208 F.3d 229 (D.C. Cir. 2000)
Hoffman Plastic Compounds, Inc. Petitionerv.National Labor Relations Board, Respondent
No. 98-1570
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 1999Decided March 17, 2000

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Maurice Baskin argued the cause and filed the briefs for  petitioner.
Sharon Block, Attorney, National Labor Relations Board,  argued the cause for respondent.  With her on the brief were  Linda Sher, Associate General Counsel, Aileen A. Armstrong,  Deputy Associate General Counsel, and Fred L. Cornnell, Attorney.  John D. Burgoyne, Deputy Associate General  Counsel, entered an appearance.
Marsha S. Berzon argued the cause for amicus curiae  American Federation of Labor and Congress of Industrial  Organizations.  With her on the brief were Jonathan P. Hiatt  and James B. Coppess.
Before:  Sentelle, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Dissenting opinion filed by Circuit Judge Sentelle.
Tatel, Circuit Judge:


1
Petitioner illegally fired several  workers in retaliation for attempting to organize a union. Finding multiple unfair labor practices, the National Labor Relations Board ordered its traditional remedy, reinstatementwith backpay, for all discharged employees.  When the Board  learned that one of these employees was an undocumented  alien, it denied him reinstatement and terminated his backpay  as of the date the employer discovered he was unauthorized  to work.  Challenging even this reduced award, the employer  claims that awarding any backpay to undocumented workers  conflicts with immigration law.  Because the Supreme Court  has held that undocumented workers are protected by the  National Labor Relations Act, and because the limited remedy awarded here is within the Board's discretion and furthers  the purposes of both labor and immigration law, we deny the  petition for review and grant the cross-application for enforcement.


2
* This case lies at the intersection of two statutory schemes:labor and immigration.  Enacted in 1935, the National Labor  Relations Act encourages collective bargaining, promotes industrial peace, and protects workers' rights of association,  self-organization, and representation.  See, e.g., Phelps Dodge  Corp. v. NLRB, 313 U.S. 177, 182-85 (1941).  The statute  vests the NLRB with broad discretion to enforce the Act and  to remedy unfair labor practices.  See 29 U.S.C. § 160(c).  Not limited to "the correction of private injuries" or the  "adjudication of private rights," the Board "acts in a public  capacity to give effect to the declared public policy of the  Act."  Phelps Dodge, 313 U.S. at 192-93.  "Making the  workers whole for losses suffered on account of an unfair  labor practice is part of the vindication of the public policy  which the Board enforces."  Id. at 197.  Awards of backpay  not only make discriminatees whole, but "also achieve a public  purpose by deterring future similar unlawful practices, and  by depriving employers of any competitive advantage they  may have secured by acting unlawfully."  Local 512, Warehouse and Office Workers' Union v. NLRB, 795 F.2d 705, 718  (9th Cir. 1986) ("Felbro").


3
Like the NLRA, the nation's immigration laws preserve  jobs and safeguard American workers' wages and employment conditions.  See INS v. National Ctr. for Immigrants'  Rights, 502 U.S. 183, 194 & n.8 (1991);  Sure-Tan, Inc. v.  NLRB, 467 U.S. 883, 893 (1984).  Until 1986, the Immigration  and Nationality Act was primarily concerned "with the terms  and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country."  Sure-Tan,  467 U.S. at 892 (quoting DeCanas v. Bica, 424 U.S. 351, 359  (1976)).  The Immigration Reform and Control Act of 1986  focused new immigration control efforts on employers.  The  Act makes it unlawful to employ anyone known to be an  unauthorized alien, requires employers to verify and document the work eligibility of new hires, and authorizes sanctions against employers who violate the Act.  See 8 U.S.C. S 1324a.


4
The NLRB and the courts have sought to ensure that labor  and immigration laws operate in tandem.  They have held  that all employees, regardless of immigration status, have the  right to organize and are entitled to protection from unfair  labor practices.  In Sure-Tan, for example, the Supreme  Court affirmed a Board decision that extended the protections of the NLRA to undocumented workers.  In addition to  relying on the text of the Act, which broadly defines covered  employees, the Court pointed to the common policies driving  both labor and immigration law:


5
Application of the NLRA [to undocumented workers]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 noadvantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened.  In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation of the federal immigration laws.


6
467 U.S. at 893-94.  According to the Court, protecting  undocumented aliens from unfair labor practices not only is  "clearly reconcilable with," but indeed "serves the purposes  of" the immigration laws.  Id. at 894;  see also NLRB v.  Kolkka, 170 F.3d 937, 940 (9th Cir. 1999).  At the same time,  the Court emphasized that while the NLRA protects undocumented workers, the Board's remedies for unfair labor practices must not conflict with immigration law.  See Sure-Tan, 467 U.S. at 902.


7
Petitioner Hoffman Plastic Compounds, Inc. manufactures  custom-formulated polyvinylchloride pellets for use by customers who produce pharmaceutical, construction, and household products.  In May, 1988, JosE Castro began working in  Hoffman's production plant earning minimum wage as a  compounder, an operator of large blending machines that mix  and cook the plastic formulas ordered by customers.  When  the United Rubber, Cork, Linoleum and Plastic Workers of  America, AFL-CIO began an organizing drive at Hoffman's  factory, Castro, along with several other employees, distributed union authorization cards to coworkers.  After what the  Board later described as "coercive and restraining" interrogation of union supporters, Hoffman laid off each employee who  had engaged in organizing activities, including Castro.  Hoffman Plastic Compounds, Inc., 306 N.L.R.B. 100 (1992).


8
When Hoffman received notice from the NLRB that the  Union had filed a representation petition, it made some attempt to recall the discharged workers.  A March 10, 1989  letter from Hoffman to Castro stated "[i]t looks like we'll  need a few men soon" and asked him to contact his former  supervisor "no later than 4 P.M., Monday, March 13, 1989."Hoffman Plastic Compounds, Inc., 326 N.L.R.B. No. 86  (1998).  Castro never responded.


9
After one of the discharged employees filed charges with  the Board, an Administrative Law Judge found that Hoffman  had engaged in multiple unfair labor practices.  The Board  adopted the ALJ's findings, concluding not only that the  company had unlawfully interrogated employees about their  union activities and sympathies, but that "in order to rid itself  of known union supporters, [Hoffman] discriminatorily selected union adherents for layoff" in violation of Sections 8(a)(1)  and (3) of the NLRA, 29 U.S.C. 158(a)(1), (3).  Hoffman  Plastic, 306 N.L.R.B. at 100.  The Board ordered Hoffman to  cease and desist from such unfair labor practices, to post a  notice at the work site, and to reinstate and make whole those  union supporters it had illegally fired.


10
When a dispute arose as to the proper computation of  backpay, a compliance proceeding was held before another  ALJ.  Castro appeared at the hearing, testifying through an  interpreter.  When Hoffman's attorney began to question  Castro about his citizenship and authorization to work in the  United States, the Board's General Counsel objected.  The  ALJ sustained the objection, but not before Castro had stated  that he was a Mexican national and that the birth certificate  he had used to gain employment at Hoffman was borrowed  from a friend.  On the basis of this admission, the ALJ  recommended neither reinstatement nor backpay for Castro.  See Hoffman Plastic Compounds, Inc., 314 N.L.R.B. 683, 685  (1994).


11
While the ALJ's recommendation was under consideration  by the NLRB, the Board decided another case involving  undocumented discriminatees, A.P.R.A. Fuel Oil Buyers  Group, 320 N.L.R.B. 408 (1995), enforced 134 F.3d 50 (2d Cir. 1997).  There, the Board modified its standardremedy of reinstatement with backpay to account for the fact that the  illegally fired workers lacked documentation.  The Board  conditioned its reinstatement order on the discriminatees'  ability to verify their eligibility to work.  It also ordered that  the backpay period terminate either when the discriminatees  were lawfully reinstated or when they failed to produce the  necessary employment eligibility documents within a reasonable period of time.


12
Issuing its Second Supplemental Decision and Order in this  case, the Board adapted the remedy it had developed in  A.P.R.A. Fuel to Castro's situation, denying reinstatement  due to his undocumented status and awarding only limited  backpay.  See Hoffman Plastic Compounds, Inc., 326  N.L.R.B. No. 86 (1998).  To determine the backpay period,  the Board first considered whether Hoffman's "[i]t looks like  we'll need a few men soon" letter amounted to a specific and  unequivocal offer of reinstatement that would toll backpay.Answering this question in the negative, the Board nonetheless allowed Hoffman the benefit of the after-acquired evidence defense and terminated the backpay period as of June  14, 1993, the date Hoffman learned that Castro had misrepresented his immigration status.


13
Hoffman now petitions for review of the Board's final  order.  The company does not challenge the Board's findings  that it illegally discharged known union organizers and committed other unfair labor practices.  It contests only Castro's  limited backpay award, arguing that 1) Sure-Tan holds that  undocumented aliens may never be awarded backpay;  2)  IRCA prohibits backpay awards to undocumented workers;and 3) the Board misapplied the after-acquired evidence rule  and violated the equal protection guarantee of the Fifth  Amendment by giving undocumented workers preferential  treatment.  Cross-petitioning for enforcement, the NLRB,  supported by amicus AFL-CIO, responds that the award of  limited backpay to Castro is prohibited by neither Sure-Tan  nor IRCA and falls well within the Board's broad remedial  discretion.  Indeed, the Board contends, the limited backpay  award furthers the purposes of both labor and immigration  law.


14
Before considering these issues, we register our disagreement with Hoffman's characterization of this case as a dispute  between "an innocent employer" and an employee who has no  legal right to be in this country and who obtained his job  through fraud.  To be sure, the Board did find the evidence  insufficient to conclude that Hoffman violated IRCA by hiring  Castro knowing him to be an unauthorized alien.  At the  same time, however, the Board found that Hoffman had  committed multiple unfair labor practices by interrogating,  intimidating, and ultimately discharging union supporters.Hoffman neither contests these findings nor disputes that it  failed to comply with the Board's order to reinstate Castro  before his ineligibility for employment became known, when  to do so would have ended the company's backpay liability  without violating IRCA.  See 8 C.F.R. § 274a.2(b)(viii)(A)(3),  (5) (exempting employer from re-verifying an employee's  eligibility for continuing employment after a temporary layoff  or reinstatement after unjustified suspension or wrongful  termination).  And while it is true that Castro lied when  falsely attesting to his work eligibility on the I-9 form and  when identifying himself as "JosE Castro" in his sworn testimony at the compliance proceeding, the Supreme Court has  held that a discriminatee's dishonesty does not preclude an  award of backpay to remedy unfair labor practices.  See ABF  Freight System, Inc. v. NLRB, 510 U.S. 317 (1994).  Moreover, Castro's use of another's birth certificate to obtain  employment did not violate IRCA at that time.  See Immigration Act of 1990, Pub. L. No. 101-649, S 544, 104 Stat. 4978, 5059 (1990), codified at 8 U.S.C. § 1324c(a)(3) (amending IRCA to prohibit the use of documents issued to a person other thanthe possessor).  Thus the precise issue before us is this:  Did Castro's undocumented status--as opposed to his  lying about it--render him entirely ineligible to obtain backpay as a remedy for Hoffman's serious and undisputed violations of the National Labor Relations Act?

II

15
We begin with Hoffman's argument, embraced by our  dissenting colleague, that this case is controlled by a single sentence from the Supreme Court's opinion in Sure-Tan v.  NLRB:  "[I]n 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."  Sure-Tan, 467 U.S. at 903.  This sentence, Hoffman  claims, "plainly prohibits" the NLRB from awarding even  limited backpay to undocumented workers victimized by unfair labor practices.  Read literally and divorced from its  context, the sentence could well be interpreted to support  that view.  But determining whether particular Supreme  Court language amounts to binding precedent is not so simple.  The Court itself has warned against "dissect[ing] the  sentences of the United States Reports as though they were  the United States Code."  St. Mary's Honor Ctr. v. Hicks,  509 U.S. 502, 515 (1993).  Instead, we must read the allegedly  controlling sentence in context, taking account of the facts of  the case, the issues presented, and the Court's reasoning and  holding.  "The Court's every word and sentence cannot be  read in a vacuum;  its pronouncements must be read in light  of the holding of the case and to the degree possible, so as to  be consistent with the Court's apparent intentions and with  other language in the same opinion."  Aka v. Washington  Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc).With this perspective in mind, and with the Court's entire  backpay discussion at our fingertips (see Appendix A)--the  sentence on which Hoffman relies appears in the penultimate  paragraph--we turn to the task of elucidating Sure-Tan and  determining whether it controls this case.


16
The employer in Sure-Tan attempted to invalidate a union  election by notifying the Immigration and Naturalization  Service that several employees were undocumented.  In response, the INS arrested five of the workers, all of whom  agreed to return to Mexico to avoid deportation.  "By the end  of the day, all five employees were on a bus ultimately bound  for Mexico."  Sure-Tan, 467 U.S. at 887.


17
An ALJ found that the employer had violated the NLRA  by constructively discharging its undocumented workers in  retaliation for their union support.  Because the ALJ thought that the discriminatees' return to Mexico rendered reinstatement "at best an unlikely prospect," he recommended holding  the reinstatement offers open for six months to permit them  to return lawfully.  And since their absence from the country  left the discriminatees "unavailable for employment" and  therefore ineligible for backpay under standard NLRB policy,  the ALJ suggested a minimum award of four weeks pay to  each discriminatee to provide some measure of compensation  for the discharged employees and to deter the employer. Sure-Tan, Inc., 234 N.L.R.B. 1187, 1192 (1978).


18
Although the Board agreed that the company had violated  the NLRA, it rejected the ALJ's recommended minimum  remedy as "unnecessarily speculative" because no evidence  supported his assumption that the discriminatees were not  already back in the country and once again available for work.Id. at 1187.  The Board instead ordered its usual remedy of  reinstatement with backpay, leaving for a future compliance  proceeding the determination of each employee's availability  for work and the calculation of backpay.  Id.  In doing so, the  Board reiterated two standard rules:  "[t]he backpay period  runs from the discriminatoryloss of employment to the bona  fide reinstatement offer," and discriminatees "found to be  unavailable for work (including unavailability because of enforced absence from the country) will have their backpay  tolled accordingly."  Sure-Tan, Inc., 246 N.L.R.B. 788, 788  (1979).  One dissenting member urged the Board to "clarify"  that reinstatement offers should be available only to discriminatees who reenter the country lawfully.  Id. at 791.  A  second dissenter urged that the backpay period run only from  the date of the constructive discharge to the date the discriminatees left the country.  Id.


19
The Seventh Circuit upheld the Board's decision and enforced its order, with a few modifications.  To guard against  the possibility that the discriminatees "might be motivated to  reenter the United States unlawfully to claim reinstatement  and backpay," NLRB v. Sure-Tan, Inc., 672 F.2d 592, 603  (7th Cir. 1982), the court directed that the reinstatement  offers be made conditional upon legal re-entry, that they be  sent in Spanish by verified delivery to the discriminatees' addresses in Mexico, and that they remain open for at least  four years to afford the workers an opportunity to return  lawfully and reclaim their jobs.  See id. at 606.  Using  language later adopted by the Supreme Court and now relied  on by Hoffman, the court also modified the Board's order by  stating that "in computing backpay discriminatees will be  deemed unavailable for work during any period when not  lawfully entitled to be present and employed in the United  States."  Id.  Sharing the ALJ's concern that the discriminatees, having left the country immediately after their discharge  with no prospect of lawful return, might receive no backpay  at all, thus leaving them uncompensated and the employer  undeterred, and echoing the ALJ's original suggested minimum backpay award, the court directed the Board to modify  the order to include a minimum award of six months' backpay  to each discharged worker.  Six months, the court said,  represented an estimate of the minimum time "during which  the discriminatees might reasonably have remained employed  without apprehension by INS, but for the employer's unfair  labor practice."  Id.


20
The Supreme Court agreed with the Board and the Seventh Circuit that undocumented workers are protected by the  NLRA.  It also agreed that the employer, by notifying the  INS of the workers' immigration status, had committed an  unfair labor practice.  Sure-Tan, 467 U.S. at 895-96.  Then,  turning to the question of remedy, and repeatedly emphasizing the broad deference due the NLRB, the Court affirmed  the Board's original order in all respects.  Even a cursory  review of the Court's discussion--readers might want to  pause and read it for themselves (see Appendix A)--reveals  that 1) whether undocumented workers are eligible to receive  backpay was not an issue before the Court and 2) the only  backpay issue the Court considered was whether the sixmonth minimum award imposed by the Seventh Circuit was  an unduly speculative estimate "not sufficiently tailored to the  actual, compensable injuries suffered by the discharged employees."  Id. at 901.  At the very outset of its discussion, the  Court states:  "Petitioners attack those portions of the Court  of Appeals' order which modified the Board's original order by providing for an irreducible minimum of six months'  backpay for each employee and by detailing the language,  acceptance period, and verification method of the reinstatement offers."  Id. at 898 (emphasis added).  Notice that the  Court nowhere says that the employer argued, as does Hoffman, that the discriminatees were ineligible to receive backpay simply because they were undocumented.  Notice also  that the Court describes the sentence on which Hoffman  places so much emphasis as merely repeating a limitation on  backpay imposed by the Seventh Circuit, an issue that was  neither challenged nor briefed by either the Board or the  employer:Conditioning the offers of reinstatement on the employ-ees' legal reentry and deeming the employees "unavailable" during any period when they were not lawfully present are requirements that were in fact imposed by the Court of Appeals in this case, and hence fully accept-ed by the Board....  The Board has clearly indicated its agreement with these portions of the Court of Appeals' remedial order by specifically noting that petitioners do not challenge these parts of the order [and] by limiting its own argument to the minimum backpay award issue alone....


21
Id. at 903 n.12.  See also id. at 898 n.8;  Del Rey Tortilleria,  Inc. v. NLRB, 976 F.2d 1115, 1123 (7th Cir. 1992) (Cudahy, J.,  dissenting).  The sentence on which Hoffman relies was not  even an issue before the Court.


22
Moreover, in setting aside the Seventh Circuit's six-month  minimum award, the Court made clear that, contrary to  Hoffman's argument, undocumented workers may receive  backpay.  To begin with, the Court said that it "generally  approve[s] the Board's original course of action in this case by  which it ordered the conventional remedy of reinstatement  with backpay, leaving until the compliance proceeding more  specific calculations as to the amounts of backpay, if any, due  these employees."  Sure-Tan, 467 U.S. at 902.  The Court  explained that the discriminatees could receive backpay despite their illegal status so long as the amount reflected the actual time they might have continued working but for the  employer's unfair labor practice.  The Court did not fault the  Seventh Circuit for awarding backpay to undocumented  workers, nor for basing the award on the "minimum time  during which the discriminatees might reasonably have remained employed without apprehension by INS, but for the  employer's unfair labor practice."  Id. at 899 (internal quotation marks omitted).  Instead, the Court held that the Seventh Circuit erred by picking the six-month period out of thin air.  The "main deficiency" in the Seventh Circuit's order, the  Court explained, was not that it awarded backpay to undocumented aliens, but that the amount of backpay awarded was  "develop[ed] in the total absence of any record evidence as to  the circumstances of the individual employees," thus violating  the "cardinal" proposition "that a backpay remedy must be  sufficiently tailored to expunge only the actual, and not  merely speculative, consequences of the unfair labor practices."  Id. at 899-900 & n.9.  The Court continued:


23
[T]he Court of Appeals "estimated" an appropriate period of backpay without any evidence whatsoever as to the period of time these particular employees might have continued working before apprehension by the INS and without affording petitioners any opportunity to provide mitigating evidence.  In the absence of relevant factual information or adequate analysis, it is inappropriate forus to conclude, as does Justice Brennan, that the Court of Appeals had estimated the proper minimum backpay award "with a fair degree of precision."


24
Id. at 901 n.11.  If as Hoffman argues undocumented workers  may never be awarded backpay, the Court would not have  mentioned "the proper minimum backpay award," "the period  of time these particular employees might have continued  working before apprehension by the INS," or "affording  petitioners any opportunity to provide mitigating evidence.  "Nor would there have been any need for more "relevant  factual information or adequate analysis," much less for a  compliance proceeding to determine the amount of backpay actually due.


25
In light of the fact that Sure-Tan does not bar undocumented workers from receiving backpay, what are we to  make of the sentence on which Hoffman and our dissenting  colleague place so much emphasis?  The answer is that the Court intended the sentence to guide the Board onremand in  dealing with the unique circumstances of the Sure-Tan employees.  Recall that the Sure-Tan discriminatees, unlike  Castro, had left the country.  Having approved the Board's  general order of reinstatement with backpay, and having  remanded for compliance proceedings to calculate the amount  of backpay due, the Court went on to agree with the Seventh  Circuit that whatever specific remedy the Board might formulate must not encourage the discriminatees to re-enter the  country illegally.  The INA's "central concern," the Court  pointed out, was regulating "admission to the country."  Id.  at 892.  The Court therefore added the paragraph in which  Hoffman's sentence appears:


26
[A]s the Court of Appeals recognized, the implementation of the Board's traditional remedies at the compliance proceedings must be conditioned upon the employees 'legal readmittance to the United States.  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.  By conditioning the offers of reinstatement on the employ-ees' legal reentry, a potential conflict with the INA is thus avoided.  Similarly, 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 presentand employed in the United States.


27
Id. at 902-03 (emphasis added) (internal quotation marks and  citation omitted).  Notice that the first sentence refers to  "the employees' legal readmittance to the United States."  Id.  at 903.  The second sentence mentions "deterring unauthorized immigration."  Id.  The third again refers to "the  employees' legal reentry."  Id.  So when in the final sentence the Court mentions employees "not lawfully entitled to be  present and employed in the United States," it must be  referring only to those particular Sure-Tan employees who  had left the country and could not lawfully return.


28
Indeed, the sentence makes sense only because the SureTan discriminatees had left the country.  As the Court itself  pointed out, although the employees were illegally present in  the United States while working for the company, it was not  unlawful for the company to have employed them.  Id. at  892-93.  Because their employment was not prohibited, it  cannot be said that they were "not lawfully entitled to be  present and employed in the United States."  Not until the  discriminatees left the country--at which point they could not  have been reinstated without reentering in violation of immigration law--did they become "not lawfully entitled to be  present and employed in the United States."  And for the  same reason, not until they left the country did the discriminatees lose their "legal availability for work."  Id. at 904.


29
To sum up, in light of Sure-Tan's reasoning and its holding  that undocumented workers are protected by the NLRA and  may in fact receive properly tailored awards of backpay, we  must reject Hoffman's interpretation of the sentence.  Reading it to bar all backpay to undocumented workers would  expand a snippet of dicta well beyond the unique facts of  Sure-Tan to create a blanket rule that, in addition to conflicting with Sure-Tan itself, would undermine the purposes of  both immigration and labor law.  See infra at 21-23.  What  we said in Aka, where we also refused to adopt "an unqualifiedly literal reading" of an isolated passage from a Supreme  Court opinion, applies here as well:  Hoffman's interpretation  "would not carry out the Court's true purpose." 156 F.3d at  1291.  Read properly, the sentence simply reminds the Board  that the remedies it fashions for unfair labor practicesmust not encourage violations of immigration law.


30
Two of the three Circuits that have addressed this issue  agree with our interpretation of Sure-Tan.  In Felbro, the  Ninth Circuit stated:  "In Sure-Tan, the Supreme Court did not address the issue whether undocumented workers remaining at work in the United States throughout the backpay  period are entitled to backpay awards.  Sure-Tan barred  from backpay only those undocumented workers who were  unavailable for work in the backpay period because they were  outside the United States without entry papers."  795 F.2d at  722.  To be sure, in a later case also upholding an award of  backpay to undocumented workers, the Ninth Circuit added a  footnote speculating whether the enactment of IRCA might  "change[] the mix of policy considerations underlying the case  law which supports our conclusion that undocumented employees may recover backpay."  EEOC v. Hacienda Hotel,  881 F.2d 1504, 1517 n.11 (9th Cir. 1989).  As we explain in the  following section, however, IRCA's enactment did not alter  the labor and employment law protections afforded undocumented workers.  The Ninth Circuit, moreover, has never  repudiated Felbro's and Hacienda Hotel's holdings that backpay can be awarded to undocumented workers.  Indeed, the  Ninth Circuit and its district courts have consistently reaffirmed that undocumented workers continue to be protected  by labor and employment laws after IRCA and have continued to award them backpay.  See, e.g., Kolkka, 170 F.3d 937;Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.  Supp. 2d 1053 (N.D. Cal. 1998);  Escobar v. Baker, 814 F.  Supp. 1491, 1498 (W.D. Wash. 1993);  EEOC v. Tortilleria  "La Mejor," 758 F. Supp. 585 (E.D. Cal. 1991). Likewise, in  A.P.R.A. Fuel, the Second Circuit held that Sure-Tan bars  awards of backpay only to those undocumented employees  who are unavailable for work because they are outside the  country and unable to lawfully reenter.  See A.P.R.A. Fuel,  134 F.3d at 54-55.  But see Del Rey Tortilleria, 976 F.2d at  1120-21 (interpreting Sure-Tan as imposing a blanket prohibition on backpay awards to undocumented workers).


31
* * *


32
Hoffman next argues that even if Sure-Tan does not bar  backpay to undocumented aliens, the Immigration Reform  and Control Act of 1986 does.  IRCA, it will be recalled,  "establishe[d] penalties for employers who knowingly hire undocumented aliens, thereby ending the magnet that lures  them to this country."  H.R. Rep. No. 99-682(I) at 45-46  (1986), reprinted in 1986 U.S.C.C.A.N. 5649-50 (emphasis  added).  In addition to employer sanctions, see 8 U.S.C.  § 1324a(a), IRCA establishes procedures by which employers  must verify employee eligibility to work, see 8 U.S.C.  § 1324a(b), and makes it unlawful for employers to discriminate against authorized workers on the basis of citizenship or  national origin, see 8 U.S.C. § 1324b.  Because undocumented  workers "live in fear, afraid to seek help when their rights are  violated, when they are victimized by criminals, employers or  landlords," IRCA established amnesty procedures to legalize  the status of undocumented workers illegally present in the  country, allowing them "to contribute openly to society and  ... help[ing] to prevent the exploitation of this vulnerable  population in the work place."  H.R. Rep. 99-682(I) at 49,  1986 U.S.C.C.A.N. at 5653.


33
According to Hoffman, "the plain intent of IRCA" was to  prevent the Board from awarding undocumented workers  backpay.  The Board interprets IRCA differently.  It argues  that far from barring backpay awards, IRCA preserves the  NLRA's "protections and remedies for undocumented aliens  as one of many useful tools in a multifaceted strategy" to  reduce illegal immigration by aiming at its "economic roots."


34
Two principles guide our consideration of this issue.  First,  while the Board's formulation of remedies for NLRA violations merits the highest level of deference,see ABF Freight,  510 U.S. at 324, we owe no deference to its interpretation of  IRCA.  See, e.g., New York Shipping Ass'n v. Federal Maritime Comm'n, 854 F.2d 1338, 1365 (D.C. Cir. 1988) (agency  interpretation of a statute it does not administer is entitled to  no deference).  Second, in enforcing the NLRA, the Board may not ignore other and equally important Congressional objectives.  Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task.


35
Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942).  If  a conflict requires the Board "to accommodate the policies of  another statutory regime within the framework of the legislation it administers," it "must fully enforce the requirements of  its own statute, but must do so, insofar as possible, in a  manner that minimizes the impact of its actions on the  policies of the other statute."  New York Shipping, 854 F.2d  at 1367.  "[A]n agency, faced with alternative methods of  effectuating the policies of the statute it administers, (1) must  engage in a careful analysis of the possible effects those  alternative courses of action may have on the functioning and  policies of other statutory regimes, with which a conflict is  claimed;  and (2) must explain why the action taken minimizes, to the extent possible, its intrusion into policies that  are more properly the province of another agency or statutory regime."  Id. at 1370.  This is precisely what the Board  has done.


36
To begin with, we agree with the Board that nothing in  IRCA bars awards of limited backpay to remedy unfair labor  practices against undocumented workers.  Hoffman itself acknowledges that IRCA neither amends nor repeals the  NLRA or any other labor law.  The House Judiciary Committee Report, moreover, expressly states that IRCA's employer sanctions provisions are not intended to


37
be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging inactivities protected by existing law.  In particular, the employer sanctions provisions are not intended to limit inany way the scope of the term "employee" in Section 2(3)of the [NLRA], as amended, or of the rights and protec-tions stated in Sections 7 and 8 of that Act.


38
H.R. Rep. 99-682(I) at 58, 1986 U.S.C.C.A.N. at 5662.  The  Judiciary Committee relied on Sure-Tan to support its view  that continued protection of undocumented workers under the  labor laws is fully consistent with IRCA's goals:


39
As the Supreme Court observed in Sure-Tan, application of the NLRA [to undocumented workers] "helps to as-sure that the wages and employment conditions of lawful residents are not adversely affected by the competition ofillegal alien employees who are not subject to the standard terms of employment."


40
Id. (internal citation omitted).  Echoing this view, the House  Education and Labor Committee Report states that no provision of the law should


41
limit the powers of State or Federal labor standards agencies such as the Occupational Safety and Health Administration, the Wage and Hour Division of the Department of Labor, the Equal Employment Opportunity Commission, the National Labor Relations Board, or Labor arbitrators, in conformity with existing law, to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies.  To do otherwise would be counter-productiveof our intent to limit the hiring of undocumented employees and the depressing effect on working conditions caused by their employment.


42
H.R. Rep. No. 99-682(II) at 8-9 (1986), reprinted in 1986  U.S.C.C.A.N. 5758 (emphasis added).  Not only does this  legislative history make clear that IRCA imposed no limits on  labor law protections for undocumented workers, but the  statute itself authorized supplemental appropriations to the  Department of Labor for expanded enforcement of existing  labor standards and practices "in order to deter the employment of unauthorized aliens and remove the economic incentives for employers to exploit and use such aliens."  Pub. L.  No. 99-603, § 111(d), 100 Stat. 3359 (1986).  If as Hoffman  argues IRCA limited labor law protection for undocumented workers, it hardly seems likely that IRCA would have simultaneously authorized additional funds to enforce the labor  laws.


43
In formulating remedies for unfair labor practices committed against undocumented workers, moreover, the Board has  not "ignore[d] other and equally important Congressional  objectives."  Southern Steamship, 316 U.S. at 47.  To the  contrary, it has "fully enforce[d] the requirements of its own  statute [the NLRA] in a manner that minimizes the impact of  its actions on the policies of the other statute [IRCA]."  New  York Shipping, 854 F.2d at 1367.  In its first post-IRCA case,  A.P.R.A. Fuel, the Board observed that the NLRA and IRCA  share "virtually identical policy objectives with respect to the  American workplace," and concluded that it "can best achieve  this mutuality of purpose and effect by vigorously enforcing  the NLRA, including providing traditional Board remedies,  with respect to all employees, to the extent that such enforcement does not require or encourage unlawful conduct by  either employers or individuals."  A.P.R.A. Fuel, 320  N.L.R.B. at 415, 411.  "To do otherwise," the Board explained, "would increase the incentives for some unscrupulous  employers to play the provisions of the NLRA and IRCA  against each other to defeat the fundamental objectives of  each, while profiting from their own wrongdoing with relative  impunity.  Thus, these employers would be free to flout their  obligations under the Act, secure in the knowledge that the  Board would be powerless fully to remedy their violations."Id. at 415.  Taking account of these common statutory goals,  the Board in A.P.R.A. Fuel ordered its usual remedy of  reinstatement with backpay but imposed two limitations to  avoid any conflict with the policies underlying IRCA:  it  conditioned reinstatement on compliance with IRCA's employment eligibility verification requirements and terminated  backpay when the discriminatees either are lawfully reinstated or, after a reasonable period of time, fail to produce the  required employment documents.  See id. (citing NLRB v.  Future Ambulette, Inc., 903 F.2d 140, 145 (2d Cir. 1990)  (conditioning reinstatement of a driver whose license had  been suspended on his presentation of a valid driver's license within a reasonable period of time and placing a time limit on  backpay liability to prevent the employer from being tempted  to rehire the driver before he obtained a valid license)).According to the Board, this remedy--conditional reinstatement combined with limited backpay--best reconciles the  goals of the NLRA and IRCA.  See A.P.R.A. Fuel, 320  N.L.R.B. at 416;  see also Regal Recycling, Inc., 329 N.L.R.B.  No. 38 (1999);  County Window Cleaning Co., 328 N.L.R.B.  No. 26 (1999);  Intersweet, Inc., 321 N.L.R.B. 1 (1996).


44
Courts and administrative agencies agree that IRCA does  not limit labor law protections afforded undocumented workers.  Enforcing the Board's A.P.R.A. Fuel remedy, the Second Circuit held "without hesitation that IRCA did not diminish the Board's power to craft remedies for violations of the  NLRA, provided that the Board's remedies do not conflict  with the requirements of IRCA."  NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc.,134 F.3d 50, 56 (2d Cir. 1997).Withholding backpay from undocumented workers would, the  court explained, undermine the purposes of both IRCA and  the NLRA.  It would conflict with IRCA because "precluding  the remedy would increase the incentives for employers to  hire undocumented aliens," which would, in turn, increase the  incentives that encourage illegal immigration.  Withholding  backpay would also frustrate collective bargaining rights of  lawful U.S. workers under the NLRA, the court found:


45
[T]he lack of a backpay remedy would make undocumented workers an easy target for employers resisting union organization, and, thus, frustrate the rights of lawful U.S. workers under the NLRA.  An employer could intimidate United States citizens and other lawful residents by targeting undocumented workers for anti-union discharges.  Or, alternatively, legal workers might be reluctant to organize in the first instance if the Board were unable to issue any remedy against illegal actions taken by employers against undocumented workers who support the union.


46
Id. at 58;  see also, e.g., Kolkka, 170 F.3d at 941 (holding that  IRCA does not limit the rights of undocumented workers to  vote in union elections);  Patel v. Quality Inn South, 846 F.2d  700, 704 (11th Cir. 1988) (applying the FLSA to undocumented aliens to further IRCA's goal of "eliminating employers' economic incentives to hire" them);  Contreras, 25  F. Supp. 2d at 1059-60 (continuing after IRCA to apply the  FLSA to undocumented workers and to award them punitive  damages, noting that "[t]he Ninth Circuit has taken the  broader view of the Sure-Tan holding, upholding awards of  back pay to undocumented aliens for wrongful employment  practices if, during their time of discharge, the workers  remained in the U.S. available for work, and the back pay  period could be calculated with certainty"), Escobar, 814  F. Supp. at 1498 (holding that undocumented workers can  recover damages for violations of the Migrant and Seasonal  Agricultural Workers Protection Act, as amended by IRCA);EEOC v. Switching Systems Div. of Rockwell Int'l Corp., 783  F. Supp. 369, 374 (N.D. Ill. 1992) ("Title VII's protections  extend to aliens who may be in this country either legally or  illegally.") (post-IRCA);  Tortilleria "La Mejor," 758 F. Supp.  585 (holding that Title VII continues to apply to undocumented workers after IRCA);  EEOC Enforcement Guidance  on Remedies Available to Undocumented Workers Under  Federal Employment Discrimination Laws, No. 915.002  (1999) (adopting the A.P.R.A. Fuel analysis and remedy for  undocumented workers whose rights under Title VII, the  Americans with Disabilities Act, the Rehabilitation Act, the  Age Discrimination in Employment Act, or the Equal Pay Act  are violated).


47
In contrast to the Board's limited backpay policy, Hoffman's position would undermine both IRCA and the NLRA.If employers are exempt from paying backpay to undocumented workers, they will favor undocumented over documented workers, thus increasing the incentives for unlawful  immigration, precisely what IRCA is intended to prevent.  As  the Supreme Court said in Sure-Tan, "[i]f 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.  In  turn, if the demand for undocumented aliens declines, there  may then be fewer incentives for aliens themselves to enter in  violation of the federal immigration laws."  467 U.S. at 89394.  Denying backpay would likewise subvert the common  policy underlying both IRCA and the NLRA, i.e., maintaining  wages and working conditions for authorized employees.Sure-Tan made this point as well:  "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 standardterms of employment."  Id. at 893.  Finally, excusing employers from paying backpay to undocumented workers would  undermine the collective bargaining rights of all employees,  including authorized workers.  Sure-Tan put it this way:


48
If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining.  Thus, the Board's categorization of undocumented aliens as protected employees furthers the purposes of the NLRA.


49
Id. at 892 (internal citation omitted).  Elaborating in A.P.R.A.  Fuel, the Board explained that because "undocumented aliens  are extremely reluctant to complain to the employer or to any  of the agencies charged with enforcing workplace standards,"  they make easy targets for an employer's "unprincipled effort  to stave off ... union representation."  A.P.R.A. Fuel, 320  N.L.R.B. at 414.  Employers resisting unions could simply  fire undocumented workers who try to organize and then  raise "the unlawful immigration status of their discharged  employees in retaliation for protected activities;"  employers  might even "consider the penalties of IRCA a reasonable  expense more than offset by the savings of employing undocumented workers or the perceived benefits of union avoidance."  Id. at 415.  This also harms the collective bargaining rights of authorized workers, the Board found, because "the  continuous threat of replacement with powerless and desperate undocumented workers would certainly chill the American  and authorized alien workers' exercise of their Section 7  rights."  Id. at 414.


50
For all these reasons, we hold that the Board has fully  satisfied its obligation to "accommodat[e] one statutory  scheme to another."  Southern Steamship, 316 U.S. at 47.The Board crafted its limited backpay remedy to avoid conflict with IRCA and to promote the purposes of both statutes. The remedy reduces employer incentives to prefer undocumented workers (IRCA's goal), reinforces collective bargaining rights for all workers (the NLRA's goal), and protects  wages and working conditions for authorized workers (the  goal of both Acts).  Because these last two points reflect the  Board's interpretation of the NLRA, we owe them considerable deference.  See, e.g., Sure-Tan, 467 U.S. at 899 (warning  that courts "should not substitute their judgment for that of  the Board in determining how best to undo the effects of  unfair labor practices").  If as Hoffman believes the Board  has struck the wrong balance between the two statutes, its  remedy lies in Congress, not this court.


51
* * *


52
With this understanding of Sure-Tan and IRCA in mind,  we return to the specific remedy the Board ordered in this  case.  To repeat, it denied Castro reinstatement altogether  and limited his backpay to the period beginning with his  unlawful termination and ending on the date Hoffman learned  of his undocumented status.  This remedy complies with  Sure-Tan and IRCA in all respects.


53
First, unlike the Seventh Circuit's six-month minimum  award in Sure-Tan, the Board's award of backpay to Castro  was not at all speculative.  The Board limited backpay to the  period of time during which Castro could have continued  working but for Hoffman's unfair labor practice.  This represents precisely the kind of individual tailoring demanded by  Sure-Tan.  And unlike in Sure-Tan, the Board had no reason to worry that the remedy might encourage the discriminatee  to re-enter the country illegally--Castro had never left.


54
Second, the Board modified its usual A.P.R.A. Fuel remedy  in this case to ensure that Castro's award would not conflict  with immigration law.  Although the usualremedy includes  reinstatement conditional on compliance with IRCA's verification provisions, the Board denied conditional reinstatement to  Castro because, under IRCA, Hoffman's discovery of Castro's  ineligibility to work would have required his termination. For the same reason, the Board ended Castro's backpay as of  the date Hoffman discovered his true immigration status.


55
According to our dissenting colleague, requiring an employer to give backpay to an employee it cannot now lawfully hire  "boggles the mind."  See infra., Sentelle, J., dissenting.  It  certainly would boggle the mind had the Board ordered  reinstatement, but it rejected that option.  Instead it fashioned a limited remedy, carefully crafted to promote the goals  of the NLRA without running afoul of IRCA.  IRCA, as we  pointed out above, does not make it unlawful for an alien to  work;  it makes it unlawful for an employer to hire "an alien  knowing the alien is ... unauthorized."  8 U.S.C.  § 1324a(a)(1)(A).  Having now discovered Castro's unauthorized status, Hoffman can no longer employ him lawfully. But at the time Hoffman hired Castro, it complied with  IRCA, and from that date until it learned he is unauthorized,  nothing prohibited his continued employment.  It was to that  period of Castro's lawful availability for employment that the  Board limited the backpay award.  Far from boggling the  mind, this remedy fully complies with Sure-Tan and avoids  any violation of IRCA.

III

56
Hoffman's additional arguments require little discussion. It claims that the Board misapplied the after-acquired evidence rule.  According to Hoffman, Castro's undocumented  status should have barred all backpay, not just backpay from  the date Hoffman learned of Castro's status.  For this proposition, Hoffman cites McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), but misreads the case.  In  McKennon, the lower court had dismissed a discharged employee's lawsuit under the Age Discrimination in Employment  Act because the employer learned that the plaintiff had  violated company policy by making unauthorized copies of  sensitive documents.  The Supreme Court reversed, squarely  rejecting the lower court's conclusion that discovery of  "wrongdoing which would have resulted in discharge bars  employees from any relief" for employers' unlawful acts.  Id.  at 356.  Rejecting "[a]n absolute rule barring any recovery of  backpay," the Court held that the typical remedy should be  "backpay from the date of the unlawful discharge to the date  the new information was discovered."  Id.  Consistent with  its longstanding policy, that is precisely what the Board  ordered in this case.  See, e.g., Marshall Durbin Poultry Co.,  310 N.L.R.B. 68, 70 (1993), enforced in pertinent part, 39  F.3d 1312, 1317 (5th Cir. 1994);  John Cuneo, Inc., 298  N.L.R.B. 856, 857 (1990).


57
Equally without merit is Hoffman's argument that "[b]y  awarding undocumented aliens backpay without any consideration regarding whether these individuals can mitigate their  damages, the Board treats illegal aliens more favorably than  documented workers and by doing so, the Board violates the  equal protection clause of the Fifth Amendment to the United  States Constitution."  Not only do we doubt the company's  standing to assert the equal protection rights of third parties,  see, e.g., Powers v. Ohio, 499 U.S. 400, 410-16 (1991), but  Hoffman points to no evidence that the Board applies a  different mitigation standard to undocumented workers.  In  any event, the Board found that Castro had sought and  obtained interim employment, thus fulfilling his duty to mitigate.  The Board subtracted his interim earnings of almost  $4,000 from the backpay award.


58
Finally, we think it worth repeating that Hoffman itself could have mitigated itsbackpay liability either by making a  bona fide reinstatement offer in its letter recalling Castro a  few weeks after it fired him, or by complying promptly with  the Board's reinstatement order.  See supra at 7.  INS  regulations issued pursuant to IRCA expressly permit reinstatement after an unlawful discharge without requiring the  employer to re-verify the employee's eligibility documents. See 8 C.F.R. § 274a.2(b)(viii)(A).

IV

59
The petition for review is denied, and the cross-application for enforcement is granted.


60
So ordered.

APPENDIX A
OCTOBER TERM, 1983

61
Opinion of the Court.

467 U.S. 898
IV

62
There remains for us to consider petitioners' challenges to the remedial order entered in this case. Petitioners attack those portions of the Court of    Appeals' order which modified the Board's original order by providing for an irreducible minimum of six months' backpay for each employee and by detailing the language, acceptance period, and verification method of the reinstatement offers.8 We find that the Court of Appeals exceeded its narrow scope of review in imposing both these modifications.


63
* Section 10(c) of the Act empowers the Board, when    it finds that an unfair labor practice has been committed, to issue an order requiring the violator to "cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies" of the NLRA. 29 U. S. C.  160(c). The Court has repeatedly interpreted this statutory command 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 judicialreview. See, e. g., NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262-263 (1969); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216 (1964); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Although the courts of appeals have power under the Act "to make and enter a decree . . . modifying, and enforcing as so modified" the orders of the Board, 29 U. S. C.  160(e), (f), they should not substitute their judgment for that of the Board in determining how best to undo the effects of unfair labor practices:


64
"Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy." Phelps Dodge Corp., supra, at 194.


65
See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953) (power to fashion remedies "is for the Board to wield, not for the courts").     Here, the Court of Appeals impermissibly expanded the Board's original order to provide that each discriminatee would receive backpay for at least six months on the ground that "six months is a reasonable assumption" as to the "minimum [time] during which the discriminatees might reasonably have remained employed without apprehension by INS, but for the employer's unfair labor practice." 672 F.2d, at 606. We agree with petitioners that this remedy ordered by the Court of Appeals exceeds the limits imposed by the NLRA.9


66
Not only did the court overstep the limits of its own reviewing authority, see NLRB v. Seven-Up Bottling Co., supra, at 346-347,10 but it also effectively compelled the Board to take action that simply does not lie within the Board's own powers. Under  10(c), the Board's authority to remedy unfair labor practices is expressly limited by the requirement that its orders "effectuate the policies of the Act." Although this rather vague statutory command obviously permits the Board broad discretion, at a minimum it encompasses the requirement that a proposed remedy be tailored to the unfair labor practice it is intended to redress. Quite early on, the Court established that "the relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress." NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333, 348 (1938).    See D. McDowell & K. Huhn, NLRB Remedies for Unfair Labor Practices 8-15 (1976). Of course, the general legitimacy of the backpay order as a means to restore the situation "as nearly as possible, to that which would have obtained but for the illegal discrimination," Phelps Dodge Corp., 313 U.S., at 194, is by now beyond dispute. Yet, it remains a cardinal, albeit frequently unarticulated assumption, that a backpay remedy must be sufficiently tailored to expunge only the actual, and not merely speculative, consequences of the unfair labor practices. Id., at 198 ("[Only] actual losses should be madegood . . ."). To this end, we have, for example, required that the Board give due consideration to the employee's responsibility to mitigate damages in fashioning an equitable backpay award. See, e. g., NLRB v. Seven-Up Bottling Co., supra, at 346; Phelps Dodge Corp. v. NLRB, supra, at 198. Likewise, the Board's own longstanding practice has been to deduct from the backpay award any wages earned in the interim in another job, see Pennsylvania Greyhound Lines, Inc., 1 N. L. R. B. 1, 51 (1935), enf'd, 91 F.2d 178 (CA3 1937), rev'd on other grounds, 303 U.S. 261 (1938).


67
By contrast, the Court of Appeals' award of a minimum amount of backpay in this case is not sufficiently tailored to the actual, compensable injuries suffered by the discharged employees. The court itself admitted that although it sought to recompense the discharged employees for their lost wages, the    actual 6-month period selected was "obviously conjectural." 672 F.2d, at 606. The court's imposition of this minimum backpay award in the total absence of record evidence as to the circumstances of the individual employees constitutes pure speculation and does not comport with the general reparative policies of the NLRA11.


68
We generally approve the Board's original course of action in this case by which it ordered the conventional remedy of reinstatement with backpay, leaving until the compliance proceedings more specific calculations as to the amounts of backpay, if any, due these employees. This Court and other lower courts have long recognized the Board's normal policy of modifying its general reinstatement and backpay remedy in subsequent compliance proceedings as a means of tailoring the remedy to suit the individual circumstances of each discriminatory discharge. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S., at 260; Nathanson v. NLRB, 344 U.S. 25, 29-30 (1952); Trico Products Corp. v. NLRB, 489 F.2d 347, 353-354 (CA2 1973). Cf. Teamsters v. United States, 431 U.S. 324, 371 (1977) (individual Title VII claims to be resolved at remedial hearings held by District Court on remand). These compliance proceedings provide the appropriate forum where the Board and petitioners will be able to offer concrete    evidence as to the amounts of backpay, if any, to which the discharged employees are individually entitled. See NLRB v. Mastro Plastics Corp., 354 F.2d 170 (CA2 1965), cert. denied, 384 U.S. 972 (1966); 3 NLRB Casehandling Manual  10656 et seq. (1977) (preparation of backpay specification).


69
Nonetheless, as the Court of Appeals recognized, the implementation of the Board's traditional remedies at the complianceproceedings must be conditioned upon the employees' legal readmittance to the United States. In devising remedies for unfair labor practices, the Board is obliged to take into account another "equally important Congressional [objective]," Southern S. S. Co. v. NLRB, 316 U.S. 31, 47 (1942) -- to wit, the objective of deterring unauthorized immigration that is embodied in the INA. By conditioning the offers of reinstatement on the employees' legal reentry, a potential    conflict with the INA is thus avoided. Similarly, 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. Cf. 3 NLRB Casehandling Manual  10612, 10656.9 (1977)12.


70
The Court of Appeals assumed that, under these circumstances, the employees would receive no backpay, and soawarded a minimum amount of backpay that would effectuate the underlying purposes of the Act by providing some relief to the employees as well as a financial disincentive against the repetition of similar discriminatory acts in the future. 672 F.2d, at 606. We share the Court of Appeals' uncertainty concerning whether any of the discharged employees will be able either to enter the country lawfully to accept the reinstatement offers or to establish at the compliance proceedings that they were lawfully available for employment during the backpay period. The probable unavailability of the Act's more effective remedies in light of the practical workings of the immigration laws, however, simply cannot justify the judicial arrogation of remedial authority not fairly encompassed within the Act. Any perceived deficiencies in the NLRA's existing remedial arsenal can only be addressed by congressional action.13 By directing the Board to impose a minimum backpay award without regard to the employees' actual economic losses or legal availability for work, theCourt of Appeals plainly exceeded its limited authority under the Act.14



Notes:


8
 Petitioners do not challenge the cease and desist order imposed by the Board and affirmed by the Court of Appeals. Under such an order, petitioners will be subject to contempt sanctions should they again resort to the discriminatory tactics employed here. Nor do petitioners appear to challenge the court's modifications of the Board's remedial order conditioning acceptance of the reinstatement offers and the accrual of any backpay upon the discharged employees' legal presence in this country. See n. 12, infra.


9
 JUSTICE BRENNAN asserts that since the Board has "fully acquiesced" in the Court of Appeals' remedy, the case should be reviewed as if the Board itself had developed the remedial order. See post, at 907. This argument misses the mark on two levels. First, our traditional deference to such remedial orders is premised upon our appreciation that the Board has duly considered and brought to bear its "special competence" in fashioning appropriate relief in any given unfair labor practice case. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-266 (1975). Given the disparity between the Board's original order and the Court of Appeals' modified order, that premise is patently inapplicable to this case. Moreover, the Board's mere acquiescence in the Court of Appeals' remedial order simply cannot correct the order's main deficiency -- its development in the total absence of any record evidence as to the circumstances of the individual employees.


10
 In imposing a minimum backpay award, the Court of Appeals usurped the delegated function of the Board to decide how best to appraise the relevant factors that determine a just backpay remedy. The proper course for a reviewing court that believes a Board remedy to be inadequate is to remand the case to the Board for further consideration. See supra, at 899; NLRB v. Food Store Employees, 417 U.S. 1, 10 (1974).


11
 We are also mindful that, prior to the instant case, the Board itself had never claimed the power given it here by the Court of Appeals. To our knowledge, the Board has never attempted to impose a minimum backpay award that the employer must pay regardless of the actual evidence as to such issues as an employee's availability for work or his efforts to secure comparable interim employment. In fact, in this very case, the Board had already rejected as "unnecessarily speculative" the ALJ's recommendation that a 4-week minimum period of backpay be awarded the discharged employees. 234 N. L. R. B., at 1187. The Board now argues that the Court of Appeals' backpay award involves no greater speculation than that which is normally involved in reconstructing what would have happened to certain employees but for their discriminatory discharge. See, e. g., NLRB v. Superior Roofing Co., 460 F.2d 1240 (CA9 1972) (per curiam); Buncher v. NLRB, 405 F.2d 787 (CA3 1968), cert. denied, 396 U.S. 828 (1969). In each of these cases, however, the courts enforced the Board's orders upon finding that the Board, in the course of compliance proceedings, had applied to particular facts a reasonable formula for determining the probable length of employment and compensation due and had permitted the employer to come forward with evidence mitigating liability. See, e. g., NLRB v. Superior Roofing Co., supra, at 1240-1241 (upholding use of a "seniority formula" to compute the earnings of a "representative employee" in a reasonable approximation of discharged roofer's earnings). In the instant case, the Court of Appeals "estimated" an appropriate period of backpay without any evidence whatsoever as to the period of time these particular employees might have continued working before apprehension by the INS and without affording petitioners any opportunity to provide mitigating evidence. In the absence of relevant factual information or adequate analysis, it is inappropriate for us to conclude, as does JUSTICE BRENNAN, that the Court of Appeals had estimated the proper minimum backpay award "with a fair degree of precision," see post, at 909.


12
 Conditioning the offers of reinstatement on the employees' legal re-entry and deeming the employees "unavailable" during any period when they were not lawfully present are requirements that were in fact imposed by the Court of Appeals in this case, and hence fully accepted by the Board. See 672 F.2d, at 606 ("Consistent with our requirement that there be reinstatement only if the discriminatees are legally present and permitted by law to be employed in the United States we modify the Board's order so as to make clear (1) that [except for the minimum backpay award] in computing backpay discriminatees will be deemed unavailable for work during any period when not lawfully entitled to be present and employed in the United States . . ."); App. to Pet. for Cert. 32a (modified order). Contrary to JUSTICE BRENNAN's assertion, see post, at 910, the Board does not argue that it would exempt these employees from its "unavailability" policy because their unavailability is directly attributable to the employer's own unfair labor practice. The Board refers to this limited exception to its normal rule solely to counter petitioners' suggestion that the minimum backpay award is somehow logically "inconsistent" with normal Board policies in calculating backpay. See Brief for Respondent 45, n. 44. The Board has clearly indicated its agreement with these portions of the Court of Appeals' remedial order by specifically noting that petitioners do not challenge these parts of the order, see id., at 43, by limiting its own argument to the minimum backpay award issue alone, see id., at 43-46, and, most importantly, by asking that the judgment below be affirmed in its entirety.


13
 According to JUSTICE BRENNAN, the Court stands guilty today of creating a "disturbing anomaly" by, on the one hand, holding that undocumented aliens are "employees" within the meaning of the Act and so entitled to bring an unfair labor practice claim, but then, on the other hand, holding that these same employees are "effectively deprived of any remedy. . . ." See post, at 911. This argument completely ignores the fact that today's decision leaves intact the cease and desist order imposed by the Board, see n. 7, supra, one of the Act's traditional remedies for discriminatory discharge cases. Were petitioners to engage in similar illegal conduct, they would be subject to contempt proceedings and penalties. This threat of contempt sanctions thereby provides a significant deterrent against future violations of the Act. At the same time, we fully recognize that the reinstatement and backpay awards afford both more certain deterrence against unfair labor practices and more meaningful relief for the illegally discharged employees. Nevertheless, we remain bound to respect the directives of the INA as well as the NLRA and to guard against judicial distortion of the statutory limits placed by Congress on the Board's remedial authority. Any other solution must be sought in Congress and not the courts.


14
 In light of our disposition of this issue, we find it unnecessary to consider petitioners' claim that the minimum backpay awards are "punitive," and hence beyond the authority of the Board under Republic Steel Corp. v. NLRB, 311 U.S. 7, 9-12 (1940). We may thus avoid entering into what we have previously deemed "the bog of logomachy" as to what is "remedial" and what is "punitive." NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 348 (1953).



71
Sentelle, Circuit Judge, dissenting:  In May of 1988, an  undocumented alien having illegally entered the United  States compounded his illegality when he fraudulentlyused  the name and birth certificate of Jose Castro to obtain  employment in the production plant of Hoffman Plastic.  On  January 31, 1989, the company laid off a number of employees supportive of a union organizing effort, including the  employee (whose true name is still unknown) who had falsely  represented himself to be Jose Castro.  Thereafter, an administrative law judge, following an evidentiary hearing,  found that Hoffman had engaged in unfair labor practices  including the discriminatory selection of union adherents in  the layoffs which included the illegal alien known as Castro.


72
After the disclosure of the undocumented worker's illegal  status and his fraudulent use of the birth certificate, the  administrative law judge unsurprisingly recommended neither reinstatement nor backpay.  I find this decision by the  administrative law judge unsurprising for multiple reasons. First, as it would be unlawful for Hoffman to employ the  illegal and pay him earned wages, it defies logic--indeed it  boggles the mind--to suppose that the employer could be  compelled by law to pay to the illegal unearned wages which  he could not lawfully earn and to which he would have no  claim but for his prior successful fraud.  If this were a case of  first impression I would find it simple.  I would hold that by  no theory of law or equity could the federal government  compel an employer to employ an illegal alien to do nothing  and pay him for doing nothing when it could not lawfully  employ him to work and pay him for working.  But this is not  a case of first impression.  There is controlling Supreme  Court law which makes the case an even easier one.

Analysis

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In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the  Supreme Court reviewed a Seventh Circuit decision which  had modified an NLRB order applying the National Labor  Relations Act to unfair labor practices committed against  undocumented aliens.  See NLRB v. Sure-Tan, Inc., 672 F.2d


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592 (7th Cir. 1982).  The High Court concluded that the  Circuit was correct in upholding the Board's position "that  undocumented aliens are 'employees' within the meaning of  [29 U.S.C. § 152(3)]."  467 U.S. at 891.  The Court reached  this conclusion based on the deference owed the Board in  "defining the term 'employee,' " a task "that 'has been assigned primarily to the agency created by Congress to administer the Act.' "  Id. at 891 (quoting NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130 (1944));  cf. Chevron U.S.A., Inc.  v. NRDC, 467 U.S. 837, 842-45 (1984).  That said, the Supreme Court nonetheless vacated the remedial portion of the  Seventh Circuit decision, which had ordered the Board to  award an irreducible minimum of six months backpay to each  of the affected employees even in the face of the employees'  illegal entry and presence in the United States.  In vacating  that portion of the Seventh Circuit decision, the Supreme  Court held, "[b]y directing the Board to impose a minimum  backpay award without regard to the employees' actual economic losses or legal availability for work, the Court of  Appeals plainly exceeded its limited authority under the Act."Sure-Tan, 467 U.S. at 904-05 (emphasis added).  Based on  that italicized phrase, even if this were all the Supreme Court  had held on the question, I would nonetheless conclude that  Sure-Tan compels us to vacate the Board's decision overruling the logical result reached by the administrative law judge. But the Supreme Court did not stop there.


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The Supreme Court explicitly rejected the position taken  by the NLRB and the majority in today's decision when it  held, "[s]imilarly, 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."  Id. at 903.  It is difficult to seehow the Court could  more clearly have decided the question oppositely to the  Board's resolution in the decision we now review.


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Read in context, the sentence speaks even more plainly:


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Nonetheless, as the Court of Appeals recognized, the implementation of the Board's traditional remedies at the compliance proceedings must be conditioned upon the employees' legal readmittance to the United States.  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 deter-ring unauthorized immigration that is embodied in the INA.  By conditioning the offers of reinstatement on the employees' legal reentry, a potential conflict with the INA is thus avoided.  Similarly, 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.


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Sure-Tan, 467 U.S. at 902-03 (emphasis added) (internal  quotation marks and citation omitted).  In a feat of ipse dixit,  the logic of which escapes me, the majority today declares  that this paragraph demonstrates that the Supreme Court's  holding in the final sentence has nothing to do with the issues  before us.  The Supreme Court in a rather concise paragraph  makes it plain that it is dealing with the possibility of  affording a backpay remedy to illegal aliens.  It further  makes it plain that such a remedy is not an option when the  employees are "deemed unavailable" for work and that such a  period of deemed unavailability occurs "during any period  when they were not lawfully entitled to be present and  employed in the United States."  The majority refuses to  apply this rather simple statement of law that a lack of legal  presence in the country constitutes unavailability for employment to the anonymous person known as Castro.  The majority reaches this conclusion by creating a dichotomy--never mentioned by the Supreme Court--between illegal aliens who  have departed the United States without legally re-entering  and those like the illegal alien known as Castro who may or  may not have interrupted the continuity of their illegal stay in  the country.  See Maj. Op. at 237-38.  Having created the dichotomy heretofore unrecognized by the Supreme Court,  the majority then refuses to apply the sentence by its terms  to persons in the newly minted subcategory, apparently because the Supreme Court did not separate out the subcategory and reaffirm the applicability of the stated principle to it.The majority does not recognize that neither does the Court  ever suggest that application is limited to employees whose  legal unavailability arises from an interrupted period of illegal  presence as opposed to a continuous one.


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The majority accuses me of taking a sentence out of  context from the Supreme Court's decision.  For its proposition that the quoted sentence is not applicable, the majority  expends several pages of type and suggests ways of supplying  emphases not present in the opinion to get around the  apparent meaning of the Supreme Court's language that  "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."  Read in context, read out of context, or  read both ways and compared, the majority is left with no  way of dealing with the High Court's plain statement.  I  invite the reader to review the phrase "not lawfully entitled to  be present and employed" in its original context.  I further  suggest that contextual illumination for this sentence of the  High Court's opinion is supplied in the Court's analysis of the  Seventh Circuit decision that it was reversing.  The High  Court described that decision as "[r]ecognizing that the discharged employees would most likely not have been lawfully  available for employment and so would receive no backpay  award at all...."  Sure-Tan, 467 U.S. at 890(emphasis  added).  Thus, the governing factor in determining eligibility  for backpay awards is not mere presence, but also the lawful  entitlement to be present.


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The majority fundamentally errs in rewriting the phrase  "not lawfully entitled to be present and employed in the  United States" so that it has no application to a case like the  present one in which an alien fits precisely within the situation described by that phrase:  i.e., an alien who is present in  the United States but without legal permission to be present  and without a legal right to be employed here.  In effect, that  view rewrites the phrase to read "not present, and not  lawfully entitled to be present in the United States."  It adds  the "not present" limitation and deletes the "not lawfully entitled to be ... employed" requirement.  That rewriting of  Sure-Tan leads the majority astray.


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The rewriting of Sure-Tan endorsed by the majority appears to have first occurred in Bevles Co. v. Teamsters Local  986, 791 F.2d 1391, 1393 (9th Cir. 1986).  Before that time,  even its critics believed that Sure-Tan meant what it said.See Sure-Tan, 467 U.S. at 911 (Brennan, J., dissenting)  (criticizing the majority for holding that undocumented aliens  "are effectively deprived of any remedy");  Felbro, Inc., 274  N.L.R.B. 1268, 1269 (1985) (stating that the undocumented  aliens in Felbro, who had remained in the country, would be  affected by Sure-Tan);  Local 512, Warehouse & Office Workers' Union v. NLRB, 795 F.2d 705, 725 (9th Cir. 1986)  ("Felbro") (Beezer, J., dissenting in part);  Terry A. Bethel,  Recent Labor Law Decisions of the Supreme Court, 45 Md.  L. Rev. 179, 196 (1986) ("Sure-Tan ... deprive[s] undocumented employees of any effective remedy for unlawful discrimination....");  Lucinda M. Cardinal, Note, Immigration  Reform:  Solving the "Problem" of the Illegal Alien in the  American Workforce, 7 Cardozo L. Rev. 223, 244 (1985)  ("Sure-Tan mandates that illegal aliens do not receive the  remedies granted their legal coworkers.");  John W. Sagaser,  Note, Rights Without A Remedy--Illegal Aliens Under the  National Labor Relations Act, 27 B.C. L. Rev. 407, 452 (1986)  ("0By denying a minimum backpay award, the Court in effect  deprives illegal alien workers of any remedy.").  In Bevles,  the court was reviewing an arbitrator's award;  the issue was  whether the arbitrator's decision showed a "manifest disregard of the law," and the court was not entitled to reverse  erroneous legal conclusions.  See 791 F.2d at 1392-93 & n.2.In not following Sure-Tan, the court ignored the lawful  presence requirement and considered whether the aliens in  that case were lawfully entitled to be employed.  The court  clearly relied on the fact that--prior to the passage of  IRCA--it was not a criminal act for employers to hire  undocumented aliens.  See id. at 1393.  The court also considered the effect of section 2805 of the California Labor Code,  which prohibited employers from knowingly employing undocumented aliens if it would affect lawful workers.  Because an unreversed state court decision had previously held section  2805 unconstitutional, the court did not fault the arbitrator  for disregarding it.  See id. at 1393-94.


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The focus on the lawful right to seek employment continued  in Felbro.  The Ninth Circuit there again relied on the fact  that it was not illegal for an employer to hire undocumented  aliens.  Because the Sure-Tan employees could not lawfully  reenter the United States, the court noted that they were  "unavailable for work during the backpay period."  Felbro,  795 F.2d at 719.  The court reasoned that being present in  the United States did not create unavailability because  "[t]here is no provision 'in the INA making it unlawful for an  employer to hire an alien who is present or working in the  United States without appropriate authorization.' "  Id. (quoting Sure-Tan, 467 U.S. at 892-93).


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Since the passage of IRCA, both the Second and Ninth  Circuits have registered concern over IRCA's effect on their misguidedattempts to limit Sure-Tan.  In Rios v. Enterprise  Ass'n Steam fitters Local Union 638, 860 F.2d 1168 (2d Cir.  1988), the Second Circuit was careful to explain that recovery  was only permissible because the claimants were "available  for employment during the entire period covered by the  backpay order, since such employment would have violated no  immigration law."  Id. at 1173.  The court explicitly reserved  the question of whether IRCA would affect later claims.  See  id. at 1172 n.2.  The Ninth Circuit likewise has questioned  the viability of its Felbro decision after IRCA.  See EEOC v.  Hacienda Hotel, 881 F.2d 1504, 1517-18 n.11 (9th Cir. 1989).In a further Second Circuit case postdating the enactment of  IRCA, that circuit continued to follow its pre-enactment  precedent.  See NLRB v. A.P.R.A. Fuel Oil Buyers Group,  Inc., 134 F.3d 50 (2d Cir. 1997).  However, as Judge Jacobs  clearly demonstrated on dissent, without the slender reed of  the employer's legal capacity to hire undocumented aliens,  "an undocumented alien is not 'lawfully available for employment.' "  Id. at 62 (Jacobs, J., dissenting) (quoting Sure-Tan,  emphasis supplied by Judge Jacobs).  As Judge Jacobs pointed out, the remedy of backpay to the alien ineligible for  employment "is foreclosed by Sure-Tan and IRCA...."  Id.


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Like the Second Circuit in A.P.R.A. Fuel, the majority  today offers nothing that should lead us to believe that the  Supreme Court in Sure-Tan meant anything other than what  it said;  and what it said disqualifies the illegal alien in this  case from an award of backpay.

Conclusion

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For the reasons set forth above, I would grant Hoffman  Plastic's petition for review of the Board's order, and deny  the cross-petition for employment.  I respectfully dissent.

