Sure-Tan, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1978

234 N.L.R.B. 1187 (N.L.R.B. 1978)

SURE-TAN, INC.
Sure-Tan, Inc. and Surak Leather Co. and Chicago
Leather Workers Union, Local 43L, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Cases 13-CA-16117 and 13-
CA-16229
March 6, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On November 3, 1977, Administrative Law Judge
John C. Miller issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions. The Charging Party and the General Counsel
each filed exceptions with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified.
The Administrative Law Judge correctly found
that the Respondent committed several violations of
Section 8(a)(1) of the Act during the last quarter of
1976 and also violated Section 8(a)(1), (3), and (4) in
February 1977 with respect to employee Albert
Strong. However, the Administrative Law Judge
inadvertently omitted from his recommended Order
an appropriate remedy for the unfair labor practices
directed against Strong. We will therefore order the
Respondent to cease and desist from verbally harass-
ing its employees and from issuing them written
reprimands because they attempt to use Board
processes or because they support the Union. The
Order will also be modified to require the Respon-
dent to expunge the reprimand from Strong's person-
nel records.
The Administrative Law Judge also found, and we
agree, that the Respondent constructively discharged
five of its Mexican employees in violation of Section
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
The Respondent has also excepted to the Administrative Law Judge's
recommendations as to certain issues as prejudicial and showing partiality.
After a careful examination of the entire record, the exceptions, briefs, and
the Decision of the Administrative Law Judge. we are satisfied that this
allegation is without merit. The Administrative Law Judge inadvertently
referred twice to the representation election as having been held on
234 NLRB No. 190
8(a)(3) of the Act. The Respondent, with full knowl-
edge that the employees in question had no papers or
work permits, requested the Immigration and Natu-
ralization Service to investigate their status. This
investigation, which resulted in immediate deporta-
tion proceedings, was requested solely because the
employees supported the Union.
We differ, however, with the Administrative Law
Judge as to the appropriate remedy. He began his
discussion with the settled proposition that illegal
aliens are employees within the meaning of the
National Labor Relations Act and are entitled to its
protection.2 However, the Administrative Law
Judge's recommended Order departs significantly
from the conventional remedy for a violation of
Section 8(a)(3).
The Administrative Law Judge recommended that
a reinstatement order be held open for a 6-month
period because he was of the opinion that the
inability of the discriminatees to return to the United
States rendered reinstatement "at best an unlikely
prospect." 3 In addition, the Administrative Law
Judge declined to order any backpay because of his
finding that the deported employees were physically
unavailable for work.
The Board is of the view that the Administrative
Law Judge's analysis of the remedy was unnecessari-
ly speculative. While it is not disputed that the
discriminatees were deported in February 1977, there
is no evidence in the record that they have not
returned to the United States. The appropriate forum
for determining the issues relating to their availabili-
ty for work is a compliance proceeding.
Based on the foregoing, we find that the Adminis-
trative Law Judge erred in failing to grant the
conventional remedy of reinstatement with backpay.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Sure-Tan, Inc. and Surak Leather Co., Chicago,
Illinois, its officers, agents, successors, and assigns,
December 10, 1977. The correct date was December 10, 1976. The
references are in the fourth paragraph of sec. 11,B,I, and in the Conclusions
paragraph of sec. IIB, of the Decision.
2 Amay's Bakery and Noodle Co., Inc., 227 NLRB 214 (1976).
3 The Administrative Law Judge found that the Respondent's reinstate-
ment offers of March 29, 1977, were deficient for two reasons. First, the time
limit given for acceptance, I month, was too short in light of the difficulties
the discriminatees would face in lawfully reentering the United States.
Secondly, since a foreign mail service was involved, there was good reason
to question the usual presumption that the offers were ever received.
Without passing on these points, we find that the offers were deficient
because they were expressly conditioned on the Respondent not being
found in violation of United States immigration laws.
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph l(b) and
reletter paragraph l(b) as l(c):
"(b) Verbally harassing employees and issuing
them written reprimands because of their attempts to
obtain Board assistance and because they support
the Union."
2. Substitute the following for paragraph 2(a) and
reletter remaining paragraphs accordingly:
"(a) Offer Francisco Robles, Ernesto Arreguin,
Sacramento Serrano, Arguimino Ruiz, and Juan P.
Flores immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of earnings, incurred
as a result of being constructively discharged on
February 18, 1977. Backpay is to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest as prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).
(See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).)
"(b) Expunge from the personnel record of Albert
Strong the letter of reprimand dated February 11,
1977.
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause the constructive discharge
of employees by requesting the Immigration and
Naturalization Service to investigate the status of
known illegal aliens because of their selection of
and support for the Chicago Leather Workers
Union, Local 43L, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, or any other union, with knowledge that
such employees have no papers or work permits.
WE WILL NOT interrogate employees about their
union sentiments and sympathies or that of other
employees.
WE WILL NOT threaten employees who are
illegal aliens with notification of the Immigration
and Naturalization Service because of their selec-
tion or support of a union.
WE WILL NOT threaten employees with less
work if they support the Union.
WE WILL NOT promise employees more work if
they do not support the Union.
WE WILL NOT verbally harass employees or
issue them written reprimands if they attempt to
use the Board's processes or if they support the
Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights protected under the National Labor
Relations Act.
WE WILL offer Francisco Robles, Arguimino
Ruiz, Juan P. Flores, Ernesto Arreguin, and
Sacramento Serrano immediate and full reinstate-
ment to their former jobs or, if these jobs no
longer exist, to substantially equivalent positions
of employment without prejudice to their seniori-
ty or other rights and privileges, and pay them for
loss of earnings suffered because of being con-
structively discharged on February 18, 1977.
WE WILL remove the reprimand of February
11, 1977, from the personnel records of Albert
Strong.
SURE-TAN, INC. AND
SURAK LEATHER Co.
DECISION
STATEMENT OF THE CASE
JOHN C. MILLER, Administrative Law Judge: This case
was heard in Chicago, Illinois, on August I and 2, 1977, on
complaints issued on February 22, 1977, and March 23,
1977, alleging that Respondent discriminatorily discharged
five employees by questioning the legality of their presence
in the United States with the Immigration and Naturaliza-
tion Service because of the employees' union activities and
sympathies and thereby caused their deportation. Respon-
dent is further charged with engaging in various threats
and promises to employees in order to discourage employ-
ees from engaging in union or protected concerted activi-
ties in violation of Section 8(a)(1), (3), and (4) of the
National Labor Relations Act, as amended.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following findings:
FINDINGS OF FACT
1. JURISDICTION
The complaint as amended at the hearing alleges and
Respondent admits that Respondent Sure-Tan, Inc., is an
1188
SURE-TAN, INC.
Illinois corporation engaged in the business of tanning
hides, and that V. J. Surak and S. S. Surak,' herein called
Surak Leather Co., are copartners engaged in the purchase
and sale of hides.
It is further alleged that Respondent Sure-Tan, Inc., and
Respondent Surak Leather Co. (hereafter jointly referred
to as Respondent), at all times material herein, are
affiliated businesses with common officers, ownerships,
directors, and operators that constitute a single integrated
enterprise; and that said directors and operators formulate
and administer a common labor policy for the aforemen-
tioned businesses. Despite Respondent's denial that said
businesses constitute a single integrated enterprise, the
Board specifically found in a prior case, Sure-Tan, Inc. and
Surak Leather Co., 231 NLRB 138 (1977), that Respondent
was a single enterprise and an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and such finding was based on the same evidence as
was submitted in this proceeding. In view of the Board's
prior holding, and the evidence submitted herein, I find
and conclude that Respondent is a single integrated
enterprise and is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The complaint alleges, Respondent admits, and I find
that the Union, Chicago Leather Workers Union, Local
43L, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
It is undisputed that a representation election was held
on December 10, 1976, which was won by the Union.
Respondent filed objections to the election alleging, inter
alia, that the Board should not certify a bargaining unit
largely composed of aliens illegally in the country or, at the
least, whose legal status is questionable. On January 17,
1977, the Acting Regional Director overruled the objec-
tions and certified the Union. The Supplemental Decision
on objections was received by Respondent on January 19,
1977, and, on the following day, January 20, 1977,
Respondent sent the following letter (G.C. Exh. 18) to the
Immigration and Naturalization Service:
January 20, 1977
Mr. Robert Esbrook
U. S. Immigration Service
Room 385
219 So. Dearborn
Chicago, Illinois 60604
Dear Sir:
We would like to ask you to check the emigration [sic]
status of several [of] our employees, who are Mexican
nationals: 2
Juan P. Florez, also known as Jose Martinez
I V. J. Surak is generally identified in the record as John Surak. S. S.
Surak is Steve Surak for purposes of this proceeding.
Social Security Number 338-50-1497
Francisco Robles, Social Security Number 466-11-
2550
Ernesto Arreguin, Social Security Number 357-48-
2329
Sacramento Serrano, Social Security Number 236-
47-5634
Arguimiro Ruiz, Social Security Number 548-06-
8995
We appreciate your attention to this request as soon as
possible.
Yours very truly,
SURE-TAN, INC.
V. J. Surak
On February 18, 1977, Immigration Service agents
visited the premises of Respondent and reviewed the
immigration status of the Spanish-speaking employees and,
shortly thereafter, those found to be illegally in the country,
which included the five alleged discriminatees listed in the
above letter, were promptly put aboard a bus and deported
to Mexico.
B. Case 13-CA-16117
The substantive allegations of this complaint (par. VI,
subpars. (a) - (e) of par. VI), allege essentially that
Respondent: threatened employees with less work if they
supported the Union; promised employees more work if
they did not support the Union; interrogated employees
about their and their fellow employees' union sympathies
and activities; threatened to call the Immigration Service
because employees had supported the Union; threatened
to discharge employees and close the plant if the Union
won the election and promised employees a wage increase
if the Union lost the election; threatened to go out of
business because the Union won the election.
Francisco Robles, an employee and admitted illegal
alien, credibly testified that in October 1976, prior to a
representation election held on December 10, 1976, John
Surak approached him at his workplace and showed him a
piece of paper with squares marked yes and no. Pointing to
where the yes appeared Surak stated "Union no good.
Little work." Surak then pointed to where the no square
appeared and stated "the company is good. A lot of work
there." Surak then made a cross where the no appeared and
said, "OK Francisco," and Robles replied, "OK."
Robles further testified credibly that approximately a
week before the scheduled representation election of
December 10, 1976, Surak approached employee Primitivo
Servantez who was working with Robles and attempted to
give him similar advice about voting no union. After
receiving no answer Surak came to Robles and told him to
tell Primitivo in Spanish. Robles then told Primitivo the
same thing Robles had previously been told, namely, that
in voting as to the Union the yes square was "no good, little
work" and that the no square "is good, a lot of work."
2 The letter listed several other Mexican nationals who were not listed as
they are not involved in the allegations herein.
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robles further related that he told Primitivo that John
(Surak) wanted him to put a cross on the square with the
word "no."
Robles also testified credibly that, an hour or two after
the election in which the Union was selected, John Surak
approached him and employees Ruiz and Primitivo and
said, "no friends, no amigos," said "sons of a bitches" and
used the word "immigration." Surak then stated "Union,
why?" and then said "Mexican son of a bitch." Surak then
asked Robles if he had immigration papers and Robles
answered no. Then Surak asked if the others had papers
and Robles responded he did not know. Primitivo then told
Robles to tell Surak that nobody had papers there and
Robles conveyed that information to John Surak.
Floriberto Rodriguez, an employee of Sure-Tan from
March through October 28, 1976, credibly testified that, in
August 1976, John Surak approached him and a group of
fellow employees and in half-English and half-Spanish
asked several times of the group, "you all union?" Rodri-
guez responded on behalf of the group that he did not
know anything about the Union, whereupon Surak said,
"You are all son of a bitches," and left. Rodriguez further
testified that he attended a National Labor Relations
Board hearing in October 1976 and that, subsequent to that
hearing, John Surak was helping him put some chemicals
in a container and Surak told him that he was stupid and
that he and the Union were sons of bitches. Whereupon,
Rodriguez said he did not want to work for Surak anymore
and asked for and received his check and left the job.
Rodriguez's resignation from the job as well as the October
incident are not alleged to be violations and that testimony
was admitted as background evidence of union animus.
1. The affidavits of deported aliens
Introduced and accepted into evidence were the affida-
vits of three alleged discriminatees, Aguimino Ruiz, Ernes-
to Arreguin, and Sacramento Serrano. They were deported
from the country on or about February 18, 1977, to their
native country, Mexico, because they were found by the
Immigration and Naturalization Service to be in the
country illegally. They were unavailable to testify for this
hearing despite efforts to locate them and have them return
to testify. Counsel for the General Counsel, William Kocol,
stated that the affidavits were made before him and a
Spanish-speaking interpreter; that, because of their prompt
deportation, there was an insufficient time to procure
depositions which would have afforded Respondent's
counsel opportunity to cross-examine; and, lastly, that
Respondent's objection to the introduction and consider-
ation of these affidavits for this case has no merit because it
was Respondent's action in writing the Immigration Ser-
vice that led to their deportation and consequent unavail-
ability for this hearing. Respondent's objection to the
admissability of the affidavits centers largely on the
inability to cross-examine the individuals concerned and
states that deportation of such individuals was by the
3 In addition to the objections to the election on the basis the employees
were illegal aliens, subsequent to the election of December 10, 1976, V. J.
(John) Surak, on January 10. 1977, executed an affidavit (G.C. Exh. 32) in
which he stated that a couple of months before the election he was told by a
confidential source that these men (the employees) were here illegally.
Government, and specifically by the Immigration and
Naturalization Service, because they were in the country
illegally.
It is clear that Respondent through its principal agent,
John Surak, was aware that most of his employees were
illegal aliens3 and, in fact, objected to a representation
election because of that fact. The day following the receipt
of a supplemental report on objections issued by the
Regional Director for Region 13 which report overruled
Respondent's objections to the election, John Surak wrote
the Immigration Service asking that an investigation be
made of the legality of the status of certain of his
employees. It is clear and I find that Respondent's request
to the Immigration Service was prompted by his employ-
ees' selection of a union as their bargaining representative
and that Respondent's action resulted in the deportation of
the five named discriminatees involved in this case.
Nonetheless, I note that Francisco Robles was located
and testified in this hearing despite his deportation. This
gives support to the view that the individual discriminatees
may have personally decided not to return for this hearing.
Secondly, while the request from Respondent was the
proximate cause of their deportation, it was the Immigra-
tion Service that determined they were here illegally and
who did the actual deportation. Thirdly, the affidavits are
clearly hearsay and do not give Respondent the opportuni-
ty to cross-examine the individuals, normally a procedural
prerequisite to use as evidentiary material. Lastly, the
affidavits of both Ruiz and Arreguin 4 merely recounts
incidents of interrogation or instructions to vote no in the
election, both matters which would be merely cumulative
in light of credited testimony of Robles and Rodriguez to
the same effect. The affidavit of Serrano does relate explicit
threats of discharge if the employees voted for the Union
and a promise of a 20-cent-wage increase if the Union were
not voted in. Nonetheless, such explicit threats would be
remedied by the order herein since they fall within the
general category of threats for supporting the Union or
promises of benefit if the Union is not supported. Accord-
ingly, for all of the above reasons, I conclude that use of
the affidavits of Ruiz, Arreguin, and Serrano as evidentiary
material is questionable at best and unnecessary, in any
event, to remedy the substance of the allegations of the
complaint. Accordingly, in making my findings herein, I do
not rely on such affidavits.
Albert Strong, another employee of Sure-Tan, credibly
testified that shortly after the election results were known
on December 10, 1977, John Surak came to him and said,
"Your dream finally come true . . . but I won't stay in
business." Strong merely responded "OK."
John Surak was hesistant, unimpressive, and at times
evasive in his denials of any statements by him to
employees involving interrogation of his employees and
threats and promises of benefit if they voted no union in
the representation election. Accordingly, I do not credit
such denials, nor any of his testimony which is contrary to
that which I have credited.
Further, the statement acknowledged that, a week or so after the election,
John Surak asked employees if they had a "green card" and each of the
employees told him no. John Surak's contrary testimony, which he later
modified, is not credited.
4 G.C. Exhs. 19 and 30. The affidavit of Serrano is G.C. Exh. 31.
1190
SURE-TAN, INC.
Conclusions
In view of the credited testimony, I find that Respon-
dent, through its supervisor and agent, John Surak,
violated Section 8(a)(1) of the Act by: (a) threatening
employees, in October 1976, with less work if they
supported the Union and promising employees more work
if they did not support the Union; (b) interrogating
employees, in October and December 1976, about their
union sentiments and views and the union sentiments and
activities of other employees; (c) threatening to notify the
Immigration Service by asking employees shortly after the
representation election on December 10, 1977, if they had
papers or "green cards" and mentioning "immigration"
thus constituting a thinly veiled threat to notify the
Immigration Service because they had supported the
Union; (d) on or about December 10, 1976, threatening to
go out of business because the Union won the election.
C. Case 13-CA-16229
The complaint in this case alleged that Respondent
caused the discharge of five employees by writing the
Immigration and Naturalization Service and asking them
to check their status which resulted in their deportation
and that such action was motivated by the employees'
support for the Union. The complaint further alleges that
Respondent, through its agent John Surak, threatened and
harassed and subjected to verbal abuse an employee
(Albert Strong) on February 4, 9, and 11, 1977, including a
written warning letter because the employee had engaged
in union and/or protected concerted activities or because
the employee was named in a charge filed under the Act
and/or because such employee had given testimony to the
National Labor Relations Board.
In view of the 8(a)(l) violations I have previously found
in Case 13-CA-16117, and General Counsel's Exhibit 18,
the letter dated January 20, 1977, from Respondent to the
Immigration Service, the text of which was cited previous-
ly, I find and conclude that Respondent's request to
investigate the immigration status of its employees was
motivated by its employees' support of the Union. I further
conclude that the discriminatees' subsequent deportation
was the proximate result of the discriminatorily motivated
action by Respondent and constitutes a constructive
discharge violative of Section 8(a)(3) and (1) of the Act.5
This finding is buttressed by the testimony of Edward
Malin, a criminal investigator employed by the U.S.
Immigration Service who credibly testified that the Immi-
gration Service visited the Sure-Tan facilities on February
18, 1977, as a direct result of the letter received by the
Immigration Service and identified General Counsel's
5 See Amay's Bakery & Noodle Co., Inc., 227 NLRB 214 (1976). While I
recognize that, in Armay's. the employer terminated the employees whereas,
in the present case, the removal and deportation of employees was done by
the Immigration Service which resulted in their de facto termination, the
distinction does not affect my finding that Respondent's actions here
resulted in the employees' constructive discharge, in violation of Sec. 8(aX3)
and (I) of the Act. In view of Respondent's knowledge that none of its
employees had "papers" or work permits, its request to Immigration Service
to investigate named employees would inevitably result in their deportation.
Inasmuch as the request was motivated by the employees' selection and
support of the Union, and Respondent is responsible for the foreseeable
result of its action, their deportation is held to be a constructive discharge
Exhibit 18 as the "report that precipitated the visit to the
Sure-Tan Company on the date of [in] question." Accord-
ingly, I find that, but for Respondent's letter to Immigra-
tion, the discriminatees would have continued to work
indefinitely for Respondent.
Additional 8(a)(1), (3), and (4) Allegations
Employee Albert Strong credibly testified that on or
about January 31, 1977, he went to the Board Office and
made a complaint about his being laid off. Shortly,
thereafter, on or about February 4, 1977, John Surak
approached him and berated him because he "filed a
complaint about the layoff when you asked to be laid off."
Surak then called him a "dirty son of a bitch." Sometime
later John's brother, Steve Surak, called him a dirty son of
a bitch stating, "You are trying to get money like you did
before."6 Strong also testified as to two incidents occurring
on February 9 and II, which are also alleged to be
harassment. The February 9 incident concerned a minor
dispute about the leather splitting machine where Strong
attempted to show John Surak that the machine was
malfunctioning and John took the material away from
Strong stating, "If you ain't gonna do it, I'll get somebody
else to do it." As to the February I incident, John Surak
allegedly called him "a lazy punk" for failing to bring up a
certain number of bags of chemicals. Later, as Strong was
leaving work on February II, he received a letter of
reprimand (G.C. Exh. 27). Strong, an employee of some 1 I
years, further credibly testified that, prior to the union
election on December 10, 1976, he had never received a
letter of reprimand.
I find that Strong, a reinstated discriminatee from a
previous case involving this employer, was upbraided on
February 4, for filing a "complaint" with the Board about
his layoff. While I find that the incidents that occurred on
February 9 and 11 were rather trivial altercations which
occur on a worksite and do not of themselves establish that
Strong was being harassed because of his union sympa-
thies, I do conclude that the letter of reprimand was an
overreaction to relatively minor work disputes and was
motivated by Strong's attempted utilization of Board
processes and his support of the Union. I conclude and
find, therefore, that the verbal harassment of February 4
and the written reprimand of February 11 were motivated
by Strong's attempted use of Board processes and his
longstanding support for a union and such incidents are
violative of Section 8(a)(1), (3), and (4) of the Act.7
violative of Sec. 8(aX3) and (1) of the Act. It should be emphasized,
however, that the finding herein does nor foreclose an employer from making
a similar request where its request is not motivated by their employees'
union activities or protected concerted activities. Cf. Bloom/Art Textiles,
Inc., 225 NLRB 766, 769 (1976).
No issue has been raised herein as to the applicability of a state statute
governing the employment of illegal aliens. Cf. Amay's Bakery, supra at 217.
s Referring to an earlier case involving Respondent's predecessor, S. S.
Surak and J. V. Surak d/b/a National Rawhide Manufacturing Co., 202
NLRB 893 (1973).
T Disposal Service, Inc., 226 NLRB 1310 (1976); Lenox Hill Hospital, 225
NLRB 1237 (1976).
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW (CASES 13-CA-16117 AND
13-CA-16229)
1. By requesting the Immigration and Naturalization
Service to investigate the legal status of their Mexican
national employees because of their support for the Union,
with full knowledge that such employees had no papers or
work permits, the Respondent caused the deportation of
employees Francisco Robles, Sacramento Serrano, Juan P.
Flores, Ernesto Arreguin, and Aguimino Ruiz, thereby
constructively discharging them in violation of Section
8(a)(3) and (1) of the Act.
2. By questioning employees shortly after the represen-
tation election of December 10, 1976, in which the Union
was selected as bargaining representative, if they had
"papers" or "green cards" and mentioning immigration,
Respondent engaged in a thinly veiled threat to notify the
Immigration Service because they had supported the
Union, and such conduct is violative of Section 8(a)(l) of
the Act.
3. By interrogating employees in October and Decem-
ber 1976 about their union sentiments and the union
sentiments and activities of other employees, Respondent,
through its agent and supervisor, John Surak, violated
Section 8(a)(l) of the Act.
4. By threatening employees in October 1976 with less
work if they supported the Union and by threatening to go
out of business on or about December 10, 1976, because
the Union won the election, the Respondent, through its
agents and supervisor, John Surak, engaged in conduct
violative of Section 8(a)(1 I) of the Act.
5. By promising employees more work in October 1976
if they did not support the Union, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act.
6. By verbally harassing employee Albert Strong, on or
about February 4, 1977, and by issuing a written reprimand
to Albert Strong on or about February 11, 1977, because of
his attempted use of Board processes and because of his
longstanding support for a union, Respondent has engaged
in conduct violative of Section 8(a)(1), (3), and (4) of the
Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Because the discriminatees were promptly deported to
Mexico on or about Friday, February 18, 1977, because
they were admittedly illegal aliens, the conventional reme-
dy of backpay and reinstatement appears inadequate since
being physically unavailable for employment nullifies any
backpay liability and their inability to return to the United
States renders reinstatement at best an unlikely prospect.
Counsel for the General Counsel stated at the hearing
that the question of remedy was under advisement and, in
their subsequent brief, merely requested the traditional
remedy of backpay and reinstatement without any expla-
nation as to how and under what theory backpay or
reinstatement can be ordered in these circumstances.
Counsel for the Charging Party argues that, if the
Respondent is not to benefit from its illegal conduct, the
Respondent must be required to make a good-faith effort
through U.S. Government channels to secure the aliens'
return to the United States and that Respondent's backpay
obligation must continue to run until such discriminatees
return to the United States and are offered proper
reinstatement, or the proper Government agent rules that
the employees cannot return to the United States, or the
employee elects not to return to the United States. The
Charging Party's requested remedy is unrealistic in that it
requires the Employer to work for correction of the illegal
status of aliens when he was not responsible for such status
or for their being in the country. The request for backpay
indefinitely is excessive and perhaps punitive in view of
their unavailability for work. Lastly, there already has been
a valid determination that these employees were illegal
aliens.
I start with the basic premise that illegal aliens are
employees within the meaning of the National Labor
Relations Act and are entitled to the protection of the Act,
including such conventional remedies as reinstatement and
backpay.8 Upon careful consideration and for the reasons
noted hereafter, I recommend that a reinstatement order be
expanded to a 6-month period. In view of my interpreta-
tion of prior Board precedent, my recommended Order will
not grant backpay but will suggest that the Board consider
awarding limited backpay in order to best effectuate the
purposes of the Act.
I have considered whether to recommend that Respon-
dent's hiring processes be monitored to prevent similar
violations but, absent evidence that this Respondent is a
repeat offender as to this type of violation, such extraordi-
nary remedy seems unwarranted at this time. In any event,
if the Respondent ultimately violates a court enforced
Board Order, contempt action may be initiated.
With respect to reinstatement, I recommend that an
additional 6-month period be granted from the date of this
Decision (or the Decision of the Board if appealed) to
afford these aliens ample opportunity to return legally and
accept reinstatement if they desire. I note that Respon-
dent's letter offer of reinstatement dated March 29, 1977,
gave employees until May 1, 1977, to accept reemploy-
ment. Even assuming delivery of such letters in Mexico by
April 10, 1977, this would afford employees 20 days or less
to initiate procedures to re-enter the United States on work
permits or other valid basis. Lastly, and perhaps more
importantly, since the mail was not sent registered or
certified mail and without return receipts, there is no
evidence that the discriminatees ever received the offers of
reinstatement. Accordingly, I recommend that further
offers of reinstatement be made and that they be kept open
for a 6-month period, and that, to the extent possible,
receipt of such offers be verified. While I am cognizant
that, even with this modification, reinstatement is still a
dim prospect, a more reasonable time basis is necessary to
make the reinstatement offer a more realistic and viable
remedy.
Amay's Bakery & Noodle Co., Inc., supra
1192
SURE-TAN, INC.
With respect to a possible backpay recommendation, I
am bound by past Board precedent which tolls backpay
where an employee is not available because of illness,9
because he has moved from the area, is no longer in the
labor market,10 is incarcerated," or is in the Armed
Forces.12 I have been unable to find any precedent that
would warrant the award of backpay in this case. Nonethe-
less, because the discriminatees were deported as a proxi-
mate result of Respondent's letter to the Immigration
Service, failure to award any backpay results in the
Respondent benefiting from its own unfair labor practice.
Accordingly, the Board is invited to consider awarding
backpay for at least a minimum period of 30 days (or 4
weeks) or alternatively, backpay ending 12 days after the
letter of reinstatement was mailed, namely, April 10, 1977,
as an exception to its normal rule for the following reasons:
(1) Respondent's conduct, a violation of our Act in this
context, caused the employees' unavailability; (2) while an
employer may have the duty or even an obligation to
request an investigation of his employees' alien status in
ordinary circumstances, the Respondent did so here only
when the Union successfully got the support of the
employees; (3) without an award of some backpay, the
violations herein will largely go unremedied and the
Employer may be encouraged to adopt an apparently
foolproof system of defeating union organizational at-
tempts. Consequently, some backpay award can act as a
deterrent to similar future violations; (4) a limited award of
backpay will remedy the violations of our Act while given
proper recognition and accommodation to the Federal
statute on aliens.' 3 In effect, therefore, a limited backpay
award will act to remedy in part the violations of our Act
while giving recognition to the fact that such employees
were illegally in the country and in light of their unavail-
ability should not be entitled to an indefinite backpay
award. Thus, the Board is invited for any or all of the
above reasons to consider making some backpay award.
Constrained as I am by Board precedent, the Order herein
will provide no backpay.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER14
The Respondent, Sure-Tan, Inc., and Surak Leather Co.,
Chicago, Illinois, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Discouraging membership in, support for, or activi-
ties on behalf of Chicago Leather Workers Union, Local
9 Park Edge Sheridan Meats, Inc., 139 NLRB 748, 750 (1962).
10 See Rice Lake Creamervy Cornpany, 151 NLRB 1113, 1115, fn. 10
(1965), dissenting viewpoint affd. 365 F.2d 888, 891 (1966).
" Gifford-Hill & Co., Inc., 188 NLRB 337, 338 (1971); MSW Construc-
tion. Inc. d/b/a Hale & Sons Construction. 219 NLRB 1073. 1079(1975).
12 John David Brock. d/b/a J. D. Brock e al., 42 NLRB 457, 468-469
(1942).
13 8 U.S.C. Sec. I 101, et seq. (INA).
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
43L, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, by: threatening to notify the
Immigration Service because of employees' support for the
Union; notifying the Immigration Service and requesting a
check on their status because of their support for the Union
and thereby resulting in their deportation from the country
and their constructive discharge; interrogating employees
about their union sentiments and sympathies and that of
their fellow employees; threatening employees with less
work if they supported the Union; promising employees
more work if they did not support the Union.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Francisco Robles, Ernesto Arreguin, Sacra-
mento Serrano, Arguimino Ruiz, and Juan P. Flores
reinstatement to their former jobs and, if those jobs are not
available, comparable jobs. If such offer is made in writing,
evidence of receipt of such offer should be submitted in
view of the fact that the discriminatees' last known
addresses are in Mexico. Offers of reinstatement shall be
held open for a period of not less than 6 months from the
date of issuance of this Decision, or, if such decision is
appealed to the Board, such offer shall be held open for 6
months from the date of issuance of the Board's Decision
or court enforcement of that Decision, whichever is
applicable. Since the above employees were not available
for employment there is no backpay award absent a Board
modification of this recommended Order.
(b) Post at its premises in Chicago, Illinois, copies of
attached notice marked "Appendix." 15 Copies of said
notice shall be in English and Spanish, on forms provided
by the Regional Director for Region 13 and, after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicious places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material. In
addition, Respondent will mail a copy of such notice to the
discriminatees at their last known address.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
'5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1193