SURE-TAN, INC. AND SURAK LEATHER COMPANY, PETITIONERS V. NATIONAL
LABOR RELATIONS BOARD

   No. 82-945

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
Seventh Circuit

   Brief for the National Labor Relations Board

            TABLE OF CONTENTS
   Statement
   Summary of argument
   Argument
      I. The application of the National Labor Relations
          Act to unfair labor practices committed against
          aliens who are present in the United States in
          violation of the Immigration and Nationality
          Act is consistent with the terms of both Acts and
          substantially furthers the policies of each
          A. The terms and policies of the National Labor
            Relations Act fully support the coverage of
            undocumented aliens
          B. Application of the National Labor
            Relations Act to undocumented aliens is
            consistent with and furthers the purposes of
            the Immigration and Nationality Act
      II. The Board correctly concluded that petitioners
          violated Section 8(a)(3) and (1) of the National
          Labor Relations Act by reporting their
          undocumented alien employees to the Immigration
          and Naturalization Service in retaliation for
          their union activities, thereby constructively
          discharging the employees
          A. Under Board precedent, petitioners' conduct
            constituted a constructive discharge of the
            employees
          B. The Board's finding of a violation of Section
            8(a)(3) and (1) is consistent with the
            Immigration and Nationality Act
          C. Petitioners' claim that the decision below
            should be reversed because it violates their First
            Amendment rights is without merit
      III. The backpay award entered in this case
          effectuates the policies of the National
          Labor Relations Act and does not conflict with
          the immigration laws
      IV. The court of appeals' decision regarding
          the offers of reinstatement is reasonable in the
          circumstances of this case
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether, in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, the employer constructively discharged employees
known by the employer to be undocumented aliens by reporting the
employees to the Immigration and Naturalization Service in retaliation
for their engaging in union activity, thereby causing their arrest and
immediate departure from the United States.

   2. Whether the remedial order in this case is appropriate.

                               STATEMENT

   1. Petitioners are leather processing firms located in Chicago,
Illinois.  For purposes of the National Labor Relations Act ("NLRA"),
they are a single, integrated employer.  In July 1976, the Chicago
Leather Workers Union, Local 431, Amalgamated Meatcutters and Butcher
Workmen of North America (the "Union") began to organize petitioners'
employees.  At that time, petitioners employed about 11 workers, most
of whom were Mexican nationals present in the United States without
visas or immigration papers authorizing them to work (Pet. App. 2a,
67a).  In response to the organizing campaign, petitioners coercively
interrogated employees about their union sentiments and activities and
those of other employees, subjected them to profane verbal abuse,
threatened that petitioners would reduce work opportunities if the
employees voted for the Union, and promised more work if they did not
support the Union (Pet. App. 3a-6a, 69a-71a, 73a-74a).  The Union
prevailed in a Board election conducted on December 10, 1976 (Pet.
App. 2a, 68a).  Sure-Tan, Inc. & Surak Leather Co., 231 N.L.R.B. 138
(1977), enforced, 583 F.2d 355 (7th Cir. 1978) ("Sure-Tan I").

   Two hours after the election, petitioners' president, John Surak,
addressed a group of employees, including three of the undocumented
aliens involved here.  Surak told the employees that they were not his
friends or "amigos," asked why they had voted for the Union, cursed
them, and asked whether they had proper immigration papers.  The
employees replied that they and the other Mexican employees did not
have such papers.  Later that day, Surak threatened another employee
that petitioners would go out of business as a result of the election
(Pet. App. 4a, 70a).

   Petitioners filed objections to the election on the ground, inter
alia, that six of the seven eligible voters were undocumented aliens.
Sure-Tan I, supra, 231 N.L.R.B. at 138-139.  John Surak executed an
affidavit on January 10, 1977 in connection with those objections in
which he stated that he had been informed several months before the
election that "these men were illegally here" (Pet. App. 11a, 72a
n.3).  In a decision dated January 17, 1977, the Acting Regional
Director overruled petitioners' objections and certified the Union as
the bargaining representative for petitioners' employees.  Petitioners
received notice of this decision on January 19, 1977.

   On the next day, January 20, 1977, John Surak sent a letter to the
Immigration and Naturalization Service ("INS") requesting that the INS
check the status of a number of petitioners' employees and that INS
give its attention to the matter "as soon as possible" (Pet. App.
8a-9a, 68a-69a).  On February 18, 1977, as a result of Surak's letter,
INS agents visited petitioners' plant, determined that five employees
were in the United States in violation of the immigration laws, and
arrested them (Pet. App. 9a, 69a, 75a).  Each of the five employees
executed INS Form I-274, thereby acknowledging illegal presence in the
United States and accepting INS's grant of voluntary departure in lieu
of deportation (id. at 9a-10a).  By the end of the day, the five
employees had been placed on a bus bound for El Paso, Texas, from
where they were to return to Mexico (Pet. App. 10a, 69a).

   On March 29, 1977, petitioners sent letters in English by regular
mail to the five employees at their last known addresses in Mexico
offering to reinstate them, provided that doing so would "not subject
Sure-Tan, Inc. to any violations of United States immigration laws."
The letters further stated that the offer would remain open until May
1, 1977.  There is no evidence that any of the letters was actually
received (Pet. App. 20a, 80a).

   2. Petitioners refused to bargain with the Union after it was
certified as the bargaining representative.  In unfair labor practice
proceedings not involved here, the Board found that petitioners'
refusal to bargain violated Section 8(a)(5) and (1) of the Act, 29
U.S.C. 158(a)(5) and (1).  Sure-Tan I, supra, 231 N.L.R.B. at 140-141.
 The court of appeals enforced the Board's order, rejecting
petitioners' contention that the certification and bargaining order
were invalid because six of the seven employees eligible to vote in
the election were aliens who were residing and working in the United
States without authorization and who had since departed.  NLRB v.
Sure-Tan, Inc., 583 F.2d 355 (7th Cir. 1978).  The court observed that
the term "employee" is defined broadly in Section 2(3) of the Act, 29
U.S.C. 152(3), and that the Board's interpretation of the term to
include undocumented aliens is entitled to great weight and should be
followed where, as here, there are no compelling indications that it
is wrong.  583 F.2d at 358-359.

   The court also held that the certification and bargaining order did
not conflict with the Immigration and Nationality Act ("INA").  It
observed that petitioners had a choice whether to hire illegal aliens
in the first place, and to hold that a company could avoid
certification on the basis of the employees' immigration status would
"giv(e) employers an extra incentive to hire aliens and thus would be
defeating the goals of the immigration laws" (583 F.2d at 360).  The
court found the "obvious possibility" to be "that a company would hire
illegal aliens without informing the Immigration and Naturalization
Service and without seeking certification of the aliens from the
Secretary of Labor, as more responsible employers frequently do * * *,
/1/ knowing that if the aliens successfully unionize they could then
be reported to the Immigration and Naturalization Service and
deported." Ibid.  (footnote and citation omitted).  The court
concluded that in view of petitioners' prior knowledge of the
employees' immigration status and petitioners' failure to seek
approval from the Secretary of Labor for them to work, "it ill becomes
(petitioners) to argue after losing the election that certification
would conflict with the immigration laws" (id. at 360).

   3. a. The instant case arises out of a second unfair labor practice
proceeding against petitioners.  The Board, adopting the findings and
conclusions of the Administrative Law Judge ("ALJ"), found that
petitioners violated Section 8(a)(1) of the Act by:  (i) threatening
employees with less work if they supported the Union and promising
more work if they did not;  (ii) interrogating employees about their
Union sentiments;  (iii) threatening the employees immediately after
the election to notify the INS because they had supported the Union;
and (iv) threatening to go out of business because the Union won the
election (Pet. App. 61a-62a, 73a-74a, 77a).

   The Board also held that petitioners had violated Section 8(a)(3)
and (1) when, "with full knowledge that the employees in question had
no work permits," they requested the INS to investigate the employees'
status "solely because the employees supported the Union" (Pet. App.
62a).  The Board affirmed the ALJ's finding that "the discriminatees'
subsequent deportation was the proximate result of (petitioners')
discriminatorily motivated action * * * and constitutes a constructive
discharge" (Pet. App. 61a-62a, 74a).

   b. With respect to the remedy, the Board ordered petitioners to
cease and desist from dicouraging membership in or support of the
Union by interrogating employees about their Union sympathies,
threatening them with less work if they support the Union and more
work if they do not, threatening to notify the INS of employees'
status because of their support of the Union, and actually notifying
the INS of employees' status because of that support and thereby
causing their constructive discharge (Pet. App. 64a, 82a).  The Board
did not, however, adopt the ALJ's recommendation with respect to
reinstatement and backpay for the five alien employees who the Board
found to have been constructively discharged.

   The ALJ had concluded that reinstatement would be an appropriate
remedy if the employees could lawfully work in the United States (Pet.
App. 79a-80a).  The ALJ found, however, that petitioners' March 29,
1977 letter offering the discriminatees reinstatement was inadequate
because it gave them only "20 days or less to initiate procedures to
re-enter the United States on work permits or other valid basis" (Pet.
App. 80a).  The ALJ recommended instead that they be allowed six
months to return and accept reinstatement (id. at 79a-80a).  The ALJ
also found that because the letters were not sent by registered mail
with return receipts requested, there was no evidence that the offers
had been received (ibid.).  The ALJ declined to recommend an award of
backpay because liability for backpay ordinarily is tolled during the
period that discharged employees are unavailable for work (Pet. App.
80a-81a).

   The Board agreed with the ALJ that reinstatement is an appropriate
remedy.  The Board also found petitioners' March 29, 1977 letter
offering reinstatement to have been deficient, but on a ground other
than those identified by the ALJ.  It found that the letter was not
unconditional, because it offered reinstatement on the condition that
"re-employment shall not subject Sure-Tan, Inc. to any violations of
United States immigration laws" (Pet. App. 20a).  /2/ The Board also
found that the ALJ's analysis of the remedial issue was "unnecessarily
speculative." The Board explained that the ALJ's recommendation that
the offer of reinstatement be kept open for six months and his failure
to recommend an aware of backpay were premised upon the
discriminatees' unavailability for work, even though there was no
evidence that the employees had not actually returned to the United
States.  The Board therefore ordered the conventional remedy of
reinstatement and backpay, with matters pertaining to the availability
of the employees to be resolved in compliance proceedings (Pet. App.
63a).  /3/

   4. a. The court of appeals upheld the Board's finding of violations
of Section 8(a)(1) of the Act arising out of petitioners' threatening
and interrogation of employees, including their threat to report alien
employees to the INS (Pet. App. 3a-6a).  Petitioners do not challenge
the decision of the court of appeals in this respect.

   The court also upheld the Board's finding that petitioners were
motivated by anti-union animus in reporting the employees to INS and
violated Section 8(a)(3) and (1) in doing so (Pet. App. 8a-15a).  The
court found the element of anti-union animus to be "flagrantly met in
this case," because "(t)he record is replete with examples of
(petitioners') blatantly illegal course of conduct to discourage its
employees from supporting the Union" (Pet. App. 14a (footnote
omitted);  see also id. at 10a-12a).  The court held that "(b)y
putting the INS on notice of these alien employees when it knew of
their illegal status, (petitioners) took action which was the
proximate cause of their departure" (Pet. App. 12a).

   The court also rejected petitioners' contention that they were
legally obligated to disclose the presence of the aliens to the INS,
concluding that no provision of the INA imposes such a legal duty.
The court recognized that an employer nevertheless ordinarily should
notify the INS if he suspects that his employees are in the United
States without authorization, but the court concluded that "an
employer has no right to rely on a 'moral obligation' to report
illegal aliens (of which he has been previously oblivious) merely to
sanctify an otherwise unjustifiable violation of Section 8(a)(3)"
(Pet. App. 13a).

   b. The court found the usual remedy of reinstatement and backpay
appropriate in these circumstances.  In the court's view, it would be
anomalous to hold that undocumented aliens are employees covered by
the Act but then to refuse effective remedies.  The court also noted
that the rights of both alien and non-alien employees were at issue
because discrimination against the alien employees undermined the
Union's support during the crucial period immediately after
certification.  Thus, the court concluded that reinstatement and
backpay would vindicate the policies of the NLRA and deter similar
conduct in the future (Pet. App. 19a).  The court did, however, modify
the Board's remedial order in several respects.

   The court first concluded that reinstatement would be proper only
if the discriminatees are legally present and free to be employed in
the United States when they present themselves for reinstatement (Pet.
App. 22a).  The court also disagreed with the Board that petitioners'
March 29, 1977 offer of reinstatement was not unconditional because it
was contingent upon petitioners' not violating the immigration laws.
The court observed that this condition was not actually a legal
impediment to reinstatement, since the INA does not prohibit an
employer from hiring an illegal alien, and concluded that in any event
this condition would have been understood by the recipient as imposing
the reasonable condition that he lawfully re-enter the United States
(Pet. App. 21a-22a).  The court held, however, that the reinstatement
offers were deficient on other grounds:  because they did not allow
the employees a reasonable time to make arrangements for a legal
entry, were not delivered in a manner allowing verification of
receipt, and were not written in Spanish (Pet. App. 22a).  The court
held that the reinstatement offers should be left open for a period of
four years (ibid.).

   The court of appeals also modified the Board's order to make clear
that in computing backpay, discriminatees would be deemed unavailable
for work during any period in which they were not lawfully entitled to
be present and work in the United States (Pet. App. 23a).  The court
observed, however, that in this case the discriminatees might not have
been lawfully available for work at any time prior to the new offer of
reinstatement and that they therefore might receive no backpay under
the usual rules.  The court expressed the view that in these
circumstances, an award of some minimum amount of backpay
notwithstanding the employees' unavailability -- to account in some
measure for the period the aliens would have remained in the United
States if they had not been reported to the INS for discriminatory
reasons -- would better effectuate the purposes of the Act.  The court
believed that six months' backpay would be the minimum amount
appropriate for this purpose, and suggested that the Board consider
that remedy (Pet. App. 24a).  The Board accepted the court's
suggestion in this particular case, although in doing so it did not
purport to articulate a remedial policy for such cases generally.  /4/
The backpay award is subject to setoffs for other earnings during the
six-month period (Pet. App. 28a).  /5/

                          SUMMARY OF ARGUMENT

   I. The application of the National Labor Relations Act (NLRA) to
unfair labor practices committed against undocumented aliens is
consistent with the terms and furthers the purposes of both the NLRA
and the Immigration and Nationality Act ("INA").  The term "employee"
is defined broadly in Section 2(3) of the NLRA to include "any
employee," with exceptions not relevant here, and nothing suggests
that an employee's status under the immigration laws removes him from
coverage.  Moreover, to exclude undocumented aliens from the right to
participate in union activities free of intimidation by the employer
would create a subclass of employees in an employer's work force who
have no protected stake in the collective goals of the employees.
This would substantially undermine the unified strength Congress found
necessary for collective bargaining and resulting industrial peace and
would adversely affect the wages and working conditions of citizens
and lawfully resident aliens.

   This Court concluded in De Canas v. Bica, 424 U.S. 351, 360 (1976),
that the employment of undocumented aliens is at most a "peripheral
concern" of the INA.  For example, although it is unlawful under 8
U.S.C. 1324(a)(3) knowingly to harbor an illegal alien, employment is
expressly excluded from that prohibition.  Moreover, the provisions of
the INA that provide for the exclusion of aliens and impose criminal
sanctions for their conduct apply principally at the time of entry and
likewise do not focus specifically on employment.  Application of the
NLRA to undocumented aliens therefore is not inconsistent with the
INA.  To the contrary, enforcement of the NLRA in this setting
furthers the purposes of the INA's labor certification protections by
creating a disincentive for employers to hire undocumented aliens on
substandard terms that would adversely affect the job opportunities
and wages and working conditions of citizens and lawfully resident
aliens.

   II. Petitioners constructively discharged the undocumented alien
employees in violation of Section 8(a)(3) and (1) of the NLRA by
reporting them to the INS in retaliation for their union activities,
which caused them to be arrested and depart the country.  Petitioners
clearly would have been prohibited from firing the employees outright
for this reason, and it could not accomplish the same result
indirectly by reporting them to the INS.

   The finding of an unfair labor practice in these circumstances is
fully consistent with the INA.  When Congress chose not to make it
unlawful for employers to hire undocumented aliens, it obviously did
not anticipate that employers who do so would report the aliens to the
INS.  In fact, Congress rejected proposals to require such reporting.
Thus, the governmental interest in receiving information about
violations of the INA applies with less force in the case of reporting
by employers who knowingly hire undocumented aliens.  On the other
hand, the purposes of the NLRA apply with particular force in this
setting, because the undocumented aliens are especially vulnerable to
exploitation by their employers, which in turn adversely affects the
employer's other employees.  It also is relevant that petitioners
themselves facilitated the undocumented alien employees' unlawful
residence by continuing to employ them.

   III. The remedial order requiring petitioners to pay a minimum of
six months' backpay to the discharged employees effectuates the
purposes of the NLRA.  Backpay is a standard remedy when employees are
unlawfully discharged.  The award in this case reflects the fact that
the employees would have remained in petitioners' employ for some time
if they had not been reported to the INS.  Because employment of the
aliens was not unlawful under the INA and petitioners took advantage
of the exemption in the INA by employing them, petitioners cannot be
heard to contend that employment of the discriminatees was so contrary
to public policy that petitioners cannot be held liable for
constructively discharging them for retaliatory reasons.  The Board's
inability to provide an effective remedy in these circumstances would
encourage similar acts in the future and undermine the rights of
lawfully resident employees.

   IV. The requirements that petitioners' offers of reinstatement be
written in Spanish and provide for verification of receipt are
reasonably calculated to ensure that the offers will be effectively
communicated to the discriminatees in Mexico.  The requirement that
the discriminatees be allowed four years within which to return to
accept reinstatement also is reasonable, in light of the delays that
applicants from Mexico face in obtaining immigrant visas.

                               ARGUMENT

   Petitioners do not dispute that they are engaged in commerce and
that their labor practices therefore are subject to the NLRA.  /6/ Nor
do petitioners take issue with the conclusion by the Board and court
of appeals that the undocumented aliens they employed are "employees"
within the meaning of the Act /7/ and that it therefore was illegal
for petitioners to "interfere with, restrain, or coerce" those
employees in the exercise of their rights under the Act /8/ or to
discourage their membership in a labor organization "by discrimination
in regard to hire or tenure of employment or any term or condition of
employment." /9/ Accordingly, petitioners have not sought review of
the Board's holding, affirmed by the court of appeals, that they
violated Section 8(a)(1) by threatening and interrogating those
employees with regard to their Union sentiments and activities,
including threatening to report them to the INS in retaliation for
their Union activities.

   Petitioners also do not challenge the Board's finding that when
they followed through on their threat to report the undocumented alien
employees to the INS, they were motivated solely by anti-union animus
(Pet. App. 62a;  see Pet. Br. 19) -- a fact the court of appeals found
was "flagrantly" present in this case, in light of petitioners'
"blatantly illegal course of conduct to discourage its employees from
supporting the Union" (Pet. App. 14a).  Petitioners nevertheless
contend that their reporting of the employees to the INS in
retaliation for their Union activities did not violate the Act and
that the employees' loss of their jobs as a result is none of
petitioners' concern.  This contention should be rejected.

   Although petitioners do not specifically dispute that the five
aliens involved here were their "employees" within the meaning of the
NLRA notwithstanding their status under the INA, the principal theme
of petitioners' argument nevertheless is that the court of appeals'
decision is inconsistent with the INA.  In order to demonstrate that
no such inconsistency exists, we shall begin with a discussion of the
coverage of undocumented aliens under the NLRA and the broader
question of the proper accommodation of the NLRA and the INA in this
setting.

 I. THE APPLICATION OF THE NATIONAL LABOR RELATIONS ACT TO UNFAIR
LABOR PRACTICES COMMITTED AGAINST ALIENS WHO ARE PRESENT IN THE UNITED
STATES IN VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT IS
CONSISTENT WITH THE TERMS OF BOTH ACTS AND SUBSTANTIALLY FURTHERS THE
POLICIES OF EACH

   The Board consistently has construed the NLRA as applying to
undocumented aliens (see page 17, infra), and the only two courts of
appeals that have considered the question have agreed with the Board's
interpretation.  See Sure-Tan I, supra, 583 F.2d at 359;  NLRB v.
Apollo Tire Co., 604 F.2d 1180, 1182-1183 (9th Cir. 1979).  This
interpretation of the Act is clearly correct.  There is no basis for
concluding that an individual who occupies the position of an employee
is excluded from coverage under the NLRA because of his status under
the INA.  To the contrary, a holding that undocumented aliens are not
covered by the NLRA would create an incentive for an employer to hire
such aliens to avoid his obligations under the NLRA and thereby
encourage the illegal entry of aliens in contravention of the INA.

 A. The Terms And Policies Of The National Labor Relations Act Fully
Support The Coverage Of Undocumented Aliens

   Section 2(3) of the NLRA broadly provides that "(t)he term
'employee' shall include any employee" (29 U.S.C. 152(3);  emphasis
added), subject only to specifically enumerated exceptions for
agricultural laborers, domestic workers, individuals employed by their
spouses or parents or as independent contractors, supervisors, and
individuals employed by a person who is not an employer under the Act.
 Ibid.  There is no suggestion that the five aliens involved here fall
within any of these exceptions.  Nor is there any reason to believe
that Congress intended to fashion an implied exception for
undocumented aliens.  /10/ The express enumeration of employees not
covered suggests that other exclusions were not contemplated.  /11/

   Moreover, this Court has made clear that the statutory term
employee "must be understood with reference to the purpose of the Act
and the facts involved in the economic relationship" and that "its
applicability is to be determined broadly, in doubtful situations, by
underlying economic facts rather than technically and exclusively by
previously established legal classifications." NLRB v. Hearst
Publications, Inc., 322 U.S. 111, 129 (1944) (footnote omitted).
There is nothing in the "economic relationship" between an
undocumented alien and his employer that distinguishes the alien from
other employees who concededly are covered by the Act;  the alien's
status under the INA is essentially irrelevant to that relationship.
/12/

   The "purpose of the Act" referred to in Hearst Publications is "to
avert the 'substantial obstructions to the free flow of commerce'
which result from 'strikes and other forms of industrial strife or
unrest' by eliminating the causes of that unrest" (322 U.S. at 126,
quoting NLRA, Section 1, 29 U.S.C. 151).  Congress determined that
this purpose would be furthered by encouraging collective bargaining
by employees and "by 'protecting the exercise * * * of full freedom of
association, self-organization, and designation of representatives of
their own choosing, for the purpose of negotiating the terms and
conditions of their employment or other mutual aid or protection.'"
322 U.S. at 126.  Congress also determined that the inequality of
bargaining power of employees who do not have such rights "tends to
aggravate recurrent business depressions, by depressing wage rates and
the purchasing power of wage earners in industry and by preventing the
stabilization of competitive wage rates and working conditions within
and between industries." 29 U.S.C. 151.  See Sears, Roebuck & Co. v.
Carpenters, 436 U.S. 180, 190 (1978).

   The purposes Congress sought to advance clearly are furthered by
the Board's construction of the Act as covering undocumented aliens.
The exclusion of such aliens from union representation and from the
right to participate in union activities free of intimidation by the
employer would create a subclass of workers within an employer's labor
force who often would be indistinguishable from other employees in
terms of the work they perform and their relationship with the
employer, but who nevertheless would have no protected stake in the
collective goals of their co-workers.  This result would destroy the
unified strength Congress found to be necessary for effective
collective bargaining and resulting industrial peace.  NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 33 (1937);  Note, Retaliatory
Reporting of Illegal Alien Employees:  Remedying the Labor-Immigration
Conflict, 80 Colum. L. Rev. 1296, 1298-1299 (1980).  Moreover, if an
employer were free to threaten and coerce the undocumented aliens
among his employees, he could create an atmosphere of intimidation in
the workplace generally that would undermine the exercise of
associational rights even by those employees who are lawfully present
in the United States.

   These are very real concerns.  This Court has noted the
susceptibility of undocumented aliens to exploitation by employers.
Plyler v. Doe, 457 U.S. 202, 219 & n.18 (1982);  United States v.
Brignoni-Ponce, 422 U.S. 873, 879 (1975).  /13/ And with particular
relevance to the statutory goals in Section 1 of the NLRA, the Court
has observed that "acceptance by illegal aliens of jobs on substandard
terms as to wages and working conditions can seriously depress wage
scales and working conditions of citizens and legally admitted aliens;
 and employment of illegal aliens under such conditions can diminish
the effectiveness of labor unions." De Canas v. Bica, 424 U.S. 351,
356-357 (1976).  /14/ The policies of the NLRA therefore strongly
support including undocumented aliens within the coverage of the Act.
This has been the Board's consistent view.  The Board has included
undocumented aliens in bargaining units, /15/ and has found violations
of the Act in the discriminatory discharge of such workers /16/ and
threats of deportation directed at them for engaging in union activity
/17/ or for testifying in Board proceedings.  /18/

 B. Application Of The National Labor Relations Act To Undocumented
Aliens Is Consistent With And Furthers The Purposes Of The Immigration
And Nationality Act

   The application of the NLRA to undocumented aliens does not
conflict with the provisions of the INA and in fact furthers the
policies of that Act by removing incentives for employers to hire
illegal aliens.  As this Court observed in De Canas v. Bica, "(t)he
central concern of the INA is with the terms and conditions of
admission to the country and the subsequent treatment of aliens
lawfully in the country," and the INA "cannot be said to draw in the
employment of illegal aliens as 'plainly within * * * (that) central
aim of federal regulation.'" 424 U.S. at 359, quoting San Diego Unions
v. Garmon, 359 U.S. 236, 244 (1959) (second brackets in De Canas
opinion;  footnote omitted).  The Court in De Canas instead found in
the INA "at best evidence of a peripheral concern with employment of
illegal entrants" (424 U.S. at 360;  footnote omitted).

   1. The INA does not make it unlawful for an employer to hire an
alien who is present or working in the United States without
authorization.  Under 8 U.S.C. 1324(a)(3), it is unlawful for any
person knowingly to conceal, harbor, or shield from detection any
alien not duly admitted or lawfully entitled to enter or reside in the
United States.  However, a proviso to 8 U.S.C. 1324(a) states that
"employment (including the usual and normal practices incident to
employment) shall not be deemed to constitute harboring." See De Canas
v. Bica, supra, 424 U.S. at 360 & n.9.  Thus, on its face, the INA
does not address the subject of employment of illegal aliens.  The
legislative history reveals that this choice was carefully considered.

   In 1952, before the INA was passed, Congress enacted special
legislation to strengthen then-existing law designed to assist in
preventing aliens from entering or remaining in the United States
illegally.  See Act of Mar. 20, 1952, ch. 108, 66 Stat. 26.  /19/ As
reported by the Senate Judiciary Committee, the relevant provisions of
the bill were the same as those now contained in 8 U.S.C. 1324(a),
discussed above.  However, on the Senate floor, Senator Douglas
proposed an amendment that would have imposed criminal sanctions on an
employer who knowingly hired illegal aliens (98 Cong. Rec. 798, 803
(1952)).  The proposed amendment was extensively debated.  Id. at
798-800, 802-811.  Proponents contended that the proviso in the
committee bill exempting employment of illegal aliens created a
loophole that would encourage illegal immigration and lead to
exploitation, /20/ and opponents contended that it would be wrong to
punish employers who "were used to a long practice of carelessness"
with regard to illegal entrants (id. at 794 (remarks of Sen.
Kilgore)), could not find the necessary labor, and may not be able to
identify illegal aliens among their workers.  /21/ The amendment was
defeated by a vote of 69-12.  Id. at 811.  The bill was enacted with
the exemption for employment (66 Stat. 26), /22/ and the exemption was
incorporated into the INA later in 1952 without further debate.  /23/

   Thus, the exemption of employment from the prohibition against
harboring in 8 U.S.C. 1324(a) is the product of a considered
congressional judgment not to make it unlawful for an employer to hire
an alien who is present in the United States in violation of the
immigration laws.  Since, from the employer's perspective, the
employment relationship with undocumented aliens is not illegal under
federal law, there is no basis for concluding that the application of
the NLRA to the employer's labor practices insofar as they affect such
aliens is in any way inconsistent with the INA.  In other words, the
employer cannot have it both ways, freely accepting the work of aliens
who are present or working in violation of the INA and yet ignoring
applicable laws governing his dealings with his employees generally.

   2. To be sure, the INA does impose restrictions on aliens.  But
these provisions likewise do not directly address the employment
relationship between an undocumented alien and his employer.  In 8
U.S.C. 1182(a), Congress has established numerous qualifications for
the admission of aliens, providing for the exclusion of aliens who are
ill or insane, drug addicts, convicted criminals, paupers,
subversives, etc.  Among those excluded are aliens seeking to perform
skilled or unskilled labor, unless the Secretary of Labor has
certified that there are insufficient workers in the United States who
are able, willing, qualified and available for the work and "the
employment of such aliens will not adversely affect the wages and
working conditions of the workers in the United States similarly
employed." 8 U.S.C. 1182(a)(14).  /24/ The INA also permits the
admission of aliens as nonimmigrants to perform temporary services or
labor only "if unemployed persons capable of performing such service
or labor cannot be found in the country" (8 U.S.C.
1101(a)(15)(H)(ii)).

   These restrictions, however, address the matter of an alien's
employment in the United States principally as of the time the alien
seeks admission, by providing for the exclusion of aliens as
immigrants unless they meet or are exempt from the requirements of 8
U.S.C. 1182(a)(14) and by barring nonimmigrants other than those
covered by 8 U.S.C. 1101(a)(15)(H) from working.  Similarly, the
criminal provision of the INA generally applicable to aliens (8 U.S.C.
1325) pertains only to conduct at the time of entry.  That Section
makes it a criminal offense for an alien to enter at other than a
designated location, to elude inspection, or to obtain entry by a
false or misleading statement or concealment of a material fact.  This
provision does not focus specifically on the alien's subsequent
employment in the United States, and Congress has not made it a
separate criminal offense for an alien to accept employment without
authorization after he has entered the United States.  /25/

   Aliens who entered the United States without inspection and
nonimmigrant aliens who were duly admitted but fail to maintain their
status may be deported.  8 U.S.C. 1251(a)(2) and (9).  However, these
provisions and the other grounds for deportation likewise do not focus
specifically on the question of the alien's employment in the United
States.  /26/ Furthermore, the remedy of deportation operates
prospectively by removing the alien from the resident population.
Deportation does not erase the fact of the alien's prior presence in
the United States or address the various consequences of that
presence.  There accordingly is no inconsistence with these provisions
of the INA if the NLRA is applied to an employment relationship
entered into by an undocumented alien prior to the execution of the
statutory remedy of deportation.

   3. In a broader sense, of course, the INA may be said to embody a
policy of protecting American workers, not only through the specific
work-related provisions of 8 U.S.C. 1101(a)(15)(H) and 1182(a)(14),
but in its overall limitations on the number of aliens who may enter
the United States and thereby be lawfully available for work.
Moreover, to the extent aliens are able to obtain employment in the
United States, even if not at the expense of domestic workers, there
is an incentive for aliens to enter the United States in violation of
the immigration laws generally.  As we explain below (see pages 23-25,
30-36, infra), application of the NLRA to an employer's unfair labor
practices committed against undocumented aliens is consistent with
these principles and substantially furthers the policies of the INA.

   Even if some conflict were perceived, however, these general
policies of the INA would not alone be sufficient to preclude the
application of the NLRA to undocumented aliens.  It is necessary
instead to determine whether the particular provisions of the INA
through which Congress has chosen to implement those policies actually
conflict with the application of the NLRA in this setting.  See, e.g.,
Commonwealth Edison Co. v. Montana, 453 U.S. 609, 633-634 (1981);
Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 133-134 (1978).
They do not, for Congress has chosen not to pursue its immigration
policies "at all costs." Pacific Gas & Electric Co. v. State Energy
Resources Conservation & Development Comm'n, No. 81-1945 (Apr. 20,
1983), slip op. 29-30.  Despite extensive public debate and numerous
proposals, Congress thus far has declined to adopt what is widely
regarded as the only effective measure to reduce illegal immigration
and the competition by illegal entrants for domestic jobs:  the
imposition of sanctions on an employer who hires undocumented aliens.
/27/ See, e.g., United States v. Ortiz, 422 U.S. 891, 915 (1975)
(White, J., concurring in the judgment);  De Canas v. Bica, supra, 424
U.S. at 357;  Plyler v. Doe, supra, 457 U.S. at 218, 228-229;  id. at
237 (Powell, J., concurring).  The Senate has passed such a bill in
the current Congress, /28/ and a similar bill has been reported in the
House of Representatives.  /29/ But at least until Congress actually
passes such a measure, in view of the express exemption for employment
of undocumented aliens in 8 U.S.C. 1324(a), there is no basis for
failing to apply the NLRA to such employment.

   In any event, enforcement of the NLRA with respect to unfair labor
practices committed against undocumented aliens in fact substantially
furthers the policies of INA, including its employment-related
provisions.  The text of 8 U.S.C. 1182(a)(14) makes clear that its
purpose is to preserve jobs for American workers and to admit
immigrant aliens only if to do so "will not adversely affect the wages
and working conditions of the workers in the United States similarly
employed." See also S. Rep. No. 748, 89th Cong., 1st Sess. 15 (1965);
Saxbe v. Bustos, 419 U.S. 65, 76 & n.29 (1974);  Pesikoff v. Secretary
of Labor, 501 F.2d 757, 761 (D.C. Cir.), cert. denied, 419 U.S. 1038
(1974).  Similarly, 8 U.S.C. 1101(a)(15)(H)(ii) permits the temporary
admission of nonimmigrant aliens only if unemployed persons capable of
performing the work cannot be found in the United States;  and
Department of Labor regulations implementing this provision require
that "to the extent foreign workers are brought in, the working
conditions of domestic employees are not to be adversely affected"
(Alfred L. Snapp & Son, Inc. v. Puerto Rico, No. 80-1305 (July 1,
1982), slip op. 4).

   The purpose of 8 U.S.C. 1101(a)(15)(H)(ii) and 1182(a)(14) to
protect the wage rates and working conditions of American workers is
directly parallel to the purpose of the NLRA to prevent the
"depressing (of) wage rates" and to achieve "stabilization of
competitive wage rates and working conditions within and between
industries" by encouraging collective bargaining and guaranteeing the
right of employees to engage in concerted activities.  29 U.S.C. 151.
Thus, vigorous enforcement of the NLRA in the context of unfair labor
practices committed against undocumented aliens furthers the purpose
of 8 U.S.C. 1101(a)(15)(H)(ii) and 1182(a)(14) by affording some
assurance that the wages and working conditions of the American
workers sought to be protected by those Sections will not be
undermined by the employer's offering of substandard wages and working
conditions to undocumented aliens.  To the extent that the employer
realizes no advantage under the NLRA in preferring undocumented aliens
to domestic workers, his incentive to hire undocumented aliens is
reduced;  and the reduction in job opportunities in turn will diminish
the incentive for aliens to enter in violation of the immigration
laws.  It was therefore consistent with INA for the Board to enforce
the NLRA with respect to petitioners' pattern of unfair labor
practices committed against undocumented aliens.  /30/

 II. THE BOARD CORRECTLY CONCLUDED THAT PETITIONERS VIOLATED SECTION
8(a)(3) AND (1) OF THE NATIONAL LABOR RELATIONS ACT BY REPORTING THEIR
UNDOCUMENTED ALIEN EMPLOYEES TO THE IMMIGRATION AND NATURALIZATION
SERVICE IN RETALIATION FOR THEIR UNION ACTIVITIES, THEREBY
CONSTRUCTIVELY DISCHARGING THE EMPLOYEES

   For the reasons given in Point I, petitioners' pattern of antiunion
conduct directed against its undocumented alien employees clearly
violated the NLRA.  Petitioners contend, however, that the culmination
of that course of conduct -- their reporting of the employees to the
INS because of their Union activities and the employees' resulting
loss of their jobs -- did not violate the Act.  Petitioners of course
must concede that Section 8(a)(3) and (1) would have barred them from
actually firing the employees for their union activities.  But
petitioners maintain that they were wholly free to accomplish
precisely that result by indirection.  They contend that after
accepting the labor of these employees knowing of their immigration
status, after committing a series of unfair labor practices against
them (including threatening to report them to the INS), and after the
Regional Director rejected petitioners' objection to the union
election that included these employees, they could, with impunity, rid
themselves of the employees because of their union activities simply
by notifying the INS.  We submit that neither the NLRA nor the INA
sanctions such flouting by an employer of its obligations under the
NLRA.

 A. Petitioners' Conduct Constituted A Prohibited Constructive
Discharge Of The Employees

   Section 8(a)(3) of the NLRA makes it an unfair labor practice for
an employer "by discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or
discourage membership in any labor organization." This provision "does
not interfere with the normal exercise of the right of the employer to
select its employees or to discharge them";  however, the "employer
may not, under cover of that right, intimidate or coerce its employees
with respect to their self-organization and representation." NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46 (1937).  See also NLRB
v. Transportation Management Corp., No. 82-168 (June 15, 1983), slip
op. 5-6.

   Moreover, "(a)n employer cannot do constructively what the Act
prohibits his doing directly." NLRB v. Holly Bra of California, Inc.,
405 F.2d 870, 872 (9th Cir. 1969).  Accordingly, the Board, with court
approval, long has held that a discriminatory discharge may be found
not only where an unlawfully motivated employer explicitly dismisses
an employee, but also where the employer creates a situation that
causes the employee to leave his employment.  See, e.g., NLRB v.
Haberman Construction Co., 641 F.2d 351, 358 (5th Cir. 1981);  J.P.
Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972);  NLRB v.
Holly Bra, supra;  NLRB v. Tennessee Packers, Inc., 339 F.2d 203,
204-205 (6th Cir. 1964);  Atlas Mills, Inc., 3 N.L.R.B. 10, 17 (1937);
 Texas Textile Mills, 58 N.L.R.B. 352, 353-354 (1944).

   An employer may be held to have constructively discharged an
employee even though the condition that led to the employee's
departure was directly caused by a third party.  See, e.g., NLRB v.
Newton, 214 F.2d 472, 475-476 (5th Cir. 1954) (physical ejection from
plant of pro-union employees by antiunion employees acquiesced in by
employer);  Goodman Lumber Co., 166 N.L.R.B. 304, 305 (1967)
(employee's father, at behest of employer, created stressful home life
by attempting to get employee to revoke union authorization card).
Nor is it necessary that the condition that causes the employee to
leave his employment occur at the work site or pertain directly to
working conditions.  Thus in Goodman Lumber Co., supra, 166 N.L.R.B.
at 305 n.4, the Board explained that, having sought "to utilize the
lever of parental control and displeasure to gain its ends (,) (the
employer) * * * cannot hide behind the claim that its unlawful conduct
did not cause (the employee) to quit his employment, simply * * *
because of an understandable and natural desire to forestall the
breakup of his parent's household because of the unnatural strains and
pressures exerted on it by (the employer's) conduct." See also Zenith
Optical Co., 53 N.L.R.B. 252, 267, 269 (1943) (employee offered choice
of resigning or having draft deferment lifted).

   Petitioners no longer contest the Board's finding that they had an
anti-union motive in creating the circumstances that led to the
employees' departure.  The element of a direct causal nexus between
petitioners' conduct and the employees' loss of their jobs is also
clearly present here.  INS agent Malin testified at the Board hearing
that petitioners' letter was the sole cause of the investigatory visit
during which the employees were taken into custody (Pet. App. 12a,
75a), and petitioners knew that the requested INS inquiry would result
in the employees' removal from their jobs because they had been aware
for some months that the employees did not have proper documentation.
See pages 2-4, supra.

   The court of appeals properly rejected (Pet. App. 12a) petitioners'
argument, reasserted here (Br. 13-15), that it was the employees'
status as undocumented workers that was the "proximate cause" of the
cessation of their employment.  The aliens' status under the
immigration laws, which petitioners theretofore had ignored, obviously
did not in itself "cause" anything -- except to the extent it led
petitioners to exploit that status in order to avoid their obligations
under the NLRA.  That the INS might independently have discovered
these employees at some time in the future cannot obscure the fact
that petitioners engineered their departure when it occurred solely
for antiunion reasons.  /31/

   Contrary to petitioners' assertion (Br. 14), it hardly is
"fundamentally unfair" to find a violation of the NLRA in these
circumstances.  That finding is fully consistent with the purpose of
the NLRA to prevent discrimination in employment in retaliation for
the union activities of employees.  Unfairness would result, however,
if petitioners were free to accomplish that discrimination indirectly,
through the INS, free from any consequences under the NLRA.

   Petitioners argue (Br. 14) that the INS had a nondiscretionary duty
to investigate and deport the undocumented alien employees that was
not dependent upon petitioners' actions in notifying INS.  /32/ The
issue in these unfair labor practice proceedings, however, is the
propriety of petitioners' conduct in response to their employees'
union activities, not the actions of the INS.  Obviously, we do not
suggest that the INS acted improperly or that it was obligated to
forgo its normal procedures because of petitioners' conduct.  But the
INS's enforcement of the INA does not cleanse petitioners'
discriminatory actions of their illegality under the NLRA.

 B. The Board's Finding Of A Violation Of Section 8(a)(3) And (1) Is
Consistent With The Immigration And Nationality Act

   The Board's finding of a violation of Section 8(a)(3) and (1) also
effects an appropriate accommodation of the policies of the NLRA and
the INA in the circumstances of this case.  We of course agree with
petitioners that in the ordinary situation, an employer or any other
person who believes that an alien is present and working in the United
States in violation of the immigration laws should notify the INS.  In
the immigration area, as elsewhere, effective law enforcement often
depends upon the conscientious cooperation of members of the public.
But petitioners did not report their employees to INS as interested
citizens seeking to uphold the law.  They did so solely to evade their
obligations under the law, imposed by the NLRA.

   Thus, more is at stake in this case than enforcement of the INA.
Petitioners' pattern of conduct in violation of the NLRA and its
concededly retaliatory motive in reporting the employees directly
implicates the equally strong governmental interest in effective
enforcement of the NLRA.  As we have explained above (see pages 13-25,
supra), the policies and provisions of the NLRA and INA are consistent
in general and reinforce one another in their particular application
to undocumented aliens.  Within this framework, a number of factors
demonstrate that the Board's finding of a violation of Section 8(a)(3)
and (1) properly implements the terms and policies of both Acts in the
circumstances of this case.

   1. It must be stressed at the outset that we do not contend that
the NLRA generally bars an employer from notifying the INS if it has
reason to believe that an alien is present or working in the United
States in violation of the immigration laws.  Our submission is
limited to the particular situation in which the employer reports an
undocumented alien to INS in retailiation for his union activities or
other exercise of rights protected by the NLRA.  /33/ And even within
that category, this case presents aggravated circumstances.
Petitioners' retaliatory reporting of the employees to the INS was not
an isolated incident.  It was the culmination of a series of unfair
labor practices committed against the same employees, and it followed
by one day the Acting Regional Director's overruling of petitioners'
objections to the election based on the aliens' status under the
immigration laws, thereby manifesting a disregard for the Board's
processes as well.  There is no reason to believe that the Board's
finding of an unfair labor practice in these circumstances would
significantly impede enforcement of the INA by deterring the reporting
of violations, because an employer who knowingly employs illegal
aliens would not ordinarily report them to the INS and thereby forego
whatever advantage he realized in hiring them.  The Board's
application of Section 8(a)(3) and (1) in this setting is therefore
inherently tailored to circumstances in which there is a substantial
likelihood -- as well as a specific finding -- that the employer made
a report to the INS for reasons other than a simple desire to
cooperate in the enforcement of the INA.

   2. More than simply the practicalities of the situation support
this conclusion.  The text and legislative history of the INA
affirmatively establish that Congress itself attached relatively
little importance to relying on employers in the enforcement of the
INA.  The 1952 Act in which Congress enacted what is now 8 U.S.C. 1324
was entitled an Act "(t)o assist in preventing aliens from entering or
remaining in the United States illegally" (66 Stat. 26).  Yet Congress
explicitly exempted employment from the prohibition in that Act
against the harboring of illegal aliens, even though the harboring
prohibition was the central feature of Congress' strengthening of
previously existing prohibitions designed to prevent illegal
immigration.  See note 19, supra.  When Congress enacted this special
immunity, it obviously did not anticipate that the employers involved
would be disposed to report their alien employees to the INS.

   Moreover, when the 1952 legislation was under consideration, the
subject of an employer's reporting to the INS was specifically
addressed in a manner that strongly supports the Board's decision in
this case.  As we have explained above (see pages 18-19, supra),
Senator Douglas proposed an amendment to the bill that would have made
it unlawful for an employer knowingly to hire an illegal alien.
Significantly, Senator Douglas' amendment also would have required an
employer who discovered that one of his employees was an illegal alien
to report that information to the INS.  98 Cong. Rec. 798 (1952).
Senator Cordon, who supported the proposal to prohibit an employer
from hiring illegal aliens, opposed the reporting feature of the
amendment and inquired whether Senator Douglas would modify his
amendment so as "to relieve the employer of the requirement to become
affirmatively a policeman" (id. at 800).  Senator Douglas agreed to
the suggested modification of his amendment (id. at 800, 802-803), and
thereafter stressed that it would not "require the employer to serve
as an enforcement agency" (id. at 804).  See also id. at 805 (remarks
of Sen. Cordon) (the deleted language would have "required of every
employer that he become an adjunct to the law enforcement service, to
the Immigration Service").  The fact that even a supporter of the
proposed prohibition against hiring illegal aliens was opposed to
requiring employers to report to INS if they discover illegal aliens
among their employees strongly indicates that Congress, which rejected
the employment prohibition altogether, did not perceive such reporting
by employers as essential for effective enforcement of the INA.

   This conclusion is further supported by Congress' action with
respect to the amendment Senator Douglas offered to the bill enacted
in 1951 authorizing an extension of the bracero program.  Act of July
12, 1951, ch. 223, 65 Stat. 119-121.  The Senate included in its bill
a provision that would have imposed criminal sanctions on any employer
who hired a Mexican alien knowing or having reason to believe that he
was unlawfully present in the United States.  That amendment also
would have required the employer to report such an alien to the INS.
See 97 Cong. Rec. 4952, 4960-4961 (1951).  The criminal prohibition
was deleted by the Conference Committee, which substituted in its
place a non-criminal provision barring an employer who knowingly hired
aliens who were present in violation of the immigration laws from
obtaining alien workers under the bracero program authorized by the
bill.  H.R. Conf. Rep. No. 668, 82d Cong., 1st Sess. 3, 7-8 (1951).
The bill was enacted in that form.  65 Stat. 120.  Significantly,
however, the reporting requirement was deleted.  /34/ Thus, the text
and legislative history of the 1951 and 1952 Acts reflect a considered
congressional judgment not to rely on employers to enforce the
immigration laws.  This congressional judgment cuts strongly against
attaching controlling weight in this case to the governmental interest
in encouraging the reporting of violations of the INA.

   3. In contrast, the countervailing statutory policies of the NLRA
have particular force in the present setting.  We previously have
noted, as has this Court, /35/ that undocumented aliens are especially
susceptible to discrimination and exploitation by employers, which in
turn adversely affects the job opportunities, wages, and working
conditions of citizens and lawfully resident aliens.  This
vulnerability often stems in part from language and cultural
differences or poverty of the alien.  But undocumented aliens also
"are vulnerable to exploitation because they cannot complain of
substandard working conditions without risking deportation." United
States v. Brignoni-Ponce, supra, 422 U.S. at 879.  And they are
especially vulnerable precisely because of the fear that the employer
will report them to the INS because of their activities at the
workplace, as petitioner did here.  The legislative debates over the
years on the undocumented alien problem repeatedly have emphasized
this factor (often noting instances in which employers have threatened
aliens that they will report them to the INS, as petitioners also did
here), and have stressed the importance of eliminating such
exploitation.  /36/

   Enforcement of the NLRA where the employer reports its alien
employees to INS in retaliation for their union activities is directly
responsive to these concerns, and thereby furthers the statutory
policy of the NLRA of encouraging collective bargaining and the
freedom of employees generally in the exercise of their rights.  The
status of the individual employees under the INA does not alter this
condition.  The prohibitions and remedies of the NLRA "are designed to
aid in achieving the elimination of industrial conflict.  They
vindicate public, not private, rights." Virginia Electric & Power Co.
v. NLRB, 319 U.S. 533, 543 (1943).  See also Shepard v. NLRB, No.
81-1627 (Jan. 18, 1983), slip. op. 7-8.

   4. It also is relevant that petitioners themselves facilitated the
unlawful presence of the aliens in the United States -- the very
conduct petitioners reported to the INS -- by continuing to employ
them.  Although Congress enacted an exemption from the criminal
prohibitions in 8 U.S.C. 1324(a) for employment of undocumented
aliens, this does not serve to divorce petitioners as a factual matter
from their complicity in the aliens' presence in violation of the
immigration laws.  Petitioners therefore do not have a strong
equitable claim to avoid the application of the NLRA in these
circumstances by relying on the governmental interest in enforcement
of the INA.  As the court of appeals put it, "an employer has no right
to rely on a 'moral obligation' to report illegal aliens (of which he
has been previously oblivious) merely to sanctify an otherwise
unjustifiable violation of section 8(a)(3)" (Pet. App. 13a).

   5. Affirmance of the judgment below would in no way suggest a broad
rule under which a person who reports a violation of the law to
responsible governmental officials may be subject to liability for
that action.  This case is narrowly limited to the reporting of
undocumented alien employees to the INS by an employer subject to the
NLRA in retaliation for conduct of the employees that is protected by
the NLRA.  The judgment below is supported by the provisions and
policies of the NLRA and INA in this area in which the two Acts
intersect and in which Congress must be presumed to have intended that
they be applied in a harmonious manner.  We do not suggest that
reports to the INS from other sources -- or by employers, when not in
retaliation for union activities -- would be unlawful.  There likewise
is no occasion to consider whether an employer would violate the NLRA
by reporting an employee for a violation of a statute other than the
INA in retaliation for employee activities that are protected by the
NLRA.

   Moreover, we do not suggest that an employer could be held liable
in a private civil action brought by an undocumented alien to recover
damages for injuries allegedly sustained as a result of the employer's
reporting them to INS in retaliation for their union activities.  Cf.
In re Quarles, 158 U.S. 532, 536 (1895).  Enforcement of the NLRA
vindicates public not private rights, on the basis of charges filed by
the General Counsel, in much the same manner as a criminal
prosecution.  Cf. Butz v. Economou, 438 U.S. 478, 515 (1978).  The
fact that an employer may be immune from civil liability for redress
of a private wrong does not suggest that he is immune from liability
in an action brought by the government to vindicate public rights that
are implicated by his conduct.  See, e.g., Briscoe v. Lahue, No.
81-1404 (Mar. 7, 1983), slip op. 14 n.22, 16 n.26, 20-21 n.32;  Imbler
v. Pachtman, 424 U.S. 409, 429 (1976);  O'Shea v. Littleton, 414 U.S.
488, 503 (1974).  This distinction is significant.  Because the
General Counsel of the Board has unreviewable discretion to decline to
file a complaint (Vaca v. Sipes, 386 U.S. 171, 182 (1967);  NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 138 (1975)), he can screen cases
to ensure that only meritorious complaints are filed and, in this
manner, protect against harassment of an employer who reports
employees to the INS.  Moreover, the Board can tailor its remedy to
accommodate the policies of the INA more readily than could a court
entertaining a private damage action.  See Shepard v. NLRB, supra,
slip op. 7-8;  cf. Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942).
 /37/

   6. The foregoing discussion also demonstrates that this case is
quite different from Bill Johnson's Restaurant, Inc. v. NLRB, No.
81-2257 (May 31, 1983), upon which petitioners erroneously rely (Br.
18-19).  In Bill Johnson's, the Court held that an employer's filing
of a suit in state court against its employees seeking damages and
injunctive relief for libelous statements and injury to its business
is not an enjoinable unfair labor practice unless the suit is filed
for retaliatory purposes and the suit lacks a reasonable basis.  Slip
op. 8-11.  The Court relied on two factors.  First, the Court observed
that the right of access to courts for redress of alleged wrongs is an
aspect of the First Amendment right to petition the government for
redress of grievances, and it concluded that it should be sensitive to
First Amendment values in construing the NLRA.  Second, the Court
noted that in recognition of the compelling interest of the States in
maintaining domestic peace, it had construed the NLRA as not
preempting the States from providing employers with a civil remedy for
tortious conduct during a labor dispute.  If the Board were allowed to
enjoin a state lawsuit, the Court reasoned, it would follow that the
employer would "be totally deprived of a remedy for an actual injury"
despite the substantial state interests involved.  Slip op. 9-10.

   This case is wholly different.  The federalism concerns present in
Bill Johnson's are absent here;  this case instead involves the
construction of two federal statutes which, as we have noted, both
support the application of the NLRA to unfair labor practices
committed against undocumented aliens.  In addition, in the particular
circumstances of this case, the countervailing interests arising
outside the NLRA do not have the same "compelling" force that the
Court in Bill Johnson's found to support preservation of a remedy in
state court.  Slip op. 10.  Here, the text and legislative history of
the INA in fact attach a somewhat diminished importance to the
reporting of undocumented aliens by employers who knowingly hire them.
 This case also differs from Bill Johnson's because the Board there
sought to enjoin the prosecution of the suit in state court, which
would have frustrated the strong state interest in providing a remedy
for tortious conduct.  Here, the INS was not prevented from enforcing
the immigration laws.

   This case also does not involve the "right of access to the Courts
for 'redress of alleged wrongs,'" as in Bill Johnson's.  Slip op. 9,
quoting Peddie Buildings, 203 N.L.R.B. 265, 272 (1973), enforcement
denied on other grounds, 498 F.2d 43 (3d Cir. 1974).  Petitioners are
in the position of informers to a law enforcement agency, not
plaintiffs in a lawsuit in court, and they "ha(d) not suffered a
legally-protected injury" (Bill Johnson's, supra, slip op. 12) at the
hands of their undocumented alien employees that they sought to have
"redressed" by the INS.  The "injury" that prompted petitioners to
contact the INS was that sustained as a result of the employees' union
activities, for which petitioners have no right to obtain redress.
Nor did the status of the undocumented alien employees under the INA
injure petitioners, because they kept the aliens on the payroll
despite that status.  Moreover, the provisions of the INA restricting
the entry of aliens are intended for the protection of American
workers, not their employers, and, in any event, private persons such
as petitioners have no legally protected right to procure enforcement
of the immigration laws by the INS.  Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973).  In these respects as well, petitioners, unlike
the employer who brought the suit in state court in Bill Johnson's,
were not seeking redress for legal wrongs allegedly committed against
them.

   Finally, this case differs from Bill Johnson's because petitioners
themselves tolerated and indeed facilitated the aliens' continued
presence in the United States in violation of the immigration laws,
about which they now claim an unfettered right to report to the INS.
There was no suggestion that the employer in Bill Johnson's in any way
tolerated or facilitated the employees' conduct for which it sought
redress in court.  In sum, Bill Johnson's does not support petitioners
claim of a right to avoid their obligations under the NLRA by
reporting their employees to the INS.  /38/

 C. Petitioners' Claim That The Decision Below Should Be Reversed
Because It Violates Their First Amendment Rights Is Without Merit

   Petitioners assert (Br. 16-19) that their letter to the INS was an
exercise of their First Amendment right to petition the government for
redress of grievances, which they now contend could not be abridged by
deeming their action to be unlawful under the NLRA.  The short answer
to this argument is that it comes too late.  Petitioners did not
assert before the Board a First Amendment objection to the finding of
an unfair labor practice.  Section 10(e) of the Act provides that
"(n)o objection that has not been urged before the Board * * * shall
be considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances." 29
U.S.C. 160(e).  Petitioners have pointed to no "extraordinary
circumstances" excusing their failure to raise the issue before the
Board in this case, and the court of appeals therefore was without
jurisdiction to consider the constitutional objection.  See, e.g.,
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-666 (1982);
Detroit Edison Co. v. NLRB, 440 U.S. 301, 311 & n.10 (1979);  Bill
Johnson's Restaurants, Inc. v. NLRB, supra, slip op. 18 n.15.
Moreover, petitioners did not raise their First Amendment argument
before the court of appeals or in their petition for a writ of
certiorari.  For these additional reasons, the issue is not properly
raised here.  Sup. Ct. R. 21.1(a).

   In any event, petitioner's contention that the Board's finding of
an unfair labor practice in this case violated their First Amendment
rights is without merit.  The First Amendment protects the "right of
the people peaceably to assemble, and to petition the Government for a
redress of grievances." As is suggested by its terms, this guarantee
was understood at the time it was adopted principally as protecting
political activity to influence the legislature.  /39/ The Court
subsequently has concluded that access to courts is an aspect of the
right of petition as well.  See, e.g., Bill Johnson's Restaurants,
Inc. v. NLRB, supra, slip op. 9.  This extension of the right finds
some support in the text of the Amendment, because a person seeking
damages or an injunction in court may be said to be seeking "redress"
for a "grievance" or wrong done to him.  See also note 39, supra.  The
same is true where a party invokes the quasi-judicial process of an
administrative agency.  See, e.g., California Motor Transport Co. v.
Trucking Unlimited, 404 U.S. 508 (1972).  But as we have explained
above (see pages 38-39, supra), petitioners in this case did not
invoke an administrative process for redress of any wrongs committed
against them.  It would be a considerable extension of the right of
petition to include within its sweep the absolute immunity petitioners
seek for informing a law enforcement agency of a violation of the law,
even when done solely for a retaliatory or invidious purpose.  /40/ In
fact, this Court has not treated the reporting of violations to a law
enforcement agency as an aspect of the right of petition.  See In re
Quarles, 158 U.S. 532, 535-536 (1895).  /41/

   Contrary to petitioners' suggestion (Br. 20), the Court in Bill
Johnson's did not hold that the First Amendment would preclude the
finding of an unfair labor practice based on a retaliatory motive even
where access to the courts is involved.  The Court simply stated that
it should be "sensitive to First Amendment values" in construing the
NLRA.  Slip op. 9.  See also slip op. 3 (Brennan, J., concurring) ("I
do not suggest that a constitutional issue surfaces directly in this
case").  In our view, the Constitution does not bar Congress from
attaching adverse consequences to the institution of judicial
proceedings when "'deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification'"
(Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), quoting Oyler v.
Boles, 368 U.S. 448, 456 (1962)), even if the proceedings themselves
are meritorious.  See also O'Shea v. Littleton, 414 U.S. 488, 503
(1974).  One such "arbitrary classification" Congress constitutionally
may identify is one based upon the exercise by employees of rights
protected by the NLRA, especially since the employees' rights
themselves implicate the First Amendment.  See, e.g., Babbitt v.
United Farm Workers National Union, 442 U.S. 289, 313 (1979).  A
fortiori, it does not violate the First Amendment to find an unfair
labor practice in the retaliatory reporting of violations to the INS,
which does not directly implicate the right of petition.

 III. THE BACKPAY AWARD ENTERED IN THIS CASE EFFECTUATES THE POLICIES
OF THE NATIONAL LABOR RELATIONS ACT AND DOES NOT CONFLICT WITH THE
IMMIGRATION LAWS

   Petitioners do not appear to challenge those portions of the
Board's remedial order, as modified by the court of appeals, that
condition reinstatement of the discriminatees upon their being legally
present and permitted by law to be employed in the United States and
that, except as discussed hereafter, toll the accrual of backpay for
periods during which the discriminatees are unable to satisfy these
conditions (Pet. App. 23a, 31a-32a).  Their basic challenge is to that
portion of the order which provides for a minimum of six months'
backpay irrespective of whether the discriminatees actually were
absent from the country and unavailable for employment during that
period.  Contrary to petitioners' contention, this provision
effectuates the policies of the NLRA and does not conflict with the
immigration laws.

   1. Section 10(c) of the NLRA empowers the Board, when it finds that
a person has committed an unfair labor practice, to issue an order
requiring that person to "cease and desist from such unfair labor
practice, and to take such affirmative action including reinstatement
of employees with or without back pay, as will effectuate the policies
of (the) Act" (29 U.S.C. 160(c)).  In the case of discriminatory
discharges, this Court has recognized that reinstatement and backpay
are the only effective means of restoring the situation, "as nearly as
possible, to that which would have obtained but for the illegal
discrimination." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
 Restoration of the status quo ante reassures the discriminatees and
their fellow employees alike that their employer may not violate the
Act with impunity and that they will be made whole for economic
injuries suffered for exercising rights under the Act;  through such
reassurance, "they may be more confident in the exercise of their
statutory rights" (Virginia Electric & Power Co. v. NLRB, 319 U.S.
533, 541 (1943)).  The backpay order in this case is consistent with
these principles.

   It is plain beyond serious dispute that each of the five aliens
would have continued to work for some period beyond February 18, 1977
but for petitioners' unlawfully motivated report to INS.  It is
equally plain, therefore, that each of the aliens suffered some loss
of earnings as a result of petitioners' unfair labor practices.  The
six-month minimum backpay award rests on the court of appeals'
estimate of the period that the discriminatees would have continued in
petitioners' employ if petitioners had not reported them to the INS
(Pet. App. 23a, 28a).  Petitioners have not shown that this estimate
is unreasonable.  /42/

   Petitioners contend (Br. 27) that the six-month figure is purely
speculative and thus results in a windfall to the undocumented aliens.
 However, the Board, upheld by the courts, consistently has
approximated the status quo ante in situations where, because of the
unfair labor practice, it is impossible to ascertain it with
certainty.  /43/ For, as this Court has stated, "(t)he most elementary
conceptions of justice and public policy require that the wrongdoer
shall bear the risk of uncertainty which his own wrong has created."
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265 (1946).  See
also J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557,
566-567 (1981) ("it does not 'come with very good grace' for the
wrongdoer to insist upon specific and certain proof of the injury * *
* it has itself inflicted");  NLRB v. Remington Rand, Inc., 94 F.2d
862, 872 (2d Cir.), cert. denied, 304 U.S. 576 (1938).  /44/

   2. Petitioners' contention (Br. 19-21) that the backpay award is
inconsistent with the INA and that the five alien employees were "not
entitled to backpay" (id. at 26) because of their status under the
immigration laws misconceives the nature and purpose of a backpay
remedy.  The power to order affirmative relief under the NLRA is
incidental to the primary purpose of Congress to stop and prevent
unfair labor practices.  Thus, a reimbursement order issued by the
Board "is not a redress for a private wrong." Virginia Electric &
Power Co. v. NLRB, supra, 319 U.S. at 543.  Such orders "somewhat
resemble compensation for private injury, but it must be constantly
remembered that (they) are remedies created by statute * * * which are
designed to aid in achieving the elimination of industrial conflict.
They vindicate public, not private, rights." Ibid. See also Shepard v.
NLRB, No. 81-1627 (Jan. 18, 1983), slip op. 7-8;  Automobile Workers
v. Russell, 356 U.S. 634, 642-643 (1958).

   Consistent with these principles and the provisions of the INA, we
may assume that the aliens themselves could not maintain a private
breach-of-contract suit for wages they lost following their return to
Mexico.  See page 36, supra.  But it does not follow that the INA bars
the Board from awarding backpay to vindicate the public rights
involved.  It was not unlawful under the INA for petitioners to hire
the undocumented aliens.  Since petitioners took advantage of the
immunity granted them by 8 U.S.C. 1324(a) to do so, petitioners cannot
be heard to argue that their employment of the aliens was so contrary
to public policy that they may not be held liable in any respect for
the unlawful constructive discharge of the employees.  Indeed, in the
circumstances of this case, inability of the Board to provide an
effective remedy for petitioners' discrimination against their
undocumented alien employees not only would encourage the repetition
of similar acts of discrimination in the future;  it also would
undermine the rights of petitioners' non-alien employees.  /45/

 IV. THE COURT OF APPEALS' DECISION REGARDING THE OFFERS OF
REINSTATEMENT IS REASONABLE IN THE CIRCUMSTANCES OF THIS CASE

   The Court of appeals rejected the Board's conclusion that the
reinstatement offers petitioners mailed to the discriminatees on March
29, 1977 were deficient because they were not unconditional (Pet. App.
21a-22a).  However, the court found the offers deficient on other
grounds not reached by the Board, and it modified the Board's order
accordingly.  The court found the offers inadequate because the 30-day
period for acceptance "did not give the discriminatees a reasonable
time to consider the offer and make arrangements for legally entering
the United States," and held that the offers instead should be kept
open for four years (id. at 22a).  The court further held that the
offers were ineffective "because they were not delivered * * * in a
manner allowing verification of receipt and they were not written in
the discriminatees' native language (Spanish)" (ibid.).

   Rather than disposing of these issues and enlarging the Board's
remedial order in this fashion, the court of appeals should have
remanded for the Board to consider the alternative grounds on which
the court believed the offers may have been deficient and the form any
new offers of reinstatement should take.  NLRB v. Food Store
Employees, 417 U.S. 1, 8-9 (1974).  Nevertheless, we believe that the
court of appeals' decision reasonably effectuates the purposes of the
Act in the circumstances of this case.  Should the Court disagree, we
respectfully submit that the appropriate course would be for the Court
to vacate the judgment below in this regard and remand to the Board
for consideration of these issues in the first instance.

   1. Petitioners' objection (Br. 32-33) to the court of appeals'
holding that their reinstatement offers be made in Spanish and in a
manner allowing verification of receipt is without merit in the case.
The "employer's offer of reinstatement must be reasonably calculated
to communicate the offer." Carruthers Ready Mix, Inc., 262 N.L.R.B.
No. 90 (July 9, 1982), slip op. 7.  See also Monroe Feed Store, 122
N.L.R.B. 1479, 1480-1481 (1959);  Rutter-Rex Mfg. Co., 158 N.L.R.B.
1414, 1424 (1966).  Cf. Foreign Sovereign Immunities Act, 28 U.S.C.
1608 (service on a foreign state or its political subdivision, agency
or instrumentality shall be made in the official language of the
foreign state and "by any form of mail requiring a signed receipt").
/46/

   2. The court of appeals' requirement that the offers of
reinstatement be kept open for four years also is reasonable in the
circumstances of this case.  The Board has never adopted a fixed rule
for determining the appropriate length of time that a reinstatement
offer must remain open;  instead, it is the Board's policy that "the
'reasonable time' will depend essentially on the situation in which an
employee finds himself as a result of the discrimination against him."
Fredeman's Calcasieu Locks Shipyard, Inc., 208 N.L.R.B. 839 (1974).
Accord:  NLRB v. Murray Products, Inc., 584 F.2d 934, 940 (9th Cir.
1978).  And see Southern Household Products Co., 203 N.L.R.B. 881, 882
(1974) (reinstatement offers must allow discriminatees "a reasonable
time to consider whether to return to (the employer's) employ, how
they were to get there, and what they were likely to face upon
arriving there").  In light of the substantial delays that applicants
from Mexico encounter in obtaining immigrant visas, /47/ it is plain
that the 30-day period for which the offers were held open by
petitioners would not provide a realistic opportunity for the aliens
to return for reinstatement.  The four-year period ordered by the
court of appeals is reasonable in light of these backlogs.  /48/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   WILLIAM A. LUBBERS

      General Counsel

   JOHN E. HIGGINS, JR.

      Deputy General Counsel

   ROBERT E. ALLEN

      Associate General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   CATHERINE GARCIA

      Attorney National Labor Relations Board

   REX E. LEE

      Solicitor General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   SEPTEMBER 1983

   /1/ See Sections 212(a)(14), 101(a)(15)(H), and 214(c) of the
Immigration and Nationality Act, 8 U.S.C. 1182(a)(14), 1101(a)(15)(H),
and 1184(c);  20 C.F.R. Parts 655 and 656.

   /2/ The Board therefore did not consider the ALJ's conclusion that
the offer of reinstatement was deficient because the period for
acceptance was too short and because there was good reason to question
the usual presumption that the offer had been received by the
discriminatees (Pet. App. 20a).

   /3/ The General Counsel of the Board then filed a motion to
"clarify" the Board's order to make certain that any offer of
reinstatement was subject to the condition that the discriminatees
lawfully reenter the country with appropriate working permits and to
limit the accrual of backpay to those periods, if any, during which
the discriminatees were lawfully present in the country and properly
documented for employment (Pet. App. 53a-60a).  The Board, two Members
dissenting, denied the motion (id. at 40a-52a).  The Board found no
reason at that stage to depart from its normal compliance procedures
(id. at 44a), under which "(t)he backpay period runs from the
discriminatory loss of employment to the bona fide reinstatement
offer";  the accrual of backpay would be tolled during the time that
employees were unavailable for work;  and backpay would be placed in
an escrow account "for the normal 2-year period" if the discriminatees
were not immediately located (Pet. App. 41a-42a).

   /4/ The Board did not issue a new decision regarding the six-month
minimum backpay award suggested by the court, but the Board's proposed
judgment order (Pet. App. 30a-35a) was intended to incorporate the
six-month minimum.  The Board's proposed order, however, left the
court "uncertain whether the Board (had) adopted (the) suggestion"
(id. at 28a), and the court modified the judgment to make it clear
that the discriminatees are entitled to a minimum award of six months'
backpay (id. at 29a).

   /5/ A petition for rehearing with suggestion for rehearing en banc
was denied, with three judges dissenting (Pet. App. 36a-39a).

   /6/ Section 2(6) and (7), 29 U.S.C. 152(6) and (7).

   /7/ Section 2(3), 29 U.S.C. 152(3).  See Sure-Tan I, supra, 583
F.2d at 358-359.

   /8/ Section 8(a)(1), 29 U.S.C. 158(a)(1).

   /9/ Section 8(a)(3), 29 U.S.C. 158(a)(3).

   /10/ A bill was introduced in the House of Representatives in 1979
to exclude from the definition of "employee" any "alien not lawfully
admitted for permanent residence or who has not been authorized by the
Attorney General to accept employment." H.R. 2442, 96th Cong., 1st
Sess. (1979).  No action was taken on the bill.

   /11/ Cf. State Bank of India, 229 N.L.R.B. 838, 841 (1977)
(asserting jurisdiction over a foreign government's commercial
activities in the United States:  "there is no basis for believing
that the Act was intended to exclude any employees in our country
whose employer in this country is an 'employer' engaged in commerce
within the meaning of the Act").

   /12/ Compare NLRB v. Hendricks County Rural Electric Membership
Corp., 454 U.S. 170, 179, 190 (1981);  NLRB v. Bell Aerospace Co., 416
U.S. 267, 278-279, 281-282 (1974).

   /13/ This Court's observations are supported by a broad consensus
of others who have studied the problem that some employers prefer to
hire undocumented aliens in order to maintain an "exploitable"
workforce unlikely to protest substandard wages, benefits and working
conditions.  See H.R. Rep. No. 98-115 (Pt. 1), 98th Cong., 1st Sess.
32-33, 37 (1983);  id. (Pt. 2) at 33, 36;  Sehgal & Vialet,
Documenting the Undocumented, 103 Monthly Lab. Rev. No. 10, at 20
(October 1980);  U.S. Domestic Council Committee on Illegal Aliens,
Preliminary Report 148, 159-160 (December 1976);  Note, supra, 80
Colum. L. Rev. at 1299;  Kutchins & Tweedy, No Two Ways About It:
Employer Sanctions Versus Labor Law Protections for Undocumented
Workers, 5 Ind. Rel. Law J. 339, 360, 368-369 (1983);  U.S. Dep't of
Labor, Research & Development Contract No. 20-11-74-21, The
Characteristics and Role of Illegal Aliens in the U.S. Labor Market:
An Exploratory Study 164 (1976) (hereinafter "Exploratory Study");
Immigration Reform and Control Act of 1982:  Joint Hearings on H.R.
5872 and S. 2222 Before The House and Senate Comms. on the Judiciary,
97th Cong., 2d Sess. 700-701 (1982) (hereinafter "Joint Hearings").
Accordingly, strict enforcement of protective labor legislation has
been advocated as a way to curtail job opportunities for undocumented
workers.  See Statement of President Reagan announcing establishment
of the Special Targeted Enforcement Program (STEP) for the Fair Labor
Standards Act, 17 Weekly Comp. Pres. Doc. 829 (July 30, 1981);  S.
Rep. No. 97-485, 97th Cong., 2d Sess. 24 (1982);  Dep't of Labor,
Field Operations Handbook Paragraph 52Z00 (Dec. 28, 1981);  Select
Commission on Immigration and Refugee Policy, Final Report:  U.S.
Immigration Policy and the National Interest, 97th Cong., 1st Sess. 70
(1981);  Exploratory Study, supra, at 173-174;  Joint Hearings, supra,
at 211.

   /14/ See also, e.g., H.R. Rep. No. 98-115 (Pt. 1), supra, at 32-33;
 id. (Pt. 2) at 33;  S. Rep. No. 97-485, 97th Cong., 2d Sess. 5
(1982);  H.R. Rep. No. 94-506, 94th Cong., 1st Sess. 6-8, 10 (1975);
H.R. Rep. No. 93-108, 93d Cong., 1st Sess. 7-8, 15-16 (1973);  H.R.
Rep. No. 92-1366, 92d Cong., 2d Sess. 3-4 (1972).

   /15/ Duke City Lumber Co., 251 N.L.R.B. 53, 54 (1980);  Sure-Tan I,
supra;  Lawrence Rigging, Inc., 202 N.L.R.B. 1094, 1095 (1973).

   /16/ See, e.g., Apollo Tire, Inc., 236 N.L.R.B. 1627 (1978),
enforced, 604 F.2d 1180, 1182-1183 (9th Cir. 1979);  Amay's Bakery &
Noodle Co., 227 N.L.R.B. 214 (1976).

   /17/ See, e.g., Hasa Chemical, Inc., 235 N.L.R.B. 903, 906 (1978).

   /18/ John Dory Boat Works, 229 N.L.R.B. 844, 851-852, 853 (1977).

   /19/ The 1952 Act amended Section 8 of the Immigration Act of 1917
(39 Stat. 880, 8 U.S.C. (1946 ed.) 144) in response to this Court's
holding in United States v. Evans, 333 U.S. 483 (1948), that Section 8
did not make harboring of illegal aliens a punishable offense.  See S.
Rep. No. 1145, 82d Cong., 2d Sess. 2 (1952).

   /20/ See 98 Cong. Rec. 794, 804, 806-807 (1952) (remarks of Sen.
Lehman);  id. at 798, 803-804, 812 (remarks of Sen. Douglas);  id. at
798-799, 812 (remarks of Sen. Humphrey);  id. at 805-806 (remarks of
Sen. Cordon).

   /21/ See 98 Cong. Rec. 794, 807 (1952) (remarks of Sen. Kilgore);
id. at 795 (remarks of Sen. Chavez);  id. at 796 (remarks of Sen.
Connally);  id. at 798 (remarks of Sen. McFarland);  id. at 799-800,
809 (remarks of Sen. Magnuson);  id. at 803 (remarks of Sen.
Knowland);  id. at 805 (remarks of Sen. Langer);  id. at 806 (remarks
of Sen. Welker);  id. at 808 (remarks of Sen. McClellan);  ibid.
(remarks of Sen. Stennis);  id. at 812 (remarks of Sen. Eastland).

   /22/ Although an amendment similar to that proposed by Senator
Douglas was not offered in the House of Representatives, the issue of
the employment of illegal aliens was debated in the House.  See 98
Cong. Rec. 1348 (1952) (remarks of Rep. Celler);  id. at 1351 (remarks
of Rep. Fernandez);  id. at 1352 (remarks of Rep. Fisher);  id. at
1415-1416 (remarks of Rep. Fisher).  Moreover, in the previous
Session, the House had successfully resisted passage of a similar
criminal prohibition.  See page 33, infra.

   /23/ See 98 Cong. Rec. 4400, 5757 (1952).

   /24/ This restriction is applicable to immigrants in the third and
sixth preferences -- which include aliens seeking to enter to work --
and nonpreference aliens.  8 U.S.C. 1182(a)(14), 1153(a)(3), (6) and
(7).  However, because most immigrants enter under the family
unification provisions of the Act, to which the labor certification
requirement is inapplicable, that requirement provides limited
protection against competition from foreign labor.  See Developments
in the Law -- Immigration Policy and the Rights of Aliens, 96 Harv. L.
Rev. 1286, 1348 (1983).

   /25/ In 1973, when the House Judiciary Subcommittee was considering
an employer sanctions bill, it deleted a provision to impose criminal
sanctions on the undocumented alien who accepts a job because the
Subcommittee did not want to punish a person who worked as a result of
his need for a job.  See 119 Cong. Rec. 14184 (remarks of Rep.
Dennis).  Under 8 U.S.C. 1326, if an alien was once arrested or
excluded and deported and thereafter enters, attempts to enter, or is
found in the United States, he is subject to criminal penalties unless
the Attorney General has expressly consented to his reapplication.
However, as the court of appeals observed (Pet. App. 17a), because the
aliens in this case accepted voluntary departure status in lieu of
deportation, they are not subject to the separate prohibition in 8
U.S.C. 1326.

   /26/ Of course, unauthorized employment is one of the grounds on
which a nonimmigrant may be found to have failed to maintain his
status and thus subject to deportation under 8 U.S.C. 1251(a)(9).
Also, in 1976, Congress amended Section 245 of the Act to make a
non-immigrant alien who accepts unauthorized employment ineligible for
adjustment of his status to that of a permanent resident alien.  See 8
U.S.C. 1255(c).  Congress has not yet attached any other consequences
to such employment, however.

   /27/ See generally S. Rep. No. 97-485, 97th Cong., 2d Sess. 20-26
(1982).  In 1971 and 1972, a subcommittee of the House Judiciary
Committee conducted extensive hearings regarding the control of
illegal immigration.  See Illegal Aliens, Hearings Before a Subcomm.
of the House Comm. on the Judiciary, 92d Cong., 1st Sess. (1971) (Pts.
1-5).  In the 92d and 93d Congresses, the House of Representatives
passed bills providing for employer sanctions.  H.R. 16188, 92d Cong.,
2d Sess. (1972);  118 Cong. Rec. 30186 (1972);  H.R. 982, 93d Cong.,
1st Sess. (1973);  119 Cong. Rec. 14194-14195, 14208-14209 (1973).  No
action was taken on these bills in the Senate.  In the 94th Congress,
the House Judiciary Committee reported a bill containing employer
sanctions (H.R. 873, 94th Cong., 1st Sess. (1975);  see H.R. Rep. No.
94-506, 94th Cong., 1st Sess. (1975)), but no further action was taken
on it.  A similar bill was introduced in the next Congress (H.R. 1663,
95th Cong., 1st Sess. (1977)), but it received no further action.
After several intervening years of study, the Senate, in the last
Congress, passed a bill containing employer sanctions (S. 2222, 97th
Cong., 2d Sess. (1982);  128 Cong. Rec. 10618 (daily ed. Aug. 17,
1982)), but the House, after debating a similar bill, failed to act.
See H.R. Rep. No. 98-115 (Pt. 1), supra, at 31.

   /28/ S. 529, 98th Cong., 1st Sess. Section 101 (1981), passed by
the Senate on May 18, 1983, 129 Cong. Rec. 6970 (daily ed.);  S. Rep.
No. 98-62, 98th Cong., 1st Sess. (1983).

   /29/ H.R. 1510, 98th Cong., 1st Sess. Section 101 (1983).  See H.R.
Rep. No. 98-115 (Pt. 1), supra, at 2-6.

   /30/ The Board's refusal to find an implied exclusion of
undocumented aliens from the protections afforded employees under the
NLRA is consistent with the treatment of undocumented workers under
other protective labor legislation and with the recognition of their
right to have their civil injuries -- including those deriving from an
employment relationship -- remedied through the courts.  Thus,
undocumented aliens have been entitled to recover unpaid minimum wages
and overtime pay under the Fair Labor Standards Act (Brennan v. El San
Trading Corp., 73 Lab. Cas. (CCH) Paragraph 33,032 (1973));  wages due
under a labor contract (Nizamuddowlah v. Bengal Cabaret, Inc., 92
Misc. 2d 220, 399 N.Y.S. 2d 854 (Sup. Ct. 1977);  Gates v. River
Construction Co., 515 P.2d 1020 (Alaska 1973));  worker's compensation
(Commercial Standard Fire & Marine Co. v. Galindo, 484 S.W.2d 635
(Tex. Civ. App. 1972));  damages for personal injuries sustained
during employment (Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779
(E.D. Pa. 1975));  lost wages in a personal injury suit (Peterson v.
Neme, 222 Va. 477, 281 S.E. 2d 869 (1981);  damages for personal
injuries in general (Arteaga v. Literski, 83 Wis. 2d 128, 265 N.W. 2d
148 (1978);  Woo Sung Ling v. City of New York, 276 App. Div. 1026, 95
N.Y.S.2d 908 (Sup. Ct. 1950));  damages for wrongful death (Torres v.
Sierra, 89 N.M. 441, 553 P.2d 721 (Ct. App. 1976));  Arteaga v. Allen,
99 F.2d 509 (5th Cir. 1938));  and damages for breach of a contract of
sale (Moreau v. Oppenheim, 663 F.2d 1300 (5th Cir. 1981)).  Cf.
Hurtado v. United States, 410 U.S. 578 (1973).  Furthermore,
undocumented alien workers in this country also are entitled to the
constitutional guarantees of due process and equal protection of the
laws.  Plyler v. Doe, supra, 457 U.S. at 210;  Mathews v. Diaz, 426
U.S. 67, 77 (1976);  Wong Wing v. United States, 163 U.S. 228, 238
(1896).

   /31/ Petitioners' reliance (Br. 15) on the fact that the employees
were not deported, but instead "voluntarily" left the country, is also
misplaced.  Upon their apprehension by the INS, the employees were
faced with the choice of either remaining in custody to await formal
deportation proceedings, or signing INS Form I-274 and immediately
leaving the country.  Both alternatives equally accomplished
petitioners' object, which was to terminate the employees' further
employment because of their union activities.  Petitioners' attempt to
rely on the supposed voluntariness of this "Hobson's choice" ignores
the very nature of a constructive discharge, whereby an employer
creates conditions compelling an abandonment of employment that is
"voluntary" in form but not in substance.

   /32/ Petitioners err in suggesting (Br. 14 & nn.4 & 5) that the INS
has no discretion in its enforcement of the INA.  Under 8 U.S.C.
1357(a), an INS officer is authorized to arrest and interrogate
aliens, but the allocation of scarce investigative resources or other
circumstances may sometimes impose limitations.  Moreover, although an
immigration judge ordinarily does not have discretion to terminate
deportation proceedings pending before him (Rodriguez-Gonzalez v. INS,
640 F.2d 1139, 1142 (9th Cir. 1981));  the INS retains some measure of
discretion in deciding whether to institute such proceedings.  See,
e.g., Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983).

   /33/ Petitioners therefore clearly err in contending (Br. 16) that
"(t)he court of appeals and the Board have held, in effect, that once
illegal alien workers engage in protected union activities, an
employer may no longer inquire with the INS, even if it suspects that
it might be employing illegal aliens." The Board's holding was based
on its finding that the protected union activities actually motivated
petitioners' conduct, not simply that the union activities preceded
petitioners' letter to INS in time.  The Board will not find a
violation of the Act where such anti-union animus is not present.  For
example, in Bloom/Art Textiles, Inc., 225 N.L.R.B. 766, 768-769
(1976), noted by the ALJ here (Pet. App. 75a n.5), the Board held that
it was not a violation of Section 8(a)(3) for an employer to discharge
an undocumented worker who was a union activist where the evidence
showed that the reason for the discharge was not the employee's union
activity, but the employer's concern that employment of the
undocumented worker was unlawful under California law.

   /34/ During the debates on the 1952 Act, Senator Cordon argued in
favor of the Douglas amendment after it was modified to delete the
reporting requirement, noting that he could understand that this
requirement in the 1951 bracero bill was "exceedingly objectionable to
some" (98 Cong. Rec. 805 (1952)).

   /35/ Plyler v. Doe, supra, 457 U.S. at 219 & n.18;  United States
v. Brignoni-Ponce, supra, 422 U.S. at 879.

   /36/ H.R. Rep. No. 92-1366, 92d Cong., 2d Sess. 4 (1972);  H.R.
Rep. No. 93-108, 93d Cong., 1st Sess. 7-8, 15-16 (1973);  H.R. Rep.
No. 94-506, 94th Cong., 1st Sess. 6-7, 10 (1975);  98 Cong. Rec. 797
(1952) (remarks of Sen. Douglas);  id. at 798-803 (remarks of Sen.
Humphrey, referring to "employer blackmail");  id. at 804 (remarks of
Sen. Lehman);  118 Cong. Rec. 30155 (1972) (remarks of Rep. Rodino);
id. at 30159 (remarks of Rep. Eilberg);  id. at 30160 (remarks of Rep.
Mayne);  id. at 30163 (remarks of Rep. Daniels);  119 Cong. Rec. 14181
(1973) (remarks of Rep. Eilberg);  id. at 14183 (remarks of Rep.
Keating);  id. at 14185 (remarks of Rep. Rodino);  id. at 14191
(remarks of Rep. Mayne);  id. at 14192 (remarks of Rep. Bingham).

   /37/ Petitioners' reliance (Br. 19, 23) on Southern Steamship is
misplaced.  There, the Court held that the Board abused its remedial
discretion by ordering the reinstatement with back pay of employees
who were fired for engaging in a strike that violated a criminal
statute barring such conduct.  Here, in contrast, the provisions of
the INA do not directly regulate the employment relationship between
an employer and undocumented aliens, much less prohibit the specific
conduct -- engaging in union activities -- that led petitioners to
cause the employees' constructive discharge.  Cf. Carpenters Union v.
NLRB, 357 U.S. 93, 111 (1958) (while Southern Steamship admonished the
Board not to "apply the policies of its statute so single-mindedly as
to ignore other equally important congressional objectives," it did
not suggest "that the Board should abandon an independent inquiry into
the requirements of its own statute and mechanically accept standards
elaborated by another agency under a different statute for wholly
different purposes").

   /38/ This conclusion also is supported by reference to the common
law tort of abuse of process, the gist of which is "misusing, or
misapplying process justified in itself for an end other than that
which it was designed to accomplish";  it applies in cases in which
the procedure "has been perverted to accomplish an ulterior purpose
for which it was not designed." W. Prosser, Handbook of the Law of
Torts 856 (4th Ed. 1971).  See also Restatement (Second) of Torts
Section 682 (1977);  Alexander v. Unification Church, 634 F.2d 673,
678 (2d Cir. 1980);  Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694
F.2d 466, 472 (7th Cir. 1982).  Recognition of that tort in other
settings strongly reinforces a construction of the NLRA and INA under
which the Board may find it to be an unfair labor practice for an
employer to misuse the "process" of reporting aliens to the INS for an
end other than enforcement of the INA -- i.e., in order to evade its
responsibilities under another federal statute, the NLRA.

   /39/ See 1 B. Schwartz, The Bill of Rights:  A Documentary History
198 (1971) (Delcaration of Rights and Grievances of the Congress,
1765, art. XIII);  id. at 217 (Declaration and Resolves of the First
Continental Congress, 1774, Resolve 8);  id. at 266 (Pennsylvania
Declaration of Rights, 1776, art. XVI);  id. at 277 (Delaware
Declaration of Rights, 1776, art. 8);  id. at 287 (North Carolina
Declaration of Rights, 1776, art. XVIII);  id. at 324 (Vermont
Declaration of Rights, 1777, art XVIII);  id at 372-373 (Massachusetts
Declarations of Rights, 1780, art XX);  id. at 379 (New Hampshire Bill
of Rights, 1783, art. XXXII);  id. (Vol. 2) at 681 (proposed amendment
in Massachusetts ratifying convention);  id. at 735 (proposed
amendment 14 in Maryland ratifying convention);  id. at 842 (proposed
amendment 15 in Virginia ratifying convention);  id. at 913 (proposed
amendment in New York ratifying convention);  id. at 968 (proposed
amendment 15 in North Carolina convention);  id. at 1026, 1089-1095,
1103 (debates in House of Representatives).  But see id. (Vol. 1) at
73 (Massachusetts Body of Liberties, 1641, art. 12) ("liberties to
come to any publique Court, Councel, or Towne meeting, and either by
speech or writeing to move any lawfull, seasonable, and materiall
question, or to present any necessary motion, complaint, petition,
Bill or information");  id. at 377 (New Hampshire Bill of Rights,
1783, art. XIV) (every subject entitled to a certain remedy, by
recourse to the laws).

   /40/ Petitioners rely (Br. 17) on a passage in Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139
(1961), in which the Court stated that the right of the people to
inform their representatives in government of their desires with
respect to the passage "or enforcement of (the) laws" cannot be made
to depend on their intent in doing so.  Noerr, however, involved
political activity that was directly related to the purposes of the
First Amendment right to petition.  See page 40 and note 39, supra.
Petitioners' retaliatory reporting of information to the INS was of a
quite different nature.

   /41/ In Quarles, the Court held that violence committed against a
person who informed a federal agency of a violation of the law could
be punished by federal law (Rev. Stat. 5508 (1878 ed.), now 18 U.S.C.
242), rather than state law, because that right is secured by the
Constitution of the United States.  158 U.S. at 537.  The Court did
not hold, however, that the right is absolute and that no consequences
could be attached to retaliatory or invidious motivation in doing so.
To the contrary, the Court indicated that protection of the citizen's
ability to inform law enforcement agencies principally serves the
"'necessity of the government,'" not solely the interest of the person
reporting.  158 U.S. at 536, quoting Ex parte Yarbrough, 110 U.S. 651,
662 (1884).  This is consistent with the Court's treatment of the
evidentiary privilege for communications by an informer.  As the Court
stated in In re Quarles, that privilege belongs to the government, not
the informer personally.  158 U.S. at 536.  See also Roviaro v. United
States, 353 U.S. 53, 59 (1957).  Accordingly, the Constitution does
not require that the individual's interest in reporting a violation of
the law be granted an absolute immunity, even where information is
reported for a retaliatory purpose in violation of another compelling
"necessity of the government," as reflected in the NLRA.

   /42/ In 1977, when petitioners' conduct occurred, it was estimated
that only one in three undocumented aliens was ever apprehended.  See
President's Message to Congress Regarding Undocumented Aliens, 13 Pub.
Papers 1169 (Aug. 4, 1977).  One study showed that for those
apprehended, the average pre-arrest length of residence in this
country was 2.5 years, that over 36 percent of apprehended aliens had
been here for more than three years, and that ten percent had stayed
more than six years.  Exploratory Study, supra note 13, at 81.

   /43/ See, e.g., Buncher v. NLRB, 405 F.2d 787, 789-790 (3d Cir.
1968), cert. denied, 396 U.S. 828 (1969);  NLRB v. Superior Roofing
Co., 460 F.2d 1240, 1241 (9th Cir. 1972);  NLRB v. Miami Coca-Cola
Bottling Co., 360 F.2d 569, 572 (5th Cir. 1966);  Leeds & Northrup Co.
v. NLRB, 391 F.2d 874, 880 (3d Cir. 1968).  Cf. Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203, 215-217 (1964).

   /44/ Contrary to petitioners' contention (Br. 26), the six-month
minimum backpay award is not inconsistent with the Board's policy of
tolling backpay for periods when discriminatees are unavailable for
work.  Where an employee voluntarily absents himself from the job
market by, for example, taking a vacation or refusing to seek
employment, the Board will toll backpay liability for that period.
See, e.g., Gary Aircraft Corp., 210 N.L.R.B. 555, 557 (1974);  Garrard
Convalescent Home, Inc., 220 N.L.R.B. 450, 452 (1975).  However, where
unavailability is due to an illness, injury, or other event that would
not have occurred but for the unlawful discharge, backpay liability
will not be tolled for that period.  American Mfg. Co. of Texas, 167
N.L.R.B. 520, 522-523 (1967);  Fabric Mart Draperies, 182 N.L.R.B. 390
(1970);  Graves Trucking Inc., 246 N.L.R.B. 344, 345 (1979), enforced
as modified, 692 F.2d 470, 474-477 (7th Cir. 1982);  Moss Planing Mill
Co., 103 N.L.R.B. 414, enforced, 206 F.2d 557 (4th Cir. 1953).

   /45/ There is no merit to petitioners' contention (Br. 22-23) that
the backpay award encourages illegal immigration.  Insofar as the
six-month minimum backpay award is concerned, the discriminatees are
entitled to it irrespective of their presence in the country.  Their
entitlement to any backpay in addition to that amount is conditioned
upon their being lawfully entitled to be present and employed in the
United States.

   Insofar as petitioners argue more generally that affording
undocumented aliens a remedy for wrongs done them while working in
this country provides an inducement to unlawful immigration, the
argument is untenable.  "It cannot be seriously argued that people
enter this country illegally so they can recover for an injury that
will be inflicted upon them later." Arteaga v. Literski, 83 Wis. 2d
128, 132, 265 N.W. 2d 148, 150 (1978).  See also Peterson v. Neme, 222
Va. 477, 482, 281 S.E. 2d 869, 872 (1981) ("Ordinarily, a person seeks
a job because he needs to earn a living, not because he wants to
become legally eligible to recover wage losses occasioned by tortious
injury.  We fail to see how allowing Neme's claim for wages lost on
account of Peterson's tort would encourage other illegal aliens to
seek employment in this country.").

   /46/ General Iron Corp., 218 N.L.R.B. 770 (1975), aff'd, 93
L.R.R.M. 2336 (2d Cir. 1976) (table), relied on by petitioners (Br.
31), is not to the contrary.  There the Board explained (218 N.L.R.B.
at 771) that the Spanish speaking employees could reasonably be
expected to have a neighbor or family member who could speak English.
The Board also noted that its rules did not require service by
registered mail, but added that if the employer uses ordinary mail, it
"runs the risk" of not being able to prove service should there be any
question as to whether the notices were in fact received.

   Here, it is not reasonable to assume that the discriminatees,
having returned to Mexico, will have such ready access to
English-speaking relatives or acquaintances.  Moreover, in General
Iron, as in the normal case, the notices were mailed to the address
where the employees could be presumed still to be residing.  Here, by
contrast, the addresses in Mexico to which the reinstatement letters
were sent were not the employees' last known addresses, but addresses
at which the employees had lived at some time before coming to Chicago
to work for petitioners.

   /47/ We have been informed by the INS that as of September 1983,
the backlogs for Mexican nationals to obtain immigrant visas in the
six preference categories (8 U.S.C. 1153(a)(1)-(6)) were as follows:
First (unmarried children of U.S. citizens), current;  Second (spouses
and unmarried children of permanent resident aliens), 11 years;  Third
(professionals and persons of exceptional ability in the sciences or
arts), current;  Fourth (married children of U.S. citizens), 6 1/2
years;  Fifth (siblings of U.S. citizens over age 21), 15 years;
Sixth (aliens seeking to enter to perform labor for which there is a
shortage of persons in the United States), 2 1/2 years.  No visas are
available for any nonpreference aliens.

   /48/ Petitioners argue (Br. 30) that the reinstatement order places
an inordinate hardship on their current employees who may be displaced
if the discriminatees return to their jobs.  It is, however, well
settled that an employer whose unfair labor practice causes its
employees to leave their jobs must reinstate those employees even if
they have been replaced, despite the necessity of dismissing their
replacements.  See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278
(1956);  M.H. Ritzwoller Co., 15 N.L.R.B. 15, 29 (1939), enforced in
relevant part, 114 F.2d 432, 437 (7th Cir. 1940);  NLRB v. Kohler Co.,
351 F.2d 798, 804-805 (D.C. Cir. 1965);  NLRB v. Giannasca, 119 F.2d
756, 758 (2d Cir. 1941).  See also NLRB v. Remington Rand, Inc., 94
F.2d 862, 871 (2d Cir.), cert. denied, 304 U.S. 576 (1938).

   Petitioners also contend that the four-year period ordered by the
court will create undue uncertainty as to whether the discriminatees
will return to accept reinstatement.  However, we do not believe that
the judgment of the court of appeals would prevent petitioners from
including in their offers of reinstatement a condition that the
discriminatees respond to the letter within a reasonable period of
time to indicate their interest in the offer, even though they must be
permitted four years within which to be admitted.  When petitioners
receive those responses, if any, they then can notify their present
employees of the situation in order to prevent any unfair surprise.
Cf. Belknap v. Hale, No. 81-1966 (June 30, 1983).

   Insofar as petitioners suggest (Br. 30) that such a result would be
inequitable here because "illegal aliens" would displace "American
workers," they ignore that the discriminatees will be accorded
reinstatement only if they obtain proper documentation -- a condition
that will render them as entitled to employment as any worker
currently on petitioners' payroll.  Furthermore, the record does not
reflect the citizenship or immigration status of petitioners' current
workforce.