                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS                 No. 08-70335
BOARD,                                     NLRB Nos.
                      Petitioner,
              v.                         28-CA-20803
                                          28-CA-21066
C & C ROOFING SUPPLY, INC.,               28-CA-21392
                    Respondent.
                                           OPINION

      On Petition for Enforcement of an Order of the
             National Labor Relations Board

                 Argued and Submitted
        June 10, 2009—San Francisco, California

                   Filed June 25, 2009

      Before: Procter Hug, Jr., Betty B. Fletcher and
         Michael Daly Hawkins, Circuit Judges.

              Opinion by Judge B. Fletcher:




                           7963
               NLRB v. C & C ROOFING SUPPLY              7965




                         COUNSEL

Robert Englehart, Assistant General Counsel, National Labor
Relations Board, Washington, D.C., for the petitioner.

Michael E. Avakian, Smetana & Avakian, Springfield, Vir-
ginia, for the respondent.


                         OPINION

B. FLETCHER, Circuit Judge:

   The National Labor Relations Board (“the Board”) peti-
tions for enforcement of its order approving a consent judg-
ment against C&C Roofing Supply, Inc. (“C&C”). C&C
cross-petitions for review of the order. We have jurisdiction
pursuant to 29 U.S.C. § 160(e), and we grant the Board’s peti-
tion for enforcement.
7966           NLRB v. C & C ROOFING SUPPLY
                          FACTS

   After winning a certification campaign to represent C&C’s
employees, the United Union of Roofers, Waterproofers and
Allied Workers filed three unfair labor practice charges
against C&C. The last of these alleged that the company had
unlawfully terminated twenty employees. The Board’s Gen-
eral Counsel issued a complaint which consolidated all three
charges, alleging that C&C had violated § 8(a)(5) and (1) of
the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158
et seq. This appeal concerns only the unlawful termination
charge.

   The parties reached a Formal Settlement Stipulation
(“Settlement”) before the dispute went before the Board. The
Settlement admitted C&C’s liability for the unlawful termina-
tions, and provided for reinstatement and a certain amount of
backpay for each employee. The Settlement was to become
effective immediately upon approval by the Board, and C&C
agreed to “immediately comply with the provisions of the
order” upon Board approval. C&C also waived its right to
contest this consent judgment.

   The Board approved the consent judgment on December
20, 2007, but C&C did not comply with its terms. Instead,
C&C asserted that it could not lawfully comply with the judg-
ment because it had evidence that many of the employees to
be reinstated were unauthorized aliens, and therefore the com-
pany could not reinstate them without violating federal and
state immigration laws. The Board’s General Counsel filed an
application for enforcement with this court on January 23,
2008.

                        ANALYSIS

  We give considerable weight to the Board’s determination
on how best to expunge the effects of unfair labor practices.
Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943).
                  NLRB v. C & C ROOFING SUPPLY                       7967
I.       The General Counsel has authority to petition for
         enforcement of Board orders.

  C&C asserts that the filing of the application for enforce-
ment was an exclusive act of the General Counsel that has not
been approved by the Board. It argues that section 10(e) of the
NLRA, 29 U.S.C. § 160(e), grants the power to petition for
enforcement of an order to the Board, and that it was imper-
missible for the Board to purport to delegate this power to the
General Counsel.

   The “impermissible delegation” that C&C challenges is a
memorandum published by the Board on December 28, 2007.
NLRB Press Release R-2653 (December 28, 2007),
http://www.nlrb.gov/shared_files/Press%20Releases/2007/
R-2653.pdf. In this memorandum, issued just before three of
the five Board members’ terms expired on December 31,
2007, the Board voted to temporarily delegate certain author-
ity under § 10(e) to the General Counsel until such time as the
Board regained a quorum. Id. C&C believes that the General
Counsel purports to garner his authority to petition for
enforcement from this temporary delegation. Because C&C
views this as an impermissible delegation of agency power, it
concludes that the General Counsel has no authority to peti-
tion for enforcement of Board Orders.1

   [1] C&C has misread the Board’s December 28, 2007
memorandum and the context in which it was issued. The
General Counsel has had the authority to petition for enforce-
ment of Board orders since 1955. In a memorandum pub-
lished in the Federal Register on April 6, 1955, the Board
delegated certain powers to the General Counsel, some of
which were purposefully conditioned upon case-by-case
Board approval:
     1
   C&C maintains that absent this illegitimate delegation of authority, the
General Counsel would not have the power to petition for enforcement on
his own because such power is not enumerated in the description of the
General Counsel’s powers in 29 U.S.C. § 153(d).
7968           NLRB v. C & C ROOFING SUPPLY
    B.   Court litigation.

    The General Counsel of the Board is authorized and
    has responsibility, on behalf of the Board, to seek
    and effect compliance with the Board’s orders and
    make such compliance reports to the Board as it may
    from time to time require.

    On behalf of the Board, the General Counsel of the
    Board will, in full accordance with the directions of
    the Board, petition for enforcement and resist peti-
    tions for review of Board Orders as provided in sec-
    tion 10(e) and (f) of the act, initiate and prosecute
    injunction proceedings as provided in section 10(j),
    seek temporary restraining orders as provided in sec-
    tion 10(e) and (f), and take appeals either by writ of
    error or on petition for certiorari to the Supreme
    Court: Provided, however, That the General Counsel
    will initiate and conduct injunction proceedings
    under section 10(j) or under section 10(e) and (f) of
    the act and contempt proceedings pertaining to the
    enforcement of or compliance with any order of the
    Board only upon approval of the Board, and will ini-
    tiate and conduct appeals to the Supreme Court by
    writ of error or on petition for certiorari when autho-
    rized by the Board.

20 Fed. Reg. 2175 (1955), emphasis in original. Thus, the reg-
ulation authorizes the General Counsel to petition for enforce-
ment in the courts of appeals, but this authority is not one of
those conditioned on approval of the Board. A careful reading
shows that only injunction proceedings, contempt proceed-
ings, and appeals to the Supreme Court require individualized
Board approval.

  [2] The Board’s temporary delegation letter of December
20, 2007 delegates only authority to pursue injunction pro-
ceedings, which would otherwise require case-by-case
                NLRB v. C & C ROOFING SUPPLY                7969
approval by the Board under the 1955 regulation. The Press
Release states that the Board delegates to the General Counsel
full “authority on all court litigation matters that would other-
wise require Board authorization. This delegation will give
the General Counsel full and final authority on behalf of the
Board to initiate and prosecute injunction proceedings under
Section 10(j), or Section 10(e) and (f), of the [Act].” NLRB
R-2653.

  [3] The General Counsel’s authority to petition the courts
of appeals for enforcement relied on in this case is perma-
nently within the General Counsel’s authority, and does not
derive from the temporary delegation of 2007. Accordingly,
we need not address C&C’s contention that the temporary
delegation was unlawful.

II.   C&C can adhere to its agreement without violating
      federal or state immigration laws.

   [4] C&C refuses to comply with the consent judgment
because it contends that compliance will require it to violate
the Immigration Control and Reform Act of 1986, (“ICRA”),
8 U.S.C. § 1324a(a)(1), and the Legal Arizona Workers Act,
Ariz. Rev. Stat. § 23-212. Both of these statutes prohibit the
hiring of unauthorized aliens. It is conceded that the Board is
not free to ignore federal statutes or policies outside the
National Labor Relations Act. Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 143 (2002). In Hoffman, the
Supreme Court held that the Board may not fashion a remedy
that includes backpay for unauthorized aliens because doing
so would violate the ICRA. Id. at 149. C&C argues that Hoff-
man precludes enforcement of the consent judgment here.

   [5] In this case, however, C&C voluntarily entered into a
settlement agreement, embodied in a consent judgment, both
for liability and applicable remedies. Rather than pursuing a
comprehensive settlement, C&C could have admitted liability,
but contested backpay awards on the grounds that some of the
7970           NLRB v. C & C ROOFING SUPPLY
terminated employees were “unavailable” for work during
any period when they were not lawfully entitled to be present
and employed in the United States. See Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 903 (1984). If it had done so, C&C
would then have had an opportunity to introduce evidence
regarding when those employees were not eligible to be
employed in the United States and the Board would not have
included any periods of unavailability in its backpay calcula-
tions. See id. Instead, C&C waived all defenses, including this
one, and agreed to a final settlement in which it would pay
specified liquidated sums to each terminated employee.
Unlike reinstatement and backpay, liquidated damages do not
pose an irreconcilable conflict with ICRA, because they are
not predicated on an employee’s availability for work. Rather,
they are based on the company’s assessment that paying these
sums was preferable to further litigation.

   [6] C&C can adhere to the terms of its bargained-for agree-
ment without violating federal or state immigration laws. The
Board has a procedure for just this situation: upon receiving
proper proof of a person’s unauthorized status, the Board will
absolve C&C of the obligation to rehire that person, in accor-
dance the Board’s obligation to take into account the require-
ments of federal immigration law. See Sure-Tan, 467 U.S. at
902-03. Although C&C therefore cannot be ordered to rein-
state workers who may not lawfully be employed in the
United States, it must still comply with the Settlement in all
other respects, including the requirements that it cease further
NLRA violations and that it pay the liquidated sums to which
it agreed. Having agreed to these sums and waived its oppor-
tunity to dispute the amounts owed to each individual, C&C
cannot now escape the existing regulatory process for the set-
tlement’s enforcement.

  Our decision to enforce this consent judgment does not
order any party to violate federal or state immigration laws.
Rather, the effect of our holding is to place the burden on
C&C to provide proper proof, satisfactory to the Board, of the
               NLRB v. C & C ROOFING SUPPLY                7971
unauthorized status of those individuals it claims are unautho-
rized aliens, and to rehire the others. In the discretion of the
Board, in the event of C&C’s failure to comply, contempt
sanctions could be sought.

  [7] The Board’s petition for enforcement is GRANTED;
C&C’s petition for review is DENIED. C&C’s Motion to
Supplement the Record is also DENIED.
