The administrative law judge recommended that the NLRB order Sure-Tan, Inc. to offer reinstatement to the workers and to hold the offers open for six months, because the employees were out of the country. The administrative law judge further suggested that the NLRB award the workers back pay for a minimum four-week period to deter Sure-Tan, Inc. from violating the NLRA in the future and to compensate the unlawfully discharged workers. The NLRB postponed awarding back pay until the compliance hearing because the record did not specify when the employees would be able to legally reenter the country, rendering any award “unnecessarily speculative.” On appeal, the Seventh Circuit Court of Appeals modified the NLRB order. The court of appeals required the employer to hold the offers open for four years to give the employees adequate time to obtain INS permission to reenter the country and reclaim their jobs. Further, the court modified the award to include a six-month back pay award “for purposes of effectuating the policies of the [NLRA].” The NLRB subsequently adopted the appellate court’s suggested award. The Supreme Court granted Sure-Tan, Inc.’s petition for certiorari to determine whether the NLRB properly awarded back pay to illegal aliens.

The Supreme Court began its analysis by determining that undocumented workers were “employee[s]” within the meaning of the NLRA. However, the Court prohibited the NLRB from awarding back pay “during any period when [the workers] were not lawfully entitled to be present and employed in the United States.”  The Court reasoned that this holding was consistent with immigration policy because it conditioned NLRA remedies upon legal readmittance into the United States and discouraged illegal reentry into the United States for reinstatement.

In his dissent, Justice Brennan criticized the majority on several grounds. First, he asserted that the Court should have approached the case with the level of deference usually afforded to administrative agencies, because the NLRB had adopted the court of appeals’ suggested award as its own. Second, Justice Brennan criticized the majority decision as internally inconsistent. The majority simultaneously held that undocumented workers (1) were “employees” within the meaning of the NLRA despite their illegal presence during employment and (2) could not receive back pay, the only NLRA remedy that had any effective deterrent value, because they were not legally present after the illegal discharge. Justice Brennan stated that the “[t]he contradiction in the Court’s opinion [was] total”: the workers were protected as “employees” but “stripped of the normal remedial protections of the Act.”

C. Local 512, Warehouse and Office Workers’ Union v. NLRB (“Felbro”): The Ninth Circuit’s Narrow Interpretation of Sure-Tan, Inc.

Two years after the Supreme Court’s decision in Sure-Tan, Inc., the Ninth Circuit Court of Appeals, in Felbro, held that the NLRB may award back pay to an undocumented worker who remains in the United States during the back pay period. In Felbro, an employer violated section 8(a)(3) by discharging several workers for their union activities. Although the administrative law judge had awarded the undocumented workers back pay, the NLRB determined that the Supreme Court’s intervening decision in Sure-Tan, Inc. precluded the NLRB from issuing a back pay award to undocumented workers. The Ninth Circuit Court of Appeals reversed the remedy portion of the NLRB order with respect to back pay. The court distinguished Sure-Tan, Inc. because in that case the workers’ departure to Mexico had made them unavailable to work for an indefinite period and any back pay award would consequently have been speculative. Conversely, the employees in Felbro remained in the United States. After finding that Sure-Tan, Inc. was not controlling, the court awarded back pay to the workers, relying on decisions pre-dating Sure-Tan, Inc. Prior to the Supreme Court’s decision in Hoffman Plastic Compounds, Inc., the NLRB followed the Ninth Circuit Court of Appeals’ reasoning and consistently awarded back pay to remedy section 8(a)(3) violations of undocumented workers who remain in the United States during the back pay period.