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National Labor Relations Board v. Domsey Trading Corporation

February 18, 2011

NATIONAL LABOR RELATIONS BOARD, PETITIONER-CROSS-RESPONDENT,
v.
DOMSEY TRADING CORPORATION,
DOMSEY FIBER CORPORATION
AND DOMSEY INTERNATIONAL
AND DOMSEY INTERNATIONAL SALES CORPORATION,
A SINGLE EMPLOYER, RESPONDENT-CROSS-PETITIONER.



The opinion of the court was delivered by: Pooler, Circuit Judge:

NLRB v. Domsey Trading Corp.

Argued: October 20, 2009

KEARSE, WINTER, and POOLER, Circuit Judges.

The National Labor Relations Board ("NLRB" or "Board") seeks enforcement of two Supplemental Decisions and Orders of the Board against Domsey Trading Corporation, Domsey Fiber Corporation, Domsey International and Domsey International Sales Corporation ("Company" or "Domsey"), a single employer, pursuant to Section 10(e) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(e). See Domsey Trading Corp., 351 NLRB No. 33 (2007); Domsey Trading Corp., 355 NLRB No. 89 (2010). Domsey cross-petitions for review of the Supplemental Decisions and Orders pursuant to Section 10(e) of the NLRA, 29 U.S.C. § 160(e). We agree that the Board erred when it failed to consider Domsey's objections to the immigration-related evidentiary rulings of the Administrative Law Judge ("ALJ") that were based on pre-Hoffman Second Circuit and NLRB case law. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). We therefore deny the Board's application for enforcement, grant Domsey's petition for review, and remand to the NLRB for further proceedings consistent with this opinion.

The National Labor Relations Board ("NLRB" or "Board") seeks enforcement of two Supplemental Decisions and Orders of the Board against Domsey Trading Corporation, Domsey Fiber Corporation, Domsey International and Domsey International Sales Corporation ("Company" or "Domsey"), a single employer, pursuant to Section 10(e) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(e). See Domsey Trading Corp., 351 NLRB No. 33 (2007); Domsey Trading Corp., 355 NLRB No. 89 (2010).*fn1 Domsey cross-petitions for review of the Supplemental Decisions and Orders pursuant to Section 10(e) of the NLRA, 29 U.S.C. § 160(e).

We agree that the Board erred when it failed to consider Domsey's objections to the immigration-related evidentiary rulings of the Administrative Law Judge ("ALJ") (Michael A. Marcionese) that were based on pre-Hoffman Second Circuit and NLRB case law. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). We therefore deny the Board's application for enforcement, grant Domsey's petition for review, and remand to the NLRB for further proceedings consistent with this opinion.

BACKGROUND

On January 30, 1990, approximately 200 of Domsey's workers went on strike, alleging that the Company had committed unfair labor practices, including firing several employees for attending union meetings. The strike ended on August 10, 1990, and the striking workers made an unconditional offer to return to work. Subsequently, the NLRB determined that Domsey had committed unfair labor practices before, during, and after the strike and ordered Domsey to reinstate the striking workers. See Domsey Trading Corp., 310 NLRB No. 127 (1993). In a decision dated February 18, 1994, we granted the NLRB's application for enforcement. See Domsey Trading Corp. v. NLRB, 16 F.3d 517 (2d Cir. 1994) (Winter, J.). On August 20, 1997, the NLRB issued a Compliance Specification and Notice of Hearing before an ALJ to determine the backpay owed by Domsey to the striking workers. In its Answer to the Compliance Specification,*fn2 and again during the compliance hearing, Domsey raised the issue of immigration status, arguing that undocumented immigrants were ineligible for backpay under the NLRA pursuant to Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984). ALJ Marcionese, following then-current NLRB and Second Circuit case law interpreting Sure-Tan, denied Domsey's request to ask discriminatees questions about their immigration status during the backpay period. Instead, the ALJ limited Domsey to asking whether the discriminatees' immigration status affected their ability to find work during the backpay period, which he found relevant to mitigation of damages. Later, concerned that Domsey was engaging in a "fishing expedition," the ALJ limited this line of questioning to pre-IRCA*fn3 hires and post-IRCA hires who Domsey had reason to believe did not have lawful immigration status. He reasoned that Domsey should know the discriminatees' immigration status if they were hired post-IRCA because the company was required by law to verify the information.

Later in the course of the compliance hearing, Domsey submitted a proffer of an immigration expert the Company intended to call to rebut the testimony of some discriminatees who had testified that they had work authorization during the backpay period and to cast doubt on the immigration status of other discriminatees who had not testified about their immigration status. The expert was prepared to testify that anomalies in some discriminatees' social security numbers and work authorization documents indicated that they had submitted fraudulent documents and did not have work authorization during the backpay period. Consistent with his previous immigration-related rulings, the ALJ rejected the proffer and prohibited the expert from testifying on the grounds that such testimony was irrelevant.

After fifty-three days of hearings conducted between October 27, 1997, and January 29, 1999, the ALJ issued a Supplemental Decision on October 4, 1999, awarding $1,075,614.30 in backpay to 202 discriminatees. In the decision, the ALJ reaffirmed his ruling that Domsey was not permitted to inquire into the discriminatees' immigration status during the backpay period. The Company filed its objections to the Supplemental Decision with the Board on December 15, 1999. Specifically, the Company objected to the ALJ's immigration-related evidentiary rulings "wherein [ALJ] Marcionese precluded [Domsey] from questioning the claimants about their ability to obtain work in this country legally." Domsey also objected to the ALJ's ruling excluding the testimony of its immigration expert.

After the ALJ issued his Supplemental Decision but before the NLRB had issued its decision, the Supreme Court decided Hoffman, 535 U.S. 137, which held that undocumented aliens are not entitled to backpay under the NLRA. In Hoffman, an employee who was fired because of his union activities admitted during the subsequent compliance hearing that he was undocumented and that he had provided fraudulent documents to his employer. While acknowledging that the Board enjoys broad discretion in fashioning remedies under the NLRA, the Supreme Court concluded that "allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA" by "encourag[ing] the successful evasion of apprehension by immigration authorities, condon[ing] prior violations of the immigration laws, and encourag[ing] future violations." Id. at 151. Thus, "[h]owever broad the Board's discretion to fashion remedies when dealing only with the NLRA," the Court concluded, "it is not so unbounded as to authorize this sort of an award." Id. at 151-52.

On September 30, 2007, more than five years after Hoffman was decided, the Board issued its Supplemental Decision and Order, 351 NLRB No. 33, affirming in part and reversing in part the ALJ's proposed decision. The Board held that Hoffman precluded an award of backpay to the four discriminatees who admitted to being undocumented during the backpay period. The Board also remanded with respect to six additional discriminatees because "issues ha[d] been raised" about their immigration status during the compliance hearing. However, the Board did not address Domsey's objection to the ALJ's ruling that it was not permitted to ask most discriminatees about their immigration status.*fn4

On remand, the ALJ awarded backpay to two of the six individuals and made partial awards to two others. The General Counsel was unable to verify the immigration status of the remaining two individuals and withdrew their claims. Domsey then filed its objections to the proposed Second Supplemental Decision with the Board, "retain[ing] and restat[ing] its objections and exceptions to the ALJ's original . . . denial of Respondent's attempts to inquire as to the [discriminatees'] immigration status and ability to work legally in the United States during the backpay period." On September 25, 2008, the Board adopted the ALJ's decision, ...


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