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Sure-Tan, Inc. v. NLRB

Supreme Court of the United States · 1984 · Labor Law
467 U.S. 883 (1984)
Updated
Labor Lawundocumented workersNLRAimmigration and laborundocumented aliensemployee statusNLRA § 2(3)NLRA § 8(a)(3)

Facts

Petitioners operated two leather-processing firms treated as a single employer under the NLRA. During a union campaign, most employees were Mexican nationals unlawfully present in the United States; after the union won the election, petitioners' president questioned employees about immigration papers and, despite having known for months that some lacked papers, contacted the INS the day after the Union was certified. INS agents then investigated the workplace, arrested five undocumented employees, and those employees accepted voluntary departure and left for Mexico that same day. The Board found petitioners acted solely because the employees supported the Union and treated the resulting departures as constructive discharges.

Issue

Whether undocumented aliens are 'employees' protected by the NLRA, and whether an employer violates § 8(a)(3) by reporting undocumented employees to the INS in retaliation for union activity, thereby causing their departure from the United States. The Court also considered whether the court of appeals could modify the Board's remedy by imposing a minimum backpay award and detailed reinstatement terms.

Rule

Undocumented aliens are 'employees' within the meaning of NLRA § 2(3) because the statute broadly covers 'any employee' except for specific listed exclusions that do not include undocumented workers. An employer violates NLRA § 8(a)(3) when, with antiunion animus, it reports undocumented employees to immigration authorities in retaliation for protected union activity and thereby constructively discharges them; however, it is not an unfair labor practice to report or discharge an undocumented alien absent that retaliatory motive. Remedies under § 10(c) are primarily for the Board to fashion, must effectuate the Act's policies by being tailored to actual rather than speculative losses, and reinstatement and backpay must be conditioned on the employees' legal reentry and lawful availability for work.

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Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.
Lakefront Plating, a metal-finishing shop in Milwaukee, employs 18 hourly workers. After a dispute over overtime, several workers without work authorization join a campaign to organize, and management argues to the NLRB that those workers cannot invoke the Act at all because their immigration status removes them from the definition of "employee."

How should the Board most likely rule on the coverage issue?

Explanation. The majority held that undocumented aliens are "employees" under NLRA § 2(3). The statute broadly covers "any employee," subject only to enumerated exceptions, and undocumented workers are not one of those exemptions. The Board may therefore apply the Act to them despite their immigration status.