HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB

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ORAL ARGUMENT OF RYAN D. McCORTNEY ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in Number 00-1595, Hoffman Plastic Compounds, Inc. v. The National Labor Relations Board.

Mr. McCortney.

Mr. McCortney: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the award of back pay to an undocumented alien who never was legally present or legally authorized to work in this country conflicts with this Court's holding in Sure-Tan or with this country's immigration laws and policies.

In Sure-Tan, this Court held that the discriminatees in that case must be deemed unavailable for work and the accrual of back pay therefore tolled during any period when they were not lawfully entitled to be present and employed in the United States.

The Sure-Tan Court's back pay limitation is consistent with INA's dual requirement that to be employed in this country an alien must be both legally present and legally authorized to work.

Despite this dual requirement, the board contends that Castro is entitled to back pay even though he never was legally present or legally authorized to work during the back pay period.

The fatal flaw in the board's position lies in its adherence to its physical availability doctrine.

The board contends that this Court denied back pay to the discriminatees in Sure-Tan only because they had left the country and were physically unavailable for work.

If the board is right, the Sure-Tan discriminatees could have illegally reentered the country to establish physical presence and to commence the accrual of back pay.

However, such reentry would violate the immigration laws of this country and be contrary to this Court's holding in Sure-Tan.

Mr. McCortney: Have the immigration laws changed at all in any relevant respects since our decision in Sure-Tan?

Mr. McCortney: Yes, Your Honor, the passage of IRCA in 1986.

Mr. McCortney: And what relevant changes did IRCA make?

Mr. McCortney: IRCA was an amendment to the INA that made the employment, the knowing employment of undocumented aliens unauthorized from the employer's perspective.

Mr. McCortney: And is it correct that when Sure-Tan was argued, IRCA, if that's the way you pronounce it, was being considered by Congress and the Government in its argument told us that if IRCA had been passed, back pay would not be available?

Mr. McCortney: That's correct, Your Honor.

Recognizing, as it must, that this Court in Sure-Tan conditioned the accrual of back pay on legal presence, the board contends that the Sure-Tan Court sought only to deter the discriminatees from illegally reentering this country to claim back pay.

Mr. McCortney: Well, when you say conditioned it on legal presence, I mean, in fact they were not present.

I mean, the people in that case were still out of the country, weren't they?

Mr. McCortney: That's correct, Your Honor.

Mr. McCortney: So you have to acknowledge that it was dictum.

Mr. McCortney: Well, Your Honor, I would not call it dicta only because the Court set forth the conditions upon which the discriminatees might receive back pay if they were to legally reenter the country.

Mr. McCortney: That's right, but it only had to say one condition in order to decide the case.

Namely, you had to be in the country, and it went on to say, and in addition you have to be available to work, but that is really unnecessary to the decision.

Mr. McCortney: Well, the threshold condition was legal reentry, and that was the starting point of the analysis.

If they were to reenter, then of course they would have to establish at the back pay hearing--

Mr. McCortney: Mr. McCortney--

Mr. McCortney: --legal authorization to work.

Mr. McCortney: --If that is so, then why did the Court make the comment on page 901 of the opinion in footnote 11, talking about the board has said it will make it an arbitrary number of weeks, and the Court said the board has never attempted to impose a back pay award that the employer must pay regardless of the actual evidence as to such issues as the employee's availability to work?

All of that would have been unnecessary if it were just this blanket rule, right?

Mr. McCortney: Well, Your Honor, I think in footnote 11 what the Court was addressing was the minimum back pay award of 6 months that the court of appeals had imposed and the board had adopted, and then the board tried to defend that award by arguing that it had in other cases had estimates of back pay, despite the fact that the discriminatee was unable to establish with any certainty the probable length of the back pay period.

I think the Court there was simply saying that, look, you don't even go so far as to provide any showing of proof as to how long these discriminatees would have worked before their apprehension by the INS, but we don't read that to mean that had those discriminatees in Sure-Tan remained in the country, that they would have been entitled to back pay, because they wouldn't have been legally present and legally authorized to work.

Mr. McCortney: Well, if the opinion in Sure-Tan we think equivocal, if it's a wash either way, what is your principal argument for reversal here?

Mr. McCortney: Assuming that Sure-Tan is equivocal?

Mr. McCortney: Yes.

Mr. McCortney: That the board's award of back pay conflicts with the immigration laws and policies of this country as embodied in the INA and IRCA.

Mr. McCortney: Well, what do you say the argument that the board makes that even if the dictum in Sure-Tan were a holding as you say it should be treated, that the statute has changed the landscape, and that the board's rule in effect is in aid of the statute, because the board is saying the illegality on the part of the employer comes when the employer knowingly employs these people despite knowledge of their illegal character, so in effect we're going to say that the obligation to pay back pay stops when the employer knows that the alien in fact is illegally there.

Up to that point, however, we're going to follow a different policy.

We're going to make the employer pay back pay because otherwise we would make it very easy for employers.

We would, in fact, create an inducement for employers to ignore the law by, in effect, winking at illegality on the part of the workers, so the board is saying, sure, the statute changed the legal landscape even on your reading of Sure-Tan, and we've come up with what seems to be a sensible way of implementing it.

What is your response to that?

Mr. McCortney: Your Honor, just the mere prospect of receiving back pay in this case encouraged Castro to extend his illegal stay by more than 4 years and to continue using--

Mr. McCortney: Well, I think you're right, but the board is saying, yes, there's that inducement on one side, but there's a very powerful employer inducement if we come out the other way, and although I don't think the board put it in these words, I take it the board is saying, we think the employers are going to make a rational decision about inducements more clearly or more obviously than employees, the illegal aliens might do, so we're going to prefer the inducement or the policy that is going to have the strongest effect on the employers.

Isn't that a permissible choice for the board to make?

Mr. McCortney: --No, Your Honor.

The board's authority here is to enforce the provisions of the National Labor Relations Act to the extent that they do not conflict with the immigration laws and policies of this country, and--

Mr. McCortney: But the board is saying we can't have it both ways.

No matter which way we go, something we do would provide an inducement to violate the immigration laws.

We think probably the best way to get where we want to go is to concentrate on inducements on the employer.

Mr. McCortney: --Your Honor, I don't believe that those, the deterrence of the employer to... that knowingly hires illegal aliens or employs them, that awarding back pay is necessary in light of the sanctions under IRCA that now subject employers that do so to civil and criminal sanctions, and so--

Mr. McCortney: Wouldn't it also be the case that if the employer, by reason of this inducement, hired... supposed inducement... hired somebody whom he knew at the time of the hiring to be an unlawful, an illegal alien, even applying the board's rule, he wouldn't have to pay any back pay.

Mr. McCortney: --That's correct, Your Honor.

Mr. McCortney: What is... here... I think Justice Souter is... we said in our cases just what Justice Souter said, I take it, INS v. Lopez-Mendoza, quoting what Sure-Tan says.

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.

You agree with that.

Retrospective sanctions against the employer may accordingly be imposed by the board to further the public policy against unfair labor practices.

Now, those... that's what the Court said.

Now, this is a retrospective policy, a retrospective sanction of a compromise variety only for the period where the employer is not committing any labor law, any immigration law violation in order to further the labor policy.

Why doesn't this fit within the two sentences that I just described?

Mr. McCortney: Because--

Mr. McCortney: And if this doesn't, what would?

Mr. McCortney: --Your Honor, what it doesn't address is the violation of the INA.

Mr. McCortney: I'm sorry.

What the Court said in the sentences I read is, retrospective... I take it, retrospective sanctions can be assessed by the board.

Now, are we... now, I want to know, if they can't do this, what can they do retrospectively, or is the sentence I just read you by this Court wrong?

Mr. McCortney: Your Honor, I think what the sentence means, at least my reading of it, is that retrospective sanctions may be imposed, but not necessarily, and--

Mr. McCortney: Fine.

What other rules are there, is what... what other retrospective sanctions are there?

Yes.

Yes, that's correct.

Thank you.

Can the board fine the employer?

Mr. McCortney: --No, Your Honor.

Mr. McCortney: What else can the board do to punish the employer for the unfair labor practice?

Mr. McCortney: A cease and desist order, as in this case, with the threat of contempt sanctions.

Mr. McCortney: That's a prospective--

--I would have called that prospective.

--sanction, isn't it?

Mr. McCortney: Yes.

Mr. McCortney: So you really don't have any explanation for that language.

Mr. McCortney: All I would say, Your Honor, is that--

Mr. McCortney: Which is, I suppose your explanation is that that's as much dictum as your opponent says Sure-Tan was.

Mr. McCortney: --That's correct, Your Honor.

Mr. McCortney: So it's a wash, right?

Well, if that's the explanation, I take it that Sure-Tan was dealing with a case where the employer did know in respect to the sanction that the employee, the alien, was illegal, so Sure-Tan did not consider the kind of sanction here at issue, which is a sanction that applies only to the period where the employer did not know that the employee was an illegal, hence the employer was not violating the immigration law.

Mr. McCortney: It still doesn't address, Your Honor, the fact that the illegal presence and the use of fraudulent documents and working without authorization is a violation of the INA.

Mr. McCortney: Is it unlawful?

That's the question I was going to ask you.

Is... under the immigration laws, is it only the employer who is violating the law when he hires, with knowledge, an illegal alien, or is it also the case that an illegal alien who deceives an employer by providing a false green card and who then draws pay when he's illegally in the country, is that unlawful?

Mr. McCortney: Yes, Your Honor.

Mr. McCortney: Now, I know--

--I thought--

--the use of the green card is, but is the working and getting pay unlawful under the immigration laws?

Mr. McCortney: Yes, it is.

Mr. McCortney: I thought IRCA itself enacted a provision making it illegal for aliens to provide false documentation to get employment.

That wasn't in the law when Sure-Tan was decided, was it?

Mr. McCortney: Yes, it was, Your Honor.

In fact, let me just explain that 18 U.S.C. 1546 was already on the books, that prohibited the use of fraudulent documents for immigration purposes, and when IRCA came along it amended the INA but added 1324(c), which also prohibits the use of fraudulent documents to obtain employment, so at the time that Sure-Tan was decided, you had the following laws in this case that were violated by Mr. Castro, regardless of IRCA: entering a country illegally in violation of 8 U.S.C. 1325, failing to register as an alien within 30 days of his entry, a violation of 8 U.S.C. 1302, using fraudulent documents to obtain employment, a violation of 18 U.S.C. 1546, remaining in this country illegally and working without authorization, a violation of 8 U.S.C. 1182(a)(5), which was formerly 8 U.S.C. 11--

Mr. McCortney: Now, did IRCA add provisions and impose obligations on prospective employers to require them to review the documents and make sure that they appear to be regular on their face?

Mr. McCortney: --Yes, Your Honor.

Mr. McCortney: And that was a new provision?

Mr. McCortney: That was a new provision.

Mr. McCortney: And is there any allegation in this case that the employer failed to comply with that?

Mr. McCortney: No, Your Honor.

It's undisputed.

Mr. McCortney: It's--

--May I ask if your position would apply if this were a violation of the Fair Labor Standards Act instead of the labor act?

If the employer had underpaid the employee, would he have a right to back pay?

Mr. McCortney: Your Honor, I... in the amicus brief of the States they seem to equate back pay under the NLRA with back pay under the FLSA when they're two different things.

Back pay--

Mr. McCortney: I understand they're two different... I just want to know what your position is on that.

Mr. McCortney: --No, we would not advocate at all, and we have not, taking wages away from undocumented aliens that have been earned for work already performed.

Mr. McCortney: Even though they... it was a crime to do any work?

Why... if you're sticking with your theory that everything that this person did on that job, from presenting the false documentation on, was unlawful, so why should he be paid anything for unlawful activity?

You're making a distinction between the Fair Labor Standards Act and the NLRA, but your theory, I think, would cover both.

Mr. McCortney: Well, Your Honor, we give certain rights and benefits to undocumented aliens that are already in this country, and we do that to level the playing field between undocumented aliens and American workers so that unscrupulous employers won't prefer undocumented aliens over American workers.

Mr. McCortney: Well, furthermore, just from the standpoint of equity, I suppose the employer has benefitted from the services in the case that Justice Ginsburg puts, and there's--

Mr. McCortney: Absolutely.

Mr. McCortney: --no benefit here save, arguably, from the illegal labor practice, but there's no benefit for work received.

Mr. McCortney: That's absolutely correct, Your Honor.

In fact--

Mr. McCortney: Would you clarify one thing for me?

Mr. McCortney: --Sure.

Mr. McCortney: Do I understand that if the employer and the employee both know of the illegality, that then there's no back pay?

Mr. McCortney: Yes, Your Honor.

Mr. McCortney: It seems to me that's absolutely upside down.

Mr. McCortney: Well, Your Honor--

Mr. McCortney: The... and of course, you don't... this is the Government's position, you don't have to defend it, but in other words, as I understand the Government's... once the employer knows that there's a violation and continues it, he's no longer liable for back pay.

That's a strange calculus.

Mr. McCortney: --Well, Your Honor, that's the problem with the rule, is that it in some ways rewards the unscrupulous employer in Sure-Tan and penalizes the innocent employer, as in Hoffman.

If the unscrupulous employer knowingly hires an illegal alien, then whenever some kind of union organizing drive comes along and say gee, we can get rid of them, and we know they're illegal, and we're going to terminate them, then they can report them to the INS right from the outset--

Mr. McCortney: Mr. McCortney--

--Well, the difference is--

Mr. McCortney: --get him departed, and cut off back pay.

Mr. McCortney: --The difference is, of course, that if the employer knowingly hires this alien, he's subject to a lot of other penalties under the immigration law.

Mr. McCortney: That's correct, Your Honor.

Mr. McCortney: Take an employer who, you know, all he does, he says, I've checked their cards, I've checked their cards, the cards say they're here legally, and he runs some God-awful sweat shop.

Now, your theory, there is no remedy under any law against that employer but for a prospective remedy, and so everyone gets one bite at that apple.

Well, he has to pay for the sweat, though, doesn't he?

Mr. McCortney: Absolutely.

Mr. McCortney: And it's pretty low cost, because he's violating every labor law under the sun.

If, indeed, the worker, under this scheme you're proposing, there's no doubt that the document... undocumented alien works, he's going to get paid for the work.

Mr. McCortney: Absolutely, Your Honor, no doubt, and we have never advocated--

Mr. McCortney: And in Justice Breyer's hypothetical there's an OSHA violation.

Mr. McCortney: --Could be.

There could be an OSHA violation, and we're... as I said in answer to Judge... Justice Ginsburg's question, we recognize that undocumented aliens are given certain rights and benefits to level the playing field.

Mr. McCortney: What about title VII?

Mr. McCortney: Under title VII, if it's back pay exactly like back pay under the National Labor Relations Act, where it's unearned wages for work not performed during the back pay period, then that would be a problem.

Mr. McCortney: Suppose the allegation is, they kept me in this entry-level job, although I was qualified for the next step, because I was a woman and they never promote women.

That's the charge, and she wants back pay, she wants to be paid at the rate she should have earned absent sex discrimination.

Mr. McCortney: In that situation, Your Honor, if it were discovered that the illegal... that this person was an illegal alien--

Mr. McCortney: Make it just like this case.

Mr. McCortney: --Then there are other remedies available under title VII to effectuate the policies of the act and to enforce compliance.

Mr. McCortney: I'm asking about back pay for title VII.

You said you would treat FLSA differently, and there would be back pay.

Here, title VII, which... would that go... be bracketed with FLSA, or would it be bracketed with the NLRA?

Mr. McCortney: It would be... if... in your situation, you would get back pay, and let me explain the difference in this case.

The problem with the board's remedy is that the very nature of the remedy creates a duty to mitigate, which in turn requires and encourages the illegal alien to seek interim employment, thereby committing further and new violations of the immigrations law.

Mr. McCortney: So in title VII, if she were laid off, say, because they laid off all the women before they laid off any men, so she would also have a duty to mitigate in those circumstances, would the result be different?

Mr. McCortney: No.

When there's a duty to mitigate which requires them to seek interim employment, that is where the rub is, but under title VII, under, like, the National Labor Relations Act, there's a whole array of other remedies available to enforce compliance.

Punitive damages, you can... compensatory damages, emotional distress, that is not dependent on the victims authorization to work in this country.

Mr. McCortney: Of course, her complaint, if it were complaint, should read something like, you know, I shouldn't have been working at all, and it was illegal for me to be working at all, and I'm complaining because I only got $12,000 in illegal wages.

I should have gotten $14,000 in illegal wages.

I don't find that a very appealing case anyway.

Do you find that an appealing case?

Mr. McCortney: No, Your Honor, I don't.

I don't find that an appealing case.

Mr. McCortney: But you just told me that you would bracket title VII with the FLSA.

Mr. McCortney: Yes, because I... notwithstanding Justice Scalia's very good example that I don't find that appealing, that there is a way that this Court can distinguish between the National Labor Relations Act, which is remedial in nature, and all these other State and Federal discrimination laws that have punitive features to it that are not dependent on the undocumented alien's ability to work in this country.

Mr. McCortney: Well, I don't have any doubt that there are other ways for us to distinguish this, and it may very well be that if this were an original matter with us we wouldn't have struck the balance where the board did, but you've got the element here, the added element here of the board's decision, and I suppose we owe some kind of respect to it.

Given the confusion of statutes, the extent to which we owe deference is not, perhaps, clear, but we've got to give some consideration to it, haven't we?

Mr. McCortney: Well, Your Honor--

Mr. McCortney: If I could just supplement that, do we owe any deference to the views of the Attorney General of the United States, who is responsible for enforcing these... both statutes?

Mr. McCortney: --Your Honor, I don't believe so.

Under... we're looking at a remedial statute under 10(c) of the NLRA, and the only deference that the board is entitled to is, if the remedy that they order does not conflict with the immigration laws and policies of this country.

Mr. McCortney: We don't give a deference to administrative agencies as to what damage are available in court.

That's not part of their administration of the laws, is it?

I don't know any case where we've said, well, what damages... you know, the agency can tell us what damages we can award.

That seems quite extraordinary.

Were there agency adjudications here?

Mr. McCortney: In what way, Your Honor?

There was a back pay hearing, there was a underlying unfair labor practice proceeding.

Mr. McCortney: Which... and the result of which was?

Mr. McCortney: That the employer was found to have violated the National Labor Relations Act.

The administrative law judge at the back pay hearing--

Mr. McCortney: No, I mean, there was an administrative order to pay, wasn't there?

Mr. McCortney: --Yes.

Mr. McCortney: That's what I thought.

Mr. McCortney: But the administrative law judge did find... did not award any back pay to Castro because it conflicted with... Sure-Tan had found that it conflicted with IRCA.

Mr. McCortney: But the board did.

Mr. McCortney: Yes.

Mr. McCortney: Yes.

I guess you're quite right that if the board's award violates the immigration law, that's the end of the case.

Mr. McCortney: That's correct.

Mr. McCortney: You win.

But suppose that the immigration law doesn't forbid that award in terms, but its policy would, in fact, be hindered, while the labor law, actually the policy is furthered, though it doesn't insist on this kind of award, wouldn't we defer to the board when it seeks to reconcile, or the Attorney General when they seek to reconcile the policies of the two statutes?

Mr. McCortney: No, Your Honor.

Mr. McCortney: Because--

Mr. McCortney: I respectfully disagree, and this... in Sure-Tan this Court said in devising remedies for unfair labor practices the board is obliged to take into account another equally important congressional objective, to wit, the objective of deterring unauthorized immigration that is embodied in the INA.

Mr. McCortney: --Well, that goes back as far as Southern Steamship Company, where you're talking about the mutiny statute, that the board can't just go ahead without any reference to competing statutes.

Mr. McCortney: Well, Your Honor, I would agree, if the board's remedy conflicts with the policies of another statutory scheme, then it's... they're owed no deference.

Mr. McCortney: The board did take that into account, though.

I don't remember what they did in this case, but in the case where the board explained that it was, indeed, taking into account the policy of the immigration laws and the policy of the NRA... what was the name of that case?

It was affirmed on appeal.

The case where the board laid out its reasoning for taking this position.

Mr. McCortney: The APRA Fuel case?

Mr. McCortney: Yes.

Mr. McCortney: Okay.

Your Honor, the fundamental problem with this case is that this Court stated in Sure-Tan that the objective of the INA is to deter unauthorized immigration, and that a--

Mr. McCortney: But let's go back to one thing it also said in Sure-Tan, which is that the court of appeals here made an estimate without any evidence as to the period of time these employees might have continued working before apprehension by the INS, and that sounds... working before apprehension by the INS, that sounds very close to what the board did in this case?

Mr. McCortney: --Well, Your Honor, also in Sure-Tan, in the last sentence of the remedial section of the opinion it states, by directing the board to impose a minimum back pay award without regard to the employee's actual economic losses or legal availability to work, the court of appeals plainly exceeded its limited authority under the act.

It made it clear that it wasn't just actual losses that was the problem, it was the fact that the discriminatees were not either legally present or legally authorized to work.

Mr. McCortney: So then, what do you make of the condition about the period between the violation and when the employees might have continued working before apprehension by the INS?

Mr. McCortney: Your Honor, I don't know, because the discriminatees in that case were... left the country the same day their employment terminated.

Mr. McCortney: I'm not talking about the outcome of that particular case, where they were in Mexico, but a case where they were here, and the question was, how much back pay, and there's a reference to not a flat 6 weeks or 6 months or whatever, but a time period from the unlawful employment practice until one would expect the INS would pick up these people.

Mr. McCortney: Your Honor, again I think that is consistent with the other language in the Sure-Tan decision which is repeated over and over again about legal availability to work, and being legally authorized to work, and why would the Court use that language if it didn't have to?

So I... getting back to the policy of this that underlies the immigration laws of this country, it is to preserve jobs for American workers.

It is not the act of illegal entry that takes jobs away from American workers.

It's the act of working in this country without authorization that takes jobs away from American workers, and I would submit that the continued presence of an illegal alien in this country poses a greater threat to American jobs than an alien who enters this country repeatedly, because the latter presupposes that the alien has been physically absent from the job market for a period of time.

If the... under the board's scenario, the Sure-Tan discriminatees could have reentered on a tourist visa and be legally present and not legally authorized to work, and under that scenario they're clearly not entitled to back pay because it violates 1182(a)(5), that sets forth the terms and conditions on which aliens can work in this country and those that can't.

The same would be true of aliens who enter the country on a student visa, or who overstay their visa and work without authorization, so whether you have an alien that enters this country illegally and works without authorization, or who enters this country legally and works without authorization, both takes jobs away from American workers, and both violate the INA.

Mr. McCortney: Thank you, Mr. McCortney.

Mr. Wolfson, we'll hear from you.

Mr. McCortney: Thank you, Your Honor.

ORAL ARGUMENT OF PAUL R. Q, WOLFSON ON BEHALF OF THE RESPONDENT

Mr. McCortney: Mr. Wolfson, before you get to the substance of the matter, I want to ask a question that sort of relates to something that Justice Steven asked... Stevens asked, and that is, can we take it that this... I know that the SG's office usually reconciles the views of various agencies before a case is argued here.

What was the position of the Immigration and Naturalization Service--

Mr. Wolfson: Justice Scalia--

Mr. McCortney: --in this matter when it was told that it... that you're going to argue that courts should pay illegal aliens money that it was unlawful for them to earn?

What did the INS say to that?

Mr. Wolfson: --Justice Scalia... may it please the Court... the position in our brief has been developed in consultation with the Immigration and Naturalization Service.

This is the position of the United States, and--

Mr. McCortney: I understand that.

Did the INS agree with it?

Mr. Wolfson: --The INS has agreed with it and accepts it, and I'm here representing--

Mr. McCortney: They accept it.

Mr. Wolfson: --Right.

Mr. McCortney: They have no choice--

Mr. Wolfson: Well--

Mr. McCortney: --but to accept it if the Attorney General--

Mr. Wolfson: --Well--

Mr. McCortney: --tells them to.

Well, I mean, if they agreed with it, and just thought--

Mr. Wolfson: --The INS--

Mr. McCortney: --well, I have no... it explains why we have a massive problem of illegal immigration, if that's how the INS feels about this.

Mr. Wolfson: --I must disagree with that, Justice Scalia, and the point is, as the board recognized both in this decision and in the APRA Fuel decision which preceded it, the essential problem is that there is, as the board pointed out, an inseverable connection between illegal immigration, the availability of jobs, and poor working conditions for employees for... that illegal immigrants are wiling to take in the United States.

Now, Congress enacted IRCA on the premise that there was very little that it could do about the wage differential and the difference in levels of employment, unemployment that was drawing illegal immigrants to the United States in search of jobs.

Mr. McCortney: What did it say in IRCA... didn't the history of the report say that IRCA is not meant to undermine or diminish in any way labor protections in existing law, or to limit the powers of labor relations board to remedy unfair practices committed against undocumented employees?

Mr. Wolfson: That is exactly right, so--

Mr. McCortney: What is exactly right, that is what the legislative history--

Mr. Wolfson: --That is what the legislative history says, but simultaneously in the--

Mr. McCortney: --What legislative history was that?

I mean, was this a really powerful portion of legislative history?

Mr. Wolfson: --Yes.

Yes, it is.

[Laughter]

Mr. McCortney: One committee report?

Mr. Wolfson: It's two committee reports.

Mr. McCortney: Two committee reports?

Mr. Wolfson: It's the Judiciary Committee, House Judiciary and the Education and Labor Committee, but I don't just have--

Mr. McCortney: Of the House or the Senate?

Mr. Wolfson: --Of the House.

Mr. McCortney: Both of the House?

Mr. Wolfson: But I don't have just legislative history--

Mr. McCortney: Two committees in one House.

Mr. Wolfson: --I think it is important also to note that in IRCA Congress also wrote into law authorization of increased resources for enforcement of Federal labor laws by the Department of Labor by the Wage and Hour Division and the Office of Federal Contract Compliance.

Mr. McCortney: Did that include... did it include the National Labor Relations Board?

Mr. Wolfson: It did not refer to the National Labor Relations Board, but the point is, Congress knew that the Department of Labor was enforcing and should enforce Federal labor laws at the behest of and for the benefit of illegal aliens to obtain back pay for them.

Mr. McCortney: They wanted to be sure that aliens who had no right to be here, had no right to be earning any money--

Mr. Wolfson: Well--

Mr. McCortney: --should get paid for periods that they didn't work?

It's not a matter of their having worked and provided the employer with a benefit, which you're then reimbursing them for, but they haven't worked.

Mr. Wolfson: --It is... it's not just periods for which they have worked, which might arguably distinguish the Fair Labor Standards Act--

Mr. McCortney: Right.

Right.

Mr. Wolfson: --minimum... you know, maximum hours and minimum wage.

It's also the Office of Federal Contract Compliance, which enforces antidiscrimination provisions, routinely seeks back pay for aliens and others who have been terminated in violation of executive orders.

Another--

Mr. McCortney: Even though it's unlawful for them to receive that money?

Mr. Wolfson: --Even though... yes, even though it is.

Mr. McCortney: That's extraordinary.

I--

Mr. Wolfson: It's a very--

Mr. McCortney: --Let me--

Mr. Wolfson: --fundamental part of the Fair Labor Standard Act.

Excuse me.

Mr. McCortney: --In most back pay situations where the employer has committed an unfair labor practice and dismisses an employee improperly, the amount he's going to be stuck with for back pay is limited by the fact that the person unlawfully fired has to mitigate.

He has to find another job.

If he could have gotten another job easily and doesn't do so, the employer doesn't have to pay.

Now, how is this unlawful alien supposed to mitigate?

Mr. Wolfson: Well--

Mr. McCortney: Mitigation is quite impossible, isn't it?

Mr. Wolfson: --I'm not sure I agree with that exactly, Justice Scalia.

Here's... I wouldn't say that the undocumented alien has a duty to mitigate.

I have to emphasize that the board is not--

Mr. McCortney: He does not have a duty to mitigate?

Mr. Wolfson: --I will agree with that.

I have to say the board has not examined this issue in detail, but first of all, of course, anything that he does obtain in the matter of interim wages will be deducted from his back pay--

Mr. McCortney: Oh.

Oh.

Mr. Wolfson: --and that is quite consistent with--

Mr. McCortney: If he unlawfully obtains another job, that will be deducted?

Mr. Wolfson: --And... yes, and that is quite consistent--

Mr. McCortney: But if he's smart, he need not do that.

Mr. Wolfson: --Not--

Mr. McCortney: If he's smart he'd say, how can I mitigate, it's unlawful for me to get another job.

Mr. Wolfson: --Justice Scalia--

Mr. McCortney: I can just sit home and eat chocolates and get my back pay.

Mr. Wolfson: --I don't agree that the board would have to accept such a representation.

That is, the board might permissibly conclude that an undocumented alien should not be any better off than an authorized worker by virtue of his undocumented status, so if an employer could say, well, if a person with the same credentials, background, education, and so forth, would have made a job search and would have obtained employment and would have obtained thus-and-such wages, this undocumented alien worker would have--

Mr. McCortney: Should have done so.

Mr. Wolfson: --Should have done... or should have--

Mr. McCortney: Should have violated the law.

Mr. Wolfson: --Or should not benefit from the fact that he is an undocumented alien and being relieved of... and getting more back pay than the similarly situated authorized worker.

Now, the board was faced with the task here of reconciling two important Federal statutory schemes, the Federal labor laws and the immigration laws, consistent--

Mr. McCortney: I would think that the... does the board have to reconcile the Fair Labor Standards Act and the Office of Contract Compliance?

I would think that it's responsible as the National Labor Relations Act and the Immigration Act in this case.

Mr. Wolfson: --That is correct, Mr. Chief Justice, but I... but the board did look to IRCA and the Court can look to IRCA, which includes these other provisions in the Department of Labor, to determine what Congress is attempting to achieve in IRCA, and those are, I think, reasonable indicators of what Congress' objectives were and how far it intended to go along with the legislative history of the--

Mr. McCortney: Well, when the board makes its calculus and when the Government made its calculus, did it give any consideration to the fact that a union ought not as a matter of policy to use illegal aliens for organizing activity, or do you think the union can do that?

Mr. Wolfson: --Well--

Mr. McCortney: Is it consistent with the labor laws of the United States for the union to say it knowingly uses an alien for organizing activity?

Mr. Wolfson: --I don't know that the board has addressed the point of knowingly using illegal aliens.

I do know that the board has concluded that undocumented aliens may be included within the bargaining unit, and indeed, in both Sure-Tan... in Sure-Tan itself I believe they were included in the bargaining unit.

Mr. McCortney: And that doesn't induce illegal immigration?

Mr. Wolfson: Well--

Mr. McCortney: It seems to me that's a far more direct link than the very tenuous idea that you have that there's going to be more illegal immigration because they know they're going to get back pay.

Here, what you're saying is that a union can, I suppose even knowingly, use illegal aliens on the workforce to organize the employer, knowing that by doing that the alien will still be entitled to back pay.

That seems to me completely missing from any calculus, from any equitable calculus in your brief.

I just... and since it's a more direct link, I'm quite puzzled by it.

Mr. Wolfson: --Well, I don't know... I would suggest that the more powerful inducement towards illegal migration is the availability of the job, union or no.

That is, even if the union is willing to include undocumented workers in its bargaining unit, there still has to be a job for that worker, and it is the employer who is fundamentally in control of that matter, and it is the employer--

Mr. McCortney: Mr. Wolfson, in these cases we're only talking about a situation where the employer, and presumably the union, too, doesn't know, because if the employer knows, then the employer's obligation is to dismiss that person, as I assume it would be the union's, too, but in all these cases the issue comes up only because the employer didn't know of the illegality, isn't that so?

Mr. Wolfson: --Well, in this case the employer did not know.

Now, there are cases, I have to say, where the employer does know, such as the APRA Fuel Corporation that was referred to, and in that case what the board has done is, it has said that the board... the board has ordered reinstatement on condition that the undocumented alien put himself into a situation where he can obtain reinstatement legally.

That is, under no circumstances does the board order reinstatement of an employee who everybody knows is undocumented.

Mr. McCortney: But not back pay.

Mr. Wolfson: It does order back pay up to the point where either the employee is reinstated, or it terminates at a reasonable... if the employee fails to put himself in compliance with the immigration laws and become qualified, the board cuts off back pay as of the end of a reasonable period.

That is consistent--

Mr. McCortney: Even though the employer... I thought that the rule was, as soon as the employer knows of the illegality we're not going to allow any back pay from then on.

Mr. Wolfson: --Well, that is because in a case like this, what the board is doing is affording the employer the benefit of its general, after-acquired evidence rule.

Mr. McCortney: If he knows about illegality from the very beginning, then we will--

Mr. Wolfson: Well, in a situation--

Mr. McCortney: --We will order back pay?

Mr. Wolfson: --Yes, because in a situation like that the employee... the employer is not well-situated to claim the benefit of the after-acquired evidence rule, because it cannot claim that it wouldn't have hired the alien anyway.

To use an example--

Mr. McCortney: So you have two people violating the law, instead of one.

Mr. Wolfson: --Well, there are two people violating the law here, Justice Scalia.

I mean, the board... I mean, there aren't two people violating the immigration laws, but the employer did violate the National Labor Relations Act, and the board is quite properly--

Mr. McCortney: From the time of his initial hiring up until his violation.

I mean, but what you're saying is when both the employer and the employee are violating the law, we're going to... you're asking the courts to give their benediction to this stark violation of United States law by awarding money that hasn't even been worked for.

I... it's just something courts don't do.

Mr. Wolfson: --Well, the board is charged with the responsibility of developing a workable implementation of the National Labor Relations Act pursuant to its authority under section 10(c).

In doing so, it of course must take into consideration the policies of the immigration law, but there is no--

Mr. McCortney: What it's doing, though, really is kind of odd, because the result is that back pay awards to illegal workers are likely to be greater than to legal ones under this board's policy, and that's so odd, and it gives the illegal alien an incentive to try to phony up more documents and to extend for the longest possible time the charade that the worker is here lawfully, and that's surely strongly against the policies of the immigration act at the very least.

Mr. Wolfson: --The problem, Justice O'Connor, is that the immigration act, the policies come down on both sides.

I mean, yes, they obviously discourage illegal immigration and obtaining of jobs by illegal immigrants, but they also very strongly operate on the employer, and the fundamental premise on which Congress enacted IRCA was that it was the employer's... the employer had a very strong and natural economic and competitive incentive to hire illegal workers, and it is that... it is... the board's concern, in this case I think quite properly, is that if back pay were removed from the equation the--

Mr. McCortney: Well, but you--

Mr. Wolfson: --Congress's attempt to... excuse me.

I'm sorry.

Mr. McCortney: --You say it comes down on both sides, and it makes certain acts by illegal immigrants illegal, the entry, and it makes certain acts by the employer illegal.

Here, the worker, the alien was violating the law.

The employer was not violating the law.

So you say it comes down on both sides.

If both were violating the law I could see your point, but the employer was not violating the law.

Mr. Wolfson: That is correct, Mr. Chief Justice, but the board is attempting to fashion... the board doesn't know in advance which employer will violate the law by hiring undocumented aliens knowingly and which will not, or which employer will, you know--

Mr. McCortney: So you say this is a prophylactic rule?

Mr. Wolfson: --I think that the board is fashioning a rule that is implementing Congress' policy objective in IRCA across the board.

Mr. McCortney: But shouldn't remedies be looked at after the fact, let's find out who violated what and then fashion the appropriate remedy?

Mr. Wolfson: Well, the Court has not said that the board has to only fashion its remedies in a case in which the precise situation... you know, in the precise situation into which it's dedicated.

In a case called NLRB v., I think, 7-Up Bottling Company the Court explained that the board can make its back pay calculations for the purpose of across-the-board rules rather than just the employer to which... that is before the board itself, and the point is, even though this employer, even though there's no evidence that this employer violated IRCA when it... nonetheless the board, I think, could quite reasonably say, well, if... or if there is a flat rule that employees will never get back pay when they are terminated in violation of the National Labor Relations Act, employers then will pick up on that rule and they will say, okay, now I can get away with it because there's not going to be any remedy for any employee, and this is a very large--

Mr. McCortney: They won't get away with it.

They're subject to prosecution for... if they know that it's an illegal--

Mr. Wolfson: --It's not just the problem of their knowing that they're illegal hiring.

There also is the paperwork obligations, the verification systems, and I think there is a very real concern that an employer who knows that there's not really any monetary price to being lax in hiring, in checking whether illegal aliens are hired would say, well, on the one hand I just have the civil violations for violating the paperwork concerns.

On the other hand, the labor of undocumented aliens is in a very real sense much--

Mr. McCortney: --But it's just not reasonable--

--Why should the board be responsible for making sure that the employer documents his material about illegal aliens?

Mr. Wolfson: --I don't think that... it's not that the board is implementing IRCA, Mr. Chief Justice.

It is that its policy here is consistent with the policies that I've been discussing.

Mr. McCortney: Well, here's the thing.

When an employer reviews documents and concludes that they're valid and the person is lawfully here, then the employer isn't going to get some advantage of hiring some illegal alien because the worker will have to be paid and given benefits as though the worker were legally here, so there's no incentive for the employer under those circumstances to give a bum deal to the employee.

None at all.

But there is an incentive, it seems to me, for the employee to continue to conceal the facts, the facts that he's here illegally and has no right to work, and that the documents are false, and the board's rule fosters both those--

Mr. Wolfson: But one does have to take into account I think what would be the consequence of an opposite rule, that is, no back pay for an undocumented alien, and there is, I think, a very serious consequence that a flat rule that said something like, 7 million undocumented workers just simply get no back pay at all if they are in this country illegally and not employed.

That is a very large class of people to basically say, you are just without a remedy under the National Labor Relations Act, and there may be implications for other Federal labor laws as well, and--

Mr. McCortney: --But why should they be used to organize a bargaining unit--

Mr. Wolfson: --Because it--

Mr. McCortney: --if they're illegal employees?

I'm baffled by that.

Mr. Wolfson: --Because it... well, because the labor laws benefit everybody, and it's not just... I mean, they are... when I say they're organizing a bargaining unit, obviously they are... there may be... in this case there were other citizens and authorized aliens who are interested in organizing for the purpose of vindicating their rights under section 7 of the labor relations act.

The Court pointed this out in Sure-Tan, where it said it is appropriate to include illegal aliens within the definition of employees, because all the workers are in it together.

Mr. McCortney: I would have thought, Mr. Wolfson, that when you said, you know, there are 7 million illegal aliens in this country, that what you would follow that with is not, that's an awful lot of people not to give back pay to.

I would have thought you would follow it with, we have to do something to reduce this massive number of 7 million illegal aliens.

Mr. Wolfson: And what--

Mr. McCortney: And what you don't want to do to reduce it is to give them back pay.

Mr. Wolfson: --Now, there is no question that there is a serious problem of illegal immigration, and the INS and the Attorney General dedicate substantial resources to attempting to resolve that problem.

On the other hand, Congress without question recognized when it enacted IRCA that this was a many-faceted problem, and one aspect of the problem was that there was a natural magnet in drawing illegal, undocumented workers here in the wage differential, and that employers were willing to give jobs, and that it should not be cheaper for an employer to hire an undocumented alien than it is to hire--

Mr. McCortney: Okay, but the argument, Mr. Wolfson... every time... and I understand that argument.

Every time you make that argument, it seems to me the answer comes back, there are other ways to go against the employer.

You can fine the employer, you can bring criminal actions against the employer, and so on, so that the answer always is the effort to discourage employers from hiring illegal aliens doesn't depend upon the back pay.

I thought the board's position was strongest to counter that when the board says, there's kind of the gray area in which it's not clear that we can prosecute.

The evidence of what the employer knew at the relevant time is not leaping out at us, and so what we are trying to do is to fashion a remedy for those cases in which it's not practical to prosecute, but which we know perfectly well in the real world employers are winking at the likelihood that they're employing illegal aliens.

That's the group that we want to provide the inducement for by forcing back pay.

Is... am I giving the board too much credit?

Mr. Wolfson: --I wouldn't say that the board has limited... it certainly hasn't limited its remedy to that situation--

Mr. McCortney: Well, why then, in the question... why in the question... because I have exactly the same question.

That's exactly what I thought.

In the question that the Government presented it says, whether an order to pay back pay to an employee who was discriminatorily laid off, but only up to the date on which petitioner discovered that the employee was an undocumented alien, whether that kind of order is lawful.

That's how you saw the question presented.

Now are you telling me that what I'm supposed to decide is a case I really didn't think I had to decide, which is, what happens if the board awards back pay to others, such as those whom the employer has always known were illegal?

Mr. Wolfson: --We are not suggesting that the Court has to decide that case here.

Indeed, in our brief in opposition to the cert petition we pointed out that that was a different set of cases, the set of cases under the APRA--

Mr. McCortney: Well, if it's a narrow question, just what Justice Souter said I had taken to be the precise rationale for the narrow set of cases we're supposed to decide.

Now, maybe that's all not so.

That, I think, is what he was saying, and I'm seconding it.

Clearly you haven't missed your opportunity.

[Laughter]

Mr. Wolfson: --Justice Breyer, my point is that the board in a case... the board did rely on its APRA Fuel decision in this case, but what it held in this case was that an employer, once an employer learns that an alien is undocumented and therefore he cannot be hired, and in addition that the board accepts that that employer would not have hired that alien and would have discharged the alien when it found out that he was undocumented, then the employer should surely get the benefit of the after-acquired evidence rule that is applied in many, many kinds of Federal labor laws, including the Age Discrimination Act, for example.

Mr. McCortney: Once you adopt that rule, however, it seems to me that the asserted benefit to the immigration laws that you're claiming this rule has disappears.

It is no disincentive to any employer, because the only employer who would get the benefit of the rule that you don't get any back pay would be the perfectly innocent employer who hires someone not knowing that the person is an unlawful alien.

How are you possibly deterring anybody?

You're trying to deter the employer who hires an immigrant, apparently with this in the back of his mind: I know this guy's an immigrant and I can commit an unfair labor practice upon him.

I'm rather skeptical whether that's high in the mind of any employer, but assuming it is, you still have to assume, if he's going to be deterred, that he knows that the person is an illegal immigrant, but this rule only applies to people who don't know.

Mr. Wolfson: Well, whether or not... he may not know in the face of having clear, irrefutable evidence before him.

On the other hand, he may be induced to be somewhat lax in his compliance with the obligations of the verification system, because--

Mr. McCortney: Well, get him for that, then.

Get him for that, then.

Mr. Wolfson: --Well, that... of course, that's not--

Mr. McCortney: But your... isn't another way to describe the class you're dealing with is, he may not know in the sense that the Government can prove that he knew, but there is a class of employees as to whom the evidence is not clear, and it is that class that we want to provide the negative inducement for.

Isn't that the answer?

Mr. Wolfson: --I think at a, I would say at a minimum that is the answer, and the board cannot know in advance--

Mr. McCortney: Why should the board take over responsibility for those provisions that are basically immigration law provisions?

Mr. Wolfson: --Mr. Chief Justice, the board does not view itself as enforcing the immigration laws.

I think the question is, is this particular order inconsistent with the immigration laws, or is it consistent, and for some of the reasons that are being expressed here, all that we are saying is that it does not... it is consistent with them.

Surely there is no direct conflict with the immigration laws.

The board--

Mr. McCortney: What you just agreed to in your colloquy with Justice Souter does contradict the immigration... I remember when this statute was passed about what the responsibility of the employer was.

It was a clear provision of the statute that all the employer has to do is check the papers.

It isn't the responsibility of the employer to look behind the papers and see whether it's forged.

Now you're saying, ah, but there are some employers that maybe, yeah, you know, they complied with the provision of the law, they looked at the card, which is what the... there was a big fight over that.

How much is... investigatory responsibility is going to be placed on the employer, and the answer was basically none, just look at the documentation, and now you're saying, but some employers, we think they should have known better, and we're going to impose on this class of employers and, as it turns out, on a lot of others, liability which they shouldn't have.

Mr. Wolfson: --They don't have any liability under IRCA.

I mean, nobody is suggesting that the board can impose a liability under IRCA, but there is a concern, I think, that if en employer is totally exempted from back pay, a back pay remedy under another Federal labor law, that that does... that does work an inducement on the part of the employer to hire illegal aliens.

Mr. McCortney: Do no more than what the statute requires.

Check the documentation.

If the documentation is there, and valid on its face, he's entitled to proceed.

That's what the fight was about, and that's how the immigration law came out.

Mr. Wolfson: I do want to touch a bit on Sure-Tan, which I haven't had much of a chance to discuss.

Our... we have submitted in our brief that we think that the facts of the Sure... of the situation in Sure-Tan really make it quite distinguishable from this particular case.

In Sure-Tan, first of all I do want to point out that the condition that the Court explained and put on a reinstatement and back pay remedy, those did originate in the Seventh Circuit, and no party to this Court challenged that condition, that reinstatement and back pay had to be conditioned on the employee showing that he was legally authorized to be present and employed in the United States.

Now, the Court perceived that what happened in Sure-Tan was essentially the employer was being forced to say to the employee, you have a guaranteed job and a paycheck waiting for you right now, so come back to the United States right now and pick it up.

I mean, that obviously is a very powerful lure to an employee to migrate back to the United States if there is no condition that the employee show that he is authorized.

We submit that the incentives work quite differently in a case like this where the employee does remain in the United States.

Congress did enact IRCA on the assumption that illegal, undocumented alien employees in the United States were at the very bottom of the wage scale, they were likely to remain here as long as they could get any job that was available, and as against that, we submit that the inducement to violate the immigration laws that petitioner suggests by the prospect of waiting around after years of litigation for the prospect of some kind of back pay award at the end of the day is quite minimal, and all the courts that have looked at this under other Federal law such as title VII and the FLSA have agreed that it is not the prospect of a back pay award that induces illegal migration or illegal stay in the United States, it is the prospect of any job at any wage that is available, and so the incentives do operate quite differently here than they did in Sure-Tan.

Mr. McCortney: Mr. Wolfson, do you think a State court could enforce a contract for employment by an illegal alien?

Mr. Wolfson: I do not think that a State court could--

Mr. McCortney: You know, an illegal--

Mr. Wolfson: --Right.

Mr. McCortney: --makes a contract with an employer, then it is... he sues because the employer doesn't go ahead with it, and... could a State court say, well, you made the contract, you should be liable for damages?

Mr. Wolfson: I think a State court could award damages, and State courts have done so.

It could not order specific performance, because that would order... it could not order specific performance in ordering the employer to employ the person because that would be employment in violation of IRCA, but there, there would be a direct conflict with IRCA, but State courts have--

Mr. McCortney: There's no doctrine that conflicts in violation of the law are unenforceable?

Mr. Wolfson: --They're not necessarily completely void.

I mean, not just contracts, but State courts have awarded tort damages for lost wages.

It is universally the rule that undocumented aliens are entitled to Worker's Compensation.

I think only two States have gone the other way, and all of the State courts that have looked at that have said, yes, it is true, when the employee is just... you know, is injured and claims Worker's Compensation he is claiming a measure of compensation that is related to the employment he would have had, but nonetheless, the vast majority of State courts have held that illegal aliens can proceed under the Worker's Compensation rules, and the same is true of tort and contract damages as well.

Mr. McCortney: But all of that is for work done--

Mr. Wolfson: No--

Mr. McCortney: --or injury suffered, not to enforce a contract which has not been executed, which is what's going on here.

Mr. Wolfson: --Well, there may... perhaps there is a difference between tort and contract damages, but it is not just for work done.

If it is for injury suffered, it is for injury suffered as measured against that the work would have been done, or work that would have been done.

I mean, surely that's the case in tort damages or Worker's Compensation, where the employee says, I would have worked and you owe me this money.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Wolfson.

The case is submitted.

Print this transcript Transcript: 

Argument of Chief Justice Rehnquist

Mr. McCortney: I have the opinion of the Court to announce in No. 00-1595, Hoffman Plastic Compounds versus the National Labor Relations Board.

Petitioner Hoffman Plastic Compounds hired Jose Castro after Castro tendered documents appearing to verify his authorization to work in the United States.

Petitioner later fired Castro and other employees after they supported a union-organizing campaign at petitioner’s plan.

The Board found these layoffs to violate the National Labor Relations Act and ordered Hoffman to award backpay to Castro and other workers.

At a hearing to determine the amount of backpay to be awarded, Castro testified that he was an illegal alien and that he fraudulently gained employment with petitioner by tendering a birth certificate that was not his own.

The Board nonetheless ordered petitioner to pay Castro $66,000 in backpay plus interest.

The Court of Appeals enforced the Board’s orders in an opinion filed with Clerk of the Court of today, we reversed.

We have consistently set aside the Board’s backpay awards to employees found guilty of serious illegal conduct in connection with their employment that is precisely the situation here.

The Immigration Reform and Control Act of 1986 expressly prohibit the employment of illegal aliens in the United States.

This statute among other things makes it a criminal offense for any illegal alien to gain employment by tendering false or fraudulent document.

There is no dispute that Castro’s use of a false birth certificate to gain employment with petitioner violated this criminal provision.

To award him backpay moreover would require that he violate other provisions of the immigration laws.

The Board admits that Castro qualifies his backpay only so long as he remains inside the United States.

But Castro can only remain the United States illegally.

The Board further admits that Castro has a duty to mitigate his damages by seeking new employment but Castro can only seek new employment illegally.

In light of these factors, we need not defer to the Board’s remedial authority under the National Labor Relations Act.

Deference is inappropriate where the Board chooses a remedy that trenches upon federal statutes or policies outside the Board’s competence to administer, such as those relating to the Federal Immigration Laws.

We have recognized in previous cases that the Provisions of IRCA violated here our central to Federal Immigration Policy.

Therefore, however broad the Board’s discretion to fashion remedy is when dealing only with a National Labor Relations Act, it is simply not so vagrant and unbounded as to it authorized this sort of an award.

Justice Brerye has filed a dissenting opinion in which Justices Stevens, Souter, and Ginsburg join.