evidence in the record concerning the discriminatees’
immigration status. Instead, Domsey argues that it was prohibited
from eliciting relevant testimony from discriminatees and was there-
fore unable to prove its affirmative defense; it seeks a remand so that it
may be permitted to question discriminatees about their immigration
status during the backpay period and to introduce the testimony of its
immigration expert. In short, Domsey’s “general” objection is actually
a very specific objection to the ALJ’s immigration-related evidentiary
rulings. [636 F.3d at 37.]
In sum, we find that employers may cross-
examine backpay applicants with regard to their
immigration status, and leave it to the Board to fash-
ion evidentiary rules consistent with Hoffman.

(Id. at 38–39 (emphasis added).)
The majority’s approach here, imposing pre-hearing
evidentiary requirements equivalent to the judge’s erro-
neous ruling in Domsey, is not “consistent with” Hoff-
man. It subverts the Respondent’s right to litigate the
discriminatees’ legal status through a procedural techni-
cality.
Accordingly, because I find that the Respondent’s first
affirmative defense has sufficiently raised a Hoffman
Plastics affirmativee defense as to all the discriminatees,3
I would deny the Acting General Counsel’s motion to
strike this defense.4 Just as we have done in Domsey,5 I
would remand this issue for hearing by an administrative
law judge.

3 The majority does not grant the motion to strike the Respondent’s
first, second, and third affirmative defenses as to the four discrimi-
natees who provided testimony at the unfair labor practice hearing that
the signatures on the resident alien cards that they presented to the
Respondent were not theirs. While I agree that the motion as to these
four discriminatees should not be granted, I would not require, as the
majority does, that the Respondent submit an amended Bill of Particu-
lars because it is fundamentally inconsistent with my conclusion that a
general denial is sufficient under Hoffman Plastics. Where the Board
finds that a general denial is sufficient (i.e., interim earnings), an an-
swering party need not comply with any additional requirements. This
should be the case here as well.
4 I disagree with my colleagues that the first affirmative defense nec-
essarily rests on proof of fraud by the discriminatees. It rests on wheth-
er the discriminatees were not authorized to work in the United States.
See Mezonos Maven Bakery, 357 NLRB No. 47, slip op. at 1 (Court’s
decision in Hoffman also forecloses Board from awarding backpay to
undocumented workers where the employer, not the employees, violat-
ed IRCA. Without passing on whether they have been sufficiently pled,
I would grant the Acting General Counsel’s motion to strike the Re-
spondent’s second and third affirmative defenses as to all the discrimi-
natees. As to the Respondent’s second affirmative defense alleging that
the discriminatees violated IRCA, the Board has no authority to enforce
or administer IRCA. Hoffman Plastics, supra, 535 U.S. at 149. As to
the Respondent’s third “unclean hands” affirmative defense, established
Board law holds that that the “unclean hands” equitable doctrine does
not operate against a charging party because Board proceedings are
brought in the public interest and to effectuate statutory policy, and not
for the vindication of private rights. California Gas Transport, Inc.,
347 NLRB 1314, 1326 fn. 36 (2006).
Finally, I would leave any issues raised by the Respondent’s sub-
poenas for resolution by the judge at or before the hearing.
5 Domsey Trading Corp., 357 NLRB No. 164 (2011).