ASHKENAZY PROPERTY MANAGEMENT CORPORATION, D/B/A L'ERMITAGE HOTEL,
ET AL., PETITIONERS V. NATIONAL LABOR RELATIONS BOARD, ET AL.

   No. 90-1497

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Brief For The National Labor Relations Board In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 6-14) is not
reported, but is noted at 917 F.2d 62 (Table).  The supplemental
decision and order of the National Labor Relations Board (Pet. App.
15-59) are reported at 293 N.L.R.B. No. 114.  An opinion of the United
States Court of Appeals for the Ninth Circuit issued at an earlier
stage of the proceedings (Pet. App. 60-61) is reported at 817 F.2d 74.
 The Board's decision and order in the underlying unfair labor
practice proceeding are reported at 268 N.L.R.B. 744.  The Ninth
Circuit's memorandum opinion enforcing that order is not reported, but
is noted at 796 F.2d 479 (Table).

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 6-7) was entered on
October 30, 1990.  On January 22, 1991, the Chief Justice extended the
time for filing a petition for a writ of certiorari to and including
February 28, 1991.  The petition was filed on that date.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the D.C. Circuit correctly applied the law of the case
when it followed a Ninth Circuit decision, issued at an earlier stage
of the proceeding, that prohibited the National Labor Relations Board
from conditioning awards of backpay on showings that the victims of an
unfair labor practice were legally entitled to be present in the
United States during the backpay period.

   2. Whether an individual is required to prove that he was legally
entitled to be present in the United States in order to receive an
award of backpay.

                               STATEMENT

   The National Labor Relations Board awarded backpay to 16 employees
who were discharged because of protected union activities.  Their
employer argued that the backpay award should be reversed because it
was not allowed, during the backpay hearing, to inquire into whether
any of the employees were aliens who were not legally entitled to
remain in the United States.  The D.C. Circuit held that a prior Ninth
Circuit decision in this case was the law of the case on that
question, and it affirmed the backpay award.

   1. In the underlying unfair labor practice proceeding, the Board
found that petitioner Ashkenazy Property Management Corp. violated
Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.
158(a)(1), by discharging the employees in its housekeeping department
because of the employees' concerted activities.  /1/ The Board ordered
petitioners, among other things, to offer the employees reinstatement
and to make them whole for any loss of wages and benefits resulting
from their unlawful discharge.  Ashkenazy Property Management Corp.,
268 N.L.R.B. 744 (1984), enforced mem., 796 F.2d 479 (9th Cir. 1986)
(Table).

   2. The Board's regional director then instituted a proceeding to
fix the amount of the backpay to be awarded to the employees.  See 29
C.F.R. 102.52 et seq.  In preparing the backpay specification, the
regional director instructed each employee to furnish proof that he or
she was legally entitled to be present in this country.  The charging
party in the unfair labor practice proceeding, Hotel Employees and
Restaurant Employees and Bartenders Union, Local 11, AFL-CIO, objected
to that requirement.  It filed a motion with the Ninth Circuit seeking
to compel the Board to conduct the backpay proceeding in accordance
with Local 512, Warehouse & Office Workers' Union v. NLRB, 795 F.2d
705 (9th Cir. 1986) (Felbro).  Pet. App. 8.

   In Felbro, 795 F.2d at 715-723, the Ninth Circuit had held that
aliens who were actually present in the United States during the
backpay period were entitled to relief regardless of whether they were
legally entitled to remain in this country.  The court distinguished
this Court's decision in Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984),
on the ground that Sure-Tan involved workers who had been voluntarily
deported and were thus not present in the United States during the
backpay period.  Felbro, 795 F.2d at 717.

   In response to the union's motion, the Board's General Counsel
advised the Ninth Circuit that further proceedings in this case would
be conducted in a manner consistent with Felbro.  Petitioners did not
appear in the Ninth Circuit to object to that course.  The Ninth
Circuit denied the union's motion in reliance on the General Counsel's
representation.  Pet. App. 60-61.  The court left no doubt, however,
that it considered the Board to be bound by Felbro.  The Ninth Circuit
criticized the General Counsel for acquiescencing in Felbro only for
purposes of this case, and it indicated that it was prepared to
fashion a remedy for any future "violation of the rule of law." Id. at
61.

   3. a. In accordance with the General Counsel's representation to
the Ninth Circuit, the ALJ conducting the backpay hearing refused to
allow petitioners to explore the employees' immigration status.
However, petitioners were "permitted to inquire, in order to determine
the discriminatees' continued availability for work, whether they
ha(d) been outside of the United States during any portion of the
backpay period." Pet. App. 34-35.

   b. On review of the ALJ's decision, the Board rejected petitioners'
contention that the ALJ should have permitted inquiry into the
employees' immigration status.  Pet. App. 22-23 n.1.  The Board
explained that the General Counsel "was required (by Ashkenazy II) to
proceed on a backpay specification consistent with (Felbro) with
respect to backpay entitlement of employees who are undocumented
aliens." Id. at 22 n.1.  The Board also noted that the employees in
question had all been hired prior to the effective date of the
Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. 1324a et
seq., and were thus unaffected by that Act's prohibition on the
employment of illegal aliens.  Pet. App. 23 n.1.

   The Board ordered petitioners to pay seven named employees a total
of $58,359.64 in backpay plus interest.  In addition, petitioners were
ordered to pay a total of $18,335.79 into escrow for the benefit of
nine employees who were unavailable at the time of the hearing.  Pet.
App. 20-21.

   c. Petitioners sought review of the Board's order in the D.C.
Circuit.  /2/ In an unpublished decision, the D.C. Circuit found that
the Ninth Circuit's decision in Ashkenazy II was the law of the case
with respect to whether backpay should be limited to employees legally
entitled to be present in this country.  Pet. App. 9-12.  Under the
law of the case rule, the court explained, "a legal decision made at a
prior stage of litigation, unchallenged by subsequent appeal, is
binding on subsequent stages of the litigation." Id. at 9-10.
Application of the doctrine is particularly appropriate, the court
added, where, as in this case, "a party brings a previously decided
issue before a second forum, in an attempt to 'forum shop' for a
second opinion." Id. at 10.

   The D.C. Circuit added that the law of the case rule would not
obligate it to honor the Ninth Circuit's decision in Ashkenazy II if
the Ninth Circuit's decision were "clearly erroneous" or would "work a
substantial injustice." Pet. App. 11.  But the D.C. Circuit found that
the Ninth Circuit's decision was not clearly inconsistent with this
Court's decision in Sure-Tan and that the application of Felbro to
this case would not work a substantial injustice.  Accordingly, the
court upheld the backpay award.  Pet. App. 12.

                               ARGUMENT

   Petitioners argue that the D.C. Circuit misapplied the law of the
case rule, and they seek further review of whether Sure-Tan limits
backpay awards to those employees who can demonstrate that they are
legally entitled to remain in the United States during the backpay
period.  In our view, the D.C. Circuit did not err in its application
of the law of the case rule, and the underlying issue does not warrant
review by this Court.

   1. There is no merit to petitioners' contention (Pet. 22-24) that,
because the Ninth Circuit's decision in Ashkenazy II denied the
union's motion to compel compliance with Felbro, that decision is not
the law of the case.  As the Ninth Circuit's opinion made clear, the
court denied the motion only because the General Counsel agreed to be
bound by Felbro in this case.  Pet. App. 60-61.  The court left no
doubt that it was prepared to compel compliance in the absence of that
commitment.  Indeed, the court expressed dissatisfaction with the
limited scope of the General Counsel's acquiescence in Felbro and
declared itself ready to fashion a remedy for any future "violation of
the rule of law." Id. at 61.  There was no doubt that the Board was
required to apply Felbro to this case.  The Board and the D.C. Circuit
were fully justified, therefore, in treating this decision as an
authoritative ruling on the question presented.

   The fact that the General Counsel altered his prior position when
he agreed to abide by Felbro does not undercut the applicability of
the law of the case rule.  It was not unreasonable for the General
Counsel to agree to honor the established law of the Ninth Circuit,
rather than attempt to persuade that circuit to change its view and,
failing that, to seek review in this Court.  See United Steelworkers
v. NLRB, 377 F.2d 140, 141 (D.C. Cir. 1966) ("certainly (this court)
cannot hold the Board to have been in error when it decided to follow
a decision of a Court of Appeals, especially of the circuit in which
the relevant affairs occurred").  In any event, whether the D.C.
Circuit correctly applied the law of the case rule to the unusual
facts of this case is not an issue warranting review by this Court.

   2. A court of appeals' adherence to the law of the case rule does
not insulate the underlying issue from this Court's review.
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817-818
(1988).  The correctness of the backpay award entered against
petitioners, however, does not present a question warranting this
Court's attention.

   In Sure-Tan, the Board determined that the employer had committed
an unfair labor practice when, after its employees had elected a union
to act as their bargaining representative, it sent a letter asking the
INS to investigate the employees' immigration status.  Nevertheless,
the employer's request triggered an investigation, and five of the
employees voluntarily left the country to avoid deportation.  This
Court held that, although they were undocumented aliens, those five
individuals were "employees" within the meaning of the statute, and it
sustained the Board's unfair labor practice determination.  In
addressing the remedies available to the five employees, however, the
Court held that "the implementation of the Board's traditional
remedies * * * must be conditioned upon the employees' legal
readmittance to the United States." 467 U.S. at 902-903.  "By
conditioning * * * offers of reinstatement on the employees' legal
reentry," the Court explained, the Board would avoid a conflict with
the objective of the Immigration and Naturalization Act, 8 U.S.C. 1101
et seq., which is to "deter unauthorized entry." Similarly, the Court
stated that "in computing backpay, the employees must be deemed
'unavailable' for work (and the accrual of backpay therefore tolled)
during any period when they were not lawfully entitled to be present
in the United States." 467 U.S. at 903.

   The courts of appeals have uniformly read Sure-Tan to permit awards
of backpay to undocumented aliens who, unlike the employees in
Sure-Tan, remain in this country during the backpay period.  /3/ In
Felbro, the Ninth Circuit explained that the rationale of Sure-Tan
does not extend to undocumented aliens continuously present in this
country;  that undocumented aliens have been eligible for comparable
relief under a variety of labor statutes;  that denying the Board's
traditional reinstatement and backpay remedies to undocumented
employees would reduce employers' incentive to comply with the NLRA;
that those remedies would not encourage unlawful entry into the United
States;  and that the Board was not well equipped to resolve
complicated issues arising from the immigration laws.  795 F.2d at
719-720.

   Other courts of appeals have reached the same conclusion regarding
other statutes.  See Rios v. Enterprise Ass'n Steamfitters Local Union
638, 860 F.2d 1168, 1173 (2d Cir. 1988) (in actions under Title VII,
"undocumented workers who have remained in the country are eligible
for backpay as of the time of a violation");  Patel v. Quality Inn
South, 846 F.2d 700, 705 & n.6 (11th Cir. 1988) (undocumented workers
are not precluded from receiving backpay awards under the Fair Labor
Standards Act of 1938 for periods they were present in the country),
cert. denied, 489 U.S. 1011 (1989).  See also EEOC v. Hacienda Hotel,
881 F.2d 1504, 1516-1517 (9th Cir. 1989);  Bevles Co. v. Teamsters
Local 986, 791 F.2d 1391 (9th Cir. 1986), cert. denied, 484 U.S. 985
(1987).  We are aware of no decision that reached a different
conclusion.

   In the immediate aftermath of Sure-Tan, the Board insisted upon a
showing that undocumented aliens were lawfully present in the United
States as a condition to an award of backpay.  Felbro, Inc., 274
N.L.R.B. 1268 (1985), rev'd in relevant part, 795 F.2d 705 (9th Cir.
1986);  Caamano Bros., 275 N.L.R.B. 205, 205 n.1 (1985).  The regional
director followed that approach when he began to prepare the backpay
specification in this case.  In 1988, however, the General Counsel
outlined a modified approach to backpay awards to undocumented aliens.
 In her Memorandum No. GC 88-9 (Oct. 27, 1987), the General Counsel
concluded that, with respect to aliens employed before November 6,
1986, the effective date of the IRCA, the employer should bear the
burden of proving that backpay claimants were not lawfully entitled to
be present in the United States.  Furthermore, this burden may be met
only through a proffer of a final INS determination to that effect.
/4/ The Board recently approved the approach outlined in the General
Counsel's memorandum.  Del Ray Tortilleria, Inc., 302 N.L.R.B. No. 45
(Mar. 27, 1991), slip op. 7-13 ("Respondent, as the party challenging
the employees' entitlement to reinstatement and backpay, should bear
the burden of proving their ineligibility by producing evidence that
they are subject to an INS deportation order.").

   All of the employees whose backpay is at issue in this case were
employed prior to the effective date of the Immigration Reform and
Control Act.  See Pet. App. 22-23 n.1.  Petitioners have not suggested
that the INS has determined that any of the employees were subject to
deportation during the backpay period.  Consequently, under the
standards presently being applied by the Board and all of the courts
of appeals that have considered the issue, petitioners' allegation
that some of the employees may not have been lawfully present in this
country during the backpay period is not a defense to the award of
backpay.  /5/ There is no conflict among the courts of appeals on this
issue and no other ground warranting review by this Court.

   3. Contrary to petitioner's contention (Pet. 18), the Immigration
Reform and Control Act is inapplicable to this case.  The IRCA makes
it unlawful for an employer to knowingly hire or continue to employ
"unauthorized aliens," and it imposes an obligation on employers,
enforceable by means of criminal and civil penalties, to verify a
prospective employee's right to work in this country.  8 U.S.C.
1324a(a).  The IRCA's prohibitions on the employment of unauthorized
aliens do not apply, however, to the "continuing employment of an
alien who was hired before" November 6, 1986.  Immigration Reform and
Control Act of 1986, Pub. L. No. 99-603, Title I, Section
101(a)(3)(B), 100 Stat. 3372.  As the Board noted, the employees at
issue here were hired prior to that date.  Pet. App. 22-23 n.1.  The
IRCA thus imposes no restriction on the remedies available in this
case.  Cf. Rios v. Enterprise Ass'n Steamfitters Local 638, 860 F.2d
at 1172-1173 & n.2;  EEOC v. Hacienda Hotel, 881 F.2d at 1517 n.11.
The inapplicability of the IRCA is a factor counseling against review
by this Court, since cases involving employees hired before the
effective date of the Act will become increasingly uncommon.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JERRY M. HUNTER

      General Counsel

   D. RANDALL FRYE

      Acting Deputy General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   LAURENCE S. ZAKSON

      Attorney National Labor Relations Board

   MAY 1991

   /1/ In subsequent proceedings, Ashkenazy Property Management Corp.
and the other petitioners conceded that they were "joint employers"
responsible for any backpay award.  See Pet. 4 n.1.

   /2/ The NLRA authorizes an employer aggrieved by an order of the
Board to seek review in the circuit where the unfair labor practice
occurred, the circuit in which the employer resides or transacts
business, or the D.C. Circuit.  29 U.S.C. 160(f).

   /3/ The Court's opinion in Sure-Tan provides support for that view.
 For instance, when the Court reversed the Seventh Circuit's award of
six months' backpay to the absent employees because the award was not
based on evidence of any actual loss, the Court indicated that a
different result might have been justified by "evidence * * * as to
the period of time these particular employees might have continued
working before apprehension by the INS." 467 U.S. 902 n.11.  Cf. INS
v. Lopez-Mendoza, 468 U.S. 1032, 1047-1048 n.4 (1984).

   /4/ With respect to employees hired after November 6, 1986, the
General Counsel's memorandum would dictate the same approach, with one
addition.  Employees who failed to submit a valid "Form I-9" (see 8
C.F.R. 274a.2) verifying their eligibility for employment would not be
entitled to reinstatement, and backpay would be withheld for the
period that they were unwilling or unable to complete the form.  The
Board has not considered the remedies available to this category of
employees.

   /5/ That result is not contrary to this Court's holding in
Sure-Tan.  As the administrative law judge noted, petitioners were
"permitted to inquire, in order to determine the discriminatees'
continued availability for work, whether they (had) been outside of
the United States during any portion of the backpay period." Pet. App.
34-35.  The one employee who testified that he was outside the United
States for some part of the backpay period, Alberto Cayetano, was not
awarded backpay for that time.  Id. at 39-40.  Thus, no employee was
awarded backpay for a period that he was outside the country.