* Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 12-1199 Palma v. NLRB

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2012 4 (Argued: February 6, 2013 Decided: July 10, 2013) 5 Docket No. 12-1199 6

_________________________________________________________ 7 CHRISTIAN PALMA, ANTONIO GONZALEZ, FRANCISCO JAVIER JOYA, 8 JOSE ANTONIO QUINTUÑA, JOSE ARMANDO SAX-GUTIERREZ, 9 Petitioners , 10

- v. - 11 NATIONAL LABOR RELATIONS BOARD, 12 Respondent

. 13

_________________________________________________________ 14 Before: KEARSE and LOHIER, Circuit Judges , and KAPLAN, District Judge *

. 15 Petition for review of orders of the National Labor Relations Board principally 16 denying, on the basis of Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137 (2002), backpay 17 to undocumented alien petitioners who had been discharged by their employer in violation of the 18 National Labor Relations Act. See357 N.L.R.B. No. 47 (Aug. 9, 2011). 19 Petition denied in part and granted in part. 202 MATTHEW J. GINSBURG, Washington, D.C. (James B. Coppess, 1 AFL-CIO, Washington, D.C., Mari elena Hincapié, Linton Joaquin, 2 Josh Stehlik, National Immigration Law Center, Los Angeles, 3 California, Emily Tulli, National Immigration Law Center, 4 Washington, D.C., on the brief), for Petitioners

. 5 FRED B. JACOB, Washington, D.C. (Lafe E. Solomon, Acting 6 General Counsel, Celeste J. Mattina, Deputy General Counsel, John H. 7 Ferguson, Associate General Counsel, Linda Dreeben, Deputy 8 Associate General Counsel, Usha Dheenan, Supervisory Attorney, 9 MacKenzie Fillow, Attorney, National Labor Relations Board, 10 Washington, D.C., on the brief), for Respondent

. 11

KEARSE, Circuit Judge : 12 Petitioners Christian Palma et al . petition for review of a Supplemental Decision and 13 Order of respondent National Labor Relations Board ("NLRB" or the "Board") following compliance 14 proceedings with respect to the remedies to be ordered for violations of the National Labor Relations 15 Act ("NLRA") by their former employer, Mezonos Maven Bakery, Inc. ("Mezonos"). It having been 16 conceded, for purposes of the compliance proceedings, that petitioners were undocumented aliens, 17 the Board ruled that awards of backpay to the petitioners are precluded by the Supreme Court's 18 decision in Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137 (2002) ("Hoffman Plastic "), 19 interpreting the Immigration Reform and Contro l Act of 1986 ("IRCA"), and the Board therefore 20 refused to approve an order of the administrative law judge ("ALJ") recommending that petitioners 21 be awarded backpay. Petitioners contend (1) that th e Board erred in interpreting the majority opinion 22 in Hoffman Plastic to apply to aliens such as petitioners, who had not procured their jobs through the 23 use of fraudulent documentation, and (2) that the Bo ard erred in rejecting, without explanation, the 24 "ALJ's reinstatement order" recommending that M ezonos be required to offer petitioners conditional 253 reinstatement (Petitioners' reply brief on Petition for Re view at 17). With respect to petitioners' latter 1 contention, the Board argues that the absence of a Board order for, or discussion of, conditional 2 reinstatement is not error because the ALJ's order did not include a recommendation for that relief. 3 For the reasons that follow, we deny the petition insofar as it seeks awards of backpay; we grant the 4 petition to the extent that it seeks a remand for the Board to consider issues relating to the request for 5 conditional reinstatement. 6

I. BACKGROUND 7

Most of the facts are no longer in dispute. Petitioners and several others (collectively, 8 the "discriminatees") are former employees of M ezonos; they engaged in protected concerted labor 9 activity, for which they were unlawfully dischargedin 2003. The merits of the unfair labor practice 10 charge alleging that the discharges violated the NLRA were resolved by a stipulation and order, on 11 which a judgment was entered by this Court in 2005 ("2005 Judgment" or "Judgment"); the relief to 12 be ordered for the violations was to be conclusively determined after later proceedings. The Judgment 13 provided, to the extent pertinent here, that Mez onos was to "make [petitioners] whole" with respect 14 to "the amount of backpay due, if any ," 2005 Judgment ¶ 2(b) (empha sis added), and that Mezonos 15 was to offer petitioners 16 unconditional reinstatement . . . except that [Mezonos] may avail itself of a 17 compliance proceeding and therein attempt toestablish that one or more of the 18 alleged discriminatees is not entitled toan unconditional offer of reinstatement , 19 id . ¶ 2(a) (emphasis added). 204 A. The Compliance Proceedings and the ALJ's Decision 1 In the ensuing compliance proceedings, commenced by an NLRB Compliance 2 Specification and Notice of Hearing ("Compliance Specification") that sought backpay and 3 unconditional offers of reinstatement, Mezonos contended that Hoffman Plastic precluded awards of 4 backpay and/or reinstatement in this case because pe titioners were not legally authorized to work in, 5 or to be present in, the United States. Mezonos asserted that it had in fact offered in 2003 to reinstate 6 petitioners if they produced documentation sufficient tocomply with IRCA and that none of them had 7 presented proper documentation. 8 From the beginning of the evidentiary h earing before the ALJ, Mezonos sought to 9 examine the discriminatees as to their immigration status. Counsel for the discriminatees maintained 10 that Mezonos should be prohibited from questioning them on that subject; and the first such witness 11 refused to answer any questions touching on his immigration status, invoking his Fifth Amendment 12 privilege against self-incrimination (seeCompliance Hearing Transcript, Aug. 8, 2006 ("Tr."), 13 at 69-70). The ALJ ruled the questioning appropriate, and he adjourned the hearing in order to 14 request, pursuant to § 102.31(c) of the Board's Rule s and Regulations, authorization to require the 15 discriminatees to answer such questions. Before a response to that request was received, however, 16 the NLRB General Counsel was allowed to foreclose such questioning by conceding, for purposes 17 of the compliance proceedings, that the discriminatees were undocumented aliens: 18 "[F]or the purposes of this proceedi ng, and only this proceeding, the General 19 Counsel will proceed on the assumption that the discriminatees are 20 undocumented. We have decided not to contest the issue of [the 21 discriminatees' immigration] status in this proceeding for the purposes of 22 expediting this matter." 23 ALJ Order Granting Motion To Amend Compliance Specification and Withdrawal of the Section 245 102.31(c) Request, dated June 2, 2006, at 1 (quoting motion of the General Counsel). Accordingly, 1 the compliance hearing continued on the assumption that the discriminatees were undocumented 2 aliens. The ALJ inquired whether that assumption altered the General Counsel's "request for a 3 remedy" (Tr. 501), and he was informed that the re quested relief was modified to include conditional, 4 rather than unconditional, reinstatement (seeid . at 501-02). 5 Following the conclusion of the hearing, the ALJ issued his decision recommending 6 that petitioners be awarded backpay. SeeALJ Supplemental Decision dated November 1, 2006 ("ALJ 7 Decision"). The ALJ began by stating that 8 [t]he general question presented is whether undocumented workers who are 9 not legally authorized to work or be present in the United States but are 10 nevertheless covered and protected by th e National Labor Relations Act (Act) 11 are entitled to a backpay remedy

. 12 The specific [question] to be decided is whether undocumented 13 workers who have not engaged in fraud or criminal activity in violation of

. . . 14 IRCA[] in obtaining or c ontinuing their employment are entitled to backpay 15 where their employer, in violation of that statute, hired and retained them 16 knowing that they were undocumented. 17 ALJ Decision at 1 (emphases added) . The ALJ answered both questi ons in the affirmative, finding 18 this case materially different from Hoffman Plastic because the alien in Hoffman Plastic had violated 19 IRCA by procuring his employment by presenting the employer with fraudulent documents, and the 20 employer was unaware of the fraud, seeid . at 14. 21 The ALJ discredited Mezonos's president's testimony that petitioners had been asked 22 to produce IRCA-required documentation before theywere hired, and he found that "regardless of 23 whether the employees were asked for documentation and did not produce it, [Mezonos] violated 24 IRCA by hiring them and continuing to employ them without receiving the proper documentation." 25 ALJ Decision at 4. The ALJ also credited the te stimony of the petitioners over that of Mezonos's 266 president with respect to the events after petiti oners' discharges, finding th at Mezonos had not made 1 valid offers to reinstate petitioners if they presented proper documentation. Seeid . at 9. 2 The ALJ noted that the Compliance Specification alleged that the backpay period for 3 petitioners began on the date of their discharge and continued to run in the absence of a valid offer 4 of reinstatement, seeid . at 4, and that the General Counsel argued that no valid offer of reinstatement 5 had been made, seeid . The ALJ noted that the Board in th e past had ordered an employer who had 6 hired employees, knowing they were undocumented aliens, to offer them immediate and full 7 reinstatement if, within a reasonable time, they provided documentation satisfying IRCA; and he 8 found that Hoffman Plastic did not preclude such an order of conditional reinstatement. SeeALJ 9 Decision at 9. The ALJ stated that the limited concession that petitioners here were undocumented 10 "d[id] not answer the question concerning [Mezonos's ] obligation, first to validly offer reinstatement 11 and then to leave those offers open for a reasonable time within which they must present proof of 12 documentation. Those obligations have not been met." Id . And because "[a]n employer's offer of 13 reinstatement must be specific and unequivocal in order to toll backpay," id ., and "valid offers of 14 reinstatement have not yet been made to the [discriminatees]," the ALJ found that "backpay has not 15 been tolled," id . at 11. 16 Quoting extensively from th e dissent in Hoffman Plastic , the ALJ concluded that "the 17 backpay remedy is necessary" to make "labor law en forcement credible," ALJ Decision at 16 (internal 18 quotation marks omitted), and is "effective in deterring future conduct," without which, "employers 19 have more, not less incentive to hire undocumented workers," id . at 17. 20 Having concluded that Mezonos did not make valid offers of reinstatement to the 21 discriminatees sufficient to toll its obligation topay backpay, the ALJ proceeded to calculate the 227 amount of backpay due each discriminatee and entered an order accordingly. Seeid . at 19-26. The 1 text of his "recommended Order," id . at 26 n.15, was as follows: 2 ORDER 3 The Respondent, Mezonos Maven Bakery, Inc., its officers, agents, 4 successors, and assigns, shall make the employees named in the attached 5 Appendix whole by paying to them the su ms set forth in the column entitled 6 Net Backpay for each of the employees, with interest on such amounts to be 7 computed in accordance with New Horizons for the Retarded , 283 NLRB 1173 8 (1987), minus tax withholdings required by Federal and State laws. 9 (Order dated November 1, 2006 ("ALJ Order").) The ALJ Decision noted that in the absence of 10 timely exceptions, "the findings, conclusions, and recommended Order shall, as provided in Sec. 11 102.48 of the [Board's] Rules, be adopted by the Bo ard and all objections to them shall be deemed 12 waived for all purposes." ALJ Decision at 26 n.15. 13

B. The Decision of the Board 14 In a Supplemental Decision and Order dated August 9, 2011, and reported at 357 15 N.L.R.B. No. 47 ("NLRB Decision"), the Board declin ed to adopt the ALJ Order. The Board did not 16 disturb the ALJ's findings that Mezonos violatedIRCA by hiring and continuing to employ petitioners 17 without obtaining the required documentation, and th at petitioners had not violated IRCA because 18 they had not obtained their jobs by presenting fraudulent documents. SeeNLRB Decision at 1-2. 19 However, the Board concluded that the holding in Hoffman Plasticnonetheless precluded awards of 20 backpay to petitioners as undocumented aliens. 21 Although the employee at issue in Hoffman Plastic had violated IRCA and his 22 employer had not, the Board stated that Hoffman Plastic 's "holding is categorically worded" with "no 23 distinction based on the identity of the IRCA violator," id . at 2, and concluded that that decision 248 "broadly precludes backpay awards to undocumented wo rkers regardless of whether it is they or their 1 employer who has violated IRCA," id .; seeid . at 4 ("The [Hoffman Plastic ] Court worded its holding 2 in IRCA violator-neutral terms, it invoked IRCA violator-neutral policy grounds, and it otherwise 3 made clear that which party violated IRCA was immaterial to its holding."). The Board noted that 4 "[r]egardless of which party violates the law, the result is an unlawful employment relationship," 5 NLRB Decision at 2, and found its interpretation consistent with Hoffman Plastic 's view that any 6 "employment relationship between an employer and an undocumented worker" contravened "explicit 7 congressional policies," id . (internal quotation marks omitted). The Board concluded that an award 8 of backpay would "trench upon 'policies underlying I RCA' by legitimizing that relationship" and that 9 such a remedy was therefore "beyond the limits of the Board's remedial discretion." Id . at 3 (quoting 10 Hoffman Plastic , 535 U.S. at 149). 11 Having determined that petitioners cannot be awarded backpay, the Board reversed the 12 ALJ Order and dismissed the General Counsel's Co mpliance Specification. The Board did not discuss 13 whether Mezonos should be required to offer to re instate petitioners if they would provide IRCA14 compliant documentation. 15 Petitioners moved for reconsideration of the Board's ruling denying them backpay; 16 their motion did not mention any issue of reinstatement. The Board denied the motion in an order 17 dated November 3, 2011. This petition for review followed. 189 II. DISCUSSION 1

In support of their petition for review, petiti oners contend that the Board erred in its 2 interpretation of Hoffman Plastic as categorically barring backpay for undocumented workers, and 3 they argue that both that interp retation and the Board's failure to explain its decision to deny 4 conditional reinstatement require a remand. The Board opposes the petition on the grounds that its 5 interpretation of Hoffman Plastic was correct and that its silence on the subject of reinstatement was 6 appropriate, given that the ALJ Order had not recommended conditional reinstatement and no party 7 argued to the Board that the ALJ erroneously failed to recommend that relief. 8 We conclude that the Board's interpretation of Hoffman Plasticwas correct; but we 9 remand this matter to the Board for consideration of issues relating to petitioners' requested remedy 10 of conditional reinstatement. 11

A. Hoffman Plastic, IRCA, and Backpay 12 In Hoffman Plastic , the employer ("Hoffman") had hired an alien, Jose Castro, who 13 presented to Hoffman documents that appeared to verify his authorization to work in the United States 14 but that, unbeknownst to Hoffman, were fraudulent. After Hoffman violated the NLRA by 15 discharging Castro and others for union-organizing activities, the Board "ordered that Hoffman . . . 16 cease and desist from further violations of the NLRA. . . and . . . offer reinstatement and backpay to 17 the . . . affected employees." Hoffman Plastic , 535 U.S. at 140-41. Desp ite the admission by Castro 18 at a subsequent compliance hearing that he had obtained his job by using false documents and was 19 not authorized to work in the United States, the Board eventually ordered that Hoffman pay Castro 2010 backpay. Seeid . at 141-42. The Supreme Court reversed that decision, noting that when "the Board's 1 chosen remedy trenches upon a federal statute or polic y outside the Board's competence to administer, 2 the Board's remedy may be required to yield," id . at 147. 3 The Hoffman Plastic Court began its opinion by stating as follows: 4 The National Labor Relations Board (Board) awarded backpay to an 5 undocumented alien who has never been legally authorized to work in the 6 United States. We hold that such relief is foreclosed by federal immigration 7 policy, as expressed by Congress in the Immigration Reform and Control Act 8 of 1986 (IRCA). 9 Hoffman Plastic , 535 U.S. at 140. 10 In exploring the interplay between the NL RA and IRCA, the Court described at some 11 length its decision in Sure-Tan, Inc. v. NLRB , 467 U.S. 883 (1984), which had been decided two 12 years before the enactment of IRCA and had dealt with the "potential conflict between the NLRA and 13 federal immigration policy, as then expressed in the Immigration and Nati onality Act (INA), 66 Stat. 14 163, as amended, 8 U.S.C. § 1101 et seq .," Hoffman Plastic , 535 U.S. at 144. In Sure-Tan , 15 [t]wo companies had unlawfully reported alien-employees to the Immigration 16 and Naturalization Service (INS) in re taliation for union activity. Rather than 17 face INS sanction, the employees voluntarilydeparted to Mexico. The Board 18 investigated and found the companies actedin violation of §§ 8(a)(1) and (3) 19 of the NLRA. The Board's ensuing order directed the companies to reinstate 20 the affected workers and pay them six months' backpay

. 21 We affirmed the Board's determin ation that the NLRA applied to 22 undocumented workers, reasoning that the immigration laws "as presently 23 written" expressed only a "'peripheral concern'" with the employment of illegal 24 aliens . 467 U.S., at 892 (quoting De Canas v. Bica , 424 U.S. 351, 360 (1976)). 25 "For whatever reason," Congress had not "made it a separate criminal offense" 26 for employers to hire an illegal alien, or for an illegal alien "to accept 27 employment after entering this country illegally." Sure-Tan , [467 U.S.] 28 at 892-893. Therefore, we found "no reason to conclude that application of the 29 NLRA to employment practices aff ecting such aliens would necessarily 30 conflict with the terms of the INA." 467 U.S., at 893. 3111 With respect to the Board's selection of remedies, however, we found 1 its authority limited by federal immigration policy . Seeid ., at 903 ("In 2 devising remedies for unfair labor practices, the Board is obliged to take into 3 account another 'equally important Congressional objective'" (quoting 4 Southern S.S. Co. [v. NLRB , 316 U.S. 31,] 47 [(1942)])). For example, the 5 Board was prohibited from effectively rewarding a violation of the 6 immigration laws by reinstating workers not authorized to reenter the United 7 States . Sure-Tan , 467 U.S., at 903. Thus, to avoid "a potential conflict with 8 the INA," the Board's reinstatement order had to be conditioned upon proof of 9 "the employees' legal reentry ." Ibid . "Similarly," with respect to backpay, we 10 stated: "[T]he employees must be deemed 'unavailable' for work (and the 11 accrual of backpay therefore tolled) during any period when they were not 12 lawfully entitled to be present and employed in the United States ." Ibid . "[I]n 13 light of the practical workings of the immigration laws," such remedial 14 limitations were appropriate even if they led to "[t]he probable unavailability 15 of the [NLRA's] more effective remedies." Id ., at 904. 16 Hoffman Plastic , 535 U.S. at 144-45 (emphases added). 17 The Hoffman Plastic Court noted that "[t]he partie s and the lower courts focus much 18 of their attention on Sure-Tan , particularly its express limitation of backpay to aliens 'lawfully entitled 19 to be present and employed in the United States .' 467 U.S., at 903." Hoffman Plastic , 535 U.S. at 146 20 (emphasis added). It noted that 21 [a]ll agree that as a matter of plain language, this limitation forecloses the 22 award of backpay to Castro . Castro was never lawfully entitled to be present 23 or employed in the United States, and thus, under the plain language of Sure24 Tan, he has no right to claim backpay

. 25 Hoffman Plastic , 535 U.S. at 146 (emphasis added). 26 Turning to the more recent restricti ons imposed by IRCA, the Hoffman Plastic Court 27 noted that the line of cases of which Sure-Tanwas part 28 established that where the Board's chosen remedy trenches upon a federal 29 statute or policy outside the Board's competence to administer, the Board's 30 remedy may be required to yield . Whether or not this was the situation at the 31 time of Sure-Tan , it is precisely the situation today. In 1986, two years after 32 Sure-Tan , Congress enacted IRCA, a comprehensive scheme prohibiting the 33 employment of illegal aliens in the United States . § 101(a)(1), 100 Stat. 3360, 3412 8 U.S.C. § 1324a. As we have previously noted, IRCA "forcefully" made 1 combating the employment of illegal aliens central to "[t]he policy of 2 immigration law ." INS v. National Center for Immigrants' Rights, Inc. , 502 3 U.S. 183, 194, and n. 8 (1991). It did so by establishing an extensive 4 "employment verification system," § 1324a(a)(1), designed to deny 5 employment to aliens who (a) are not lawfully present in the United States, or 6 (b) are not lawfully authorized to work in the United States, § 1324a(h)(3). 7 This verification system is critical to the IRCA regime. To enforce it, IRCA 8 mandates that employers verify the identity and eligibility of all new hires by 9 examining specified documents before they begin work . § 1324a(b). If an 10 alien applicant is unable to present the required documentation, the 11 unauthorized alien cannot be hired . § 1324a(a)(1). 12 Similarly, if an employer unknowingl y hires an unauthorized alien, or 13 if the alien becomes unauthorized while employed, the employer is compelled 14 to discharge the worker upon discovery of the worker's undocumented status

. 15 § 1324a(a)(2). Employers who violate IRCA are punished by civil fines, 16 § 1324a(e)(4)(A), and may be subject to criminal prosecution, § 1324a(f)(1). 17 IRCA also makes it a crime for an unauthorized alien to subvert the employer 18 verification system by tendering fraudulent documents . § 1324c(a). It thus 19 prohibits aliens from using or attempting to use "any forged, counterfeit, 20 altered, or falsely made document" or "any document lawfully issued to or 21 with respect to a person other than the possessor" for purposes of obtaining 22 employment in the United States. §§ 1324c(a)(1)-(3). Aliens who use or 23 attempt to use such documents are subject to fines and criminal prosecution. 24 18 U.S.C. § 1546(b). There is no dispute that Castro's use of false documents 25 to obtain employment with Hoffman violated these provisions. 26 Hoffman Plastic , 535 U.S. at 147-48 (footnote omitted) (emphases added). While IRCA does not 27 provide that an alien who is unauthorized to work commits a crime merely by obtaining employment 28 without presenting fraudulent documents, the Hoffman Plastic Court observed that 29 [u]nder the IRCA regime, it is impossible for an undocumented alien to obtain 30 employment in the United States without some party directly contravening 31 explicit congressional policies . Either the undocumented alien tenders 32 fraudulent identification, which subverts the cornerstone of IRCA's 33 enforcement mechanism, or the employer knowingly hires the undocumented 34 alien in direct contradiction of its IRCA obligations, 35 id . at 148 (emphasis added). The Supreme Court continued: 3613 What matters here, and what sinks . . . the Board's claims, is that Congress has 1 expressly made it criminally punishable for an alien to obtain employment 2 with false documents. There is no reason to think that Congress nonetheless 3 intended to permit backpay where but for an employer's unfair labor practices, 4 an alien-employee would have remained in the United States illegally, and 5 continued to work illegally, all the while successfully evading apprehension 6 by immigration authorities. 7 Id . at 149. 8 Although petitioners urge us to distinguish the present case from Hoffman Plastic 9 because in that case Castro himself had violated IRCA, whereas the petitioners here did not present 10 fraudulent documents, the Hoffman Plastic Court's discussion of the direct conflicts between IRCA 11 and awards of backpay is equally applicable to aliens who did not gain their jobs through such fraud 12 but who are simply present in the United States unlawfully. The Court pointed out that awarding 13 backpay would "not only trivialize[] the immi gration laws," but would "also condone[] and 14 encourage[] future violations": 15 [H]ad the INS detained Castro, or had Castro obeyed the law and departed to 16 Mexico, Castro would have lost his rightto backpay. . . . Castro thus qualifies 17 for the Board's award only by remaining inside the United States illegally. . . 18 . Similarly, Castro cannot mitigate damages, a duty our cases require, . . . 19 without triggering new IRCA violati ons, either by tendering false documents 20 to employers or by finding employers w illing to ignore IRCA and hire illegal 21 workers. 22 Id . at 150-51. And 23 allowing the Board to award backpay to illegal aliens would unduly trench 24 upon explicit statutory prohibitions critical to federal immigration policy, as 25 expressed in IRCA. It would en courage the successful evasion of 26 apprehension by immigration authorities, condone prior violations of the 27 immigration laws, and encourage future violations. However broad the 28 Board's discretion to fashion remedies when dealing only with the NLRA, it 29 is not so unbounded as to authorize this sort of an award. 30 Id . at 151-52. 3114 These same concerns exist here in light of the General Counsel's concession for 1 purposes of this case that petitioners are undoc umented. Given petitioners' presence in the United 2 States without documentation, their seeking damages stemming from an unlawful employment 3 relationship, and--assuming there has been no change in their undocumented status--their obtaining 4 new unlawful employment following their terminati ons by Mezonos, awards of backpay would have 5 the same ill-advised propensity discussed in Hoffman Plastic for condoning prior violations of the 6 immigration laws and encouraging future violations. 7 The fact that Congress chose in IRCA not to impose criminal sanctions on 8 undocumented aliens simply for working without authorization does not in any way suggest that 9 Congress meant to allow the Board to encourage undocumented aliens to work by awarding them 10 backpay; and this Court has previously interpreted Hoffman Plastic as foreclosing such awards, see , 11
e.g. , NLRB v. Domsey Trading Corp. , 636 F.3d 33, 38 (2d Cir. 2011) ("After Hoffman , it is now clear 12 that undocumented immigrants are ineligible for backpay under the NLRA . . . ."). We are not 13 persuaded to reach the opposite conclusion by cases such as Madeira v. Affordable Housing 14 Foundation, Inc. , 469 F.3d 219 (2d Cir. 2006), which ruled that IRCA did not preempt awards to 15 undocumented aliens as compensation for personal injuries caused by an employer's negligence or 16 misconduct, seeid . at 239-49. IRCA's focus is on violations of the immigration laws, not on 17 workplace safety. 18 Finally, although petitioners have argued that awards of backpay are needed in order 19 to discourage employers from hiring undocumented workers, the Hoffman PlasticCourt noted that 20 sanctions other than the requirement of backpay are available as deterrents. 2115 Lack of authority to award backpay does not mean that the employer 1 gets off scot-free. The Board here has already imposed other significant 2 sanctions against Hoffman . . . . These include orders that Hoffman cease and 3 desist its violations of the NLRA, and that it conspicuously post a notice to 4 employees setting forth their rights under the NLRA and detailing its prior 5 unfair practices. . . . Hoffman will be subject to contempt proceedings should 6 it fail to comply withthese orders. NLRB v. Warren Co. , 350 U.S. 107, 7 112-113 (1955) (Congress gave the Board civil contempt power to enforce 8 compliance with the Board's orders). We have deemed such "traditional 9 remedies" sufficient to effectuate national labor policy regardless of whether 10 the "spur and catalyst" of backpay accompanies them. Sure-Tan , 467 U.S., 11 at 904. See also id ., at 904, n. 13 ("This threat of contempt sanctions . . . 12 provides a significant deterrent against future violations of the [NLRA]"). 13 Hoffman Plastic , 353 U.S. at 152. Further, as the Supreme Court observed in a subsequent case, 14 IRCA's requirements that employers verify the employment authorization status of prospective 15 employees and not continue to employ unauthorized workers "are enforced through crimin al penalties 16 and an escalatingseries of civil penalties tied to the number of times an employer has violated the 17 provisions . See8 U.S.C. §§ 1324a(e)(4), (f); 8 CFR § 274a.10." Arizona v. United States , 132 S. Ct. 18 2492, 2504 (2012) (emphases added). As to the percei ved need for additional deterrents, the Hoffman 19 Plastic Court ended by stating, 20 [a]s we concluded in Sure-Tan , "in light of the practical workings of the 21 immigration laws," any "perceived deficienc[y] in the NLRA's existing 22 remedial arsenal" must be "addressed by congressional action," not the courts. 23 Id ., at 904. In light of IRCA, this statement is even truer today. 24 353 U.S. at 152. 25 IRCA's purpose was "to control illegal immi gration to the U.S.," both by deterring 26 employers "from hiring unauthorizedaliens" and by "deter[ring] aliens from entering illegally or 27 violating their status in search of employment." H.R. Rep. No. 99-628(I), at 45-46, reprinted in1986 28 U.S. Code Cong. & Admin. News 5649, 5449-50 ("USCCAN" ). As to aliens who did not present 2916 fraudulent documents but who in fact are in the United States illegally or are not authorized to work 1 here, we see 2 no reason to think that Congress nonetheless intended to permit backpay where 3 but for an employer's unfair labor practices, an alien-employee would have 4 remained in the United States illegally, and continued to work illegally, all the 5 while successfully evading apprehension by immigration authorities, 6 Hoffman Plastic , 535 U.S. at 149. We concl ude that the Board did noterr by interpreting Hoffman 7 Plastic to require the denial of backpay to petitioners. 8

B. Conditional Reinstatement 9 Finally, petitioners argue that the ALJ properly "order[ed] conditional reinstatement" 10 to their jobs with Mezonos (Petitioners' brief in support of Petition for Review at 6), and that the 11 Board improperly "failed to provide any explan ation for its decision to dismiss the ALJ's 12 reinstatement order" (Petitioners' reply brief at 17) . The Board argues that it had no need to discuss 13 conditional reinstatement because the ALJ Order did not recommend that relief and petitioners did 14 not file exceptions to its omission. (SeeNLRB brief in opposition to Petition for Review at 21-27.) 15 The Board ends, however, by requesting, "if th[is] Court believes that the Board must address the 16 appropriateness of reinstatement," that we remand to"the Board . . . to consider it in the first 17 instance." (Id . at 27.) In light of the record as a whole, we will order such a remand. 18 We do not understand the Board to have ru led that petitioners were not entitled to 19 offers of reinstatement conditioned upon their presentation to Mezonos of IRCA-compliant 20 documentation to show that they are lawfully present in, and authorized to wo rk in, the United States. 21 The Board's decision simply did not address that question and was instead devoted entirely to the 2217 matter of whether Hoffman Plastic precluded the ALJ-recommended awards to petitioners, as 1 undocumented aliens, of backpay. 2 Nor did the ALJ Order recommend that Mez onos be required to tender to petitioners 3 offers of reinstatement. As described in Part I.A. above, the ALJ Decision contained extensive 4 discussion of Mezonos's contention that offers of reinstatement had been made to the discriminatees 5 in 2003; the ALJ found that Mezonos had an obligation to make valid reinstatement offers, and he 6 found that "[t]hose obligations have not been met, " ALJ Decision at 9. Further, after the General 7 Counsel's limited concession that the discriminatees were undocumented, the ALJ expressly inquired 8 whether that concession changed the General Counsel 's "request for a remedy" (Tr. 501), and he was 9 informed that the request was modified to seek conditional reinstatement (seeid . at 501-02). 10 Given that inquiry and response, as well as the ALJ's finding that Mezonos had not 11 fulfilled its obligation to make valid offers of rein statement, we find it surprising that the ALJ Order-- 12 quoted in Part I.A. above in its entirety--made no mention of reinstatement. It may be that the parties 13 simply assumed from the findings made in the ALJ Decision that the ALJ had in fact granted 14 petitioners' request for conditional reinstatement. Petitioners did not file any exceptions to the ALJ 15 Order, as they would have been expected to do ha d they noticed that order's lack of a recommendation 16 for conditional reinstatement. And Mezonos--whichshould have been pleased about the absence of 17 any order recommending reinstatement--filed exceptions that repeatedly challenged the ALJ's views 18 on reinstatement. (See , e.g. , Exceptions letter from Mezonos's counsel to the NLRB dated December 19 26, 2006, ¶ 5 ("tak[ing] exception to the Judge 's position . . . that the Hoffman Plastic . . . case did not 20 disturb . . . conditional reinstatement" as a possible remedy); id . ¶ 7 ("tak[ing] ex ception to the . . . 2118 Judge['s] state[ment] that the obligations of [Mez onos] to validly offer reinstatement and to leave 1 those offers open for a reasonable time within which the employees must present proof of 2 documentation has not been met.").) Indeed, th e Board acknowledges that "Mezonos excepted to the 3 judge's discussion ( . . . in the context of its offers of reinstatement) of conditional reinstatement and 4 argued that it was not an appropriate remedyafter Hoffman ." (NLRB brief in opposition to Petition 5 for Review at 24 ("not " emphasized in original; other emphasis added).) 6 As to the validity of Mezonos's contenti on that conditional rein statement is not an 7 appropriate remedy after Hoffman Plastic , we are skeptical. The Hoffman Plastic Court noted that 8 Sure-Tanhad held that 9 the Board was prohibited from effec tively rewarding a violation of the 10 immigration laws by reinstating workers not authorized to reenter the United 11 States[, and that] . . . . to avoid a potential conflict with the INA, the Board's 12 reinstatement order had to be conditi oned upon proof of the employees' legal 13 reentry

. 14 Hoffman Plastic , 535 U.S. at 145 (internal quotation mark s omitted) (emphasis ours). And there 15 apparently was no need for the Hoffman Plastic Court to consider whether the Board could order 16 conditional reinstatement, given that "[w]hen the Board learned that [Castro] was an undocumented 17 alien, it denied [him] reinstatement," Hoffman Plastic Compounds, Inc. v. NLRB , 237 F.3d 639, 640 18 (D.C. Cir. 2001) (en banc), and the Supreme Court observed that 19 [n]either Castro nor the Board's General Counsel offered any evidence that 20 Castro had applied or intended to apply for legal authorization to work in the 21 United States, 22 535 U.S. at 141. Thus, although the Hoffman Plastic Court did not directly deal with an issue of 23 reinstatement, its discussion plainly did not foreclose relief in the nature of an order for reinstatement 24 conditioned upon an employee's submission of documentation as required by IRCA. 2519 In sum, given (a) that the ALJ Order did not recommend conditional reinstatement 1 despite the findings in the ALJ Decision that reinstatement offers would be appropriate and that 2 Mezonos had not met its obligation to make such offers, and despite an explicit request by the General 3 Counsel for an order requiring offers of conditional reinstatement, (b) that petitioners did not file any 4 exceptions with the Board despite the failureof the ALJ Order to recommend conditional 5 reinstatement, and (c) that the Board did not consid er whether an order requiring offers of conditional 6 reinstatement would be appropriate despite Mezonos 's explicit argument that the decision in Hoffman 7 Plastic foreclosed any orders for conditional reinstatement, we conclude that this matter should be 8 remanded to the Board for consideration, in the first in stance, of issues relating to that form of relief-- 9 including issues of waiver, estoppel, and appropriateness. 10

CONCLUSION 11

We have considered all of petitioners' arguments in support of their contention that the 12 Board erred in refusing to order awards of backpay and have found them to be without merit. To that 13 extent, the petition for review is denied. The petition fo r review is granted to th e extent that the matter 14 is remanded to the Board for consideration of issues relating to petitioners' request for conditional 15 reinstatement. 16