At issue in this case are several questions arising from the application of the National Labor Relations Act (NLRA or Act) to an employer's treatment of its undocumented alien employees. We first determine whether the National Labor Relations Board (NLRB or Board) may properly find that an employer engages in an unfair labor practice by reporting to the Immigration and Naturalization Service (INS) certain employees known to be undocumented aliens in retaliation for their engaging in union activity, thereby causing their immediate departure from the United States. We then address the validity of the Board's remedial order as modified by the Court of Appeals.
Petitioners are two small leather processing firms located in Chicago that, for purposes of the Act, constitute a single integrated employer. In July 1976, a union organization drive was begun. Eight employees signed cards authorizing the Chicago Leather Workers Union, Local 431, Amalgamated Meatcutters and Butcher Workmen of North America (Union), to act as their collective-bargaining representative. Of the 11 employees then employed by petitioners, most were Mexican nationals present illegally in the United States without visas or immigration papers authorizing them to work. The Union ultimately prevailed in a Board election conducted on December 10, 1976.
Two hours after the election, petitioners' president, John Surak, addressed a group of employees, including some of the undocumented aliens involved in this case. He asked the
Petitioners filed with the Board objections to the election, arguing that six of the seven eligible voters were illegal aliens. Surak executed an accompanying affidavit which stated that he had known about the employees' illegal presence in this country for several months prior to the election. On January 19, 1977, the Board's Acting Regional Director notified petitioners that their objections were overruled and that the Union would be certified as the employees' collective-bargaining representative. The next day, Surak sent a letter to the INS asking that the agency check into the status of a number of petitioners' employees as soon as possible. In response to the letter, INS agents visited petitioners' premises on February 18, 1977, to investigate the immigration status of all Spanish-speaking employees. The INS agents discovered that five employees were living and working illegally in the United States and arrested them. Later that day, each employee executed an INS form, acknowledging illegal presence in the country and accepting INS's grant of voluntary departure as a substitute for deportation. By the end of the day, all five employees were on a bus ultimately bound for Mexico.
On February 22 and March 23, 1977, the Board's Acting Regional Director issued complaints alleging that petitioners had committed various unfair labor practices. On March 29, 1977, petitioners sent letters to the five employees who had returned to Mexico offering to reinstate them, provided that doing so would not subject Sure-Tan to any violations of United States immigration laws. The offers were to remain open until May 1, 1977.
The unfair labor practice charges were heard by an Administrative Law Judge (ALJ), whose findings and conclusions as to the merits of the complaints were affirmed and adopted by
As a remedy for the § 8(a)(3) violations, the Board adopted the ALJ's recommendation that petitioners be ordered to cease and desist from their various unfair labor practices, including notifying the INS of their employees' status because of the employees' support of the Union. However, the Board declined to adopt the ALJ's specific recommendations as to the appropriate remedy. The ALJ had recommended that petitioners be ordered to offer the discharged employees reinstatement and that the offers be held open for six months. In addition, the ALJ had concluded that since, under past Board precedent, backpay is normally tolled during
The Board, however, concluded that the ALJ's analysis of the remedy was "unnecessarily speculative." 234 N. L. R. B., at 1187. Since the record contained no evidence that the employees had not since returned to the United States, the Board modified the ALJ's order by substituting the "conventional remedy of reinstatement with backpay," thereby leaving until subsequent compliance proceedings the determination whether the employees had in fact been available for work.
On appeal, the Court of Appeals enforced the Board's order. 672 F.2d 592 (CA7 1982). The court fully agreed that petitioners had violated the NLRA by constructively discharging their undocumented alien employees. It also concurred in the Board's judgment that the usual remedies of reinstatement and backpay were appropriate in these circumstances. The Court of Appeals did, however, modify the Board's order in several significant respects. First, it concluded that reinstatement would be proper only if the discharged employees were legally present and free to be employed in the United States when they presented themselves for reinstatement. The court also decided that the reinstatement offers in their present form were deficient since they
As for backpay, the court required that the discharged employees should be deemed unavailable for work during any period when they were not legally entitled to be present and employed in the United States. Recognizing that the discharged employees would most likely not have been lawfully available for employment and so would receive no backpay award at all, the court decided that "it would better 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." Id., at 606. Believing that six months' backpay would be the minimum amount appropriate for this purpose, the court suggested that the Board consider this remedy. The Board accepted the court's suggestion, and the final judgment order approved by the court included the minimum award of six months' backpay.
We first consider the predicate question whether the NLRA should apply to unfair labor practices committed against undocumented aliens. The Board has consistently held that undocumented aliens are "employees" within the meaning of § 2(3) of the Act.
The terms and policies of the Act fully support the Board's interpretation in this case. The breadth of § 2(3)'s definition is striking: the Act squarely applies to "any employee." The only limitations are specific exemptions for agricultural laborers, domestic workers, individuals employed by their spouses or parents, individuals employed as independent contractors or supervisors, and individuals employed by a person who is not an employer under the NLRA. See 29 U. S. C. § 152(3).
Similarly, extending the coverage of the Act to such workers is consistent with the Act's avowed purpose of encouraging and protecting the collective-bargaining process. See Hearst Publications, Inc., supra, at 126. As this Court has previously recognized: "[A]cceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions." De Canas v. Bica, 424 U.S. 351, 356-357 (1976). If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937). Thus, the Board's categorization of undocumented aliens as protected employees furthers the purposes of the NLRA.
Counterintuitive though it may be, we do not find any conflict between application of the NLRA to undocumented aliens and the mandate of the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. This Court has observed that "[t]he central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country." De Canas v. Bica, 424 U. S., at 359. The INA evinces "at best evidence of a peripheral concern with employment of illegal entrants." Id., at 360. For whatever reason, Congress has not adopted provisions in the INA making
We find persuasive the Board's argument that enforcement of the NLRA with respect to undocumented alien employees is compatible with the policies of the INA. A primary purpose in restricting immigration is to preserve jobs for American workers; immigrant aliens are therefore admitted to work in this country only if they "will not adversely affect the wages and working conditions of the workers in the United States similarly employed." 8 U. S. C. § 1182(a)(14). See S. Rep. No. 748, 89th Cong., 1st Sess., 15 (1965). Application of the NLRA helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment. If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to
Accepting the premise that the provisions of the NLRA are applicable to undocumented alien employees, we must now address the more difficult issue whether, under the circumstances of this case, petitioners committed an unfair labor practice by reporting their undocumented alien employees to the INS in retaliation for participating in union activities. Section 8(a)(3) makes it an unfair labor practice for an employer "by 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." 29 U. S. C. § 158(a)(3). The Board, with the approval of lower courts, has long held that an employer violates this provision not only when, for the purpose of discouraging union activity, it directly dismisses an employee, but also when it purposefully creates working conditions so intolerable that the employee has no option but to resign — a so-called "constructive discharge." See, e. g., NLRB v. Haberman Construction Co., 641 F.2d 351, 358 (CA5 1981) (en banc); Cartwright Hardware Co. v. NLRB, 600 F.2d 268, 270 (CA10 1979); J. P. Stevens & Co. v. NLRB, 461 F.2d 490, 494 (CA4 1972); NLRB v. Holly Bra of California, Inc., 405 F.2d 870, 872 (CA9 1969); Atlas Mills, Inc., 3 N. L. R. B. 10, 17 (1937). See also 3 T. Kheel, Labor Law § 12.05[a] (1982).
Petitioners do not dispute that the antiunion animus element of this test was, as expressed by the lower court, "flagrantly met." 672 F. 2d, at 601. "The record is replete with examples of Sure-Tan's blatantly illegal course of conduct to discourage its employees from supporting the Union." Id., at 601-602. Petitioners contend, however, that their
This argument is unavailing. According to testimony by an INS agent before the ALJ, petitioners' letter was the sole cause of the investigation during which the employees were taken into custody. This evidence was undisputed by petitioners and amply supports the ALJ's conclusion that "but for [petitioners'] letter to Immigration, the discriminatees would have continued to work indefinitely." 234 N. L. R. B., at 1191. And there can be little doubt that Surak foresaw precisely this result when, having known about the employees' illegal status for some months, he notified the INS only after the Union's electoral victory was assured. See supra, at 887; 672 F. 2d, at 601.
We observe that the Board quite properly does not contend that an employer may never report the presence of an illegal alien employee to the INS. See, e. g., Bloom/Art Textiles, Inc., 225 N. L. R. B. 766 (1976) (no violation of Act for employer to discharge illegal alien who was a union activist where the evidence showed that the reason for the discharge was not the employee's protected collective activities, but the employer's concern that employment of the undocumented worker violated state law). The reporting of any violation of the criminal laws is conduct which ordinarily should be encouraged, not penalized. See In re Quarles, 158 U.S. 532, 535 (1895).
Finally, petitioners claim that this Court's recent decision in Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), mandates the conclusion that their request for enforcement of the federal immigration laws is an aspect of their First Amendment right "to petition the Government for a redress of grievances" and therefore may not be burdened under the guise of enforcing the NLRA.
The reasoning of Bill Johnson's Restaurants simply does not apply to petitioners' situation. The employer in that case, though similarly motivated by a desire to discourage the exercise of NLRA rights, was asserting in state court a personal interest in its own reputation that was protected by state law. If the Court had upheld the Board in the case, it would have left the employer with no forum in which to pursue a remedy for an "actual injury." Id., at 741. The First Amendment right protected in Bill Johnson's Restaurants is plainly a "right of access to the courts . . . `for redress of alleged wrongs.' " Ibid. Petitioners in this case, however, have not suffered a comparable, legally protected injury at the hands of their employees. Petitioners did not invoke the INS administrative process in order to seek the redress of any wrongs committed against them. Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Indeed, private persons such as petitioners have no judicially cognizable interest in procuring enforcement of the immigration laws by the INS. Cf. Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973).
Finally, Bill Johnson's Restaurants was concerned about whether the Board's interpretation of the NLRA would work to pre-empt the State from providing civil remedies for conduct touching interests " `deeply rooted in local feeling and responsibility.' " 461 U. S., at 741 (quoting San Diego
There remains for us to consider petitioners' challenges to the remedial order entered in this case. Petitioners attack those portions of the Court of Appeals' order which modified the Board's original order by providing for an irreducible minimum of six months' backpay for each employee and by detailing the language, acceptance period, and verification method of the reinstatement offers.
Section 10(c) of the Act empowers the Board, when it finds that an unfair labor practice has been committed, to issue an order requiring the violator to "cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies" of the NLRA. 29 U. S. C. § 160(c). The Court has repeatedly interpreted this statutory command as vesting in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial
See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953) (power to fashion remedies "is for the Board to wield, not for the courts").
Here, the Court of Appeals impermissibly expanded the Board's original order to provide that each discriminatee would receive backpay for at least six months on the ground that "six months is a reasonable assumption" as to the "minimum [time] during which the discriminatees might reasonably have remained employed without apprehension by INS, but for the employer's unfair labor practice." 672 F. 2d, at 606. We agree with petitioners that this remedy ordered by the Court of Appeals exceeds the limits imposed by the NLRA.
By contrast, the Court of Appeals' award of a minimum amount of backpay in this case is not sufficiently tailored to the actual, compensable injuries suffered by the discharged employees. The court itself admitted that although it sought to recompense the discharged employees for their lost wages, the actual 6-month period selected was "obviously conjectural." 672 F. 2d, at 606. The court's imposition of this minimum backpay award in the total absence of record evidence as to the circumstances of the individual employees constitutes pure speculation and does not comport with the general reparative policies of the NLRA.
Nonetheless, as the Court of Appeals recognized, the implementation of the Board's traditional remedies at the compliance
The Court of Appeals assumed that, under these circumstances, the employees would receive no backpay, and so
The Court of Appeals similarly exceeded its limited authority of judicial review by modifying the Board's order so as to require petitioners to draft the reinstatement offers in Spanish and to ensure verification of receipt. While such requirements appear unobjectionable in that they constitute a rather trivial burden, they represent just the type of informed judgment which calls for the Board's superior expertise and long experience in handling specific details of remedial relief. See, e. g., NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266-267 (1975); NLRB v. Erie Resistor Corp., 373 U. S., at 236. If the court believed that the Board had erred in failing to impose such requirements, the appropriate course was to remand back to the Board for reconsideration. NLRB v. Food Store Employees, 417 U.S. 1 (1974). Such action "best respects the congressional scheme investing the Board and not the courts with broad powers to fashion remedies that will effectuate national labor policy." Id., at 10; see 2 T. Kheel, Labor Law § 7.04[e] (1984).
The court's requirement that the reinstatement offers be held open for four years is vulnerable to similar attack. The court simply had no justifiable basis for displacing the Board's discretionary judgment about the proper time period for acceptance of the reinstatement offers. Rather than enlarging the Board's remedial order in this fashion, the court was required to remand for the Board to consider the alternative
For the reasons given above, we reverse the judgment of the Court of Appeals insofar as it imposed a minimum backpay award and mandated certain specifics of the reinstatement offers. We therefore remand the case to the Court of Appeals with instructions to remand it back to the Board to permit formulation of an appropriate remedial order consistent with this Court's opinion.
It is so ordered.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, concurring in part and dissenting in part.
I fully agree with the Court to the extent it holds, first, that undocumented aliens are "employees" within the meaning of § 2(3) of the National Labor Relations Act (NLRA), 29 U. S. C. § 152(3), and, second, that petitioners plainly violated § 8(a)(3) of the Act, 29 U. S. C. § 158(a)(3), when they reported their undocumented alien employees to the Immigration and Naturalization Service (INS) in retaliation for participating in union activities. Accordingly, I join Parts I, II, and III of the Court's opinion. However, because the Court's treatment of the appropriate remedy departs so completely from our prior cases, I dissent from Part IV of the opinion.
The Court's first mistake is to ignore the fact that the Board, rather than seeking a remand, has expressly urged that we affirm the 6-month backpay and reinstatement remedy provided in the Court of Appeals' enforcement order, because it is fully satisfied that the court's order "effectuates the purposes of the NLRA." Brief for Respondent 11. Of course, it is generally true, as the Court observes, ante, at 900, n. 10, that the proper course for a reviewing court that
The Court compounds this initial error by devising a new standard for reviewing the propriety of remedies ordered under the NLRA. At the outset of its discussion, the Court correctly states that we have consistently interpreted § 10(c) of the NLRA, 29 U. S. C. § 160(c), as "vesting in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review." Ante, at 898-899. The Court goes on, however, to concoct a new standard of review, which considers whether the terms of a remedial order are "sufficiently tailored" to the unfair labor practice it is intended to redress. Ante, at 901. Applying its newly minted standard to this case, the Court finds that the remedial order challenged here involved the imposition of requirements on petitioners that "d[o] not lie within the Board's own powers." Ante, at 900. Our prior cases, however, provide no support whatsoever for this new standard. Indeed, we have explained that "[w]hen the Board . . . makes an order of restoration by way of backpay, the order `should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.' " NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346-347 (1953) (emphasis added) (quoting
If the appropriate standard of review is applied to this case, it is clear that the judgment of the Court of Appeals should be affirmed in its entirety as the Board urges. It is undisputed that absent petitioners' illegal conduct, the five employees involved here would certainly have continued working for and receiving wages from petitioners for some period of time beyond February 18, 1977 — the date on which they were discriminatorily discharged. It is equally clear, therefore, that each of these employees suffered some loss of income that was directly attributable to petitioners' unfair labor practices. Accordingly, given such circumstances, it is perfectly reasonable that the Board should in the exercise of its broad remedial powers under § 10(c) of the Act fashion a remedy designed to restore those employees "as nearly as possible [to the situation] that . . . would have obtained but for the illegal discrimination," Phelps Dodge, supra, at 194, including reinstatement and an award of appropriate backpay. Such a remedial order is in no sense "punitive," since it serves the dual purposes of making whole those employees who were injured by petitioners' conduct and of vindicating the important public purposes of the NLRA. Virginia Electric & Power Co. v. NLRB, supra, at 543. The reinstatement order and the award of a minimum of six months' backpay ordered by the Court of Appeals and supported here by the Board reflect, in my view, a wholly reasonable effort to effectuate those purposes.
With respect to the Court's first assertion, it is clear that the Board's decision to support the backpay award ordered by the Court of Appeals rests squarely upon its own judgment that this award estimates with a fair degree of precision the period that these employees would have continued working for petitioners had petitioners not reported them to the INS. Indeed, as the Board points out, such an award is no more speculative or conjectural than those developed in other situations commonly confronted by the Board in which it is not clear how long an employment relationship would have continued in the absence of an unfair labor practice. See, e. g., Buncher v. NLRB, 405 F.2d 787, 789-790 (CA3 1968), cert. denied, 396 U.S. 828 (1969); NLRB v. Superior Roofing Co., 460 F.2d 1240, 1241 (CA9 1972); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 572-573 (CA5 1966).
The contradiction in the Court's opinion is total. In explaining why enforcement of the NLRA with respect to undocumented alien employees is compatible with national immigration policy, the Court observes:
But the force of this logic is blunted by the Court's decision to restrict drastically the remedies available to undocumented alien employees. Once employers, such as petitioners, realize that they may violate the NLRA with respect to their undocumented alien employees without fear of having to recompense those workers for lost backpay, their "incentive to hire such illegal aliens" will not decline, it will increase. And the purposes of both the NLRA and the Immigration and Naturalization Act (INA) that are supposedly served by today's decision will unquestionably be undermined.
Moreover, permitting backpay awards in these circumstances creates little risk of undermining the policies of the INA. As long as offers of reinstatement are conditioned upon the employee's legal reentry to this country, any incentive to return illegally to the United States that such a Board-ordered remedy might otherwise create is, as the Court itself properly notes, see ante, at 902-903, effectively removed.
Finally, with respect to the Court of Appeals' requirement that the offers of reinstatement remain open for four years to permit the discharged alien employees a reasonable time to
JUSTICE POWELL, with whom JUSTICE REHNQUIST joins, concurring in part and dissenting in part.
I dissent from the Court's finding that the illegal aliens involved in this case are "employees" within the meaning of that term in the National Labor Relations Act. It is unlikely that Congress intended the term "employee" to include — for purposes of being accorded the benefits of that protective statute — persons wanted by the United States for the violation of our criminal laws. I therefore would hold that the illegal alien workers are not entitled to any remedy. Given the Court's holding, however, that they are entitled to the protections of the NLRA, I join Part IV of the Court's opinion.