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OCTOBER TERM, 2001 137
Syllabus
HOFFMAN PLASTIC COMPOUNDS, INC. v. NATIONAL
LABOR RELATIONS BOARD
certiorari to the united states court of appeals for
the district of columbia circuit
No. 00–1595. Argued January 15, 2002—Decided March 27, 2002
Petitioner hired Jose Castro on the basis of documents appearing to verify
his authorization to work in the United States, but laid him and others
off after they supported a union-organizing campaign at petitioner’s
plant. Respondent National Labor Relations Board (Board) found that
the layoffs violated the National Labor Relations Act (NLRA) and
ordered backpay and other relief. At a compliance hearing before an
Administrative Law Judge (ALJ) to determine the amount of backpay,
Castro testified, inter alia, that he was born in Mexico, that he had
never been legally admitted to, or authorized to work in, this country,
and that he gained employment with petitioner only after tendering a
birth certificate belonging to a friend born in Texas. Based on this
testimony, the ALJ found that the Board was precluded from awarding
Castro relief by Sure-Tan, Inc. v. NLRB, 467 U. S. 883, and by the Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful for employers knowingly to hire undocumented workers or for employees to use fraudulent documents to establish employment eligibility.
The Board reversed with respect to backpay, citing its precedent holding
that the most effective way to further the immigration policies embodied
in IRCA is to provide the NLRA’s protections and remedies to undocumented workers in the same manner as to other employees. The Court
of Appeals denied review and enforced the Board’s order.
Held: Federal immigration policy, as expressed by Congress in IRCA,
foreclosed the Board from awarding backpay to an undocumented alien
who has never been legally authorized to work in the United States.
Pp. 142–152.
(a) This Court has consistently set aside the Board’s backpay awards
to employees found guilty of serious illegal conduct in connection with
their employment. See, e. g., Southern S. S. Co. v. NLRB, 316 U. S. 31,
40–47. Since Southern S. S. Co., the Court has never deferred to the
Board’s remedial preferences where such preferences potentially trench
upon federal statutes and policies unrelated to the NLRA. See, e. g.,
Sure-Tan, supra, in which the Court set aside an award of reinstatement
and backpay to undocumented alien workers who were not authorized
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138 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
Syllabus
to reenter this country following their voluntary departure when their
employers unlawfully reported them to the Immigration and Naturalization Service in retaliation for union activity. Among other things, the
Court there found that the Board’s authority with respect to the selection of remedies was limited by federal immigration policy as expressed
in the Immigration and Nationality Act (INA), and held that, in order
to avoid a potential conflict with the INA with respect to 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.” 467
U. S., at 903. This case is controlled by the Southern Steamship line
of cases. ABF Freight System, Inc. v. NLRB, 510 U. S. 317, 325, distinguished. Pp. 142–146.
(b) As a matter of plain language, Sure-Tan’s express limitation of
backpay to documented alien workers forecloses the backpay award to
Castro, who was never lawfully entitled to be present or employed in
the United States. But the Court need not resolve whether, read in
context, Sure-Tan’s limitation applies only to aliens who left the United
States and thus cannot claim backpay without lawful reentry. The
question presented here is better analyzed through a wider lens, focusing on a legal landscape now significantly changed. The Southern S. S.
Co. line of cases established that where the Board’s chosen remedy
trenches upon a federal statute or policy outside the Board’s competence
to administer, the Board’s remedy may have to yield. Whether or not
this was the situation at the time of Sure-Tan, it is precisely the situation today. Two years after Sure-Tan, Congress enacted IRCA, a comprehensive scheme that made combating the employment of illegal
aliens in the United States central to the policy of immigration law.
INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 194,
and n. 8. Among other things, IRCA established an extensive “employment verification system,” 8 U. S. C. § 1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States,
or (b) are not lawfully authorized to work in the United States,
§ 1324a(h)(3). It also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents, § 1324c(a), an offense that Castro committed when obtaining employment with petitioner. Thus, allowing the Board to award backpay
to illegal aliens would unduly trench upon explicit statutory prohibitions
critical to federal immigration policy. It would encourage the successful evasion of apprehension by immigration authorities, condone prior
violations of the immigration laws, and encourage future violations.
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Syllabus
However broad the Board’s discretion to fashion remedies when dealing
only with the NLRA, it is not so unbounded as to authorize this sort of
an award. Lack of authority to award backpay does not mean that the
employer gets off scot-free. The Board here has already imposed other
significant sanctions against petitioner, including orders that it cease
and desist its NLRA violations and conspicuously post a notice detailing
employees’ rights and its prior unfair practices, which are sufficient to
effectuate national labor policy regardless of whether backpay accompanies them, Sure-Tan, supra, at 904, and n. 13. Pp. 146–152.
237 F. 3d 639, reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined,
post, p. 153.
Ryan D. McCortney argued the cause for petitioner.
With him on the briefs was Maurice Baskin.
Paul R. Q. Wolfson argued the cause for respondent.
With him on the brief were Solicitor General Olson, Deputy
Solicitor General Wallace, Arthur F. Rosenfeld, John H.
Ferguson, Norton J. Come, and John Emad Arbab.*
*Ann Elizabeth Reesman and Daniel V. Yager filed a brief for the Equal
Employment Advisory Council et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of New
York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J.
Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General,
and M. Patricia Smith and Seth Kupperberg, Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as
follows: Janet Napolitano of Arizona, Bill Lockyer of California, Earl I.
Anzai of Hawaii, Thomas F. Reilly of Massachusetts, Darrell V. McGraw,
Jr., of West Virginia, and Anabelle Rodriguez of Puerto Rico; for the
American Civil Liberties Union Foundation et al. by Craig Goldblatt and
Lucas Guttentag; for the American Federation of Labor and Congress of
Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and
Michael Rubin; for Employers and Employer Organizations by David A.
Schulz, Jeffrey H. Drichta, and Michael J. Wishnie; and for the National
Employment Law Project et al. by Rebecca Smith, James Reif, and
James Williams.
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140 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
The National Labor Relations Board (Board) awarded
backpay to an undocumented alien who has never been legally authorized to work in the United States. We hold that
such relief is foreclosed by federal immigration policy, as expressed by Congress in the Immigration Reform and Control
Act of 1986 (IRCA).
Petitioner Hoffman Plastic Compounds, Inc. (petitioner or
Hoffman), custom-formulates chemical compounds for businesses that manufacture pharmaceutical, construction, and
household products. In May 1988, petitioner hired Jose
Castro to operate various blending machines that “mix and
cook” the particular formulas per customer order. Before
being hired for this position, Castro presented documents
that appeared to verify his authorization to work in the
United States. In December 1988, the United Rubber,
Cork, Linoleum, and Plastic Workers of America, AFL–CIO,
began a union-organizing campaign at petitioner’s production
plant. Castro and several other employees supported the
organizing campaign and distributed authorization cards to
co-workers. In January 1989, Hoffman laid off Castro and
other employees engaged in these organizing activities.
Three years later, in January 1992, respondent Board
found that Hoffman unlawfully selected four employees, including Castro, for layoff “in order to rid itself of known
union supporters” in violation of § 8(a)(3) of the National
Labor Relations Act (NLRA).1 306 N. L. R. B. 100. To
remedy this violation, the Board ordered that Hoffman
(1) cease and desist from further violations of the NLRA,
(2) post a detailed notice to its employees regarding the remedial order, and (3) offer reinstatement and backpay to the
1 Section 8(a)(3) of the NLRA prohibits discrimination “in regard to hire
or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 49 Stat.
452, as added, 61 Stat. 140, 29 U. S. C. § 158(a)(3).
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Opinion of the Court
four affected employees. Id., at 107–108. Hoffman entered
into a stipulation with the Board’s General Counsel and
agreed to abide by the Board’s order.
In June 1993, the parties proceeded to a compliance hearing before an Administrative Law Judge (ALJ) to determine
the amount of backpay owed to each discriminatee. On the
final day of the hearing, Castro testified that he was born in
Mexico and that he had never been legally admitted to, or
authorized to work in, the United States. 314 N. L. R. B.
683, 685 (1994). He admitted gaining employment with
Hoffman only after tendering a birth certificate belonging to
a friend who was born in Texas. Ibid. He also admitted
that he used this birth certificate to fraudulently obtain a
California driver’s license and a Social Security card, and to
fraudulently obtain employment following his layoff by Hoffman. Ibid. Neither Castro nor the Board’s General Counsel offered any evidence that Castro had applied or intended
to apply for legal authorization to work in the United States.
Ibid. Based on this testimony, the ALJ found the Board
precluded from awarding Castro backpay or reinstatement
as such relief would be contrary to Sure-Tan, Inc. v. NLRB,
467 U. S. 883 (1984), and in conflict with IRCA, which makes
it unlawful for employers knowingly to hire undocumented
workers or for employees to use fraudulent documents
to establish employment eligibility. 314 N. L. R. B., at
685–686.
In September 1998, four years after the ALJ’s decision,
and nine years after Castro was fired, the Board reversed
with respect to backpay. 326 N. L. R. B. 1060. Citing its
earlier decision in A. P. R. A. Fuel Oil Buyers Group, Inc.,
320 N. L. R. B. 408 (1995), the Board determined that “the
most effective way to accommodate and further the immigration policies embodied in [IRCA] is to provide the protections and remedies of the [NLRA] to undocumented workers
in the same manner as to other employees.” 326 N. L. R. B.,
at 1060. The Board thus found that Castro was entitled to
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142 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
Opinion of the Court
$66,951 of backpay, plus interest. Id., at 1062. It calculated
this backpay award from the date of Castro’s termination to
the date Hoffman first learned of Castro’s undocumented status, a period of 41⁄2 years. Id., at 1061. A dissenting Board
member would have affirmed the ALJ and denied Castro all
backpay. Id., at 1062 (opinion of Hurtgen).
Hoffman filed a petition for review of the Board’s order
in the Court of Appeals. A panel of the Court of Appeals
denied the petition for review. 208 F. 3d 229 (CADC 2000).
After rehearing the case en banc, the court again denied the
petition for review and enforced the Board’s order. 237
F. 3d 639 (2001). We granted certiorari, 533 U. S. 976 (2001),
and now reverse.2
This case exemplifies the principle that the Board’s discretion to select and fashion remedies for violations of the
NLRA, though generally broad, see, e. g., NLRB v. Seven-Up
Bottling Co. of Miami, Inc., 344 U. S. 344, 346–347 (1953), is
2 The Courts of Appeals have divided on the question whether the
Board may award backpay to undocumented workers. Compare NLRB
v. A. P. R. A. Fuel Oil Buyers Group, Inc., 134 F. 3d 50, 56 (CA2 1997)
(holding that illegal workers could collect backpay under the NLRA), and
Local 512, Warehouse and Office Workers’ Union v. NLRB, 795 F. 2d 705,
719–720 (CA9 1986) (same), with Del Rey Tortilleria, Inc. v. NLRB, 976
F. 2d 1115, 1121–1122 (CA7 1992) (holding that illegal workers could not
collect backpay under the NLRA). The question has a checkered career
before the Board, as well. Compare Felbro, Inc., 274 N. L. R. B. 1268,
1269 (1985) (illegal workers could not be awarded backpay in light of
Sure-Tan, Inc. v. NLRB, 467 U. S. 883 (1984)), with A. P. R. A. Fuel Oil
Buyers Group, Inc., 320 N. L. R. B. 408, 415 (1995) (illegal workers could
be awarded backpay notwithstanding Sure-Tan); Memorandum GC 87–8
from Office of General Counsel, NLRB, The Impact of the Immigration Reform and Control Act of 1986 on Board Remedies for Undocumented Discriminatees, 1987 WL 109409 (Oct. 27, 1988) (stating Board
policy that illegal workers could not be awarded backpay in light of
IRCA), with Memorandum GC 98–15 from Office of General Counsel,
NLRB, Reinstatement and Backpay Remedies for Discriminatees Who
May Be Undocumented Aliens In Light of Recent Board and Court Precedent, 1998 WL 1806350 (Dec. 4, 1998) (stating Board policy that illegal
workers could be awarded backpay notwithstanding IRCA).
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not unlimited, see, e. g., NLRB v. Fansteel Metallurgical
Corp., 306 U. S. 240, 257–258 (1939); Southern S. S. Co. v.
NLRB, 316 U. S. 31, 46–47 (1942); NLRB v. Bildisco & Bildisco, 465 U. S. 513, 532–534 (1984); Sure-Tan, Inc. v. NLRB,
supra, at 902–904. Since the Board’s inception, we have
consistently set aside awards of reinstatement or backpay
to employees found guilty of serious illegal conduct in
connection with their employment. In Fansteel, the Board
awarded reinstatement with backpay to employees who engaged in a “sit down strike” that led to confrontation with
local law enforcement officials. We set aside the award,
saying:
“We are unable to conclude that Congress intended to
compel employers to retain persons in their employ regardless of their unlawful conduct,—to invest those who
go on strike with an immunity from discharge for acts
of trespass or violence against the employer’s property,
which they would not have enjoyed had they remained
at work.” 306 U. S., at 255.
Though we found that the employer had committed serious
violations of the NLRA, the Board had no discretion to remedy those violations by awarding reinstatement with backpay to employees who themselves had committed serious
criminal acts. Two years later, in Southern S. S. Co., supra,
the Board awarded reinstatement with backpay to five employees whose strike on shipboard had amounted to a mutiny
in violation of federal law. We set aside the award, saying:
“It is sufficient for this case to observe that the Board
has not been commissioned to effectuate the policies of
the Labor Relations Act so single-mindedly that it may
wholly ignore other and equally important [c]ongressional objectives.” 316 U. S., at 47.
Although the Board had argued that the employees’ conduct
did not in fact violate the federal mutiny statute, we rejected
this view, finding the Board’s interpretation of a statute so
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144 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
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far removed from its expertise merited no deference from
this Court. Id., at 40–46. Since Southern S. S. Co., we
have accordingly never deferred to the Board’s remedial
preferences where such preferences potentially trench upon
federal statutes and policies unrelated to the NLRA. Thus,
we have precluded the Board from enforcing orders found in
conflict with the Bankruptcy Code, see Bildisco, supra, at
527–534, 529, n. 9 (“While the Board’s interpretation of the
NLRA should be given some deference, the proposition that
the Board’s interpretation of statutes outside its expertise is
likewise to be deferred to is novel”), rejected claims that
federal antitrust policy should defer to the NLRA, Connell
Constr. Co. v. Plumbers, 421 U. S. 616, 626 (1975), and precluded the Board from selecting remedies pursuant to its
own interpretation of the Interstate Commerce Act, Carpenters v. NLRB, 357 U. S. 93, 108–110 (1958).
Our decision in Sure-Tan followed this line of cases and
set aside an award closely analogous to the award challenged
here. There we confronted for the first time a potential conflict between the NLRA and federal immigration policy, as
then expressed in the Immigration and Nationality Act
(INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq.
Two companies had unlawfully reported alien-employees to
the Immigration and Naturalization Service (INS) in retaliation for union activity. Rather than face INS sanction, the
employees voluntarily departed to Mexico. The Board investigated and found the companies acted in violation of
§§ 8(a)(1) and (3) of the NLRA. The Board’s ensuing order
directed the companies to reinstate the affected workers and
pay them six months’ backpay.
We affirmed the Board’s determination that the NLRA applied to undocumented workers, reasoning that the immigration laws “as presently written” expressed only a “ ‘peripheral concern’ ” with the employment of illegal aliens. 467
U. S., at 892 (quoting De Canas v. Bica, 424 U. S. 351, 360
(1976)). “For whatever reason,” Congress had not “made it
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a separate criminal offense” for employers to hire an illegal alien, or for an illegal alien “to accept employment after
entering this country illegally.” Sure-Tan, 467 U. S., at 892–
893. Therefore, we found “no reason to conclude that application of the NLRA to employment practices affecting such
aliens would necessarily conflict with the terms of the INA.”
Id., at 893.
With respect to the Board’s selection of remedies, however, we found its authority limited by federal immigration policy. See id., at 903 (“In devising remedies for unfair
labor practices, the Board is obliged to take into account another ‘equally important Congressional objective’ ” (quoting
Southern S. S. Co., supra, at 47)). For example, the Board
was prohibited from effectively rewarding a violation of
the immigration laws by reinstating workers not authorized
to reenter the United States. Sure-Tan, 467 U. S., at 903.
Thus, to avoid “a potential conflict with the INA,” the
Board’s reinstatement order had to be conditioned upon
proof of “the employees’ legal reentry.” Ibid. “Similarly,”
with respect to backpay, we stated: “[T]he 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.” Ibid. “[I]n light of the practical workings of the
immigration laws,” such remedial limitations were appropriate even if they led to “[t]he probable unavailability of the
[NLRA’s] more effective remedies.” Id., at 904.
The Board cites our decision in ABF Freight System, Inc.
v. NLRB, 510 U. S. 317 (1994), as authority for awarding
backpay to employees who violate federal laws. In ABF
Freight, we held that an employee’s false testimony at a
compliance proceeding did not require the Board to deny
reinstatement with backpay. The question presented was
“a narrow one,” id., at 322, limited to whether the Board was
obliged to “adopt a rigid rule” that employees who testify
falsely under oath automatically forfeit NLRA remedies, id.,
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146 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
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at 325. There are significant differences between that case
and this. First, we expressly did not address whether the
Board could award backpay to an employee who engaged in
“serious misconduct” unrelated to internal Board proceedings, id., at 322, n. 7, such as threatening to kill a supervisor,
ibid. (citing Precision Window Mfg. v. NLRB, 963 F. 2d 1105,
1110 (CA8 1992)), or stealing from an employer, 510 U. S., at
322, n. 7 (citing NLRB v. Commonwealth Foods, Inc., 506
F. 2d 1065, 1068 (CA4 1974)). Second, the challenged order
did not implicate federal statutes or policies administered
by other federal agencies, a “most delicate area” in which
the Board must be “particularly careful in its choice of remedy.” Burlington Truck Lines, Inc. v. United States, 371
U. S. 156, 172 (1962). Third, the employee misconduct at
issue, though serious, was not at all analogous to misconduct
that renders an underlying employment relationship illegal
under explicit provisions of federal law. See, e. g., 237 F. 3d,
at 657, n. 2 (Sentelle, J., dissenting) (“The perjury statute
provides for criminal sanctions; it does not forbid a present
or potential perjurer from obtaining a job” (distinguishing
ABF Freight)). For these reasons, we believe the present
case is controlled by the Southern S. S. Co. line of cases,
rather than by ABF Freight.
It is against this decisional background that we turn to the
question presented here. The parties and the lower courts
focus much of their attention on Sure-Tan, particularly its
express limitation of backpay to aliens “lawfully entitled to
be present and employed in the United States.” 467 U. S.,
at 903. All agree that as a matter of plain language, this
limitation forecloses the award of backpay to Castro. Castro was never lawfully entitled to be present or employed
in the United States, and thus, under the plain language of
Sure-Tan, he has no right to claim backpay. The Board
takes the view, however, that read in context, this limitation
applies only to aliens who left the United States and thus
cannot claim backpay without lawful reentry. Brief for Re-
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spondent 17–24. The Court of Appeals agreed with this
view. 237 F. 3d, at 642–646. Another Court of Appeals,
however, agrees with Hoffman, and concludes that Sure-Tan
simply meant what it said, i. e., that any alien who is “not
lawfully entitled to be present and employed in the United
States” cannot claim backpay. See Del Rey Tortilleria, Inc.
v. NLRB, 976 F. 2d 1115, 1118–1121 (CA7 1992); Brief for
Petitioner 7–20. We need not resolve this controversy. For
whether isolated sentences from Sure-Tan definitively control, or count merely as persuasive dicta in support of petitioner, we think the question presented here better analyzed
through a wider lens, focused as it must be on a legal landscape now significantly changed.
The Southern S. S. Co. line of cases established that where
the Board’s chosen remedy trenches upon a federal statute
or policy outside the Board’s competence to administer, the
Board’s remedy may be required to yield. Whether or not
this was the situation at the time of Sure-Tan, it is precisely
the situation today. In 1986, two years after Sure-Tan,
Congress enacted IRCA, a comprehensive scheme prohibiting the employment of illegal aliens in the United States.
§ 101(a)(1), 100 Stat. 3360, 8 U. S. C. § 1324a. As we have
previously noted, IRCA “forcefully” made combating the
employment of illegal aliens central to “[t]he policy of immigration law.” INS v. National Center for Immigrants’
Rights, Inc., 502 U. S. 183, 194, and n. 8 (1991). It did so by
establishing an extensive “employment verification system,”
§ 1324a(a)(1), designed to deny employment to aliens who
(a) are not lawfully present in the United States, or (b) are
not lawfully authorized to work in the United States,
§ 1324a(h)(3).3 This verification system is critical to the
3 For an alien to be “authorized” to work in the United States, he
or she must possess “a valid social security account number card,”
§ 1324a(b)(C)(i), or “other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section,” § 1324a(b)(C)(ii). See
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148 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
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IRCA regime. To enforce it, IRCA mandates that employers verify the identity and eligibility of all new hires by
examining specified documents before they begin work.
§ 1324a(b). If an alien applicant is unable to present the
required documentation, the unauthorized alien cannot be
hired. § 1324a(a)(1).
Similarly, if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker
upon discovery of the worker’s undocumented status.
§ 1324a(a)(2). Employers who violate IRCA are punished by
civil fines, § 1324a(e)(4)(A), and may be subject to criminal
prosecution, § 1324a(f)(1). IRCA also makes it a crime for
an unauthorized alien to subvert the employer verification
system by tendering fraudulent documents. § 1324c(a). It
thus prohibits aliens from using or attempting to use “any
forged, counterfeit, altered, or falsely made document” or
“any document lawfully issued to or with respect to a person
other than the possessor” for purposes of obtaining employment in the United States. §§ 1324c(a)(1)–(3). Aliens who
use or attempt to use such documents are subject to fines
and criminal prosecution. 18 U. S. C. § 1546(b). There is no
dispute that Castro’s use of false documents to obtain employment with Hoffman violated these provisions.
Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States
without some party directly contravening explicit congressional policies. Either the undocumented alien tenders
fraudulent identification, which subverts the cornerstone of
IRCA’s enforcement mechanism, or the employer knowingly
hires the undocumented alien in direct contradiction of its
IRCA obligations. The Board asks that we overlook this
also § 1324a(h)(3)(B) (defining “unauthorized alien” as any alien “[not] authorized to be so employed by this chapter or by the Attorney General”).
Regulations implementing these provisions are set forth at 8 CFR § 274a
(2001).
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fact and allow it to award backpay to an illegal alien for
years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first
instance by a criminal fraud. We find, however, that awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the Board has no authority to enforce or
administer. Therefore, as we have consistently held in like
circumstances, the award lies beyond the bounds of the
Board’s remedial discretion.
The Board contends that awarding limited backpay to
Castro “reasonably accommodates” IRCA, because, in the
Board’s view, such an award is not “inconsistent” with IRCA.
Brief for Respondent 29–42. The Board argues that because the backpay period was closed as of the date Hoffman
learned of Castro’s illegal status, Hoffman could have employed Castro during the backpay period without violating
IRCA. Id., at 37. The Board further argues that while
IRCA criminalized the misuse of documents, “it did not make
violators ineligible for back pay awards or other compensation flowing from employment secured by the misuse of such
documents.” Id., at 38. This latter statement, of course,
proves little: The mutiny statute in Southern S. S. Co., and
the INA in Sure-Tan, were likewise understandably silent
with respect to such things as backpay awards under the
NLRA. What matters here, and what sinks both of the
Board’s claims, is that Congress has expressly made it criminally punishable for an alien to obtain employment with false
documents. There is no reason to think that Congress nonetheless intended to permit backpay where but for an employer’s unfair labor practices, an alien-employee would have
remained in the United States illegally, and continued to
work illegally, all the while successfully evading apprehension by immigration authorities.4 Far from “accommo4 Justice Breyer contends otherwise, pointing to a single Committee
Report from one House of a politically divided Congress, post, at 157 (dissenting opinion) (citing H. R. Rep. No. 99–682, pt. 1 (1986)), which is a
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150 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
Opinion of the Court
dating” IRCA, the Board’s position, recognizing employer
misconduct but discounting the misconduct of illegal alien
employees, subverts it.
Indeed, awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages
future violations. The Board admits that had the INS detained Castro, or had Castro obeyed the law and departed to
Mexico, Castro would have lost his right to backpay. See
Brief for Respondent 7–8 (citing A. P. R. A. Fuel Oil Buyers
Group, Inc., 320 N. L. R. B., at 416). Cf. INS v. National
Center for Immigrants’ Rights, Inc., 502 U. S., at 196, n. 11
(“[U]ndocumented aliens taken into custody are not entitled
to work”) (construing 8 CFR § 103.6(a) (1991)). Castro thus
qualifies for the Board’s award only by remaining inside the
United States illegally. See, e. g., A. P. R. A. Fuel Buyers
Group, 134 F. 3d, at 62, n. 4 (Jacobs, J., concurring in part
and dissenting in part) (“Considering that NLRB proceedings can span a whole decade, this is no small inducement to
prolong illegal presence in the country”). Similarly, Castro
cannot mitigate damages, a duty our cases require, see Surerather slender reed, e. g., Bank One Chicago, N. A. v. Midwest Bank &
Trust Co., 516 U. S. 264, 279 (1996) (Scalia, J., concurring in part and
concurring in judgment). Even assuming that a Committee Report can
shed light on what Congress intended in IRCA, the Report cited by Justice Breyer says nothing about the Board’s authority to award backpay
to illegal aliens. The Board in fact initially read the Report as stating
Congress’ view that such awards are foreclosed. Memorandum GC 88–9
from Office of General Counsel, NLRB, Reinstatement and Backpay
Remedies for Discriminatees Who Are “Undocumented Aliens,” 1988
WL 236182, *3 (Sept. 1, 1988) (“[T]he relevant committee report points
out [that] Sure-Tan was the existing law and that decision itself limited
the remedial powers of the NLRB. Clearly, Congress did not intend to
overrule Sure-Tan”). Other courts have observed that the Report
“merely endorses the first holding of Sure-Tan that undocumented aliens
are employees within the meaning of the NLRA.” Del Rey Tortilleria,
Inc., 976 F. 2d, at 1121 (citation omitted). Our first holding in Sure-Tan
is not at issue here and does not bear at all on the scope of Board remedies
with respect to undocumented workers.
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Tan, 467 U. S., at 901 (citing Seven-Up Bottling, 344 U. S., at
346; Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 198 (1941)),
without triggering new IRCA violations, either by tendering
false documents to employers or by finding employers willing
to ignore IRCA and hire illegal workers. The Board here
has failed to even consider this tension. See 326 N. L. R. B.,
at 1063, n. 10 (finding that Castro adequately mitigated damages through interim work with no mention of ALJ findings
that Castro secured interim work with false documents).5
We therefore conclude that allowing the Board to award
backpay to illegal aliens would unduly trench upon explicit
statutory prohibitions critical to federal immigration policy,
as expressed in IRCA. It would encourage the successful
evasion of apprehension by immigration authorities, condone
prior violations of the immigration laws, and encourage
future violations. However broad the Board’s discretion to
5 When questioned at oral argument about the tension between affirmative mitigation duties under the NLRA and explicit prohibitions against
employment of illegal aliens in IRCA, the Government candidly stated:
“[T]he board has not examined this issue in detail.” Tr. of Oral Arg. 32.
Justice Breyer says that we should nonetheless defer to the Government’s view that the Board’s remedy is entirely consistent with IRCA.
Post, at 161 (dissenting opinion). But such deference would be contrary
to Southern S. S. Co. v. NLRB, 316 U. S. 31, 40–46 (1942), where the Government told us that the Board’s remedy was entirely consistent with the
federal maritime laws, and NLRB v. Bildisco & Bildisco, 465 U. S. 513,
529–532 (1984), where the Government told us that the Board’s remedy
was entirely consistent with the Bankruptcy Code, and Sure-Tan, 467
U. S., at 892–894, 902–905, where the Government told us that the Board’s
remedy was entirely consistent with the INA. See also Carpenters v.
NLRB, 357 U. S. 93, 108–110 (1958) (rejecting Government position that
we should defer to the Board’s interpretation of the Interstate Commerce
Act). We did not defer to the Government’s position in any of these cases,
and there is even less basis for doing so here since IRCA—unlike the
maritime statutes, the Bankruptcy Code, or the INA—not only speaks
directly to matters of employment but expressly criminalizes the only employment relationship at issue in this case.
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152 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
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fashion remedies when dealing only with the NLRA, it is not
so unbounded as to authorize this sort of an award.
Lack of authority to award backpay does not mean that
the employer gets off scot-free. The Board here has already
imposed other significant sanctions against Hoffman—sanctions Hoffman does not challenge. See supra, at 140.
These include orders that Hoffman cease and desist its violations of the NLRA, and that it conspicuously post a notice
to employees setting forth their rights under the NLRA and
detailing its prior unfair practices. 306 N. L. R. B., at 100–
101. Hoffman will be subject to contempt proceedings
should it fail to comply with these orders. NLRB v. Warren
Co., 350 U. S. 107, 112–113 (1955) (Congress gave the Board
civil contempt power to enforce compliance with the Board’s
orders). We have deemed such “traditional remedies” sufficient to effectuate national labor policy regardless of
whether the “spur and catalyst” of backpay accompanies
them. Sure-Tan, 467 U. S., at 904. See also id., at 904, n. 13
(“This threat of contempt sanctions... provides a significant
deterrent against future violations of the [NLRA]”). As we
concluded in Sure-Tan, “in light of the practical workings
of the immigration laws,” any “perceived deficienc[y] in the
NLRA’s existing remedial arsenal” must be “addressed by
congressional action,” not the courts. Id., at 904. In light
of IRCA, this statement is even truer today.6
The judgment of the Court of Appeals is reversed.
It is so ordered.
6 Because the Board is precluded from imposing punitive remedies, Republic Steel Corp. v. NLRB, 311 U. S. 7, 9–12 (1940), it is an open question
whether awarding backpay to undocumented aliens, who have no entitlement to work in the United States at all, might constitute a prohibited
punitive remedy against an employer. See Del Rey Tortilleria, Inc. v.
NLRB, 976 F. 2d, at 1119 (finding that undocumented workers discharged
in violation of the NLRA have not been harmed in a legal sense and should
not be entitled to backpay, because the “ ‘award provisions of the NLRA
are remedial, not punitive, in nature, and thus should be awarded only to
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Breyer, J., dissenting
Justice Breyer, with whom Justice Stevens, Justice
Souter, and Justice Ginsburg join, dissenting.
I cannot agree that the backpay award before us “runs
counter to,” or “trenches upon,” national immigration policy.
Ante, at 147, 149 (citing the Immigration Reform and Control
Act of 1986 (IRCA)). As all the relevant agencies (including
the Department of Justice) have told us, the National Labor
Relations Board’s limited backpay order will not interfere
with the implementation of immigration policy. Rather, it
reasonably helps to deter unlawful activity that both labor
laws and immigration laws seek to prevent. Consequently,
the order is lawful. See ante, at 142 (recognizing “broad”
scope of Board’s remedial authority).
***
The Court does not deny that the employer in this case
dismissed an employee for trying to organize a union—a
crude and obvious violation of the labor laws. See 29
U. S. C. § 158(a)(3) (1994 ed.); NLRB v. Transportation Management Corp., 462 U. S. 393, 398 (1983). And it cannot deny
that the Board has especially broad discretion in choosing an
appropriate remedy for addressing such violations. NLRB
v. Gissel Packing Co., 395 U. S. 575, 612, n. 32 (1969) (Board
“draws on a fund of knowledge and expertise all its own, and
its choice of remedy must therefore be given special respect
by reviewing courts”). Nor can it deny that in such circumstances backpay awards serve critically important remedial
purposes. NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S. 258,
263 (1969). Those purposes involve more than victim compensation; they also include deterrence, i. e., discouraging
those individuals who have suffered harm’ ”) (quoting Local 512, Warehouse and Office Workers Union v. NLRB, 795 F. 2d, at 725 (Beezer, J.,
dissenting in part)). Because we find the remedy foreclosed on other
grounds, we do not address whether the award at issue here is “ ‘punitive’
and hence beyond the authority of the Board.” Sure-Tan, supra, at 905,
n. 14.
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154 HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB
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employers from violating the Nation’s labor laws. See ante,
at 152 (recognizing the deterrent purposes of the National
Labor Relations Act (NLRA)); Sure-Tan, Inc. v. NLRB, 467
U. S. 883, 904, n. 13 (1984) (same).
Without the possibility of the deterrence that backpay provides, the Board can impose only future-oriented obligations
upon law-violating employers—for it has no other weapons
in its remedial arsenal. Ante, at 152. And in the absence
of the backpay weapon, employers could conclude that they
can violate the labor laws at least once with impunity. See
A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B. 408,
415, n. 38 (1995) (without potential backpay order employer
might simply discharge employees who show interest in
a union “secure in the knowledge” that only penalties
were requirements “to cease and desist and post a notice”);
cf. Golden State Bottling Co. v. NLRB, 414 U. S. 168, 185
(1973); cf. also EEOC v. Waffle House, Inc., 534 U. S. 279, 296,
n. 11 (2002) (backpay award provides important incentive to
report illegal employer conduct); Albemarle Paper Co. v.
Moody, 422 U. S. 405, 417–418 (1975) (“It is the reasonably
certain prospect of a backpay award” that leads employers
to “shun practices of dubious legality”). Hence the backpay
remedy is necessary; it helps make labor law enforcement
credible; it makes clear that violating the labor laws will
not pay.
Where in the immigration laws can the Court find a “policy” that might warrant taking from the Board this critically
important remedial power? Certainly not in any statutory
language. The immigration statutes say that an employer
may not knowingly employ an illegal alien, that an alien may
not submit false documents, and that the employer must verify documentation. See 8 U. S. C. §§ 1324a(a)(1), 1324a(b);
18 U. S. C. § 1546(b)(1). They provide specific penalties, including criminal penalties, for violations. Ibid.; 8 U. S. C.
§§ 1324a(e)(4), 1324a(f)(1). But the statutes’ language itself
does not explicitly state how a violation is to effect the en-
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Breyer, J., dissenting
forcement of other laws, such as the labor laws. What is to
happen, for example, when an employer hires, or an alien
works, in violation of these provisions? Must the alien forfeit all pay earned? May the employer ignore the labor
laws? More to the point, may the employer violate those
laws with impunity, at least once—secure in the knowledge
that the Board cannot assess a monetary penalty? The immigration statutes’ language simply does not say.
Nor can the Court comfortably rest its conclusion upon
the immigration laws’ purposes. For one thing, the general
purpose of the immigration statute’s employment prohibition
is to diminish the attractive force of employment, which like
a “magnet” pulls illegal immigrants toward the United
States. H. R. Rep. No. 99–682, pt. 1, p. 45 (1986). To permit the Board to award backpay could not significantly increase the strength of this magnetic force, for so speculative
a future possibility could not realistically influence an individual’s decision to migrate illegally. See A. P. R. A. Fuel
Oil Buyers Group, Inc., supra, at 410–415 (no significant influence from so speculative a factor); Patel v. Quality Inn
South, 846 F. 2d 700, 704 (CA11 1988) (aliens enter the country “in the hope of getting a job,” not gaining “the protection
of our labor laws”); Peterson v. Neme, 222 Va. 477, 482, 281
S. E. 2d 869, 872 (1981) (same); Arteaga v. Literski, 83 Wis.
2d 128, 132, 265 N. W. 2d 148, 150 (1978) (same); H. R. Rep.
No. 99–682, at 45 (same).
To deny the Board the power to award backpay, however,
might very well increase the strength of this magnetic force.
That denial lowers the cost to the employer of an initial labor
law violation (provided, of course, that the only victims are
illegal aliens). It thereby increases the employer’s incentive
to find and to hire illegal-alien employees. Were the Board
forbidden to assess backpay against a knowing employer—a
circumstance not before us today, see 237 F. 3d 639, 648
(CADC 2001)—this perverse economic incentive, which runs
directly contrary to the immigration statute’s basic objective,
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would be obvious and serious. But even if limited to cases
where the employer did not know of the employee’s status,
the incentive may prove significant—for, as the Board has
told us, the Court’s rule offers employers immunity in borderline cases, thereby encouraging them to take risks, i. e.,
to hire with a wink and a nod those potentially unlawful
aliens whose unlawful employment (given the Court’s views)
ultimately will lower the costs of labor law violations. See
Brief for Respondent 30–32; Tr. of Oral Arg. 41, 47; cf. also
General Accounting Office, Garment Industry: Efforts to Address the Prevalence and Conditions of Sweatshops 8 (GAO/
HEHS–95–29, Nov. 1994) (noting a higher incidence of labor
violations in areas with large populations of undocumented
aliens). The Court has recognized these considerations in
stating that the labor laws must apply to illegal aliens in
order to ensure that “there will be no advantage under the
NLRA in preferring illegal aliens” and therefore there will
be “fewer incentives for aliens themselves to enter.” SureTan, supra, at 893–894. The Court today accomplishes the
precise opposite.
The immigration law’s specific labor-law-related purposes
also favor preservation, not elimination, of the Board’s backpay powers. See A. P. R. A. Fuel Oil Buyers Group, Inc.,
supra, at 414 (immigration law seeks to combat the problem
of aliens’ willingness to “work in substandard conditions and
for starvation wages”); cf. also Sure-Tan, 467 U. S., at 893
(“[E]nforcement of the NLRA . . . is compatible with the
policies” of the Immigration and Nationality Act). As I just
mentioned and as this Court has held, the immigration law
foresees application of the Nation’s labor laws to protect
“workers who are illegal immigrants.” Id., at 891–893; H. R.
Rep. No. 99–682, at 58. And a policy of applying the labor
laws must encompass a policy of enforcing the labor laws
effectively. Otherwise, as Justice Kennedy once put
the matter, “we would leave helpless the very persons who
most need protection from exploitative employer practices.”
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NLRB v. Apollo Tire Co., 604 F. 2d 1180, 1184 (CA9 1979)
(concurring opinion). That presumably is why those in Congress who wrote the immigration statute stated explicitly
and unequivocally that the immigration statute does not take
from the Board any of its remedial authority. H. R. Rep.
No. 99–682, at 58 (IRCA does not “undermine or diminish
in any way labor protections in existing law, or . . . limit
the powers of federal or state labor relations boards . . . to
remedy unfair practices committed against undocumented
employees”).
Neither does precedent help the Court. Indeed, in ABF
Freight System, Inc. v. NLRB, 510 U. S. 317 (1994), this
Court upheld an award of backpay to an unlawfully discharged employee guilty of a serious crime, namely, perjury
committed during the Board’s enforcement proceedings.
Id., at 323. See also id., at 326–331 (Scalia, J., concurring
in judgment while stressing seriousness of misconduct).
The Court unanimously held that the Board retained “broad
discretion” to remedy the labor law violation through a backpay award, while leaving enforcement of the criminal law to
ordinary perjury-related civil and criminal penalties. See
id., at 325; see also 18 U. S. C. § 1621 (criminal penalties for
perjury).
The Court, trying to distinguish ABF Freight, says that
the Court there left open “whether the Board could award
backpay to an employee who engaged in ‘serious misconduct’
unrelated to internal Board proceedings.” Ante, at 146.
But the Court does not explain why (assuming misconduct
of equivalent seriousness) lack of a relationship to Board proceedings matters, nor why the Board should have to do more
than take that misconduct into account—as it did here. 326
N. L. R. B. 1060, 1060–1062 (1998) (thoroughly discussing relevance of immigration policies); see also A. P. R. A. Fuel Oil
Buyers Group, Inc., 320 N. L. R. B., at 412–414 (same). The
Court adds that the Board order in ABF Freight “did not
implicate federal statutes or policies administered by other
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federal agencies.” Ante, at 146. But it does not explain
why this matters when, as here, the Attorney General,
whose Department—through the Immigration and Naturalization Service—administers the immigration statutes, supports the Board’s order. Nor does it explain why the perjury statute at issue in ABF Freight was not a “statute . . .
administered by” another “agenc[y].” See 510 U. S., at 329
(Scalia, J., concurring in judgment) (noting Department of
Justice officials’ responsibility for prosecuting perjury).
The Court concludes that the employee misconduct at
issue in ABF Freight, “though serious, was not at all analogous to misconduct that renders an underlying employment relationship illegal.” Ante, at 146. But this conclusion rests upon an implicit assumption—the assumption that
the immigration laws’ ban on employment is not compatible
with a backpay award. And that assumption, as I have tried
to explain, is not justified. See supra, at 155–157.
At the same time, the two earlier cases upon which the
Court relies, NLRB v. Fansteel Metallurgical Corp., 306
U. S. 240 (1939), and Southern S. S. Co. v. NLRB, 316 U. S.
31, 47 (1942), offer little support for its conclusion. The
Court correctly characterizes both cases as ones in which
this Court set aside the Board’s remedy (more specifically,
reinstatement). Ante, at 142–144. But the Court does not
focus upon the underlying circumstances—which in those
cases were very different from the circumstances present
here. In both earlier cases, the employer had committed an
independent unfair labor practice—in the one by creating a
company union, Fansteel, supra, at 250, in the other by refusing to recognize the employees’ elected representative,
Southern S. S. Co., supra, at 32–36, 48–49. In both cases,
the employees had responded with unlawful acts of their
own—a sit-in and a mutiny. Fansteel, supra, at 252; Southern S. S. Co., supra, at 48. And in both cases, the Court
held that the employees’ own unlawful conduct provided the
employer with “good cause” for discharge, severing any con-
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nection to the earlier unfair labor practice that might otherwise have justified reinstatement and backpay. Fansteel,
supra, at 254–259; Southern S. S. Co., supra, at 47–49.
By way of contrast, the present case concerns a discharge
that was not for “good cause.” The discharge did not sever
any connection with an unfair labor practice. Indeed, the
discharge was the unfair labor practice. Hence a determination that backpay was inappropriate in the former circumstances (involving a justifiable discharge) tells us next to
nothing about the appropriateness as a legal remedy in the
latter (involving an unjustifiable discharge), the circumstances present here.
The Court also refers to the statement in Sure-Tan, Inc.
v. NLRB, 467 U. S., at 903, that “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.” The
Court, however, does not rely upon this statement as determining its conclusion. See ante, at 146–147. And it is right
not to do so. See Reiter v. Sonotone Corp., 442 U. S. 330,
341 (1979) (“[L]anguage of an opinion” must be “read in context” and not “parsed” like a statute). Sure-Tan involved
an order reinstating (with backpay) illegal aliens who had
left the country and returned to Mexico. 467 U. S., at 888–
889. In order to collect the backpay to which the order entitled them, the aliens would have had to reenter the country
illegally. Consequently, the order itself could not have been
enforced without leading to a violation of criminal law. Id.,
at 903. Nothing in the Court’s opinion suggests that the
Court intended its statement to reach to circumstances different from and not at issue in Sure-Tan, where an order,
such as the order before us, does not require the alien to
engage in further illegal behavior.
Finally, the Court cannot reasonably rely upon the award’s
negative features taken together. The Court summarizes
those negative features when it says that the Board “asks
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that we . . . award backpay to an illegal alien [1] for years of
work not performed, [2] for wages that could not lawfully
have been earned, and [3] for a job obtained in the first instance by a criminal fraud.” Ante, at 148–149. The first of
these features has little persuasive force, given the facts that
(1) backpay ordinarily and necessarily is awarded to a discharged employee who may not find other work, and (2) the
Board is able to tailor an alien’s backpay award to avoid
rewarding that alien for his legal inability to mitigate damages by obtaining lawful employment elsewhere. See, e. g.,
Sure-Tan, supra, at 901–902, n. 11 (basing backpay on “representative employee”); A. P. R. A. Fuel, 320 N. L. R. B.,
at 416 (providing backpay for reasonable period); 326
N. L. R. B., at 1062 (cutting off backpay when employer
learned of unlawful status).
Neither can the remaining two features—unlawfully
earned wages and criminal fraud—prove determinative, for
they tell us only a small portion of the relevant story. After
all, the same backpay award that compensates an employee
in the circumstances the Court describes also requires an
employer who has violated the labor laws to make a meaningful monetary payment. Considered from this equally important perspective, the award simply requires that employer to pay an employee whom the employer believed could
lawfully have worked in the United States, (1) for years of
work that he would have performed, (2) for a portion of the
wages that he would have earned, and (3) for a job that the
employee would have held—had that employer not unlawfully dismissed the employee for union organizing. In ignoring these latter features of the award, the Court undermines
the public policies that underlie the Nation’s labor laws.
Of course, the Court believes it is necessary to do so in
order to vindicate what it sees as conflicting immigration law
policies. I have explained why I believe the latter policies
do not conflict. See supra, at 155–157. But even were I
wrong, the law requires the Court to respect the Board’s
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conclusion, rather than to substitute its own independent
view of the matter for that of the Board. The Board
reached its conclusion after carefully considering both labor
law and immigration law. 326 N. L. R. B., at 1060–1062; see
A. P. R. A. Fuel Oil Buyers Group, Inc., supra, at 412–414.
In doing so the Board has acted “with a discriminating
awareness of the consequences of its action” on the immigration laws. Burlington Truck Lines, Inc. v. United States,
371 U. S. 156, 174 (1962). The Attorney General, charged
with immigration law enforcement, has told us that the
Board is right. See 8 U. S. C. § 1324a(e) (Immigration and
Naturalization Service placed within the Department of Justice, under authority of Attorney General who is charged
with responsibility for immigration law enforcement);
cf. United States v. Mead Corp., 533 U. S. 218, 258–259, n. 6
(2001) (Scalia, J., dissenting) (Solicitor General’s statements
represent agency’s position); Jean v. Nelson, 472 U. S. 846,
856, and n. 3 (1985) (agency’s position with respect to its regulation during litigation “arrives with some authority”).
And the Board’s position is, at the least, a reasonable one.
Consequently, it is lawful. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–
843 (1984) (requiring courts to uphold reasonable agency
position).
For these reasons, I respectfully dissent.