Sure-Tan, Inc. v. National Labor Relations Board

PETITIONER: Sure-Tan, Inc., et al.
RESPONDENT: National Labor Relations Board
LOCATION: Chicago, Illinois

DOCKET NO.: 82-945
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 467 US 883 (1984)
ARGUED: Dec 06, 1983
DECIDED: Jun 25, 1984
GRANTED: Mar 07, 1983

ADVOCATES:
Edwin S. Kneedler - on behalf of the Respondent
Michael R. Flaherty - on behalf of the Petitioner

Facts of the case

Sure-Tan Inc. and Surak Leather Company were two small leather processing firms in Chicago who were considered a single employer for the purposes of this case. Of the 11 laborers both companies employed, several were illegal immigrants. In July 1976, eight workers from both companies authorized the Chicago Leather Workers Union to act as their collective bargaining representative. On December 10, 1976, the Union prevailed in a National Labor Relations Board (NLRB) election. The companies filed complaints with the NLRB and alleged that many of the voting members were illegal immigrants. When the NLRB certified the union anyway, the president of Surak Leather Company sent a letter to the Immigration and Naturalization Service (INS) to request a check on the immigration status of the employees in question. INS agents discovered five employees were living and working illegally in the United States and deported them.

The NLRB’s Acting Regional Director filed complaints alleging that the companies engaged in unfair labor practices, and the charges were heard by an Administrative Law Judge (ALJ). The NLRB adopted the ALJ’s recommendation to order the petitioners to cease and desist the unfair labor practices and substituted backpay for the recommendation of reinstatement.

The U.S. Court of Appeals for the Seventh Circuit affirmed the first part of the Board’s order. However, the Court of Appeals held that, because backpay could only be given for periods of time when the employees were legally eligible but unable to work, the companies should be required to pay a minimum amount of six months worth of backpay.

Question

Does the National Labor Rights Act allow the National Labor Relations Board to properly find that an employer has engaged in unfair labor practices by reporting illegal union laborers to the Immigration and Naturalization Service in retaliation for economic activity and issue a remedial order?

Media for Sure-Tan, Inc. v. National Labor Relations Board

Audio Transcription for Oral Argument - December 06, 1983 in Sure-Tan, Inc. v. National Labor Relations Board

Warren E. Burger:

We will hear arguments next in Sure-Tan and Surak Leather Company against National Labor Relations Board.

Mr. Flaherty, you may proceed whenever you are ready.

Michael R. Flaherty:

Mr. Chief Justice, and may it please the Court, is it an unfair labor practice for employer to ask the Immigration and Naturalization Service to investigate the immigration status of its employees?

That is the first and the most important issue presented in this case.

Can an employer be required to pay illegal aliens a sum of money equal to six months' pay under the National Labor Relations Act covering a period of time when the illegal aliens are not present in this country, when they are in Mexico, and they are not lawfully available for work?

That is the second issue presented in this case.

And can the National Labor Relations Board require an employer to write reinstatement offers in Spanish and to leave them open for a period of four years?

That is the third issue presented in this case.

The operative facts in this case begin on January 20th, 1977, when Mr. John Surak, the president of Sure-Tan, wrote this letter to the Immigration and Naturalization Service.

He asked the Immigration and Naturalization Service to investigate the immigration status of his employees.

Harry A. Blackmun:

Incidentally, does he know the immigration status of his present employees?

Michael R. Flaherty:

Your Honor, I don't know.

I have not asked Mr. Surak that, and so I just cannot answer that question.

In response to this letter, the INS came to Mr. Surak's facility and investigated the immigration status of the employees, and in response to this letter it was discovered that the illegal aliens... that the employees were illegal aliens, five of the eight of them listed on this letter.

They were immediately arrested by the INS, and they were permitted to execute an INS form whereby they acknowledged their illegal presence in this country, and then they voluntary agreed to return to Mexico.

The union filed an unfair labor practice charge against the employer, and the Labor Board returned a complaint, charging that Sure-Tan violated Section 883 of the National Labor Relations Act by discharging the employees when it sent this letter to the Immigration and Naturalization Service.

In an attempt to resolve this dispute, Sure-Tan sent letters offering reinstatement to the employees.

They were written in English, and they were sent on March 29th, 1977.

They asked the employees to report to work by May 1st, 1977, if they accepted the offers of reinstatement.

In the proceedings below, the Labor Board held that Sure-Tan constructively discharged the employees, in violation of Section 8(a)(3) of the Act by sending this letter to the INS requesting the INS investigation.

The Board ordered Sure-Tan to offer unconditional reinstatement to the aliens, and it ordered them to pay them back pay.

In response to this order, the board's own general counsel filed a motion for clarification, asking the board just what it meant by this order.

The general counsel observed in its motion for clarification that an order that required unconditional reinstatement with back pay, regardless of the aliens' immigration status, created a conflict with the immigration laws and policies.

It in effect served as an incentive for these aliens to re-enter the country illegally.

Well, the board denied the motion, but in the decision denying the motion, it said that the accrual of back pay should be tolled during the period of time when the illegal aliens were unavailable for lawful employment in this country.

The Court of Appeals upheld the order with certain modifications.

Under the Court of Appeals' enforcement decree, the illegal aliens would have to be reinstated by Sure-Tan only if they can establish at the time they present themselves for employment that they are lawfully available for work in this country.

With respect to the back pay issue, the Court of Appeals went way beyond the board.

It invented its own remedy, or so-called remedy.

It told Sure-Tan that it would have to pay each of these illegal aliens a minimum of six months' pay, regardless of whether they were lawfully available for work in this country.