Hoffman Plastic Compounds, Inc. - Decision Summary

Hoffman Plastic Compounds, Inc. (21-CA-26630; 326 NLRB No. 86) Paramount, Calif. Sept. 23, 1998. Citing A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995), affd. 134 F.3d 50 (2d Cir. 1997), Members Fox and Liebman found that undocumented worker Jose Castro is entitled to limited backpay in the amount of $66,951. The Respondent argued that the Supreme Court's decision in Sure-Tan Inc. v. NLRB, 467 U.S. 883 (1984), and the later enactment of the Immigration Reform and Control Act of 1986 (IRCA) preclude reinstatement and backpay to Castro because he disclosed at the compliance proceeding that at no time has he been lawfully authorized to work in the United States. Members Fox and Liebman found that the Respondent's arguments are "virtually identical" to those that the Board rejected in A.P.R.A. Fuel, and they adhered to that precedent. Members Fox and Liebman found merit in the Respondent's defense based on the after-acquired knowledge rule referred to in A.P.R.A. Fuel and determined that Castro is not entitled to reinstatement and that his backpay should terminate on June 14, 1993, the date that the Respondent learned that Castro used fraudulent identification to gain employment.

Member Hurtgen, dissenting, would not award backpay to Castro for the reasons set forth in the dissent in A.P.R.A. Fuel and because Castro is not lawfully entitled to work in the U.S. and it would be unlawful for the Respondent to employ him.

(Members Fox, Liebman, and Hurtgen participated.)

Hearing at Los Angeles, March 4-5, 1993. Adm. Law Judge Jay R. Pollack issued his supplemental decision Nov. 12, 1993.