Del Rey Tortilleria

National Labor Relations Board - Board Decisions

Mar 27, 1991

302 N.L.R.B. 216 (N.L.R.B. 1991)

216
302 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 The judge concluded, at fn. 3 of her decision, that the Respondent was
not liable for remedial relief due discriminatees Felix Hernandez and Roberto
Marcos because they were not at the backpay hearing and were thus unavail-
able for examination. The record shows that the General Counsel did not op-
pose the Respondent’s motion at the hearing to dismiss the backpay specifica-
tion as to Hernandez and Marcos. Accordingly, we find no merit to the Gen-
eral Counsel’s exception that Hernandez and Marcos should not be denied re-
medial relief. In doing so, we find it unnecessary to consider whether Hernan-
dez or Marcos would otherwise have been entitled to remedial relief.
1 The transcript of the hearing in this matter contains numerous and blatant
errors. However, since the parties have not filed motions to correct and since
the mistakes do not appear to alter the substantive meaning of the text or seri-
ously affect the reader’s ability to make sense of it, the transcript shall remain
uncorrected.
2 At the trial, Nicolas Paredez admitted that he had used the name Gorgonio
Hernandez (his matronymic) while in Respondent’s employ. The parties stipu-
lated that Paredez and Hernandez are one and the same person. Hereafter, he
will be referred to by his proper name, Nicolas Paredez.
3 Although included in the settlement stipulation and the backpay specifica-
tion, neither Felix Hernandez nor Roberto Marcos appeared at the instant hear-
ing. Since they were not available for examination, the Respondent may not
be held liable for remedial relief otherwise due them.
Del Rey Tortilleria, Inc. and Local 76, International
Ladies Garment Workers Union, AFL–CIO.
Case 13–CA–25033
March 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On December 7, 1988, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a
brief in answer to the General Counsel’s exceptions;
the General Counsel filed exceptions, a supporting
brief, and a brief in answer to the Respondent’s excep-
tions; and the Charging Party filed a brief in answer
to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Del Rey Tortilleria, Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Sheryl Sternberg, Esq., for the General Counsel.
Irving M. Geslewitz, Esq. (Adams, Fox, Adelstein & Rosen),
of Chicago, Illinois, for the Respondent.
William R. Widmer III, Esq. (Carmell, Charone, Widmer &
Mathews, Ltd.), of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. On July 18,
1986, the National Labor Relations Board (the Board) issued
a Decision and Order approving a settlement stipulation en-
tered into on November 8, 1985, by Del Rey Tortilleria, Inc.
(the Respondent), Local 76, International Ladies Garment
Workers Union, AFL–CIO (the Union), and the General
Counsel of the Board. Thereafter, on September 23, 1986,
the United States Court of Appeals for the Seventh Circuit
entered judgment enforcing in full the Board’s Order. The
settlement stipulation ordered Respondent to offer reinstate-
ment and make whole employees Roberto Marcos, Felix Her-
nandez, Bernardo Bravo, and Gorgonio Hernandez for losses
due to their termination, provided that any controversy re-
garding such offers or remedies including entitlement to
backpay, would be determined at a formal backpay proceed-
ing before the Board. A controversy having arisen over the
employees’ entitlement to reinstatement and backpay and the
amount of backpay due, the Board’s Regional Director for
Region 13 issued a backpay specification and notice of hear-
ing on March 11, 1987, as amended on April 22. The Re-
spondent filed timely answers on March 27 and April 27,
1987, respectively, denying, in substance, that the alleged
discriminatees were entitled to reinstatement or backpay
since they were not lawfully present and employed in the
United States.
At a hearing held before me in Chicago, Illinois, on May
13, 14, and 15, 1987, the parties were afforded full oppor-
tunity to be heard, to introduce evidence, and to examine and
cross-examine witnesses. The record remained open for an
extended time period, during which the Respondent inves-
tigated the matter of Bravo’s interim earnings. The parties
also filed various posttrial motions and appeals to the Board.
Thereafter, briefs were submitted which have been carefully
considered.
On the record before me,1 including my observation of the
witnesses’ demeanor, I make the following
FINDINGS OF FACT
The Issues
1. Before proceeding to the merits of this case, a proce-
dural question must be resolved: whether Respondent is
bound by the settlement stipulation providing for a formal
hearing on remedial matters.
2. The substantive question is whether Bernardo Bravo and
Gorgonio Hernandez/Nicolas Paredez2 are entitled to relief,
although at the time of their discharge until they applied for
legalized status, they were present in the United States as un-
documented aliens.3
217DEL REY TORTILLERIA
4 At the hearing, counsels’ statements of position on this issue were received
as proffers; documents which related to and supported those proffers were
marked, but not admitted into evidence. On reconsidering this matter, I con-
clude that the documents, whose authenticity is undisputed, are relevant to an
understanding of the parties’ contentions and, therefore, should be a part of
the record in this case. Accordingly, Respondent’s Exhibits (R. Exh.) 5, 6, and
7; General Counsel’s Exhibits (G.C. Exh.) 3 and 4; and the Charging Party’s
Exhibit (C.P. Exh.) 1 are admitted into evidence.
5 467 U.S. 883 (1984).
6 The court of appeals decision enforcing the Board’s Order in the earlier
Del Rey case issued on April 2, 1986. 787 F.2d 1118 (7th Cir.).
I. RESPONDENT IS BOUND BY THE SETTLEMENT
STIPULATION
At the hearing in this matter, the Respondent moved to
dismiss the backpay specification on the ground that by fail-
ing to disclose material facts, Region 13’s personnel had
wrongfully procured Respondent’s assent to that part of the
settlement stipulation which provides for a formal backpay
proceeding. At the hearing, following a proffer from the Re-
spondent and argument by all parties, I denied the motion,
but invited counsel to further address the issue in their
posthearing briefs.
Having reviewed the parties’ positions as set forth at the
hearing and in their briefs, and after taking into account the
documents which were offered into evidence,4 I reaffirm my
denial of Respondent’s motion for the reasons set forth
below.
A. Background
In a case preceding the present one, the Board issued a de-
cision finding that Del Rey had violated the Act by wrong-
fully terminating three other employees and ordered rein-
statement and backpay. 272 NLRB 1106 (1984). Thereafter,
the Respondent and the Region exchanged letters regarding
the Respondent’s remedial obligations to those employees.
Briefly stated, the Respondent advised the Region that it had
reason to believe that the discriminatees were illegal aliens.
Therefore, Respondent argued, they were not entitled to rein-
statement or backpay since they were not lawfully available
for work as required by the Supreme Court’s decision in
Sure-Tan, Inc. v. NLRB.5 In several replies sent in late 1984
and early 1985, the Region differed with Respondent over
the meaning of Sure-Tan, maintaining that remedies were de-
nied to the discriminatees in that case because they had left
the country, and not because they were undocumented aliens.
In April 1985, while the earlier Del Rey case was on appeal
to the United States Court of Appeals for the Seventh Cir-
cuit, the complaint in the instant case issued.
In June 1985, prior to the date set for hearing, the Region
initiated settlement discussions. At this point, the Respondent
renewed its argument that like the employees in the first Del
Rey case, the alleged discriminatees in the present matter
might be illegal aliens, and if so, would not be entitled to
relief. These settlement discussions languished until early
October 1985, when the Region gave Respondent a draft set-
tlement stipulation containing, inter alia, the following lan-
guage at paragraph 8(2)(a):
Offer reinstatement to . . . Bernardo Bravo and
Gorgonio Hernandez and . . . make them whole for
loss of wages and benefits due to their terminations:
any controversy regarding offers of reinstatement . . .
or make whole remedies including entitlement to back
pay shall be determined by proceeding to a formal back
pay proceeding before the National Labor Relations
Board.
In November 1985, representatives of the Union, the Re-
spondent, and the General Counsel signed the stipulation
containing the above-quoted provision.6 As noted previously,
the Board approved the settlement stipulation in a Decision
and Order dated July 18, 1986; the court of appeals judgment
followed on September 23, 1986.
In July and October 1985, before the stipulation was
signed, the General Counsel issued memoranda OM 85–57
and OM 85–89 respectively, which instructed the Board’s
Regional officers to withhold remedial relief to
discriminatees who were unable to show lawful presence in
the United States during the backpay period. At the time the
settlement stipulation was executed, Region 13’s officials ad-
mittedly knew of these memoranda, but Respondent did not.
In April 1986, the court of appeals enforced the Board’s
Order granting reinstatement and backpay to the
discriminatees in the earlier Del Rey case. Having learned of
the General Counsel’s memoranda by that time, the Respond-
ent asked the Region to follow those guidelines. As a con-
sequence, the discriminatees in that case were denied rein-
statement and backpay. Respondent then insisted that the Re-
gion follow the same procedure in the instant case. After
seeking instructions from the General Counsel’s division of
advice, the Region refused, taking the position that the OM’s
85–87 and 85–89 guidelines did not apply where the stipula-
tion provided for a formal hearing to resolve any controversy
over entitlement to reinstatement and backpay.
The Respondent sent a lengthy letter with attachments to
the Associate General Counsel suggesting that the office of
advice had not been fully apprised of the relevant facts at-
tending execution of the settlement stipulation and requested
that the office reconsider its determination that the backpay
proceeding go forward. (R. Exh. 5.) In a reply of December
30, 1986, the Associate General Counsel denied Respond-
ent’s request, reasoning that:
there is nothing in the OM memoranda that prohibits a
Region from securing a stipulation embodying the
agreement of the parties. In the instant case, the Charg-
ing Party . . . had sought a stipulation containing a
provision for a hearing concerning reinstatement and
backpay issues. These Regional personnel, seeking an
all-party settlement, conveyed such a proposal to you.
The proposal was accepted by you, and an all-party set-
tlement was achieved. In these circumstances, I see no
impropriety on the Region’s part, and I see no reason
to depart from the terms of the stipulation. (G.C. Exh.
3.)
B. Discussion
Respondent contends in its brief, as it did at the hearing,
that the Region was obligated to inform it of the General
Counsel’s 1985 guidelines and that the failure to do so was
tantamount to a material misrepresentation. The essence of
Respondent’s argument is this: if the Region had disclosed
the memos, Respondent would not have agreed to language
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 OM 85–57 and OM 85–89, the memoranda which the Respondent claims
should have governed the Region’s compliance actions in this case, were re-
printed at 120 LRR 342, on December 23, 1985, approximately 1-1/2 after the
settlement stipulation was signed, but more than 7 months before the Board
approved the settlement. They subsequently were withdrawn.
8 The parties also stipulated that the settlement constituted ‘‘the entire agree-
ment between the parties. . . . there being no other agreement verbal or other-
wise which varies, alters or otherwise adds to it.’’ G.C. Exh. 2 at 6. Inciden-
tally, the settlement contains no severance provision preserving the validity of
the whole if one or more provisions should be deemed invalid.
9 Pub. L. 99–603, 1986 U.S. Code Cong. & Admin. News (100 Stat. 3358),
signed into law on November 6, 1986.
10 The parties stipulated to the authenticity of these documents and agreed
that copies could be offered instead of the originals. Accordingly, the Paredez’
TRS card and Bravo’s work permit are admitted into evidence as G.C. Exhs.
12 and 13, respectively.
IRCA provides that an undocumented alien had to take the following steps
to obtain naturalization: first, prior to September 1, 1988, he had to file an
application for adjustment of status. If the applicant made a prima facie show-
ing of eligibility for temporary resident status during an interview with the Im-
migration and Naturalization Service (INS), he was granted an employment au-
calling for a formal backpay proceeding. Instead, it ‘‘would
have insisted that the settlement stipulation simply provide
that the General Counsel’s applicable guidelines be followed,
and the Region would have been bound to accede. This, in
turn, would have resulted in a determination at the compli-
ance level that Bravo and Paredez were not entitled to rein-
statement and backpay by virtue of their illegal presence in
the country and the case would have been administratively
closed.’’ (R. Br. 6.) Because Respondent’s argument is based
on unfounded assumptions, it leads to a false conclusion.
An analysis of this controversy starts with the premise that
a settlement is in the best interests of all parties. Clearly, the
Board and the General Counsel view settlement as a desir-
able alternative to litigation; it is an effective way to expedite
cases and conserve energies for matters that must be resolved
by other strategies. The Respondent also must have looked
favorably on a settlement as the most economic way to dis-
pose of a complaint with numerous allegations. Surely, the
Respondent had to assess carefully the risks of trial having
recently lost one case before the Board on a complaint with
similar allegations to those currently pending.
Respondent apparently overlooks the fact that the Region
was interested in achieving a settlement to which three par-
ties could agree. Respondent was in no position to dictate
terms unilaterally. The record clearly shows that without the
controverted language contained in paragraph 8(a)(2), the
Charging Party would not have acquiesed to the settlement
stipulation. Without the Charging Party’s consent, the matter
would have been tried.
Respondent also errs in contending that if it had refused
to acquiesce to the objectionable phrase in paragraph 8(a)(2),
the Region would have been compelled to follow the memo-
randa’s guidelines and dismiss the case. As the Board’s
agent, the Region has a duty to vindicate the public interest.
Therefore, even if specific remedies were not available for
the several employees involved, it is highly unlikely that the
Region would have dismissed a case such as this. The Gen-
eral Counsel frequently prosecutes cases where the only rem-
edy sought to effectuate the purposes of the Act is the post-
ing of a notice to employees. Here, where the Board pre-
viously found Respondent had engaged in similar discrimina-
tory conduct, and where the current complaint contained nu-
merous allegations of unlawful threats, interrogation, surveil-
lance, and promises of benefits, in addition to the wrongful
discharges, the Region was not likely to forego prosecution
in the event the case did not settle.
Settlement negotiations involve a process of give and take.
Here, the Respondent obviously obtained certain advantages
by settling, not the least of which was the avoidance of a
trial. In addition, Respondent received other concessions in-
cluding dissolution of a U.S. District Court injunction pend-
ing against it and agreement that signing the stipulation was
not an admission of guilt. Further, by proposing that any
controversy over reinstatement and backpay be submitted to
an administrative forum, the Region in no way restricted Re-
spondent’s right to mount a defense based on its construction
of Sure-Tan. Respondent clearly wanted a settlement and
benefitted from this one. On becoming aware of the General
Counsel’s compliance memoranda months before the Board
and the court of appeals decisions in this case, the Respond-
ent could have attempted to withdraw from the entire settle-
ment on the same grounds that it now alleged undermines its
effectiveness.7 It did not do so and even now seeks to escape
from only one clause of a stipulation whose other provisions
were beneficial to it. In short, if Respondent had known of
the memoranda, it could have refrained from signing the set-
tlement stipulation and proceeded to trial. If the provision for
a backpay hearing was not included in the stipulation, the
Charging Party would have opted for a trial. In either case,
the outcome would have been the same. Therefore, the Re-
gion’s failure to advise Respondent of the memoranda’s ex-
istence, whether inadvertent or purposeful, was immaterial,
since disclosure would not have led to dismissal, as the Re-
spondent asserts. In these circumstances, the Region’s deci-
sion to propose a formal hearing was a reasonable way to
reconcile the opposing interests of the two adversaries and a
valid exercise of its discretion. Accordingly, I conclude that
Respondent was fairly bound by the settlement stipulation
which provided for a hearing to resolve any controversy re-
garding reinstatement and backpay.8
II. THE EMPLOYEES UNDOCUMENTED STATUS DOES NOT
BAR RELIEF
A. The Facts
At the backpay hearing, the parties stipulated that Bravo
and Paredez were present in the United States as undocu-
mented aliens. Both Paredez and Bravo testified that they re-
sided in this country continuously and without interruption
for more than 5 years, and intended to apply for legalization
under the terms of the Immigration Reform and Control Act
of 1986 (IRCA).9
Approximately 5 months after his discharge from Del Rey,
Paredez found employment with another company and has
worked there consistently through the date of the present
hearing. Bravo testified that although he regularly sought
work on an average of three times a week since Respondent
fired him, he has been unsuccessful in finding steady em-
ployment and reported interim earnings of just under $1000.
He did not claim that this meager sum sustained him; rather,
he stated that he was supported by family and friends.
In accordance with their commitment to seek legalization,
Paredez and Bravo each applied for amnesty under IRCA.
On January 26, 1988, Paredez received a temporary resident
card; a work authorization card was issued to Bravo on July
21, 1988.10
219DEL REY TORTILLERIA
thorization card. 8 CFR § 274 a(2)(n)(1). Next, if the INS investigation un-
covered no negative evidence, the applicant’s status was adjusted to that of
a lawful temporary resident and he received a TRS identification card. 8 CFR
§ 210. Further processing leads to permanent resident status, followed by the
final step, naturalized citizenship.
11 See Duke City Lumber Co., 251 NLRB 53, 54 fn. 4 (1980).
12 See Apollo Tire Co., 236 NLRB 1627 (1978), enfd. 694 F.2d 1180 (9th
Cir. 1979); Amay’s Bakery & Noodle Co., 227 NLRB 214 (1976).
13 The Ninth Circuit’s decision in Felbro, issued shortly before IRCA be-
came law, rejected the Board’s approach by distinguishing Sure-Tan, interpret-
ing that case to permit backpay for undocumented workers as long as they
remained in this country (and available for work) and not subjects of deporta-
tion proceedings. 795 F.2d at 719.
B. Discussion
The General Counsel and the Charging Party assert that
neither the Supreme Court’s decision in Sure-Tan nor IRCA
bar Paredez’ and Bravo’s entitlement to the Board’s tradi-
tional remedies. Respondent contends, to the contrary, that
Paredez’ and Bravo’s admissions that they were undocu-
mented aliens proves conclusively that they were not legally
present in the United States from 1982 until they applied for
amnesty under IRCA. Consequently, according to Respond-
ent’s reading of Sure-Tan, they were ineligible for backpay
or reinstatement during that period of time. Based on an
analysis of Board and court precedents, together with a re-
view of IRCA’s requirements, I conclude, in agreement with
the General Counsel and the Union, that Paredez and Bravo
were and continue to be eligible for reinstatement and back-
pay, notwithstanding their undocumented status.
For many years, the Board held that undocumented alien
workers were ‘‘employees’’ within the compass of Section
2(3) of the Act, entitled to the full range of the Act’s protec-
tions.11 Thus, the Board regularly awarded backpay and rein-
statement to undocumented aliens who were discriminated
against for engaging in concerted protected activity in viola-
tion of Section 8(a)(3).12
The Board seemed to alter this position based on its con-
struction of the Supreme Court’s decision in Sure-Tan. The
discriminatees in that case were undocumented aliens who
were reported by their employer to the INS after they voted
for union representation. During an INS investigation, the
discriminatees acknowledged that they were Mexican citizens
living and working illegally in the United States and, pursu-
ant to an INS grant, voluntarily departed the country in lieu
of deportation. 467 U.S. at 886–887.
The Board found that Sure-Tan had violated Section
8(a)(3) of the Act by constructively discharging its employ-
ees in retaliation for their union activities and ordered ‘‘the
conventional remedy of reinstatement with backpay.’’ Sure-
Tan I, 234 NLRB 1187 (1978). Thereafter, the Seventh Cir-
cuit Court of Appeals modified the Board’s Order to provide
each discriminatee with a minimum backpay award which
would be paid even if the workers were absent from the
country for the duration of their backpay periods. NLRB v.
Sure-Tan, Inc., 672 F.2d 592, 606 (7th Cir. 1982).
The Supreme Court affirmed the Board’s conclusion that
the NLRB is applicable to undocumented employees. 467
U.S. at 894. However, the Court reversed the Seventh Cir-
cuit’s minimum backpay award as speculative since there
was no ‘‘evidence . . . as to the period of time these particu-
lar employees might have continued working before appre-
hension by the INS and without affording petitioners any op-
portunity to provide mitigating evidence.’’ Id. at 901 fn. 11.
The Supreme Court instructed the Board that reinstatement
must be conditioned on legal readmittance to the United
States, and in computing backpay on remand,
the employees must be deemed ‘‘unavailable’’ for work
(and the accrual of backpay thereafter tolled) during
any period when they were not lawfully entitled to be
present and employed in the United States. [Id. at 903.]
Because the issue was not before it, the Court did not ex-
pressly address the question here in dispute of whether work-
ers who remain in this country and have not been subject to
deportation proceedings are ineligible for backpay and rein-
statement by virtue of their undocumented status. However,
the Board subsequently interpreted the above-quoted lan-
guage broadly, taking the position in several cases that even
alien workers who remained in the United States (and thus,
literally available for work) would not be entitled to an
award of backpay and reinstatement unless they presented
proof of their lawful immigration status to a Board compli-
ance officer. See Ethnic Produce, 275 NLRB 205 (1985);
Felbro, Inc., 274 NLRB 1268, 1269 (1985); enf. granted in
part and denied in relevant part, sub nom. Ladies Garment
Workers Local 512 v. NLRB, 795 F.2d 705 (9th Cir. 1986).13
See also Impact Industries, 285 NLRB 5 (1987).
In Felbro, the court of appeals rejected the Board’s con-
struction of Sure-Tan. Reversing the Board’s conditional re-
medial order, the court observed that ‘‘the Board’s order
places upon the NLRB compliance officer the responsibility
for determining whether the discriminatee was ‘lawfully enti-
tled to be present and employed in the United States’ during
the backpay period. . . . [Yet], ‘‘[a]t oral argument, counsel
for the NLRB candidly admitted that the the Board ‘does not
quite know’ how a compliance officer would handle the im-
migration law questions sure to arise at the compliance stage
of a conditional remedial order similar to that issued here.’’
Id. at 720.
In other words, as the General Counsel points out in her
brief, neither in Felbro nor in any other case has the Board
decided what sort of evidence must be adduced to prove law-
ful entitlement to be present and employed in the United
States, or which party bears the burden of producing that evi-
dence. The General Counsel further submits, with the support
of the Charging Party, that in view of the complexity of the
immigration laws, only a final determination by the INS that
Paredez and Bravo are not entitled to be present and em-
ployed in this country should suffice to extinguish their right
to backpay and reinstatement in the present case. She further
contends that the Respondent, the party seeking to avoid the
Board’s traditional remedies, should bear that burden. I find
merit in these contentions.
The court of appeals characterized this nation’s immigra-
tion laws and regulations as exceedingly complex, bearing a
‘‘striking resemblance . . . to King Minos’ labyrinth in an-
cient Crete.’’ 795 F.2d at 720–722. Even if an undocumented
worker should fall within one of the 52 categories of people
who may not enter the United States, the court enumerated
some of the ‘‘many circumstances which prevent a ‘deport-
able alien’ from actual deportation under INS standards.’’ Id.
at 721. Consequently the Ninth Circuit concluded, as did the
Supreme Court in Plyler v. Doe, 457 U.S. 202, 226 (1982),
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 See Handbook for Employers, U.S Department of Justice at 6. See also
Tr. 367–370.
15 See Consolidated Freightways, 290 NLRB 771 (1988) (transgressor
should bear the burden of the consequences stemming from its illegal acts);
Fixtures Mfg. Corp., 251 NLRB 778 (1980), enfd. in part, remanded in part,
669 F.2d 547 (8th Cir. 1982) (burden of proving facts that would render
discriminatee unfit for reinstatement is on the party seeking to bar reinstate-
ment).
Respondent insists that there was no finding that Del Rey discriminated
against Bravo or Paredez. However, by settling Respondent avoided trial, and
instead, agreed to an order providing for reinstatement and backpay, barring
any controversy. Thus, notwithstanding the nonadmissions clause in the stipu-
lation, the net effect of the settlement is to treat Bravo and Paredez as if they
were discriminatees.
‘‘There is no assurance that a [Person] subject to deportation
will ever be deported.’’ Id.
Neither an NLRB administrative law judge nor a Regional
compliance officer possesses the expertise or experience to
find her way through this statutory thicket and determine
independently the status of undocumented aliens under the
immigration code. I stated repeatedly throughout the instant
hearing that it was inappropriate to impose on the judge de-
terminations which properly are allotted to immigration offi-
cers. I adhere to that view with even greater conviction now.
The INS and not the NLRB has the sole and exclusive au-
thority to determine admissibility to and deportability from
this country. See 8 U.S.C. §§ 1226(a) and 1252(b). There-
fore, to conclude that Bravo and Paredez are eligible for re-
instatement and backpay until the INS issues a final deporta-
tion order, furthers national labor policy while accommodat-
ing the purposes of the INA. See Sure-Tan, 467 U.S. at 902–
903, citing Southern Steamship Co. v. NLRB, 316 U.S. 31,
47 (1942).
Just before passage of IRCA, the Ninth Circuit stated in
Felbro that a backpay award would not conflict with the
INA’s objectives since that statute was only peripherally con-
cerned with the employment of undocumented workers. At
that time, the INA did not prohibit an employer from hiring
an undocumented alien nor prohibit an undocumented alien
from accepting employment after entering the country ille-
gally. 795 F.2d at 719.
This situation was altered with the enactment of IRCA on
November 6, 1986. IRCA provides, inter alia, for the adjust-
ment to lawful temporary resident status (TRS) of certain in-
dividuals who have maintained continuous unlawful resi-
dence in the United States since January 1, 1982. The appli-
cation period for adjustment to TRS began on May 5, 1987,
and ended on May 5, 1988. IRCA now makes the employ-
ment of unauthorized aliens unlawful and imposes sanctions
on employers who knowingly hire or continue to employ
them. Pub. L. 99–603, § 101. It could be argued that ordering
reinstatement for an undocumented alien might conflict with
IRCA objectives and expose an employer to criminal liability
for violating the command of that statute. See Pub. L. 99–
603. Such an argument is not persuasive here for a number
of reasons.
First, the penalty provisions of IRCA do not apply to
‘‘grandfathered’’ employees; i.e., employees hired on or be-
fore November 6, 1986. The regulations enacted pursuant to
IRCA provide that the ‘‘grandfather’’ requirement of con-
tinuing employment is met where the employee is reinstated
after a wrongful discharge or pursuant to a settlement. 8 CFR
§ 274a.2(b)(v) and (iii)(E),(G). In the instant case, Bravo and
Paredez were hired by Del Rey prior to November 6, 1986,
and absent their involuntary discharges, it must be presumed
that they would have remained in Respondent’s employ.
Hence, Respondent could have reinstated them as grand-
fathered employees without fear of offending IRCA.
Although the grandfather provision immunized Respondent
from liability under IRCA, this did not necessarily mean that
the two employees in question were exempt from seeking le-
galization under IRCA. In this regard, Bravo and Paredez
both testified at the hearing that they believed they were eli-
gible for amnesty and intended to apply for legalization
under IRCA. If these statements were presented to the Re-
spondent in affidavit form, they would have satisfied IRCA’s
requirements for a declaration of intent, thereby conferring
on Paradez and Bravo the status of intending citizens entitled
to work for the Respondent until September 1, 1987, even
without INS authorization.14 Consistent with his declaration,
each man applied for legalization and received authorization
from INS to remain and work in the United States.
Respondent contends that the documents which Bravo and
Paredez obtained from INS operate prospectively and do not
legalize their presence here prior to the dates on which they
were issued. However, as discussed above, the Ninth Circuit
observed in the pre-IRCA Felbro decision that INS was only
marginally concerned with the employment status of undocu-
mented workers and Sure-Tan did not alter well-settled
Board law that illegal aliens who had not been deported (like
Paredez and Bravo) were eligible for reinstatement and back-
pay. 572 F.2d at 719, 723–724. At all times since IRCA was
enacted, Bravo and Paredez have continued to be eligible for
reinstatement and backpay either as grandfathered employees,
intending citizens or applicants for legalization. In sum, the
passage of IRCA does not affect the discriminatees entitle-
ment to the Board’s traditional remedies throughout the
backpay period.
Even if Paredez and Bravo had not taken the preliminary
steps requisite to adjusting their status, the legislative history
of IRCA indicates that Congress did not intend to curtail the
Board’s power to remedy unfair labor practices committed
against undocumented workers. Thus, H.R. Conf. Rep. No.
1,000, 99th Cong., 2d Sess. 58 (1986), states:
It is not the intention of the Committee that the em-
ployer sanctions provisions of the bill be used to under-
mine or diminish in any way labor protections in exist-
ing law, or to limit the powers of federal or state labor
relations boards . . . to remedy unfair labor practices
committed against undocument employees . . . for en-
gaging in activities protected by existing law. In par-
ticular, the employer sanctions provisions are not in-
tended to limit in any way the scope of the term ‘‘em-
ployee’’ in Section 2(3) . . . or of the rights and pro-
tections stated in Sections 7 and 8 of the Act.
This language suggests that the Board has wide latitude to
pursue objectives which effectuate the NLRA, and at the
same time accommodate the IRCA, by ordering reinstatement
and backpay, provided that the INS has not determined that
the discriminatee is deportable.
Clearly, Respondent, as the party challenging the employ-
ees’ entitlement to reinstatement and backpay, should bear
the burden of proving their ineligibility by producing evi-
dence that they are subject to an INS deportation order.15
221DEL REY TORTILLERIA
16 Sec. 102.57 provides that ‘‘After the opening of the hearing, the specifica-
tion and the answer thereto may be amended upon leave of the administrative
law judge . . . good cause therefor appearing.’’
17 On August 24, 1988, Respondent sent a telegram to Paredez offering rein-
statement if he reported to work by September 6. Respondent also offered re-
instatement to Bravo (via the Union) if he reported to work by September 27.
During a telephone conference call among the parties on September 13, 1988,
and in their briefs, neither the General Counsel nor the Charging Party stated
that these offers were not bona fide. Accordingly, I conclude that the backpay
period ended on the dates that Paredez and Bravo received Respondent’s rein-
statement offers.
18 I assume that Bravo used the word ‘‘ranches’’ as a synonym for farms.
Respondent has not produced such documentation. Accord-
ingly, it has failed to show that Paredez and Bravo are not
entitled to the Board’s traditional remedies owed to wrong-
fully terminated employees.
III. THE AMOUNT OF BACKPAY DUE
A. The Second Amended Backpay Specification
Prior to the hearing in this matter, the General Counsel
served a subpoena on the Respondent seeking certain records
needed to calculate precisely, the amount of backpay alleg-
edly owed to the terminated employees. Thereafter, the Re-
spondent moved to revoke the subpoena. This dispute was
resolved at the hearing by agreement between the parties that
the Respondent would permit a Board compliance officer to
review the necessary payroll records at its facility. Based on
this review, the General Counsel filed an amended backpay
specification on June 4, 1987. Specifically, the amended
specification alleges that the proper method to calculate the
wages owed to Paredes and Bravo is based on the actual
earnings of a representative employee who remained on Re-
spondent’s payroll throughout the backpay period. The Re-
spondent’s answer of June 24 denied the allegations on two
grounds: first, that because the discriminatees were not law-
fully present in the United States, their backpay period never
commenced, and second, that the General Counsel was fore-
closed from again amending the backpay specification since
Respondent had admitted the method of calculating gross
backpay proposed in a previous specification.
Respondent’s first argument regarding the discriminatees’
unlawful presence in this country, was considered above and
found to be without merit. Respondent’s second argument is
equally unpersuasive. At the outset of the hearing in this
matter, the General Counsel stated without dispute that she
had been denied access to Respondent’s records and there-
fore was unable to prepare a backpay specification which ac-
curately reflected the wages owed the discriminatees. Ac-
cordingly, I granted the General Counsel leave to file an
amendment to the amended backpay specification after she
had an opportunity to review the relevant records. Accord-
ingly, I find that the backpay specification here in dispute
was properly amended pursuant to Section 102.57 of the
Board’s Rules and Regulations.16 The amended pleading of
June 4, 1988, shall be marked as General Counsel’s Exhibit
I(h); Respondent’s answer to it shall be marked as General
Counsel’s Exhibit I(i), and both shall be entered into the for-
mal record of this proceeding.
B. The Question of Bravo’s Interim Earnings
The Respondent did not contest the method selected by the
General Counsel to compute backpay allegedly owed the two
discriminatees and also admitted the accuracy of their interim
earnings, to the extent that it was reported. In addition, Re-
spondent offered reinstatement to Paredez and Bravo in Sep-
tember 1988.17 However, Respondent submits that Bravo’s
testimony was so lacking in candor that it must be assumed
that he either failed to diligently seek interim employment or
concealed interim earnings he did acquire. Consequently, Re-
spondent argues that Bravo has forfeited entitlement to any
backpay. Thus, the final question to be resolved here is is
whether Bravo willfully incurred a loss of interim earnings,
as Respondent contends.
C. The Applicable Principles
Under longstanding Board rules governing backpay pro-
ceedings the General Counsel is required to show the gross
amounts the discharged employees would have received in
the absence of the employer’s unlawful conduct. Once that
showing is made, the burden shifts to the employer to estab-
lish facts which diminish its liability. Mastro Plastics Corp.,
136 NLRB 1342, 1347 (1962), enfd. 354 F.2d 170, 178 (2d
Cir. 1965), cert. denied 384 U.S. 972 (1966). Toward that
end, the Respondent may adduce facts proving that the
discriminatee willfully incurred a loss of earnings by failing
to make a good-faith effort to obtain or retain interim em-
ployment. See Rutter-Rex Mfg. Co., 158 NLRB 1414, 1447
(1966). However, it is ‘‘well settled that the reasonableness
of a discriminatee’s efforts to find a job . . . need not com-
port with the highest standard of diligence. . . . Rather, it is
sufficient that the discriminatee make a good faith effort.’’
Lundy Packing Co., 286 NLRB 141 (1987). Although the in-
gredients of good faith may vary with the circumstances of
each case, ‘‘the discriminatee’s skills, experience, qualifica-
tions, age and labor conditions in the area are factors to be
considered.’’ Id. Moreover, a backpay claimant’s lack of suc-
cess in finding work need not indicate bad faith for there is
no guarantee that even the most willing and diligent appli-
cant will be hired. Id. In the final analysis, to satisfy its bur-
den of proving that a discriminatee willfully avoided interim
employment, the Respondent must show ‘‘a clearly unjustifi-
able refusal to take desirable new employment.’’ Id. Any un-
certainty in the evidence is to be resolved against the re-
spondent as the wrongdoer. Southern Household Products
Co., 203 NLRB 881 (1973). After careful consideration, I
conclude that the Respondent has failed to meet the rigorous
burden imposed by the principles outlined above.
The record shows that Bravo had only a shadowy recollec-
tion of the names of companies where he allegedly sought
employment. Although he testified that he searched for work
three times a week, he recalled the names of no more than
two or three businesses. However, he did attempt to supple-
ment his account with other details. He described the product
manufactured at one company, gave the location of another,
and the name of a supervisor at a former workplace where
he applied for reemployment. In addition, he volunteered that
he had applied for jobs at restaurants in the area and had
travelled to Michigan with friends on some three to five oc-
casions and to Florida in search of work on ranches18 and
other places. When pressed on cross-examination to give ad-
ditional details, he stated that his job search was in Benton
Harbor, Michigan. However, he was unable to provide an ad-
dress, explaining that while there, he resided in a trailer. He
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 M. J. McCarthy Motor Sales, 147 NLRB 605, 615–618 (1964), a case
cited by the Respondent, is distinguishable from the present case. There, the
administrative law judge, with Board affirmance, denied backpay since cred-
ited, independent and substantial evidence proved beyond doubt that the claim-
ant had deceptively concealed interim earnings.
20 Respondent suggests that Bravo must have provided false documents to
the INS when he applied for amnesty. Respondent forgets that Bravo testified
at the instant hearing in May 1987 and applied for legalization in July 1988.
He could have obtained new identification between those two dates. In any
event, the decision of the INS to grant Bravo a working permit is presump-
tively valid on its face.
21 Bravo refused to release only the 1040 tax form on which taxpayers
itemize deductions. I hardly think this document was necessary or relevant to
Respondent’s inquiry.
22 Respondent asserts that the IRS was unable to recover W–2 forms for
Bravo because he suplied a false social security number. However, this asser-
tion is dehors the record. Moreover, in a letter to me dated June 24, 1987,
Respondent maintained that he was assured that the IRS could conduct a
search even without a social security number.
23 I note that Bravo’s inability to recall the names of restaurants and
‘‘ranches’’ is entirely understandable.
24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
also testified that a fire at his residence several years ago had
destroyed his personal records which he had not yet replaced.
Respondent asserts that Bravo’s testimony was evasive; his
inability to recall simply incredible. Respondent’s incredulity
falls short of proof needed to demonstrate willful loss of
earnings for it is well established that an employee is not dis-
qualified from receiving backpay merely because of uncer-
tain memory or poor recordkeeping. See Hickory’s Best, Inc.,
267 NLRB 1274, 1376 (1983).19
Moreover, given Bravo’s background, inferences other
than those of deceit are readily available to explain his lack
of success on the job market. Bravo was Mexican by birth;
since he testified in Spanish with the assistance of a trans-
lator, I infer he was not proficient in English. At best, he had
a ninth grade education and apparently lacked skills that
would equip him for anything more than menial labor. After
1 year’s employment with the Respondent, he was earning
only the minimum wage. Respondent was skeptical of Bra-
vo’s claim that he lost all of his identification in a fire that
swept his residence. Since Bravo gave the exact address of
the house, it would have been an easy matter for Respondent
to have impeached him if an investigation revealed that the
disaster was fabricated. Since Respondent did not raise this
matter again, Bravo’s testimony regarding this event stands
uncontroverted. Bravo’s losses in the fire surely added to his
handicaps in securing work. Especially after the passage of
IRCA in September 1986, potential employers may not have
looked favorably on an undocumented alien who lacked
identification.20
Respondent also complains that Bravo abused the Board’s
processes by failing to supply interim employment informa-
tion until shortly before the hearing. In response to this com-
plaint, I granted Respondent an extension of time after the
hearing concluded to conduct an investigation of Bravo’s in-
terim earnings, if any. In fact, Respondent had more than
ample opportunity to verify any of the facts that emerged as
a consequence of Bravo’s testimony. With but one exception
to be discussed below, Respondent did not attempt to reopen
the record to introduce affirmative evidence that appropriate
job opportunities were available to Bravo or that he rejected
interim employment.
Further, contrary to Respondent’s contention, Bravo did
cooperate in signing a release authorizing the United States
Internal Revenue Service to search its files and release any
W–2 and 1099 forms which might be found.21 Since interim
earnings would appear on the W–2 form, this was sufficient
for Respondent’s purposes. After a comprehensive search
was conducted of national tax records in March 1988, an
agent of the IRS advised me and the parties that no records
existed for Bravo. The absence of such information tends to
support Bravo’s testimony that he had no stable employment
and to disprove Respondent’s contention that Bravo con-
cealed interim earnings.22
Lastly Respondent attempted to prove that Bravo quit a
permanent position with a Florida firm on April 21, 1987,
and by so doing, terminated his right to backpay, at least as
of that date. Bravo acknowledged at the hearing that he
worked for Pritts for 3 weeks, but indicated that the job was
not permanent. After the hearing, Respondent moved that a
letter recently obtained from the manager of Pitts be admitted
into evidence. I denied the motion and rejected the exhibit
on the ground that the letter posed double hearsay problems.
Respondent then moved for leave to take a telephone deposi-
tion of the Pitts foreman for whom Bravo had worked. By
order of June 9, 1987, I denied Respondent’s motion, ex-
plaining that such a procedure in which multiple parties
would interrogate a witness who presumably spoke in Span-
ish with Bravo either directly or through an interpretor,
would lead to confusion. I also suggested that a deposition
of the foreman alone might not be dispositive. However, the
order provided that on Respondent’s request, I would recon-
vene the hearing to take oral testimony regarding Bravo’s
employment with Pritts. Respondent made no such request
and I find no reason to reverse my prior rulings. Accord-
ingly, the record contains no reliable evidence that Bravo re-
jected permanent employment with the Florida firm.
In light of all the above circumstances, I do not infer that
Bravo engaged in willful deception; he simply was negligent
in failing to maintain records which might have jogged his
memory about the places he applied for employment.23 See
Rainbow Coaches, 280 NLRB 166 (1986). Instead, I find
that Respondent has failed to prove affirmatively that job op-
portunities were available to Bravo or that he did not engage
in a reasonably diligent search for interim employment. Ac-
cordingly, I conclude that both Bravo and Paredez are enti-
tled to the sums set forth in the second amended backpay
specification.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended24
ORDER
The Respondent, Del Rey Tortilleria, Inc., Chicago, Illiois,
its officers, agents, successors, and assigns, shall
1. Pay to Nicholas Paredez (Gorgonia Hernandez) and
Bernardo Bravo, the amounts set forth in the June 4, 1987
amendment to the amended backpay specification, plus inter-
est, adjusted in accordance with the formula set forth therein,
and make them whole for the entire backpay period from the
date they were discharged on April 23, 1985, until the date
on which the Respondent unconditionally offered them rein-
statement, to be computed in the manner prescribed in New
223DEL REY TORTILLERIA
25 283 NLRB 1173 (1987). Under New Horizons, interest is computed at the
‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the
effective date of the amendment) shall be computed as in Florida Steel Corp.,
231 NLRB 651 (1977).
26 Apart from the controversy over the remedy in this case, Respondent has
agreed to the terms of the notice appended to the settlement stipulation ap-
proved by the Board on July 18, 1986. However, in light of this proceeding,
the paragraph regarding reinstatement and backpay for employees Marcos and
Hernandes may require amendment.
Horizons for the Retarded,25 until payment of all backpay is
made, less tax withholdings required by Federal and state
laws.
2. Post at its Chicago, Illinois facility copies in both the
Spanish and English language of an appropriate notice to
employees.26 Copies of the notice on forms provided by the
Regional Director of Region 13, after being signed by the
Respondent, shall be posted immediately on receipt thereof,
and maintained for 60 consecutive days thereafter in
consipicuous places, including all places where notices to
employees are customarily posted. The Respondent shall take
reasonable steps to ensure that the notice and its copies are
not altered, defaced, or covered by any other material.
3. Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.