No. 00-1595 

In the Supreme Court of the United States 

HOFFMAN PLASTIC COMPOUND, INC., PETITIONER 

v. 

NATIONAL LABOR RELATIONS BOARD 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 
IN OPPOSITION 

ARTHUR F. ROSENFELD 

General Counsel 

JOHN H. FERGUSON 

Associate General Counsel 

NORTON J. COME 

Deputy Associate General 

Counsel 

JOHN EMAD ARBAB 

Attorney 
National Labor Relations 

Board 
Washington, D.C. 20570 
THEODORE B. OLSON 
Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Petitioner discriminatorily selected an employee for 
layoff because he engaged in union-organizing activity 
protected by the National Labor Relations Act (Act), 29 
U.S.C. 151 et seq. The National Labor Relations Board 
(Board) found that petitioner violated Section 8(a)(3) of 
the Act, 29 U.S.C. 158(a)(3), in laying off that employee. 
Petitioner subsequently learned that the laid-off em- 
ployee was an undocumented alien not authorized to be 
employed in the United States. The Board ordered 
petitioner to pay back pay to the employee, but only up 
to the date on which petitioner learned that the 
employee had used fraudulent identification documents 
to secure his employment with petitioner. The question 
presented is whether the Board’s order awarding back 
pay to the employee up to that date is a proper exercise 
of the Board’s remedial authority. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 2 

Statement ........................................................................................ 2 

Argument ........................................................................................ 11 

Conclusion ....................................................................................... 26 

TABLE OF AUTHORITIES 

Cases: 

A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 

408 (1995), aff ’d, 134 F.3d 50 (2d Cir. 1997) ..... 

6, 7, 11, 12, 17 

Bevles Co. v. Teamsters Local 986, 791 F.2d 1391 

(9th Cir. 1986), cert. denied, 484 U.S. 985 (1987) ............. 

21 

County Window Cleaning Co., 328 N.L.R.B. 190 

(1999) ........................................................................................ 23 

De Canas v. Bica, 424 U.S. 351 (1976) ............................... 

4 

Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115 

(7th Cir. 1992) .................................................... 

16, 22, 23, 24, 25 

East Island Swiss Prods., Inc., 220 N.L.R.B. 175 

(1975) ........................................................................................ 13 

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 

1989) ......................................................................................... 21 

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ................... 

20, 21 

Intersweet, Inc., 321 N.L.R.B. 1 (1996), enforced, 

125 F.3d 1064 (7th Cir. 1997) ............................................... 

23 

Local 512, Warehouse & Office Workers’ Union v. 

NLRB, 795 F.2d 705 (9th Cir. 1986) .................................. 

22 

Marshall Durbin Poultry Co., 310 N.L.R.B. 68 (1993), 

enforced in relevant part, 39 F.3d 1312 (5th Cir. 

1994) ......................................................................................... 13-14 

McKennon v. Nashville Banner Publ’g Co., 

513 U.S. 352 (1995) ................................................................ 

13 

Nathanson v. NLRB, 344 U.S. 25 (1952) ........................... 13 

(III) 

IV 

Cases—Continued: Page 

NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 

134 F.3d 50 (2d Cir. 1997) ...................................... 

12, 14, 21, 22 

NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 

(1969) ........................................................................................ 

13, 14 

NLRB v. Sure-Tan, Inc., 672 F.2d 592 (7th Cir. 1982), 

rev’d in part, 467 U.S. 883 (1984) .................................. 

3, 17, 18 

Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 

1988), cert. denied, 489 U.S. 1011 (1989) ........................... 

21 

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) ......... 

13 

Regal Recycling, Inc., 329 N.L.R.B. No. 38 (Sept. 30, 

1999) ......................................................................................... 23 

Rios v. Enterprise Ass’n Steamfitters Local Union 638, 

860 F.2d 1168 (2d Cir. 1988) ................................................. 

21, 22 

Southern S.S. Co. v. NLRB, 316 U.S. 31 (1942) ............... 

14 

Sure-Tan, Inc. v. NLRB: 

467 U.S. 883 (1984) ............................................................ 

passim 

234 N.L.R.B. 1187 (1978) .................................................. 

17 

Victor’s Cafe 52, Inc., 321 N.L.R.B. 504 (1996) .............. 

23 

Statutes, regulation and rule: 

Age Discrimination in Employment Act of 1967, 

29 U.S.C. 621 et seq. ............................................................... 

13 

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e 

et seq. ........................................................................................ 

21 

Fair Labor Standards Act of 1938, 29 U.S.C. 201 

et seq. ........................................................................................ 

21 

Immigration Act of 1990, Pub. L. No. 101-649, § 544(a), 

104 Stat. 5059-5061 ................................................................ 

6 

Immigration and Nationality Act, 8 U.S.C. 1101 

et seq. ........................................................................................ 

4 

8 U.S.C. 1324a ................................................................... 

5 

8 U.S.C. 1324a(a)(1) ..................................................... 

4, 5, 25 

8 U.S.C. 1324a(a)(1)(A)-(B)(ii) ....................................... 

24 

8 U.S.C. 1324a(a)(1)(B) .................................................... 

5 

8 U.S.C. 1324a(a)(2) ......................................................... 5 

V 

Statutes, regulation and rule—Continued: 
Page 

8 U.S.C. 1324a(a)(3) ......................................................... 

25 

8 U.S.C. 1324a(b) (1994 & Supp. V 1999) ............... 
5, 24, 25 

8 U.S.C. 1324a(e)(4) ......................................................... 
5 

8 U.S.C. 1324a(e)(5) ......................................................... 
5 

8 U.S.C. 1324a(f)(1) .......................................................... 

5 

8 U.S.C. 1324c(a) (1994 & Supp. V 1999) ..................... 
6 

Immigration Reform and Control Act of 1986, Pub. L. 

No. 99-603, 100 Stat. 3359 .................................................... 

4 

§ 103(a), 100 Stat. 3380: 
18 U.S.C. 1546(b) ........................................................ 
5 

18 U.S.C. 1546(b)(1) .................................................... 
5, 15 

18 U.S.C. 1546(b)(2) .................................................... 
5, 15 

National Labor Relations Act, 29 U.S.C. 151 et seq.: 
§ 2(3), 29 U.S.C. 152(3) ..................................................... 
2 

§ 8(a)(3), 29 U.S.C. 158(a)(3) ............................................ 
2, 6, 7 

8 C.F.R. 274a.7 .......................................................................... 
24 

7th Cir. R. 40(e) ......................................................................... 
24 

Miscellaneous: 

H.R. Rep. No. 682, 99th Cong., 2d Sess., Pt. 1 (1986) ........ 16 

In the Supreme Court of the United States 

No. 00-1595 

HOFFMAN PLASTIC COMPOUND, INC., PETITIONER 

v. 

NATIONAL LABOR RELATIONS BOARD 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 
IN OPPOSITION 

OPINIONS BELOW 

The opinion of the en banc court of appeals (Pet. App. 
1a-36a) is reported at 237 F.3d 639. The prior opinion of 
the court of appeals panel (Pet. App. 37a-77a) is re- 
ported at 208 F.3d 229. The second supplemental 
decision and order of the National Labor Relations 
Board (Pet. App. 78a-87a) and the decision of the ad- 
ministrative law judge (Pet. App. 88a-95a) are reported 
at 326 N.L.R.B. 1060. 

Prior decisions and orders of the 
Board are reported at 314 N.L.R.B. 683 and 306 
N.L.R.B. 100. 

(1) 

2 

JURISDICTION 

The judgment of the en banc court of appeals was 
entered on January 16, 2001. The petition for a writ of 
certiorari was filed on April 16, 2001. The jurisdiction 
of this Court is invoked under 28 U.S.C. 1254(1). 

STATEMENT 

1. a. In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 
(1984), this Court held, in agreement with the National 
Labor Relations Board (Board), that an undocumented 
alien worker is entitled to the protections of the 
National Labor Relations Act (NLRA or Act) as an 
“employee” within the meaning of Section 2(3) of the 
Act, 29 U.S.C. 152(3). See 467 U.S. at 891-894. The 
Court also sustained the Board’s conclusion in that case 
that the employer had violated Section 8(a)(3) of the 
Act, 29 U.S.C. 158(a)(3), when it constructively dis- 
charged its undocumented alien workers by reporting 
them to the Immigration and Naturalization Service 
(INS), which resulted in the employees’ arrest and 
immediate voluntary departure from the United States 
to Mexico in lieu of deportation. See 467 U.S. at 886- 
888, 898-906. 

As a remedy for the violation in the Sure-Tan case, 
the Board “ordered the conventional remedy of rein- 
statement with backpay, leaving until the compliance 
proceedings more specific calculations as to the 
amounts of backpay, if any, due these employees.” 467 
U.S. at 902. The court of appeals, seeking to reconcile 
the Board’s conventional remedies with the policies 
underlying the Nation’s immigration laws, modified the 
Board’s order “to require reinstatement only if the dis- 
criminatees are legally present and legally free to be 
employed in this country when they offer themselves 
for reinstatement,” and, in computing back pay, to deny 

3 

back pay to discriminatees “unavailable for work during 
any period when not lawfully entitled to be present and 
employed in the United States.” NLRB v. Sure-Tan, 
Inc., 672 F.2d 592, 606 (7th Cir. 1982), rev’d in part, 467 
U.S. 883 (1984); see also 467 U.S. at 889. Because of the 
likelihood that the discriminatees might not “have been 
lawfully available for employment in the United States 
prior to the date of the new offers of reinstatement 
which will be required” and thus would “receive no 
backpay,” the court of appeals further concluded that it 
would best effectuate the policies of the Act “to set a 
minimum amount of backpay which the employer must 
pay in any event, because it was his discriminatory act 
which caused these employees to lose their jobs.” 672 
F.2d at 606. Estimating that the discriminatees would 
have continued working for the employer for at least 
six months until the INS would have independently 
detected their presence in the United States, the court 
of appeals ordered that each discriminatee receive back 
pay for that minimum period of time. Ibid.; see also 467 
U.S. at 890. 

This Court held that the court of appeals’ “imposition 
of this minimum [six-month] backpay award * * * 
constitutes pure speculation and does not comport with 
the general reparative policies of the NLRA.” Sure- 
Tan, 467 U.S. at 901. As this Court explained, the court 
of appeals had “ ‘estimated’ an appropriate period of 
backpay without any evidence whatsoever as to the 
period of time these particular employees might have 
continued working before apprehension by the INS.” 
Id. at 902 n.11. This Court agreed with the court of ap- 
peals, however, that “the implementation of the Board’s 
traditional remedies at the compliance proceedings 
must be conditioned upon the employees’ legal re- 
admittance to the United States.” Id. at 902-903. That 

4 

condition on the discriminatees’ remedy, the Court 
stated, was appropriate to accommodate “the objective 
of deterring unauthorized immigration” reflected in the 
Immigration and Nationality Act (INA), 8 U.S.C. 1101 
et seq. See 467 U.S. at 903.1 The Court added (ibid.): 

By conditioning the offers of reinstatement on the 
employees’ legal reentry, a potential conflict with 
the INA is thus avoided. Similarly, in computing 
backpay, 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. 

b. Subsequent to Sure-Tan, Congress amended the 
INA by enacting the Immigration Reform and Control 
Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359. 
In a substantial change from prior law (see note 1, 
supra), IRCA made it unlawful for employers know- 
ingly to hire aliens not authorized to obtain employ- 
ment in the United States. 

Congress provided in 
IRCA that “[i]t is unlawful for a person or other 
entity—(A) to hire * * * for employment in the 
United States an alien knowing the alien is an 
unauthorized alien * * * or (B) to hire for employment 
in the United States an individual without complying 
with the requirements of subsection (b).” 8 U.S.C. 
1324a(a)(1). “[T]he requirements of subsection (b)” 

1 The Court observed that, under the version of the INA then 
in effect, “[t]he central concern of the INA [was] with the terms 
and conditions of admission to the country and the subsequent 
treatment of aliens lawfully in the country,” and the INA reflected 
at most “a peripheral concern with employment of illegal en- 
trants.” Sure-Tan, 467 U.S. at 892 (quoting De Canas v. Bica, 424 
U.S. 351, 359-360 (1976)). 

5 

referred to in Section 1324a(a)(1)(B) are set forth in 
Section 1324a(b), which establishes an “employment 
verification system” that obligates each employer to 
examine specified kinds of documents to verify that a 
person whom it wishes to hire is not an “unauthorized 
alien.” 8 U.S.C. 1324a(b) (1994 & Supp. V 1999). Sec- 
tion 1324a(a)(2) of Title 8, as added by IRCA, further 
provides that “[i]t is unlawful for a person or other 
entity, after hiring an alien for employment in 
accordance with paragraph (1) [i.e., Section 1324a(a)(1)], 
to continue to employ the alien in the United States 
knowing the alien is (or has become) an unauthorized 
alien.” 8 U.S.C. 1324a(a)(2). An employer who violates 
Section 1324a may be subject to civil and criminal 
penalties. See 8 U.S.C. 1324a(e)(4) and (5) (civil penal- 
ties); 8 U.S.C. 1324a(f)(1) (criminal penalties). Those 
penalties apply, however, only if the employer has 
knowingly hired or retained an undocumented alien or 
has not complied with the employment verification 
system. 

In addition to placing new restrictions on the hiring 
practices of employers, IRCA also prohibits certain 
conduct by individuals seeking employment. Under 18 
U.S.C. 1546(b), as added by IRCA, it is a criminal 
offense for a person to use “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, * * * for the pur- 
pose of satisfying a requirement of [Section 1324a(b)].” 
18 U.S.C. 1546(b)(1) and (2).2 

2 Petitioner incorrectly states (Pet. 11) that this criminal 
provision respecting the misuse of identification documents by 
employees was part of the INA “[p]rior to IRCA.” Rather, that 
provision was enacted in 1986 as part of IRCA. Petitioner also 

6 

c. In A.P.R.A. Fuel Oil Buyers Group, Inc., 320 
N.L.R.B. 408 (1995), aff ’d, 134 F.3d 50 (2d Cir. 1997), 
the Board fashioned a conditional reinstatement and 
back pay remedy for application in cases where, con- 
trary to IRCA, the employer hires individuals knowing 
that they are not authorized to work in the United 
States, and then subsequently discharges those em- 
ployees because of their protected union activity, in 
violation of Section 8(a)(3) of the NLRA. In that 
situation, the Board has required the employer to pay 
the discriminatees back pay from the date of their dis- 
charge to the date when they are reinstated, “subject to 
compliance with the [employer’s] normal obligations 
under IRCA” to verify their eligibility for employment 
in the United States, or when the discriminatees, after 
a reasonable period of time, fail to produce “the docu- 
ments enabling the [employer] to meet its obligations 
under IRCA,” whichever date is earlier. 320 N.L.R.B. 
at 416; see also Pet. App. 83a. 

The Board in A.P.R.A. Fuel expressly noted, how- 
ever, that a different remedy would apply in a situation 
where, unlike the case before it, the employer did not 
know, at the time of hire, that the employee whom it 
discharged in violation of the NLRA was not authorized 
to work in the United States under IRCA, but rather, 
learns of that fact only after the discharge. See 320 
N.L.R.B. at 415 n.39, 416 n.44. The Board explained: 

Under established Board law, if an employer satis- 
fies its burden of establishing that the discriminatee 

incorrectly states (Pet. 11) that a separate provision respecting the 
misuse of identification documents, codified at 8 U.S.C. 1324c(a) 
(1994 & Supp. V 1999), was enacted in 1986 by IRCA. Rather, that 
provision was enacted into law by the Immigration Act of 1990, 
Pub. L. No. 101-649, § 544(a), 104 Stat. 5059-5061. 

7 

engaged in unprotected conduct for which the em- 
ployer would have discharged any employee, rein- 
statement is not ordered and backpay is terminated 
on the date the employer first acquired knowledge 
of the misconduct. 

Id. at 416 n.44 (internal quotation marks and citations 
omitted). The instant case involves the application of 
that limited back pay remedy. 

2. a. Petitioner produces polyvinyl chloride pellets 
at a plant in Paramount, California. In May 1988, peti- 
tioner hired Jose Castro to work as a compounder in the 
plant. Pet. App. 40a; Hoffman Plastic Compounds, 
Inc., 306 N.L.R.B. 100, 101, 104 (1992). Prior to hiring 
Castro, petitioner, as required by IRCA (see pp. 4-5, 
supra), examined documents tendered by Castro to 
verify that he was authorized to work in the United 
States. Those documents appeared to be genuine and 
related to the person presenting them. Pet. App. 85a & 

n.11. 
Shortly before Christmas 1988, the United Rubber, 
Cork, Linoleum and Plastic Workers of America, AFL- 
CIO, began a union-organizing campaign at petitioner’s 
plant. Castro supported the organizing campaign and 
distributed authorization cards to co-workers. Pet. 
App. 5a; Hoffman Plastic Compounds, 306 N.L.R.B. at 
102, 108. On January 31, 1989, petitioner laid off Castro 
and all the other employees who had engaged in organ- 
izing activities. Pet. App. 5a. 

b. On January 22, 1992, the Board issued a decision 
finding that petitioner had unlawfully responded to the 
union’s organizing campaign by discriminatorily select- 
ing Castro and three other employees for layoff “in 
order to rid itself of known union supporters,” contrary 
to Section 8(a)(3) of the NLRA, 29 U.S.C. 158(a)(3). 

8 

The Board ordered petitioner to offer reinstatement to 
Castro and the other discriminatees, and to make 
them whole for lost earnings. Pet. App. 5a, 79a; 
Hoffman Plastic Compounds, 306 N.L.R.B. at 100, 107. 
Thereafter, petitioner entered into a stipulation with 
the Board’s General Counsel, whereby petitioner 
waived its right to seek judicial review of the Board’s 
January 22, 1992, order finding it in violation of the 
NLRA and ordering make-whole relief. 

Pet. App. 88a. 
c. On March 4, 1993, the Board commenced a compli- 
ance hearing before an administrative law judge (ALJ). 
Pet. App. 88a; see also Hoffman Plastic Compounds, 
Inc., 314 N.L.R.B. 683 (1994). On June 14, 1993, the 
final day of the hearing, Castro testified that he was 
born in Mexico and that, in order to obtain employment 
with petitioner in 1988, he had tendered a birth certifi- 
cate that “is not his own,” but rather, “is for an 
individual born in El Paso, Texas.” Pet. App. 79a-80a. 
He further testified that “[t]he birth certificate was 
loaned to me so that I can secure a job.” Ibid. Based on 
Castro’s testimony, the ALJ, in a decision that pre- 
dated A.P.R.A. Fuel, recommended that Castro be 
denied reinstatement and awarded no back pay. Id. at 
94a-95a. 

On September 23, 1998, the Board reversed the 
ALJ’s decision in part. Pet. App. 78a-87a. The Board 
found that petitioner “attempted to comply with IRCA 
when it hired Castro,” that it “would not have offered 
Castro initial employment had it known of his un- 
authorized immigration status,” and that it “did not 
learn until the back-pay hearing that Castro used 
fraudulent identification in applying for employment.” 
Id. at 84a. Applying the “after-acquired knowledge 
rule” adverted to in A.P.R.A. Fuel (see pp. 6-7, supra), 
the Board concluded that “Castro is not entitled to rein- 

9 

statement, and backpay shall terminate on June 14, 
1993, the date [petitioner] learned that Castro used 
fraudulent identification to gain employment.” Id. at 
85a. Board Member Hurtgen, dissenting, would have 
denied Castro all back pay. Id. at 87a. 

3. Petitioner filed a petition for review of the 
Board’s order of September 23, 1998. Initially, a panel 
of the court of appeals denied the petition for review. 
Pet. App. 7a, 37a-77a. After rehearing the case en banc, 
the court again denied the petition for review and 
enforced the Board’s order. Id. at 1a-36a. 

a. The en banc majority noted that, in this case, the 
Board, applying its after-acquired knowledge rule, had 
“relieved [petitioner] of its reinstatement obligation 
altogether and cut off backpay at the moment Castro’s 
status was discovered.” Pet. App. 20a. Thus, “the 
Board had no need to adopt A.P.R.A. Fuel’s other 
remedy—the award of backpay while the discrimi- 
natees attempted to obtain documentation.” Ibid. 
Accordingly, the majority explained, “the propriety of 
such an award is not before us.” Ibid. 

The majority rejected petitioner’s contention that 
Sure-Tan “plainly prohibits” the Board from awarding 
any back pay to Castro. Pet. App. 7a. That contention, 
the court noted, is based on “a single sentence from 
Sure-Tan.” Ibid.3 The court concluded, however, that, 
“[r]ead in context, the Sure-Tan sentence does not bar 
backpay to undocumented discriminatees.” Ibid. It ex- 
plained that to construe that sentence as establishing 

3 The relevant sentence reads: “[I]n 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.” 
Sure-Tan, 467 U.S. at 903. 

10 

an absolute bar to back pay “would conflict with the 
Court’s holding [in Sure-Tan] that an undocumented 
discriminatee is entitled to backpay so long as it is 
appropriately tailored to the discriminatee’s actual 
loss.” Id. at 8a. 

The court also rejected petitioner’s alternative 
contention that, “even if Sure-Tan does not bar back- 
pay to undocumented discriminatees, IRCA does.” 
Pet. App. 14a. The court explained that “IRCA neither 
amends nor repeals the NLRA or any other labor law,” 
and that “IRCA’s legislative history * * * shows that 
Congress did not intend the statute to limit the NLRA 
even indirectly.” Ibid. And it rejected petitioner’s 
contention that, even “[a]bsent a statutory bar * * * 
the Board’s backpay award fails to accommodate 
IRCA’s goal of limiting the hiring of undocumented 
workers.” Id. at 16a. As the court explained: 

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 pre- 
fer 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). 

Id. at 23a. 

Finally, while the court acknowledged that IRCA 
“makes it unlawful for employers to knowingly hire 
undocumented aliens,” it noted that IRCA does not 
“explicitly make it unlawful for undocumented aliens to 
work.” Pet. App. 22a. Although “IRCA criminalizes 
the false use of documents to obtain employment” (id. 

11 

at 20a), and “Castro could have been prosecuted for his 
fraud” (id. at 22a), the court observed that there was 
“nothing illegal about his actual employment” with 
petitioner. Ibid. Thus, the court majority concluded 
that, “when the Board ordered limited backpay, it was 
not compensating Castro for the loss of wages IRCA 
prohibited him from earning.” Ibid. 

b. Judge Sentelle, joined by Judges Henderson and 
Randolph, dissented. Pet. App. 24a-36a. Judge 
Sentelle would have ruled that Sure-Tan “definitively 
answered” the question before the court and would 
have required vacatur of the Board’s back pay award to 
Castro. Id. at 27a. He also believed that the majority 
“essentially ignore[d]” the “statutory directives of 
IRCA,” and improperly “cho[se] to mediate between 
[the] statutory ‘goals’ ” of IRCA and the NLRA. Id. at 
35a. Judge Ginsburg, in a separate dissenting opinion, 
agreed with Judge Sentelle that Sure-Tan “definitively 
answered the question” before the court, id. at 36a, and 
therefore found it unnecessary “to reach the question 
whether the Board reasonably reconciled the remedial 
scheme of the NLRA with the policies embodied in the 
IRCA,” ibid. 

ARGUMENT 

In the lead case of A.P.R.A. Fuel Oil Buyers Group, 
Inc., 320 N.L.R.B. 408, 415-416 (1995), aff ’d, 134 F.3d 50 
(2d Cir. 1997), the National Labor Relations Board 
fashioned a limited back pay remedy for cases in which 
an employer, in violation of IRCA, initially hires an 
undocumented alien employee with knowledge that the 
employee is not authorized to work in the United States 
and then, in violation of the NLRA, discriminatorily 
fires that employee because of his activities in support 
of a union. In that situation, the Board has concluded 

12 

that the employer should be required to pay the dis- 
criminatee back pay commencing on the date of his 
discharge and running until the date on which he is 
reinstated—“subject to compliance with the [em- 
ployer’s] normal obligations under IRCA” to verify the 
alien’s eligibility for employment in the United 
States—or until the discriminatee, after a reasonable 
period of time, fails to produce “the documents enabling 
the [employer] to meet its obligations under IRCA,” 
whichever date is earlier. Id. at 416; see also Pet. App. 
83a. The only court of appeals that has addressed the 
validity of that particular Board remedy has upheld it. 
See NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 
134 F.3d 50, 57-58 (2d Cir. 1997). 

The validity of the Board’s A.P.R.A. Fuel remedy 
was not before the court of appeals in the present case. 
See Pet. App. 20a. Rather, the court of appeals below 
addressed a different Board remedy, which is based on 
the Board’s long-established “after-acquired knowl- 
edge” rule. That distinct remedy is fashioned for appli- 
cation where the employer discovers after it has fired 
an employee in violation of the NLRA that the em- 
ployee was not authorized to work in the United States 
at the time of hire, but rather, had secured the job 
using fraudulent identification documents. See 
A.P.R.A. Fuel, 320 N.L.R.B. at 416 n.44; Pet. App. 84a- 
85a. Applying that after-acquired knowledge rule in 
this case, the Board fashioned a remedy for the benefit 
of the discriminatee in this case: he was denied rein- 
statement outright, and his entitlement to back pay was 
terminated as of the date petitioner first acquired 
knowledge of his earlier fraudulent use of identification 
documents. See id. at 20a, 84a-85a. The court of ap- 
peals below addressed only the validity of the limited 
back pay aspect of the Board’s remedy in this case, and 

13 

it is the only court that has addressed that precise 
issue. Moreover, the court of appeals correctly upheld 
the Board’s limited back pay remedy. This Court’s re- 
view is therefore not warranted. 

1. a. 

The propriety of the Board’s back pay order in 

this case is governed by three remedial principles. 
First, a back pay order is “a means to restore the 
situation ‘as nearly as possible, to that which would 
have obtained but for the illegal discrimination.’ ” Sure- 
Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984) (quoting 
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941)); 
see also NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 
258, 265 (1969). Thus, “[m]aking the workers whole for 
losses suffered on account of an unfair labor practice is 
part of the vindication of the public policy which the 
Board enforces.” Phelps Dodge Corp., 313 U.S. at 197; 
see Nathanson v. NLRB, 344 U.S. 25, 27 (1952). 

Second, “[i]n determining appropriate remedial 
action, the employee’s wrongdoing becomes relevant.” 
McKennon v. Nashville Banner Publ’g Co., 513 U.S. 
352, 361 (1995) (decided under Age Discrimination 
in Employment Act of 1967 (ADEA), 29 U.S.C. 621 
et seq.). Consistent with that principle, the Board has 
long held that, while a full back pay award is ordinarily 
warranted to remedy a discriminatory discharge, 
employment-related misconduct by the discriminatee 
may constitute “counterbalancing considerations” that 
“strongly weigh in favor of ordering something less 
than such a full remedy.” East Island Swiss Prods., 
Inc., 220 N.L.R.B. 175, 175 (1975). Thus, if the 
discriminatee “engaged in unprotected conduct for 
which the employer would have discharged any em- 
ployee, reinstatement is not ordered and backpay is 
terminated on the date that the employer first acquired 
knowledge of the misconduct.” Marshall Durbin 

14 

Poultry Co., 310 N.L.R.B. 68, 70 (1993) (limiting back 
pay of discriminatee who had engaged in workplace 
sexual harassment), enforced in relevant part, 39 F.3d 
1312 (5th Cir. 1994); cf. Nashville Banner, 513 U.S. at 
362 (applying similar back pay limitation rule under 
ADEA). 

Third, in devising remedies under the NLRA, the 
Board “may [not] wholly ignore other and equally im- 
portant Congressional objectives,” for, “[f]requently 
the entire scope of Congressional purpose calls for care- 
ful accommodation of one statutory scheme to another.” 
Southern S.S. Co. v. NLRB, 316 U.S. 31, 47 (1942). 
Thus, in a case involving remedies for the benefit of 
undocumented alien employees, the Board’s order “is 
obliged to take into account * * * the objective of 
deterring unauthorized immigration that is embodied in 
the INA.” Sure-Tan, 467 U.S. at 903. 

b. The limited back pay award fashioned by the 
Board in the instant case for discriminatee Castro is 
consistent with the foregoing remedial principles. 
First, had petitioner not laid off Castro in violation of 
the NLRA on January 31, 1989 (see Pet. App. 5a), he 
would have continued working for, and earning wages 
from, petitioner. By commencing Castro’s entitlement 
to back pay as of the date of his discharge, the back pay 
award in this case properly places Castro, for a limited 
period of time, in the economic position he would have 
occupied, absent petitioner’s unlawful conduct. See 
J.H. Rutter-Rex Mfg. Co., 396 U.S. at 265 (back pay 
award proper where “designed to restore, so far as 
possible, the status quo that would have obtained but 
for the wrongful act”); cf. A.P.R.A. Fuel, 134 F.3d at 58 
(Board’s back pay remedy in that case properly “com- 
pensates [the undocumented discriminatees] for the 

15 

economic injury they suffered as a result of the [em- 
ployer’s] unlawful discrimination”). 

Second, the Board’s limited back pay award in this 
case properly accounts for Castro’s own employment- 
related misconduct. When Castro initially secured 
employment with petitioner in May 1988, he tendered 
false identification documents, contrary to IRCA. Pet. 
App. 84a-85a; 18 U.S.C. 1546(b)(1) and (2). Once peti- 
tioner discovered Castro’s unauthorized work status on 
June 14, 1993, it could not have, consistent with IRCA, 
continued to employ Castro beyond that date (had he 
not already been laid off in violation of the NLRA). 
Accordingly, by terminating Castro’s entitlement to 
back pay as of June 14, 1993, the Board properly placed 
Castro in the position he would have occupied on that 
date, given his own misconduct. 

Third, the limited back pay award fashioned by the 
Board for Castro appropriately accommodates federal 
immigration law. IRCA prohibited petitioner from 
employing Castro after June 14, 1993, when it learned 
of his unauthorized immigration status—but not before 
that date, for at the time of his hire, Castro tendered to 
petitioner documents that on their face established his 
entitlement to work in the United States. See p. 5, 
supra. By cutting off Castro’s entitlement to back pay 
as of June 14, 1993 (and by refusing to order rein- 
statement), the Board accounted for the fact that 
petitioner could not, consistent with IRCA, continue 
Castro’s employment after that date. On the other 
hand, while IRCA prohibited petitioner from employing 
Castro once it had knowledge of his undocumented 
status, nothing in IRCA prohibits petitioner from pay- 
ing Castro for work that he had previously performed 
or had been engaged to perform, or prohibits the Board 
from awarding back pay to an undocumented worker 

16 

who has been subjected to an unfair labor practice. 
And as the court of appeals observed (Pet. App. 14a), 
the legislative history of IRCA confirms that Congress 
“did not intend the statute to limit the NLRA even 
indirectly.” The relevant report of the House Judiciary 
Committee explains that no provision of IRCA should 
“be used to * * * limit the powers of federal or state 
labor relations boards * * * to remedy unfair 
practices committed against undocumented employees 
for * * * engaging in activities protected by existing 
law.” Id. at 15a (quoting H.R. Rep. No. 682, 99th Cong., 
2d Sess., Pt. 1, at 58 (1986)). Accordingly, in IRCA 
Congress left the Board’s remedial powers where it 
found them. 

2. Petitioner contends (Pet. 4-7) that the Board’s 
limited award of back pay to Castro is barred by Sure- 
Tan, and that the decision of the court of appeals up- 
holding that award conflicts with Del Rey Tortilleria, 
Inc. v. NLRB, 976 F.2d 1115 (7th Cir. 1992). The court 
of appeals’ reading of Sure-Tan, however, is correct. 
Moreover, although the lower court’s reading of Sure- 
Tan does conflict with the reading given by the 
Seventh Circuit in Del Rey Tortilleria, this case is not 
an appropriate vehicle for resolution of that disagree- 
ment by this Court. 

a. Petitioner’s contention (Pet. 4-5, 7) that Sure-Tan 
forecloses the Board’s remedy in this case is based 
entirely on the statement in Sure-Tan that, “in com- 
puting backpay, the employees must be deemed ‘un- 
available’ for work (and the accrual of backpay there- 
fore tolled) during any period when they were not 
lawfully entitled to be present and employed in the 
United States.” 467 U.S. at 903. Petitioner overlooks, 
however, the context in which that statement was 
made. As the court below correctly explained, that 

17 

single sentence in Sure-Tan does not, and in context 
does not appear to have been intended to, establish a 
general rule of law applicable to all cases involving 
undocumented workers. See also A.P.R.A. Fuel, 320 
N.L.R.B. at 411-412, 415-416. 

Sure-Tan involved undocumented alien employees 
who were reported by their employer to the INS in 
retaliation for pro-union activities and who were 
immediately arrested by INS and granted voluntary 
departure (rather than deportation) from the United 
States. There was no evidence in the record whether 
the employees had returned to the United States, with 
or without authorization. Whereas the ALJ had 
declined to order any back pay based on a finding that 
the deported employees were “physically unavailable 
for work,” the Board, noting the absence of evidence on 
that point, ruled that the ALJ erred in failing to order 
“the conventional remedy of reinstatement with back- 
pay,” and deferred the issue of the employees’ avail- 
ability for work to a compliance hearing. See Sure-Tan, 
Inc., 234 N.L.R.B. 1187, 1187 (1978). 

On the NLRB’s petition for enforcement, the 
Seventh Circuit limited in some respects and expanded 
in other respects the remedy ordered by the Board. 
The court limited the remedy of reinstatement to aliens 
who could show that they were present and lawfully 
authorized to be in the United States. 672 F.2d at 606. 
The court further stated that “in 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.” Ibid. The 
court noted, however, that “[i]n the circumstances of 
this case it may well be that the discriminatees will not 
have been lawfully available for employment in the 
United States prior to the date of the new offers of 

18 

reinstatement which will be required,” and that “[i]n 
that event the discriminatees will receive no backpay.” 
Ibid. Concluding that that result was inconsistent with 
remedial principles of the NLRA, the court ordered the 
Board to fix a minimum award of six months’ back pay 
for the discriminatees, which the court estimated to be 
the period in which the employees would have escaped 
detection from the INS. Ibid. 

This Court reversed the minimum award of six 
months’ back pay that the court of appeals had ordered, 
on the ground that such an award would not be “suffi- 
ciently tailored to the actual, compensable injuries 
suffered by the discharged employees.” 467 U.S. at 901. 
The Court did not accept the employer’s argument (see 
82-945 Pet. Br. 19-23) that, as a matter of law, any 
back pay award for the benefit of the discriminatees 
would be contrary to federal immigration law. The 
Court indeed “generally approve[d] the Board’s original 
course of action in this case by which it ordered the 
conventional remedy of reinstatement with backpay, 
leaving until the compliance proceedings more specific 
calculations as to the amounts of backpay, if any, due 
these employees.” 467 U.S. at 902. But the Court also 
recognized that the discriminatees had left the United 
States, perhaps without authorization to return, and 
although it “share[d] the Court of Appeals’ uncertainty 
concerning whether any of the discharged employees 
will be able either to enter the country lawfully to 
accept the reinstatement offers or to establish at the 
compliance proceedings that they were lawfully avail- 
able for employment during the backpay period,” id. at 
904, it nonetheless concluded that the Board’s remedies 
must effectively be “conditioned upon the employees’ 
legal readmittance to the United States,” id. at 903. 

19 

b. The court of appeals in this case correctly con- 
cluded that, “[r]ead in context, the Sure-Tan sentence 
does not bar backpay to undocumented discriminatees.” 
Pet. App. 7a. Rather, “[t]he Seventh Circuit originally 
crafted the sentence”—which neither party contested 
in this Court—“to deal with unique circumstances of 
Sure-Tan not present in this case.” Id. at 7a-8a. Thus, 
“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,” 
id. at 11a, and to “ensure[] that illegal reentry would 
not restart the accumulation of backpay,” id. at 9a.4 
Further, this Court’s “expression of precisely the same 
concern” is manifested by its references to such matters 
as “the employees’ legal readmittance to the United 
States,” and “the employees’ legal reentry.” Id. at 11a 
(quoting 467 U.S. at 902-903; emphasis added by court 
of appeals). 

The court of appeals also correctly concluded that 
reading the “not lawfully entitled to be present and em- 
ployed” sentence in Sure-Tan “to impose an absolute 
bar to any award of backpay for undocumented dis- 
criminatees” would “conflict[] with other language” in 
this Court’s Sure-Tan opinion that “generally ap- 
prove[d] [of] the Board’s original course of action * * * 
by which it ordered the conventional remedy of rein- 
statement and backpay, leaving calculation of the pre- 
cise amount of backpay until the compliance pro- 
ceeding.” Pet. App. 11a-12a (quoting 467 U.S. at 902 
(bracketed material added by court of appeals)). Thus, 

4 The court of appeals noted that “[t]his limitation * * * was 
based on the Board’s standard practice of tolling backpay when 
discriminatees are physically unavailable, including when out of 
the country.” Pet. App. 9a (citations omitted). 

20 

as the court of appeals observed, the “ ‘main deficiency’ 
in the Seventh Circuit’s order, the [Sure-Tan] Court 
explained, was not that it awarded backpay to undocu- 
mented discriminatees, but that the amount of back- 
pay,” i.e., the minimum award of six months’ back pay, 
“was ‘develop[ed] in the total absence of any record 
evidence as to the circumstances of individual em- 
ployees’ ” (id. at 12a (quoting 467 U.S. at 899-900 n.9, 
900))—in particular, without any evidence as to “the 
period of time these particular employees might have 
continued working before apprehension by the INS.” 
Id. at 12a-13a (quoting 467 U.S. at 902 n.11). 

The Board’s limited award of back pay to Castro in 
this case is consistent with Sure-Tan, properly 
understood in light of its unusual facts. Because Castro 
remained in the United States after his unlawful 
discharge by petitioner, awarding him limited back pay 
does not promote any illegal reentry. Nor is the back 
pay award speculative. The record in this case 
demonstrates that, absent his unlawful layoff on 
January 31, 1989, Castro would have continued working 
for petitioner until June 14, 1993, at which point the 
facts revealed by his testimony before the Board would 
have required petitioner to discharge him under IRCA. 

The court of appeals’ reading of Sure-Tan is also con- 
sistent with this Court’s own discussion of that decision. 
In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), this 
Court observed: 

[I]n Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), 
the Court concluded that an employer can be guilty 
of an unfair labor practice in his dealings with an 
alien notwithstanding the alien’s illegal presence in 
this country. Retrospective sanctions against the 
employer may accordingly be imposed by the 

21 

National Labor Relations Board to further the 
public policy against unfair labor practices. But 
while he maintains the status of an illegal alien, the 
employee is plainly not entitled to the prospective 
relief—reinstatement and continued employment— 
that probably would be granted to other victims of 
similar unfair labor practices. 

Id. at 1047-1048 n.4 (emphasis added). The Lopez- 
Mendoza Court’s reference to the availability of 
“[r]etrospective sanctions” under Sure-Tan, as distin- 
guished from the “prospective relief” of reinstatement, 
indicates that Sure-Tan does not categorically prohibit 
the Board from awarding back pay to undocumented 
aliens. 

3. The court of appeals’ interpretation of Sure-Tan 
is consistent with that of two other courts of appeals. 
In A.P.R.A. Fuel, 134 F.3d at 50, the Second Circuit, 
relying on its earlier decision in Rios v. Enterprise 
Association Steamfitters Local Union 638, 860 F.2d 
1168, 1173 (1988)—a case involving back pay for 
undocumented aliens under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e et seq.5— 
understood Sure-Tan “as addressing only awards of 

5 The courts of appeals that have addressed the issue have uni- 
formly concluded (in cases that involved operative facts occurring 
before enactment of IRCA) that the decision in and reasoning of 
Sure-Tan do not preclude an award of back pay to an undocu- 
mented alien who has remained in the United States under either 
Title VII (see Rios, 860 F.2d at 1173; EEOC v. Hacienda Hotel, 
881 F.2d 1504, 1517 (9th Cir. 1989)), the Fair Labor Standards Act 
of 1938, 29 U.S.C. 201 et seq. (see Patel v. Quality Inn South, 846 
F.2d 700, 706 (11th Cir. 1988), cert. denied, 489 U.S. 1011 (1989)), or 
a labor arbitration agreement (see Bevles Co. v. Teamsters Local 
986, 791 F.2d 1391, 1393-1394 (9th Cir. 1986), cert. denied, 484 U.S. 
985 (1987)). 

22 

backpay to undocumented employees who have left the 
country.” 134 F.3d at 54. The Second Circuit concluded 
that, under Sure-Tan, “when undocumented employees 
remain in the United States after their illegal termi- 
nation, backpay may appropriately be awarded.” Ibid. 
In so concluding, the Second Circuit also relied (id. at 
54-55) on Local 512, Warehouse and Office Workers’ 
Union v. NLRB (Felbro, Inc.), 795 F.2d 705 (1986), in 
which the Ninth Circuit similarly concluded that “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.” Id. at 722. 

As the court of appeals noted (Pet. App. 14a), “[o]nly 
the Seventh Circuit has interpreted Sure-Tan differ- 
ently.” In Del Rey Tortilleria, the Seventh Circuit 
rejected, for purposes of a remedy under the NLRA, 
the distinction between undocumented workers who 
have left the country and those who remain in the 
United States after their unlawful discharge. 976 F.2d 
at 1119-1120. The Seventh Circuit concluded instead 
that “the plain language of the Supreme Court’s opinion 
[in Sure-Tan] bars undocumented aliens from receiving 
backpay.” Id. at 1119. 

Although the court of appeals’ reading of Sure-Tan in 
this case does conflict with that of the Seventh Circuit 
in Del Rey Tortilleria, the instant case does not present 
an appropriate vehicle for this Court’s resolution of that 
disagreement. In particular, this case involves thus far 
atypical facts, as contrasted with the remedial setting 
(where the employer knowingly hires an undocumented 
alien) addressed by the Board’s lead decision in 

23 

A.P.R.A. Fuel.6 Indeed, the court below expressly 
declined to address the question of the validity of the 
back pay remedy ordered by the Board in cases like 
A.P.R.A. Fuel. See Pet. App. 20a. This case involves 
only the Board’s back pay remedy for undocumented 
discriminatees in the situation calling for an application 
of the Board’s after-acquired knowledge rule. See ibid. 
No court other than the court of appeals below has 
addressed the validity of that precise back pay remedy; 
indeed, in Del Rey Tortilleria, the Seventh Circuit ad- 
dressed a back pay remedy different both from the one 
at issue here and from the remedy involved in A.P.R.A. 
Fuel. See Del Rey Tortilleria, 976 F.2d at 1117 
(reviewing Board order entitling undocumented work- 
ers “to reinstatement and backpay unless the employer 
could prove their illegal presence by means of a final 
INS deportation order”). Further review, if necessary, 
should await a case in which a court of appeals, based on 
Sure-Tan, rejects either the Board’s A.P.R.A. Fuel 
remedy or the distinct limited back pay remedy fash- 
ioned by the Board in the instant case. 

Second, this Court’s intervention may not be neces- 
sary to resolve the issue presented in this case. Since it 

6 The Board has applied its A.P.R.A. Fuel remedy in several 
cases since it developed that particular remedy. See Regal Re- 
cycling, Inc., 329 N.L.R.B. No. 38 (Sept. 30, 1999), slip op. 3 
(ordering A.P.R.A. Fuel remedy); County Window Cleaning Co., 
328 N.L.R.B. 190, 190 n.2 (1999) (same); Victor’s Cafe 52, Inc., 321 
N.L.R.B. 504, 504 n.3 (1996) (leaving for compliance hearing “a 
determination of reinstatement and backpay in accordance with” 
A.P.R.A. Fuel); Intersweet, Inc., 321 N.L.R.B. 1 n.2 (1996) (same), 
enforced, 125 F.3d 1064 (7th Cir. 1997). By contrast, except for the 
present case, the Board has not, to date, had occasion to order its 
different after-acquired knowledge remedy in a case involving 
undocumented discriminatees. 

24 

decided Del Rey Tortilleria, the Seventh Circuit has 
not had occasion to apply its decision in that case. In 
light of the subsequent rejection of its reading of Sure- 
Tan by the District of Columbia and Second Circuits in 
favor of more nuanced interpretations, the Seventh 
Circuit may elect to revisit the question in a future 
case. Indeed, even at the time Del Rey Tortilleria was 
decided, four judges of the Seventh Circuit voted to 
rehear the case en banc. See 976 F.2d at 1115 n.*.7 
Moreover, a panel of the Seventh Circuit is not neces- 
sarily bound by a prior panel decision, even absent 
rehearing en banc. See 7th Cir. R. 40(e). 

4. Petitioner also contends (Pet. 13-14) that the 
court of appeals has effectively sanctioned employment 
of an undocumented alien in violation of IRCA. That 
contention is wide of the mark. IRCA makes it unlaw- 
ful for an employer to hire an alien only if the employer 
does so “knowing the alien is an unauthorized alien” or 
“without complying with the requirements of ” the 
“employment verification system” prescribed by 
Section 1324a(b). See 8 U.S.C. 1324a(a) (1)(A)-(B)(ii); 
8 U.S.C. 1324a(b) (1994 & Supp. V 1999).8 Because 
petitioner did not know that Castro was an unauthor- 
ized alien at the time it hired him, and because 

7 Judge Cudahy, who had written the Seventh Circuit’s opinion 
in Sure-Tan, dissented from the Del Rey panel majority’s reading 
of this Court’s decision in Sure-Tan. Judge Cudahy pointed out 
that the “not lawfully entitled to be present and employed in the 
United States” language first appeared in the Seventh Circuit’s 
opinion, and was addressed only to aliens who have left the coun- 
try. Del Rey Tortilleria, 976 F.2d at 1123-1124 (Cudahy, J., dis- 
senting). 

8 In similar fashion, an INS regulation makes clear that em- 
ployers are not required to terminate undocumented aliens who 
were hired before the effective date of IRCA. See 8 C.F.R. 274a.7. 

25 

petitioner attempted to meet its verification obligations 
when it hired Castro (see Pet. App. 84a-85a), it was not 
unlawful under IRCA for petitioner to hire Castro and 
to employ him until it learned of his undocumented 
status.9 There is also no merit to petitioner’s sug- 
gestion (Pet. 13-14) that, insofar as the court of appeals 
held that IRCA does not preclude the Board from 
awarding limited back pay to Castro, its decision 
conflicts with Del Rey Tortilleria. In that case, the 
Seventh Circuit stated that IRCA “clearly bars the 
Board from awarding backpay to undocumented aliens 
wrongfully discharged after IRCA’s enactment.” 976 
F.2d at 1122. That statement, however, was dictum, 
inasmuch as the events at issue in that case occurred 
prior to the effective date of IRCA. Id. at 1121 n.6. 

10 

Indeed, the court itself expressly noted that, in light of 
that fact, “[i]t is quite clear that IRCA itself does not 
control the rights of [the discriminatees in that case] to 
receive backpay.” Ibid. Accordingly, the Seventh 
Circuit’s unsupported dictum about IRCA provides no 
basis for this Court’s review. 

9 Under 8 U.S.C. 1324a(a)(3), an employer that “establishes 
that it has complied in good faith with” the verification require- 
ments of Section 1324a(b) “has established an affirmative defense” 
that the employer has not violated the statute’s prohibition against 
knowingly hiring unauthorized aliens. 

10 The court’s dictum is also incorrect, because, as explained 
above, IRCA does not make it unlawful for an employer to hire an 
unauthorized alien in every circumstance. See pp. 4-5, supra. 

26 

CONCLUSION 

The petition for a writ of certiorari should be denied. 

Respectfully submitted. 

ARTHUR F. ROSENFELD 

General Counsel 

JOHN H. FERGUSON 

Associate General Counsel 

NORTON J. COME 

Deputy Associate General 

Counsel 

JOHN EMAD ARBAB 

Attorney 
National Labor Relations 

Board 
THEODORE B. OLSON 
Solicitor General 

JUNE 2001