Sure-Tan, Inc. v. Nlrb, 467 U.S. 883 (1984)

Author: Justice Brennan

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Sure-Tan, Inc. v. Nlrb, 467 U.S. 883 (1984)

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 finds a Board remedy inadequate is to remand to the Board, rather than attempting in the first instance to fashion its own remedy. Such a rule protects the Board’s congressionally delegated power "to fashion remedies that will effectuate national labor policy" from usurpation by the courts. NLRB v. Food Store Employees, 417 U.S. 1, 10 (1974). In this case, however, the Board has fully acquiesced in the remedy developed by the Court of Appeals and, consequently, no purpose would be served by remanding to the Board for further consideration of the remedy question. We should instead approach this case as if the Board had developed the remedial order on its own motion and the Court of Appeals had simply enforced that order.

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) (quotingVirginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)). And we have repeatedly emphasized that a court has only limited authority to review remedial orders developed by the Board to effectuate the purposes of the Act. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262-263 (1969); NLRB v. Seven-Up Bottling Co., supra, at 346; Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Because of that consistent pattern of deference, our cases have never before considered whether a particular remedy is "sufficiently tailored" to the harm it seeks to cure.

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.

The Court, however, identifies what it considers to be two significant problems with that order. First, the 6-month backpay award, in the Court’s view, rests solely on "conjecture" and "speculation," and is therefore not "sufficiently tailored to the actual, compensable injuries suffered by the discharged employees." Ante at 901. Second, the Court insists that,

in computing backpay, the employees must be deemed "unavailable" for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States.

Ante at 903.

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).{1}

As to the second assertion, the Court provides no explanation for its conclusion that these employees were "unavailable" for work, as a matter of law, following their return to Mexico, and that any entitlement to backpay that might otherwise have accrued during that period is therefore tolled. In the first place, such a holding overlooks the Board’s longstanding practice of forgiving periods of unavailability that are due to the employer’s own illegal conduct. See, e.g., Graves Trucking Inc., 246 N.L.R.B. 344, 345 (1979), enf’d as modified, 692 F.2d 470, 474-477 (CA7 1982); Moss Planning Mill Co., 103 N.L.R.B. 414, enf’d, 206 F.2d 557 (CA4 1953); cf. J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 566-567 (1981) ("[I]t does not come with very good grace for the wrongdoer to insist upon specific and certain proof of the injury . . . it has itself inflicted"). In this case, as the Board explains, see Brief for Respondent 45, n. 44, these employees would not necessarily have been found unavailable, because their immediate departure from the country was plainly and directly attributable to petitioners’ illegal conduct. Thus, by presuming to foreclose a remedy that the Board itself is prepared to grant, the Court today is far more guilty of usurping the remedial functions of the Board than was the Court of Appeals.{2}

More importantly, the Court never addresses the disturbing anomaly it creates by holding in Parts II and III that undocumented aliens are "employees" within the meaning of the Act, and thereby entitled to all of the protections that come with that status, but then finding in Part IV that these same alien employees are effectively deprived of any remedy, despite a clear violation of the NLRA by their employer. In Part II, the Court concludes that undocumented aliens must be considered employees protected under the Act, notwithstanding the fact that they are not lawfully entitled to be present in the United States while they are employed here. Ante at 891-894. But that holding is then flatly contradicted by the Court’s assertion in Part IV that these alien employees must be considered "unavailable" for work, and therefore not entitled to backpay under the NLRA, during any period when they were not lawfully entitled to be present in the United States. Ante at 903. If these undocumented alien employees are entitled, as the Court finds they are, to press an unfair labor practice claim before the Board on the basis of their discriminatory discharge by petitioners, and if the Board may properly find that an unfair labor practice was committed, then I fail to see why these same employees should be stripped of the normal remedial protections of the Act.

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:

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.

Ante at 893. 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.{3}

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 seek legal reentry to the United States, that these offers be drafted in Spanish, and that receipt of the offers be verified, it should be noted that all of these remedies serve, in the judgment of the Board, "reasonably [to] effectuate the purposes of the Act in the circumstances of this case." Brief for Respondent 47. Although, as I have said, I generally agree with the Court that reviewing courts should remand to the Board, rather than unilaterally imposing modifications of this sort, see ante at 905-906, it seems clear that, in this case, the Board has fully accepted these requirements as measures that further national labor policy and accommodate the competing purposes of the INA. Under those circumstances, I see no reason to require a remand. Accordingly, I would affirm the judgment of the Court of Appeals.

1. Under the guidelines developed by the General Counsel of the NLRB, the period covered by a backpay award generally includes the time from the discriminatory discharge until the discriminatee either rejects a bona fide offer of reinstatement or is reinstated. See NLRB Casehandling Manual § 10530.1(a) (1977). In this case, of course, because the five undocumented alien employees accepted voluntary departure as a substitute for deportation immediately following their illegal discharge, this normal method of calculating the period of backpay cannot be applied. Instead, just as in Buncher v. NLRB, an estimate must be made of the income these employees would have earned but for petitioners’ unfair labor practices. As the Board has explained, the 6-month period adopted by the Court of Appeals reflects a reasonable estimate, under the particular circumstances of this case, of the earnings that these employees lost as a result of petitioners’ illegal conduct.

2. The Court of Appeals expressed concern that some of the discharged alien employees might not be able to establish -- because of their undocumented immigration status -- that they were lawfully available for reemployment during the normal backpay period between their illegal discharge and acceptance of reinstatement, and would therefore not be entitled to claim backpay. See 672 F.2d 592, 606 (CA7 1982); App. to Pet. for Cert. 28a. But, in order to ensure that petitioners bore some responsibility for the "discriminatory act[s] which caused these employees to lose their jobs," the court concluded that a minimum backpay award was necessary to effectuate the purposes of the NLRA. 672 F.2d at 606; see also App. to Pet. for Cert. 28a. As the Board explains in its brief, such a backpay award is wholly consistent with its own longstanding policy that

where unavailability is due to an illness, injury, or other event that would not have occurred but for the unlawful discharge, backpay liability will not be tolled for that period.

Brief for Respondent 45, n. 44.

3. In its struggle to justify the contradiction it has created, the Court recognizes, as it must, that

reinstatement and backpay awards afford both more certain deterrence against unfair labor practices and more meaningful relief for the illegally discharged employees.

Ante at 904, n. 13. Given that fact, the Board’s resolute position that reinstatement and backpay awards are necessary to effectuate the policies of the NLRA, and the fact that the policies of the INA do not require the Court’s result, I am at a loss to understand why the Court insists upon denying these employees the normal remedies that the Board has seen fit to provide.


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Chicago: Brennan, "Brennan, J., Concurring and Dissenting," Sure-Tan, Inc. v. Nlrb, 467 U.S. 883 (1984) in 467 U.S. 883 467 U.S. 907–467 U.S. 913. Original Sources, accessed September 25, 2022,

MLA: Brennan. "Brennan, J., Concurring and Dissenting." Sure-Tan, Inc. v. Nlrb, 467 U.S. 883 (1984), in 467 U.S. 883, pp. 467 U.S. 907–467 U.S. 913. Original Sources. 25 Sep. 2022.

Harvard: Brennan, 'Brennan, J., Concurring and Dissenting' in Sure-Tan, Inc. v. Nlrb, 467 U.S. 883 (1984). cited in 1984, 467 U.S. 883, pp.467 U.S. 907–467 U.S. 913. Original Sources, retrieved 25 September 2022, from