Sure-Tan, Inc. & Surak Leather Co.

National Labor Relations Board - Board Decisions

Dec 5, 1979

246 N.L.R.B. 788 (N.L.R.B. 1979)

I)7I(ISIONS OF NA1 IONAI LABOR RE.ATIONS BOARI)
Sure-Tan, Inc. and Surak Leather Co. and Chicago
Leather Workers Union, Local 431, United Food
and Commercial Workers International Union,
AFL-CIO.' Cases 13 CA- 16117 and 13 ('A-
16229
December 5, 1979
ORDER DENYING MOTION
On March 6, 1978, the Board issued its Decision
and Order in the above-entitled proceeding. It
adopted, inter alia, the Administrative law Judge's
finding that Respondent, in retaliation against union
activities, constructively discharged five Mexican em-
ployees by requesting an Immigration and Natural-
ization Service investigation that led to the employ-
ees' immediate deportation. The Board reversed the
Administrative Law Judge as to his recommended
remedy for the 8(a)(3) discharges. The Administrative
Law Judge assumed that the discriminatees were still
in Mexico and thus physically unavailable for work.
He therefore refrained from ordering any hackpay.
He also placed a 6-month time limit on the reinstate-
ment offer. The Board held that the questions of
availability and backpay liability should be answered
in a compliance proceeding and ordered the conven-
tional remedy.
On September 7, 1978, the General Counsel filed a
motion for clarification and the Charging Party an-
swered the motion on October 17, 1978. The General
Counsel contends that the Board's Order does not dis-
tinguish between legal and illegal immigrant status of
discriminatees and thus is contrary to national immi-
gration law and policy. The Board's Order is viewed
by the General Counsel as encouraging deported dis-
criminatees to return as quickly as possible to claim
their jobs and backpay rather than wait until an un-
certain date when they might be able to reenter the
United States legally.
The General Counsel suggests that our Order be
clarified to require an offer of reinstatement only to
those discriminatees who are able to reenter the
United States lawfully. He argues that backpay
should accrue only from the time a lawfully returned
discriminatee is denied employment after his return.
The General Counsel concedes that this narrow read-
ing of the Board's Order would leave in most deporta-
tion cases only the cease-and-desist provisions as a
remedy.
The Charging Party responds to the General Coun-
The name of' the Charging Party, formerly Chicago I.eather Workers
Union, Local 431, Amalgamated Meatcutters and Butcher Workmen of
North America, AFL CIO, is amended to reflect the change resulting from
the merging of Retail Clerks International Union and Amalgamated Meat-
cutters and Butcher Workmen of North America on June 7, 1979.
2 234 NLRB 1187 (1978).
sel by arguing that the effect of the suggested clarifi-
cation is to allow Respondent to discharge undocu-
mented workers without incurring any hackpay
obligations. If Respondent is then able to replenish
his work force with a new group of illegal aliens, a
strong incentive is thus created for illegal migrations.
We have considered both the motion and the an-
swer and we shall deny the motion for the following
reasons. The Board is of the view that the remedial
policies of the Act will be best effectuated in this case
by affording the discriminatees full protection not-
withstanding the circumstances attendant to their ille-
gal discharge. They are to be offered unconditional
reinstatement. The backpay period runs from the dis-
criminatory loss of employment to the bona fide rein-
statement offer. The usual procedures for handling
the claims of missing discriminatees are to be used.'
l)iscriminatees who are located but found to be un-
available for work (including unavailability because
of enforced absence from the country) will have their
backpay tolled accordingly. 4 In the event of long de-
lays in locating the discriminatees the backpay is to
be placed in an escrow account for the normal 2-year
period.' As we indicated in our Decision and now
reaffirm the appropriate forum for implementing the
Order is in the compliance proceeding. We particu-
larly note that the Gieneral Counsel's motion is unac-
companied by any showing of an effort to make the
necessary factual determinations as spelled out
above.6
We do not regard it as within our authority to alter
the obligations imposed by the Act in a manner
which might assist in reaching whatever may be the
current goals of immigration policies, and we would
be uncertain how to do so even if we considered it
proper. 7 We reject Member Murphy's suggestion that
('ase HIandling Manual (Part I11, sec. 10584.2.
4 1d. sec. 10612 26.
5 d. sec 10644.
It is foir this reason that Member Murphy's suggested remedial modifica-
tions in the name of"specificity and reasonable accommodation" are prema-
ture at best. Similarly. Member Murphy's assertion that the BHoard's remedy
rests on a "fiction" would require for substantiation precisely the factual
determinations as Io locations and availability that a compliance proceeding
would provide.
V 1. RB sApolo, ire (., 604 F.2d 1180 (9th ('ir. 19791.
I he dissents of Menihers Penello and Murphy fail to take into account the
breadth of the court's holding. In agreeing with the Board's position that
illegal aliens are employees within the meaning of Sec. 2(3) of the Act, the
court enforces our Order fior reinstatement and backpay. he court also
states that our interpretation best harmonizes with Federal immigration laws
in that. absent Board jurisdiction. employers would be encouraged to hire
illegal aliens in order to evade their responsibilities under the National Labor
Relations Act. This comports with our reasons for denying the General
Counsel's motion in this case. The court refrained from requinng the Board
to "'delve into immigration matters. out of' its field of expertise." We are in
complete agreement with the corl t. Finally, we note that the court made no
distinction as to the current lawful or unlawful immigration status of aliens
whose presence at the time the discrimination occurred was unlawful. In-
stead, the court affirmed our award of reinstatement to those who were
allegedly unlawflully in the country when the discrimination occurred. with-
out regard to whether their presence then or later was unlawful. thus. Mem-
ber Penello's distinction on this ground is untenable.
246 NLRB No. 134
788
SURE-TAN, INC. AND SURAK LEATHER CO.
our expertise is called into question by a failure to
appreciate the complexity of the issues. We note that
it is Member Murphy who has presented national
policy underlying the immigration laws as one-di-
mensional. She correctly states that competition be-
tween illegal aliens and natives for lower paid, lower
status jobs often works to depress wages and working
conditions. However, it may well be that the result of
such competition is not necessarily or always detri-
mental to native workers. In this regard it has been
argued that higher wages in certain industries may
act to deprive natives of jobs by either driving the
industry out of existence of by compelling major
changes in technology. s
Southern Steamship Co. v. N.L.R.B., 9 cited by our
dissenting colleagues, teaches that our responsibility
includes an obligation to accommodate the policies of
the Act to other Federal statutes expressing equally
important congressional objectives. The Court held in
Southern Steamship that the Board abused its discre-
tion by ordering reinstatement for unfair labor prac-
tice strikers whose strike activity violated a Federal
anti-mutiny statute. However, in contrast to the facts
of this case as developed supra, the Court grounded
its holding on the judgment that the congressional
intent underlying the statute in question was clear
and unambiguous and, further, that the strikers'
criminal conduct held a serious potential for violence.
We are of the view that our Order for reinstatement
and a compliance hearing to develop a factual record
is not so imcompatible with immigration law so as to
render it an abuse of our discretionary authority un-
der the rule of Southern Steamship. We note particu-
larly that at present there is no showing that any dis-
criminatee has violated any of the criminal provisions
of the Immigration and Nationality Act. Further, we
are of the view that it is unnecessary at this time to
tailor our remedy to the possibility that implementa-
tion of our Order would result in such violations.
Therefore, at this stage of the proceedings, prior to
any factual determinations by the Regional Office,
the Board sees no reason to depart from the normal
compliance procedures.
It is hereby ordered that the General Counsel's mo-
tion be, and it hereby is, denied.
MEMBER PENELLO, dissenting:
I cannot agree with my colleagues' decision to deny
the General Counsel's motion for clarification of the
Order we entered in this proceeding on March 6.
1978.'0 For I believe that the General Counsel has
persuasively demonstrated that important Federal
policies require us to clarify our Order to require Re-
' Piore. "Illegal Immigration in the United States: Some Obsersations and
Policy Suggestions," in "Illegal Aliens: An Assessment of the Issues." Na-
tional Council on Employment Policy (1976).
9316 U.S. 31 (1942).
1°234 NLRB 1187.
spondent to offer reinstatement only to discriminatees
lawfully in the United States.
In our Decision and Order, we found that Respon-
dent, in retaliation against the union activities of five
of its Mexican employees, requested the Immigration
and Naturalization Service to investigate their legal
status. As a result, the employees were immediately
deported. We concluded that Respondent had con-
structively discharged the employees in violation of
Section 8(a)(3), and we ordered the normal remedy of
reinstatement and backpay.
As the General Counsel points out in his motion.
the reinstatement and backpay provisions of our Or-
der, as presently written, do not distinguish between
discriminatees who reenter the country lawfully and
those who reenter unlawfully. As a consequence, a
discriminatee may seek to return immediately to this
country, without waiting until he may be able to do
so legally, in order to enjoy the benefit of a Board-
ordered job waiting for him here. Thus, absent clarifi-
cation, our Order might encourage a discriminatee to
reenter the country illegally-conduct which consti-
tutes a felony under United States criminal laws."
In view of the foregoing, I believe that it is incum-
bent upon us to harmonize the policies of our Act
with those of the Federal immigration laws.'2 I would
therefore clarify our Order so as to require Respon-
dent to offer reinstatement only to discriminatees law-
fully in the country.'3
MEMBER MURPHY, dissenting:
In its Decision and Order of March 6, 1978,'4 the
Board found that Respondent violated Section 8(a)(3)
of the Act by constructively discharging five Mexican
employees, who were illegal aliens, in retaliation for
their union activities, and ordered reinstatement and
backpay for those employees, giving the usual remedy
for such violations. The constructive discharge of the
five illegal aliens was the consequence of Respon-
dent's request to the Immigration and Naturalization
8 U.S.C secs. 1325. 1326.
12 See Southern Steamship Company v. V LRB. 316 U.S. 31 (19421.
In N.L.R.B. v. Sure-Tan, Inc. and Surak Leather Compni, 583 F.2d 355
(1978), where the Seventh Circuit enforced the bargaining order we entered
against the same Respondent involved in the instant proceeding. the court
found that the Board's Order was "not inconsistent with federal immigration
laws." The court said that "here the lasting benefit goes not to the law
violators--the aliens but rather to the Union, which is not accused of
wrongdoing." Id, at 360. 361. The court expressly stated that issues of rein-
statement and backpa) were not before it. Id. at 358. fn. 3.
The majority's reliance on N.LR.B v. Appollo Tire Co., Inc.. 604 F.2d
1180 (9th Cir. 1979). is misplaced. The issue raised by the instant case was
not before the Ninth Circuit in Appollo Tire because, as tlie Board stated in
its brief to the court, "The Company here has not contended that the em-
ployees here involved have been deported."
1 Notwithstanding this clanfication. the "cease and desist" aspect of our
Order would remain intact and thus Respondent would he barred from re-
peating its discriminatory conduct Ifa court of appeals enforced our 8(aH3)
finding. Respondent would he subject to contempt sanctions should it again
resort to the tactics it employed here
1 234 NLRB 1187
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service to investigate. which Respondent knew would
result (as it did) in their deportation. Obvious prob-
lems of compliance therefore exist concerning avail-
ability of the deported employees.
The General Counsel's motion for clarification re-
quests that the Board specify what Respondent's obli-
gations are under the Order herein so that the compli-
ance proceeding may deal with the question of
whether Respondent has satisfied its obligations.
The General Counsel asserts that the intent of the
Board's remedial order is unclear, that Respondent
has legitimate questions concerning how or when it is
required to reinstate and give backpay to the discrim-
inatees, and that a circuit court on review may well
have similar questions. The General Counsel states
that the Order as issued requires reinstatement and
backpay without regard to illegal alien status and that
implementation of the Order would be contrary to
national immigration policies and laws. Therefore,
the General Counsel has suggested various alternative
remedies which be believes would discourage Re-
spondent from violating the Act but would not be in
conflict with the Immigration and Nationality Act.
The majority of the Board is denying the General
Counsel's motion because they "do not regard it as
within our authority to alter the obligations imposed
by the Act in a manner which might assist in reaching
whatever may be the current goals of immigration
policies .... "' They therefore interpret the existing
remedial order as requiring the unconditional offer of
reinstatement for the illegal aliens with backpay from
the date of discharge to the date of a "bona fide rein-
statement offer." I disagree.
The Board majority also states that while backpay
will be tolled where employees are unavailable for
work-including unavailability of illegal aliens who
are not allowed to return to this country-its citation
in footnote 3 to the Board's Casehandling Manual
requires that Respondent's obligation to the illegal
aliens continues indefinitely and if at any time any of
the five employees again becomes available an offer
of reinstatement must be made. Further, where dis-
criminatees cannot be located, backpay is to be
placed in escrow for a 2-year period. 6
'5 N.L.R.B. v. Appollo Tire Co., Inc, 604 F.2d 1180 (9th Cir. 1979). cited
by the majority for this proposition, did not involve illegal aliens who had
been deported and hence is inapplicable to the facts herein. The majority
claims that distinguishing Apollo Tire on these grounds "fails to take into
account the breadth of the court's holding," the rationale for which the
majority implies is applicable to all situations in which a Board Order comes
into conflict with existing immigration law. This is a very uncertain conclu-
sion and one which goes beyond the issue before the court in that case and
hence must go beyond the intent of the court; it is indeed a peculiar logic to
apply Apollo Tire to the current proceeding simply because the court in
reaching its conclusions failed to differentiate between illegal aliens situated
in this country and those who were deported, especially when the facts pre-
sented to the court did not involve individuals in the latter category.
'6 Member Penello dissents; he would grant the General Counsel's motion.
including a requirement that Respondent be required to offer reinstatement
"only to discriminatees lawfully in the country." (Emphasis supplied.)
There is no doubt that the Board's Order in this
case must be clarified. The uncertainties which Re-
spondent has expressed are very real. The majority's
action in purporting to leave future determination to
the compliance stage of the proceeding begs the ques-
tion-neither Respondent nor the General Counsel
knows what is required in order to comply with the
Order here unless the Board informs them. To this
extent I would grant the General Counsel's motion.
The majority's refusal to consider how the enforce-
ment of the National Labor Relations Act (NLRA)
may be effectuated in such a way as to fit in with the
implementation of the current goals of immigration
policies manifests an overwhelming indifference and
insensitivity to other Federal law, either alone or as it
may impact on the current labor and economic situ-
ation in this country. However, nothing in the NLRA
or its policies gives the Board a special dispensation
to ignore other legislation. Of course, the Board may
not interpret other statutes and is not enpowered to
enforce any other legislation unless directed to do so
by Congress.' 7 We have not been so empowered as
regards the Immigration and Nationality Act (INA),
but it is incumbent upon us to take cognizance of
other statutes and accommodate to them if we can. It
is possible to do so here and I deem it essential in
light of the common purpose of protecting employees.
Thus, the legislative purpose of the INA provisions
which relate to illegal aliens is to prevent such aliens
from entering this country to perform labor "because
of the likely harmful impact of their admission on
American workers."'8 Congress noted that this impact
principally affects the lower paid, lower status jobs
held by the young, blacks, and members of other mi-
nority groups who experience the highest unemploy-
ment rates and who can least afford such competi-
tion.'9 It is clear from this that although illegal aliens
are clearly employees within the meaning of the Act
and are entitled to its protection2 0 this does not make
them immune from the provisions of INA. Under
these circumstances, for the Board to let this Order
stand and leave for determination in compliance what
action is needed would be to require the courts to do
what the Board should be doing-reconciling the pro-
visions and policies of the NLRA with those of the
INA. 2'
" See my dissenting opinions in Westinghouse Electric Corporalion, 239
NLRB 106 (1978); The East Dayton Tool and Die Co.. 239 NLRB 141
(1978); Safeways Stores, Incorporated. 240 NLRB 836 (1979); Automations &
Measurement Division, The Bendix Corporation, 242 NLRB 62 (1979); The
Bendix.r Corporation. 242 NLRB 1005 (1979); Markle Manufacturing ('om-
pany of San Antonio. 239 NLRB 1353 (1979): Kentile Floors, Inc., 242 NLRB
755 (1979).
,' Richard B. Peskiff v. Secretars of Labor, 501 F.2d 757, 761 (D.C. ('Cir.
1974). cert. denied 419 U.S. 1038 (1975).
t0 House Committee on the Judiciary. Illegal Aliens: Analysis and Back-
ground, 93d Cong. Ist sess.. 18 (1977).
2Amav's Bakers & Noodle Co, 227 NLRB 214 (1976).
21 See Southern Steamship Co v. v L. R B. 316 U.S 31 (1942). in which the
790
S[RE-TAN. IN('. ANI) SURAK L.t:A'tIR CO.
Clearly we cannot allow the present Order of rein-
statement of illegal aliens to remain in efftect. 22 T'he
remedy in this case is merely another situation in
which the Board is indulging in the fiction that the
discriminatees did not leave the labor market and are
available for work despite the fact they are not in
truth available at all. For they have been deported to
Mexico and are very unlikely to return to this country
legalv in the foreseeable future. Similarly, in AM Re.-
tauran.s, Incorporated, db/a The Alandarian, 238
NL.RB 1575 (1978). where the discriminatee had gone
to Taiwan-albeit voluntarily the same fiction was
adopted despite the fact, as I pointed out in my dis-
sent therein, that the law is clear "that a discriminatee
who removes himself or herself from the job market
and is not available for work for the employer is not
entitled to backpay for such period."2 3 I apply the
rationale to illegal aliens.
I believe that a more realistic and practical ap-
proach is needed which recognizes the facts and the
problems and takes cognizance of the rights of all
parties. It is for this reason that I cannot agree with a
remedy providing that offers of reinstatement be
made only to persons who prove they are legally in
this country. I do not believe in the use of internal
passports for either citizens or aliens. The require-
ments of proving legal status is more suited to the
ideology of a police state than a democracy. Nor is it
within the Board's competence to determine the legal
status of aliens. The Ninth Circuit, in discussing the
jurisdiction of the Board vis-a-vis illegal aliens stated:
"[W]e hesitate to require the Board to delve into im-
migration matters, out of its field of expertise. Ques-
tions concerning the status of an alien and the valid-
ity of his papers are matters properly before the
Immigration and Naturalization Service. An em-
ployer who suspects that an employee is in the United
Supreme Court affirmed the Board's unfair lahbr practice findings but would
not enforce the remedy. finding it to be in conflict with another Federal law
Compare Stein Printing (nompanh, 204 NI.RB 17 (1973), and Emerll tflna
ienance, Inc, 188 NlRB 876 1971), in which the Board tailored ils remedies
to accommodate applicable state and Federal law.
: I disagree with the majority in holding that its Order for reinstatement
would not be an abuse of the Boards discretionary power under he rule ol
Southern Steum.hip. supra his Order would encourage deported discrimi-
natees to return to this country by means outside the procedures io the INA.
a result clearly in conflict with provisions of that statute
States without proper authority should report this in-
formation to the INS .... 24
One possible way to meet the need for specificity
and reasonable accommodation would be to limit the
backpay period to the time from the date of discharge
to the date of deportation, and to provide that the
offer of reinstatement be made but that an acceptance
thereof be made within a specified reasonable period
such as 2 veeks: if the employees did not report by
the end of that period. the offer would expire.2 '
As is apparent from this discussion and from the
varying views of the Board Members, there are many
elements to be considered and reconciled, some of
which are outside the expertise of the Board major-
ity. 26 This is a situation in which the Board should
employ a rulemaking procedure to determine the ap-
propriate remedy in circumstances like these. Af-
fected parties could he heard, disparate elements con-
sidered, and a remedy fashioned that would meet not
only the demands of this proceeding but could be
applied in the future to similar fact situations.2 '
I urge my colleagues to recognize the detrimental
effect illegal aliens have on our legal work force and
to resolve this problem-which is monumental in cer-
tain parts of our country in the due process manner
I have set forth herein.
" See Knickerhbrcker Plastic (Co, 132 NL.RB 1209, 1216 (1961) Ga(; Air-
craft (orporaion, 210 Nl RB 555 557 (19741
" See V L R. .A v ,polli ire (o., supra at I 113
25 The majority asserts that my suggested "remedial modifications In the
name )o specificity and reasonable accommodauion are premature at best
However, I do what the majority is unwilling to do. Namely, I set out a
compliance procedure which recognizes tne realities, thereby avioiding the
wasted motion of a scenario n which what is sought and what can he had
bear little if any relationship t each other he majority. hby indulging in a
fiction and extending the fiction into a complihance proceeding. merely defers
decision of this inevitable issue and pro, ides guidance for neither Respon-
dent. the General Counsel, nor the general public.
i' My colleagues obhsiousl) misconstrue my vews as to what removes this
matter from the Board's expertise- the complexity itof the issues would be
unimportant if Congress had delegated that function to this Board Whether
the presence of illegal aliens is in fact advantageious to the well-being itf our
country is a question to be decided by Congress and is not within the pur-
view of the NLRA. Congress has determined that the employment of illegal
aliens is detrimental to our Nation's best interests and has authorized. within
the provisions of the INA, an immigration prcedure which will sustain this
policy Where application of Board law comes into conflict with the intent or
the provisiins of the INA. then the Board must reconcile the two statutes
without intruding into another agency's functions
2' See S. Rept. 95 628. imer aall. Labor Ref;,rm Act f 1978. 95th Cong.
2d sess.. 18 20 1978). In which the Board is chided t;or nt making more
extensive use of its existing rulemaking authority
791