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No. 08-21

In the Supreme Court of the United States

AGRI PROCESSOR CO., INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

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

BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION

GREGORY G. GARRE
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

RONALD MEISBURG
General Counsel
JOHN E. HIGGINS, JR.
Deputy General Counsel
JOHN H. FERGUSON
Associate General Counsel
LINDA DREEBEN
Deputy Associate General
Counsel
DAVID HABENSTREIT
Assistant General Counsel
KIRA DELLINGER VOL
Attorney
National Labor Relations
Board
Washington, D.C. 20570

QUESTION PRESENTED

Whether the National Labor Relations Board reason ably concluded that undocumented workers are employ ees under Section 2(3) of the National Labor Relations Act, 29 U.S.C. 152(3), as this Court held in Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).

 

 

In the Supreme Court of the United States

No. 08-21

AGRI PROCESSOR CO., INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

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

BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-29a) is reported at 514 F.3d 1. The decision and order of the National Labor Relations Board (Board) (App., infra, 1a-15a) is reported at 347 N.L.R.B. No. 107.

JURISDICTION

The judgment of the court of appeals was entered on January 4, 2008. A petition for rehearing was denied on April 1, 2008 (Pet. App. 40a-42a). The petition for a writ of certiorari was filed on June 30, 2008. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The National Labor Relations Act (NLRA) de fines "employee" to "include any employee" not express ly excluded. NLRA § 2(3), 29 U.S.C. 152(3). The defini tion then provides that "employee" does not include ag ricultural laborers, domestic servants, individuals em ployed by a parent or spouse, independent contractors, supervisors, and persons whose employers fall under the Railway Labor Act, 45 U.S.C. 151 et seq., or otherwise are excluded from the NLRA. See NLRA § 2(3), 29 U.S.C. 152(3); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984).

For decades, the National Labor Relations Board has concluded that the term "employee" includes work ers who are undocumented aliens, and this Court has held that both "[t]he terms and [the] policies of the [NLRA] fully support the Board's interpretation." Sure-Tan, 467 U.S. at 891; see id. at 891 n.5 (tracing the history of the Board's interpretation). The Court ex plained in Sure-Tan that the statutory definition is "striking" in its breadth and that undocumented aliens do not fit within any of the statute's few exceptions. Id. at 891. Undocumented aliens therefore "plainly come within the broad statutory definition of 'employee.'" Id. at 892.

This Court also noted that the Board's interpretation was consistent with the NLRA's purpose. The NLRA seeks to "encourag[e] and protect[] the collective-bar gaining process." Sure-Tan, 467 U.S. at 892. Excluding employees who are undocumented aliens from that pro cess, the court explained, would "create[] a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby erod ing the unity of all the employees and impeding effective collective bargaining." Ibid.

Finally, the Court observed that it "d[id] not find any conflict" between the Board's interpretation of the term "employee" and the immigration laws. Sure-Tan, 467 U.S. at 892. Nothing in the immigration laws "ma[de] it unlawful for an employer to hire an alien who is present or working in the United States without appropriate au thorization." Id. at 892-893. The Court also noted that "[a] primary purpose [of the immigration laws] is to pre serve jobs for American workers," and that "[a]pplication 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." Id. at 893. Application of the NLRA thus serves to diminish the incentive to hire ille gal aliens, and thereby to diminish the incentive for the aliens themselves to enter the United States in violation of federal immigration laws. Id. at 893-894.

The Court noted, however, that the Board's authority to award remedies to undocumented alien "employees" could be limited by federal immigration policy. Sure- Tan, 467 U.S. at 902-903 & n.12. In particular, the Court held that reinstatement and backpay remedies must be conditioned on the employee's lawful admission to the country. Ibid. "[A] potential conflict with the [Immigration and Nationality Act] is thus avoided." Id. at 903.

Two years after this Court decided Sure-Tan, Con gress enacted a new immigration statute that prohibits employers from hiring, or continuing to employ, any alien, knowing that he or she is not lawfully authorized to work in the United States. Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, sec. 101(a)(1), § 274A(a)(1) and (h), 100 Stat. 3360, 3368 (cod ified as amended at 8 U.S.C. 1324a(a)(1) and (h)). In light of those amendments, the Court subsequently held that the Board cannot award backpay to undocumented aliens. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147-151 (2002). The Court stated, how ever, that employers would not "get[] off scot-free" for NLRA violations against alien employees. Id. at 152. The Court recognized that the Board could and did im pose "other significant sanctions" for violations of the NLRA, such as a cease-and-desist order enforceable by contempt. Id. at 152; see also Sure-Tan, 467 U.S. at 904 n.13.

2. a. Petitioner, a meat wholesaler, operates a facil ity in Brooklyn, New York. In August 2005, a local of the United Food and Commercial Workers Union (Un ion) requested an election to represent a unit of peti tioner's employees. Petitioner and the Union stipulated to the scope of the proposed bargaining unit and agreed that an election would be held in September 2005. Pet. App. 2a, 31a. Petitioner's employees voted for union representation by a margin of 15 to 5. Id. at 31a-32a. After resolving petitioner's objections to the conduct of the election, the Board certified the Union as the collective-bargaining representative of petitioner's em ployees. Id. at 32a. Petitioner refused to bargain with the Union. Ibid.

b. The Board's General Counsel issued a complaint, alleging that petitioner's refusal to bargain violated Sec tion 8(a)(5) and (1) of the NLRA, 29 U.S.C. 158(a)(5) and (1). Pet. App. 2a. At a hearing before an administrative law judge (ALJ), petitioner did not dispute that it had refused to bargain with the Union, but defended entirely on the ground that the undocumented status of a num ber of its employees rendered the election void and re lieved petitioner of any obligation to bargain. Id. at 30a, 32a-33a. Petitioner had used the Social Security Admin istration's online database to check the validity of the voting employees' Social Security numbers after the election, apparently for the first time. Id. at 2a, 33a. Based on the result of that online check, petitioner of fered to prove that most of the numbers either did not exist or belonged to other people. Id. at 32a-33a. Peti tioner contended that most of its workers who had voted in the election were undocumented, that undocumented aliens do not qualify as "employees" within the meaning of the NLRA, and that the election was therefore in valid. Id. at 2a. Petitioner urged that this Court's deci sion in Hoffman compelled the conclusion that undocu mented workers no longer come within the statutory term "employee."

The ALJ rejected that defense and found that peti tioner had violated the NLRA as charged. He applied the Board's position that the scope of the NLRA's pro tection encompasses illegal aliens. Pet. App. 33a (citing Concrete Form Walls, Inc., 346 N.L.R.B. 831 (2006), enf'd, 225 Fed. Appx. 837 (11th Cir. 2007)). Although petitioner contended that Hoffman had changed the law, the ALJ concluded that Hoffman considered only whe ther undocumented aliens are eligible for particular remedies, not the antecedent question whether they may be considered "employees within the meaning of the [NLRA]." Ibid. The ALJ also noted the Board's ruling in Concrete Form Walls that non-matching Social Secu rity numbers were not in any event sufficient evidence to prove that the employees were illegally working in the United States. Pet. App. 33a-34a.

c. The Board affirmed. App., infra, 1a-5a. The pan el adopted the ALJ's order in pertinent part. See id. at 2a nn.2-3.

Member Kirsanow joined the decision in full, but added a brief additional explanation. Although he ac knowledged that treating aliens as employees even when IRCA forbids their employment "may reasonably be seen as somewhat peculiar by the average person," that outcome was "compelled by Sec. 2(3)'s broad definition of 'employees,'" which the Board "is powerless to change." App., infra, 2a n.2. That, he said, "is the prov ince of Congress." Id. at 3a n.2.

3. The court of appeals enforced the Board's order. Pet. App. 1a-17a.

a. The court of appeals began with the plain lan guage of the NLRA, as construed in Sure-Tan. The court concluded that this Court had held that the NLRA's definition of "employee" "clearly includes un documented aliens," and that that holding was "control ling" here. Pet. App. 4a.

The court then concluded that nothing in IRCA ex plicitly "alters the NLRA's definition of 'employee,'" which is the same as it was when this Court decided Sure-Tan. Pet. App. 5a. Nor, the court held, did IRCA implicitly repeal the broad language on which this Court had relied in Sure-Tan. The court applied the long standing principle that one statute will not be read to repeal another by implication unless "such a construc tion is absolutely necessary . . . in order that the words of the later statute shall have any meaning at all." Ibid. (quoting National Ass'n of Home Builders v. De fenders of Wildlife, 127 S. Ct. 2518, 2532 (2007)). The enactment of IRCA does not require such a reading, the court concluded, because nothing in IRCA directly con tradicts the NLRA, and IRCA "has meaning without being read as partly repealing the NLRA: it prohibits employers from hiring undocumented aliens, which would otherwise be legal." Id. at 6a.

Indeed, the court of appeals noted, "all available evi dence actually points" away from an implied repeal. Pet. App. 6a. First, Congress was plainly aware of Sure- Tan, but in adopting IRCA it "did not change the NLRA to 'expressly exempt[]' undocumented aliens from its coverage. Instead, Congress changed immigration law, never even hinting that it intended to amend the NLRA." Id. at 12a (quoting Sure-Tan, 467 U.S. at 892) (citation omitted; brackets in original). Second, under other circumstances Congress has expressly amended the NLRA's definition of "employee" to overrule this Court's interpretation of that term. Ibid. Third, the only references to the NLRA or the Board in the entire legislative history of IRCA point to the conclusion that Congress did not intend implicitly to amend the NLRA. Thus, the court noted both the House Judiciary Commit tee's explanation in its report that "the employer sanc tions provisions are not intended to limit in any way the scope of the term 'employee' in Section 2(3)," and the committee's endorsement of the observation in Sure- Tan that NLRA coverage "helps to [protect] the wages and employment conditions of lawful residents." Id. at 7a (quoting H.R. Rep. No. 682, 99th Cong., 2d Sess., Pt. 1, at 58 (1986) (House Report)) (emphasis added); accord id. at 7a-8a (citing House Report, Pt. 2, at 8-9). Finally, the court noted that every other circuit to consider the question has concluded that the definition of "employee" upheld in Sure-Tan still controls. Id. at 9a (citing cases from the Seventh, Ninth, and Eleventh Circuits).

The court of appeals acknowledged that Sure- Tan had relied in part on the absence of any immigra tion law expressly barring employers from hiring illegal aliens. But it does not follow, the court stated, that this Court had intended that its holding in Sure-Tan would cease to have effect if Congress ever enacted such a law. Rather, the Court had merely sought to refute the con tentions by two dissenting Justices in Sure-Tan that then-existing immigration law precluded a reading of the NLRA as applying to undocumented aliens. Pet. App. 10a. Nor, the court of appeals continued, did the Court in Sure-Tan state how it would resolve any con flict with the immigration laws should one be found to arise at a later date. Ibid.

Finally, the court of appeals rejected petitioner's argument that Hoffman had changed the relevant law. Because this Court in Hoffman "explicitly declined to revisit Sure-Tan's holding that undocumented aliens are employees under the NLRA," but rather addressed only what remedies are available to such undocumented em ployees, the court of appeals concluded that Sure-Tan remained controlling and that Hoffman was simply not relevant to this case. Pet. App. 13a (citing Hoffman, 535 U.S. at 149 n.4).

The court of appeals thought that the relevant statu tory language, as interpreted in Sure-Tan, was suffi ciently clear to dispose of this case. But the court also noted that "the task of defining the term 'employee' is one that has been assigned primarily to the [Board]," and that "the Board's construction of that term is enti tled to considerable deference" and will be upheld if it is "reasonably defensible." Pet. App. 14a (quoting Sure- Tan, 467 U.S. at 891) (internal quotation marks omit ted). The court concluded that the Board's interpreta tion of "employee" is "entirely reasonable" and there fore entitled to deference, particularly in light of the NLRA's central purpose of "protecting the collective- bargaining process." Ibid. (quoting Sure-Tan, 467 U.S. at 892).

b. Judge Henderson joined the court's opinion, but concurred separately to echo Member Kirsanow's obser vation that the result seems "somewhat peculiar." Pet. App. 17a (quoting App., infra, 2a n.2).

c. Judge Kavanaugh dissented. Pet. App. 18a-29a. In his view, this Court's Sure-Tan opinion required the term "employee" to be construed according to the fol lowing "analytical framework": "If federal law does not prohibit employment of illegal immigrant workers, then the workers can be 'employees' under the NLRA. If on the other hand federal law prohibits employment of ille gal immigrant workers, then the workers are not 'employ ees' under the NLRA." Id. at 20a. Under Judge Kavanaugh's view of the Sure-Tan holding, Congress's enactment of IRCA meant that illegal aliens ceased to be "employees" under the NLRA. See id. at 24a. He therefore would have "remand[ed] for the Board to ad dress how a party may challenge a union election or cer tification upon discovering after the fact that illegal im migrant workers voted in the election and affected the outcome." Id. at 29a.

4. The court of appeals denied rehearing en banc by a vote of 7 to 3. See Pet. App. 41a-42a.

ARGUMENT

The court of appeals correctly sustained the National Labor Relations Board's interpretation of the term "em ployee" in Section 2(3) of the National Labor Relations Act. The Board's interpretation is the same as this Court's in Sure-Tan; Congress did not amend the NLRA when it enacted IRCA two years later; the Board has consistently interpreted Section 2(3) in the same manner over the 22 years since IRCA's enactment; and the court of appeals' decision sustaining the Board's interpreta tion in this case is consistent with the decisions of the other courts of appeals that have addressed the ques tion. Against this firmly settled background, review by this Court is not warranted.

1. As an initial matter, petitioner fails to acknowl edge that this case turns (as Sure-Tan did) on an agency's interpretation of a term in the statute that the agency administers. When this Court ratified the Board's inclusive definition of "employee" in Sure-Tan, it relied principally on the "striking" breadth of Section 2(3), which does not include undocumented workers among its few express exemptions. Petitioner does not identify any error in that analysis or suggest that Sure- Tan was incorrect when decided. The narrow question presented in this case, therefore, is whether Congress, by enacting IRCA, implicitly amended the NLRA's defi nition of "employee," and did so with such clarity as to remove the Board's customary authority to interpret its organic statute. The Board has reasonably concluded that it did not, and the courts of appeals have unani mously sustained the Board's position. NLRB v. Kolkka, 170 F.3d 937, 940-941 (9th Cir. 1999); accord NLRB v. Concrete Form Walls, 225 Fed. Appx. 837 (11th Cir. 2007);1 see also Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1121 (7th Cir. 1992) (noting that IRCA's legislative history "endorses" Sure-Tan's hold ing that the Board permissibly treated undocumented aliens as employees).

a. The sound textual basis for the Board's interpre tation remains unchanged. Congress did not add an ex ception to the NLRA for undocumented aliens, or change Section 2(3) in any way, when it enacted IRCA (or any subsequent immigration statute, see p. 16, in fra). Petitioner contends (Pet. 11) that IRCA demon strates a change in federal policy and that the applicable federal law must change with it, quoting the common- law maxim cessante ratione, cessante ipsa lex-"the reason of the law ceasing, the law itself ceases." Rogers v. Tennessee, 532 U.S. 451, 474 (2001) (Scalia, J., dis senting) (tracing the principle's history at common law). But as Justice Stevens has noted, the judiciary does not apply that principle to statutes that remain on the books, even if they may seem outmoded to the courts: "The maxim that cessante ratione legis, cessat et ipsa lex, applicable to the common law, does not govern the judiciary in cases involving application of positive law." TWA v. Franklin Mint Corp., 466 U.S. 243, 273 (1984) (dissenting opinion). Section 2(3) remains on the books, unamended by Congress, just as it read at the time of Sure-Tan.

The dissenting judge in the court of appeals sug gested that Congress had changed the NLRA, as au thoritatively construed by this Court in Sure-Tan, with out actually changing its text. In the dissent's view, the absence of any prohibition on employing illegal aliens was necessary to the holding in Sure-Tan, and when such a prohibition was enacted, the holding of Sure-Tan ceased to have force. But the Board has permissibly concluded that the dissent's premise is incorrect. First, although the Court examined the relationship between the NLRA and federal immigration policy as an indica tor of congressional intent, it did so only after examining the text of the NLRA. IRCA did not change that text, and because IRCA has independent force without refer ence to the NLRA, there is no reason to think that Con gress meant to amend the NLRA without saying so. Second, the fact that employing illegal aliens was not independently unlawful was sufficient to show the ab sence of a conflict between labor and immigration law, but as the court of appeals explained, the enactment of IRCA does not mean that there is a conflict.

b. In fact, after IRCA, as before, there is no direct conflict between labor law and immigration law in this respect that would justify the courts' overriding the Board's judgment. As the court of appeals concluded, a congressional intent to bar the employment of aliens illegally present in the United States is not inconsistent with a congressional intent to protect the working condi tions of all workers an employer has chosen to hire, through universal application of federal labor laws. Pet. App. 8a. The latter goal is a core purpose of the NLRA. As this Court explained in Sure-Tan, the willingness of undocumented workers to accept below-market terms of employment "can seriously depress" the employment conditions of legal workers, undermining employee unity and consequently interfering with the collective-bar gaining process. 467 U.S. at 892 (quoting De Canas v. Bica, 424 U.S. 351, 356-357 (1976)); accord Kolkka, 170 F.3d at 941 (agreeing, in an election case, that Sure- Tan's inclusive interpretation of "employee" "buttresses rather than conflicts with the purposes of the IRCA").

Enforcement of the NLRA's prohibition against un fair labor practices even as they affect employees who are not lawfully present in the United States does not render those workers' employment legal. Rather, the inclusive definition of "employee" merely prevents em ployers from violating the NLRA with impunity with respect to workers employed (either consciously or un knowingly) in violation of IRCA. As the Court recog nized in Sure-Tan, excluding undocumented aliens from the definition of "employee" would "create[] a subclass of workers" outside the protection of the bargaining unit. 467 U.S. at 892. The Board could reasonably con clude that Congress would not have wanted to permit employers to benefit from their own violation of IRCA's employment provision-in the context of this case, to invalidate a union election after the fact, for the price of as little as $250 per alien in civil penalties under IRCA. See Immigration and Nationality Act § 274A(e)(4)(A), 8 U.S.C. 1324a(e)(4)(A).

Any doubt concerning the reasonableness of the Board's conclusion is dispelled by IRCA's legislative history, which makes clear that Congress did not intend to overturn the result in Sure-Tan and remove undocu mented aliens from coverage under the NLRA alto gether. See p. 7, supra; Pet. App. 6a-8a.

Accordingly, petitioner's generalized contentions that the United States currently hosts more immigrants and that its immigration laws are less forgiving than at the time of Sure-Tan do not demonstrate that the Board was unreasonable in continuing to harmonize these two well-supported policy goals in applying the text of the NLRA that Congress left unchanged. See, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987) (the Board's interpretation is entitled to judi cial deference if its view is "rational and consistent with the [NLRA]").

Nor does Hoffman undermine the recognition in Sure-Tan that including under the NLRA the undocu mented workers an employer has chosen to hire safe guards the rights of other, lawfully employed workers. Hoffman's limited concern was that a specific NLRA remedy-awarding backpay to undocumented aliens who were the targets of unlawful discrimination under the NLRA-would contravene federal immigration pol icy and encourage future immigration violations, partic ularly given that the NLRA requires victims to mitigate damages and, hence, to seek further (illegal) work dur ing the backpay period. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 149-151 (2002). Hoffman thus established that the Board may not award individ uals a particular remedy-backpay-that might encour age aliens illegally present in the United States to seek unlawful employment or, as petitioner contends (Pet. 12- 13), encourage unions to use such aliens in organizing efforts.

At the same time, Hoffman also highlighted that the Board retains the authority to impose "other significant sanctions" when an employer violates the NLRA in its dealings with its employees, including its undocumented employees. Those remedies include requiring the em ployer to cease and desist from violations (on pain of contempt), which does not confer any incentive for em ployees to seek further unlawful employment. 535 U.S. at 152. As harmonized in Sure-Tan and Hoffman, fed eral labor policy and immigration policy thus simulta neously protect the labor rights of the workforce gener ally while creating disincentives to immigration viola tions by both workers and employers.

c. Because the operative statutory text remains un changed, and because the Board's definition of "em ployee" is not contrary to federal immigration policy, this case presents no occasion for the Court to re-exam ine a longstanding statutory-interpretation precedent. Stare decisis has particular force in the context of statu tory interpretation, particularly where-as here-Con gress has legislated in the area for many years without altering the statute that this Court has interpreted. See, e.g., John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750, 756-757 (2008); accord CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951, 1958 (2008).2 Indeed, in John R. Sand & Gravel, this Court recently rejected an appeal to overrule a long-settled statutory interpreta tion based on "a turn in the course of the law" that (as the Court agreed) made the earlier statutory interpreta tion "anomalous." 128 S. Ct. at 756. (There, too, the claimant seeking to have this Court overrule settled law contended that the Court today should re-examine "the comparative weight Congress would likely have attached to competing legitimate interests." Id. at 756.) More over, the statute in John R. Sand & Gravel was a juris dictional provision, which no federal agency had been vested with authority to interpret. Here, by contrast, the interpretation of the NLRA lies squarely within the Board's authority.

d. It is, of course, open to Congress to revise the NLRA as it sees fit to accommodate changes in immi gration policy. Congress did not do so in IRCA, after Sure-Tan was decided. And Congress has not done so in the 22 years since IRCA was enacted, during which time the Board (sustained by the courts of appeals) has adhered to the interpretation upheld in Sure-Tan-even though Congress has enacted several significant reforms of the federal immigration laws during that period. See, e.g., Illegal Immigration Reform and Immigrant Re sponsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546.

2. Although the Board and the court of appeals properly rejected petitioner's statutory-interpretation contention on its merits, petitioner would be extremely unlikely to overturn the unfair-labor-practice finding ev en if the Board's interpretation of the term "employee" were incorrect. Under the Board's precedents, peti tioner did not sufficiently substantiate a basis for disre garding the election results based on petitioner's asser tion that some voting employees were illegal aliens.

The Board has sustained unfair-labor-practice charges against employers who were "content to violate the IRCA and employ workers whom [they] believed were illegal aliens until those workers decided to vote in a Board-conducted election." Concrete Form Walls, 346 N.L.R.B. at 835. In particular, Concrete Form Walls "apparently accepted [its employees' employment-verifi cation] documents as facially valid when it placed these employees on its formal payroll and only questioned their veracity after the employees voted in the election." Id. at 834 n.18. That "11th-hour concern with complying with the IRCA" is inadequate, the Board reasonably concluded. Id. at 835.

In that case, the Board rejected as insufficient the same type of proffer that petitioner made here. The Board concluded that an employer "fail[s] to prove that * * * employees were, in fact, illegal aliens" when its offer of proof consists (as petitioner's does here, Pet. App. 33a) only of evidence that the aliens offered inaccu rate Social Security numbers. 346 N.L.R.B. at 834; see id. at 835.

Accordingly, even if the Court were inclined to re view the Board's continued adherence to the interpreta tion upheld as reasonable in Sure-Tan, it would only be appropriate to do so in a case in which an employer made an appropriate demonstration of employees' illegal status, rather than taking a "wait-and-see" approach to the outcome of a representation election. Cf. Concrete Form Walls, 346 N.L.R.B. at 834-835 (employer, charged with discharging employees in retaliation for voting for union representation, defended on the ground that it had discharged them because they were illegal aliens, but the Board concluded that the employer's as serted reason was a pretext).3

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

GREGORY G. GARRE
Solicitor General

RONALD MEISBURG
General Counsel
JOHN E. HIGGINS, JR.
Deputy General Counsel
JOHN H. FERGUSON
Associate General Counsel
LINDA DREEBEN
Deputy Associate General
Counsel
DAVID HABENSTREIT
Assistant General Counsel
KIRA DELLINGER VOL
Attorney
National Labor Relations
Board

OCTOBER 2008

1 Concrete Form Walls argued to the Eleventh Circuit that aliens are not "employees." See Br. for Resp. at 10-14, Concrete Form Walls, supra (Nos. 06-13845, 06-14997); see also Concrete Form Walls, Inc., 346 N.L.R.B. 831, 833-834 & n.15 (2006). The Eleventh Circuit summarily agreed with the Board's rejection of that argument.

2 By contrast, in petitioner's principal case for departing from statu tory stare decisis, Congress apparently had simply stood silent. Boys Mkts., Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 241-242 (1970). Moreover, in that case the Court was convinced by subsequent, dissonant developments in the law that its original statutory interpreta tion had been wrong from the beginning. See id. at 249, 254. Here, by contrast, petitioner does not dispute that Sure-Tan was correct as a matter of pre-IRCA law.

3 Moreover, petitioner did not argue before the Board that the re sults of its post-election investigation into its employees' immigration status warranted an exception to the usual certification-bar rule that an employer must bargain with a certified union for one year, notwith standing any post-election loss of majority. See Brooks v. NLRB, 348 U.S. 96, 101-104 (1954) (noting that even during the one-year period, the Board may revoke certification or decline to pursue an unfair-labor- practice charge "if the facts warrant").

 

APPENDIX

 

NATIONAL LABOR RELATIONS BOARD,
WASHINGTON, D.C.

 

 

 

 

Case No. 29-CA-27386

AGRI PROCESSOR CO., INC. AND LOCAL 342, UNITED FOOD AND COMMERCIAL WORKERS UNION

Aug. 31, 2006

DECISION AND ORDER

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW

On May 12, 2006, Administrative Law Judge Ray mond P. Green issued the attached decision. The Re spondent filed exceptions and a supporting brief. The Charging Party filed cross-exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the re cord in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusion2 and to adopt the Order as modified and set forth in full below.3

ORDER

The National Labor Relations Board orders that the Respondent, Agri Processor Co. Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to bargain collectively with Local 342, United Food and Commercial Workers Un ion.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclu sive representative of the employees in the following appropriate unit concerning terms and conditions of em ployment and, if an understanding is reached, embody the understanding in a signed agreement:

All full-time and regular part-time production and maintenance warehouse employees, including hi-lo drivers, loaders, pickers, checkers and forklift opera tors, employed by the Employer at its facility located at 5600 1st Avenue, Brooklyn, New York, excluding all managers, office and clerical employees, sales men, truck drivers, guards, and supervisors as de fined in Section 2(11) of the Act.

(b) Within 14 days after service by the Region, post at its facility in Brooklyn, New York, copies of the at tached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du plicate and mail, at its own expense, a copy of the notice to all current employees and former employees em ployed by the Respondent at any time since January 23, 2006.

(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C. August 31, 2006 Robert J. Battista Chairman
Wilma B. Liebman Member
Peter N. Kirsanow Member

 

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX [TO DECISION AND ORDER]

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your bene fit and protection

Choose not to engage in any of these protected

activities. WE WILL NOT refuse to bargain with Local 342, Uni ted Food & Commercial Workers Union as the exclusive representative of the employees in the bargaining unit.

WE WILL NOT in any like or related manner inter fere with, restrain, or coerce you in the exercise of the rights listed above.

WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the following bargaining unit:

All full-time and regular part-time production and maintenance warehouse employees, including hi-lo drivers, loaders, pickers, checkers and forklift opera tors, employed by us at our facility located at 5600 1st Avenue, Brooklyn, New York, excluding all man agers, office and clerical employees, salesmen, truck drivers, guards, and supervisors as defined in Sec tion 2(11) of the National Labor Relations Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AGRI PROCESSOR CO., INC.
Emily Desa, Esq., for the General Counsel.
Richard M. Howard, Esq. and Jeffrey A. Meyer, Esq., for the Respondent.
Patricia McConnell, Esq., for the Charging Party.

DECISION

STATEMENT OF THE CASE

Raymond P. Green, Administrative Law Judge. I heard this case in Brooklyn, New York, on April 25, 2006. The charge was filed on January 30, 2006, and the complaint was issued on March 21, 2006. In substance, the complaint alleged that after the Union had been cer tified by the Board, the Respondent has refused to bar gain.

The Respondent's defense boils down to the claim that a majority of the people who voted in the election "were subsequently found to be illegal aliens" and there fore the election should be declared a nullity because (a) the Union never had a valid showing of interest and (b) the illegal aliens, comprising most of the voting unit were not legally permitted to work for the Company and therefore could not share a community of interest with those employees who legally could be employed.

Based on the entire record, including my observa tions of the demeanor of the witnesses and after consid ering the arguments of counsel, I hereby make the fol lowing

 

FINDINGS AND CONCLUSIONS

I. JURISDICTION

The parties agree and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. UNFAIR LABOR PRACTICES

The Union filed its petition for an election on August 24, 2005. On September 7, 2005, the parties executed a Stipulated Election Agreement that was approved by the Regional Director on September 8, 2005. The par ties agreed that the unit was as follows:

Included: All full-time and regular part-time pro duction and maintenance warehouse employees, in cluding hi-lo drivers, loaders, pickers, checkers and forklift operators employed by the Employer at its facility at 5600 1st Avenue, Brooklyn, New York.

Excluded: All managers, office and clerical em ployees, salesmen, truck drivers, guards and supervi sors as defined in Section 2(11) of the Act.

The election was held on September 23, 2005, and the tally of ballots showed that 15 employees cast ballots for the Union and that 5 employees cast ballots against un ion representation. There was 1 challenged ballot but that was not determinative.

On September 30, 2005, the Employer filed timely objections alleging that union representatives and/or agents engaged in conduct affecting the results of the election.

On November 10, 2005, the Regional Director issued a Report on Objections in which he overruled some but ordered that some other of the allegations to be sent to a hearing. To the extent that the Regional Director held that certain of the objections were not meritorious, those conclusions were adopted by the Board on Decem ber 21, 2005.

On December 16, 2005, I issued a Decision on Objec tions wherein I overruled those objections that were sent to a hearing. I recommended that the appropriate certification be issued to the Union.

The Respondent filed exceptions to my decision, but on January 11, 2006, the Board, by its Associate Execu tive Secretary, dismissed the exceptions because they were untimely filed.

On January 23, 2006, the Board issued a certification of representative to the Union.

The Union has made various demands for bargaining commencing on January 5, 2006, and continuing to date. The Respondent has refused to commence bargaining and indicated on the record that it would not do so.

At the hearing, I rejected the Respondent's defenses but permitted it to make an offer of proof. In essence, the Respondent offered to prove (and offered exhibits in support of its contentions), that a majority of the em ployees who were employed at the time of the election had submitted to the employer social security cards (along with Resident cards); and that upon a postelec tion check at a social security website, the Respondent discovered that these individuals either did not have social security numbers or that the numbers that they had submitted to the employer did not match the num bers listed with the Social Security Administration. The Respondent therefore opines that this shows that these individuals were undocumented aliens, having no per mission to work legally in the United States. When asked if the Respondent had any other proof of their status, the Respondent's counsel said that he did not.

In my opinion, the Respondent's reliance on Hoff man Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) is misplaced. In Hoffman, the Court merely held that the Board may not award backpay to undocumented workers because that would run "counter to the policies underlying IRCA, policies the Board has no authority to enforce or administer." The Court did not hold that such individuals should not be construed to be employ ees within the meaning of the Act or that employers could interfere with their Section 7 rights with impunity.

In Concrete Form Walls, Inc., 346 NLRB No. 80 (2006), the Board rejected the Employer's contention that it could legally discharge employees because they were undocumented aliens. The Board also held that these individuals were valid voters in a Board election. Finally the Board concluded that the mere fact that the Employer offered evidence to show that the employees' social security numbers did not match those in the social security database, was not sufficient to show that they were illegally working in the country.

CONCLUSIONS OF LAW

1. By refusing to bargain with Local 342, United Food and Commercial Workers Union, the Respondent has violated Section 8(a)(1) & (5) of the Act.

2. The aforesaid violation affects commerce within the meaning of Section 2(6) and (7) of the Act.

THE REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirma tive action designed to effectuate the policies of the Act.

To insure that the bargaining unit employees will be accorded the services of their collective-bargaining rep resentative for the full period provided by law, I shall recommend that the initial 1-year period of certification commence on the date the Respondent commences to bargain in good faith with the Union. See Mar-Jac Poultry Co., 136 NLRB 785 (1962).

The General Counsel and the Charging Party re quest that the Board order the Respondent to pay for their legal expenses in contesting this case. They assert that this is justified because the Respondent's defenses are frivolous. Citing Frontier Hotel & Casino, 318 NLRB 857 (1995). Without commenting on the Respon dent's defenses, I note that the hearing in this case took less than an hour and that the preparation for the hear ing would have amounted to the drafting of the com plaint, the copying of a number of documents and the reading of a few cases. I suspect that the total amount of time expended by either the General Counsel or the Charging Party's counsel to litigate this case could not have amounted to more than several hours. Since, the legal expenses for this amount of time is essentially nominal, I do not think that an award of legal expenses would be justified.5

On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6

ORDER

The Respondent, Agri Processor Co., Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to bargain collectively with Local 342, United Food & Commercial Workers Union.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclu sive representative of the employees in the certified ap propriate unit concerning terms and conditions of em ployment and, if an understanding is reached, embody the understanding in a signed agreement.

(b) Within 14 days after service by the Region, post at its facilities in the Brooklyn, New York, copies of the attached notice marked "Appendix."7 Copies of the no tice, on forms provided by the Regional Director for Re gion 29, after being signed by the Respondent's autho rized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consec utive days in conspicuous places including all places where notices to employees are customarily posted. Rea sonable steps shall be taken by the Respondent to en sure that the notices are not altered, defaced, or covered by any other material. In the event that during the pen dency of these proceedings, the Respondent has gone out of business or closed a facility involved in these pro ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employ ees and former employees employed by the Respondent at any time since January 23, 2006.

(c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respon dent has taken to comply.

Dated, Washington, D.C. May 12, 2006

 

 

 

 

 

 

 

APPENDIX [TO ALJ OPINION]

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your bene fit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT refuse to bargain collectively with Local 342, United Food & Commercial Workers Union as the exclusive bargaining representative of our em ployees.

WE WILL NOT in any like or related manner inter fere with, restrain, or coerce our employees in the rights guaranteed to them by Section 7 of the Act.

WE WILL on request, bargain with the Union as the exclusive representative of the employees in the certi fied appropriate unit concerning terms and conditions of employment and, if an understanding is reached, em body the understanding in a signed agreement.

AGRI PROCESSOR CO., INC.

1 The Respondent has excepted to some of the judge's credibility fin dings. The Board's established policy is not to overrule an administra tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d

Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

2 With respect to the separate view of our colleague, we note that, unless and until the employees are declared to be illegal and are dis charged and/or deported, they remain employees of the Respondent, they remain employees under the Act, they lawfully voted in the elec tion that the Union won, and since the Union lawfully represents the bargaining unit, we do not think it "peculiar" to require the Respondent to bargain with the Union.

Member Kirsanow joins his colleagues in adopting the judge's con clusion that the Respondent has violated Sec. 8(a)(5) by refusing to bar gain with the Charging Party Union, but would add the following obser vations. Relying on evidence that most of its unit employees presented social security numbers that do not match those in the Social Security Administration's records, the Respondent contends that these employ ees are illegal immigrants and that its refusal to bargain is justified by that fact. Whether or not the Respondent's employees are, in fact, working in the United States illegally is not an issue we need to address at this point. Assuming, however, that the Respondent's contention in this regard is correct, Member Kirsanow submits that an order com pelling the Respondent to bargain with a union representing employees that the Respondent would be required to discharge under the Immi gration Reform and Control Act, 8 U.S.C. § 1324a (IRCA), may rea sonably be seen as somewhat peculiar by the average person. Nonethe less, he acknowledges that, as the Board recently explained in Concrete Form Walls, 346 NLRB No. 80, slip op. at 3-4 (2006), such an order is compelled by Sec. 2(3)'s broad definition of "employees." Setting aside the specifics of this case and speaking more generally, Member Kirsan ow observes that although it may be more rational to resolve the ten sion between Sec. 2(3) and the IRCA in a manner that does not place employers in the position of having to bargain with a representative of workers not lawfully entitled to work, the Board's duty is to enforce the Act as written. It is powerless to change the meaning of Sec. 2(3). That is the province of Congress.

3 We adopt the judge's recommendation that the initial certification year commence on the date that the Respondent begins to bargain in good faith with the Union. We shall substitute the Board's standard language for portions of the judge's recommended Order and notice.

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Na tional Labor Relations Board" shall read "Posted Pursuant to a Judg ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."

5 Although McConnell's pay rate may or may not exceed the General Counsel's attorney, it is hard for me to imagine that the legal cost to the Union could be anything other than nominal.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purpos es.

7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Na tional Labor Relations Board" shall read "Posted Pursuant to a Judg-

 

ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."