Phillip D. Bertelsen, Inc. v. Agricultural Labor Relations Board
Opinion
Opinion
Vartabedian, J.
Introduction
At the times relevant to this case, it was settled law under the National Labor Relations Act (NLRA) and the Immigration and Nationality Act (INA) that nonagricultural workers were not entitled to remedial backpay during any period when they were not present in the United States. (Sure-Tan, Inc. v. NLRB (1984) 467 U.S. 883, 903 [ 81 L.Ed.2d 732, 750 , 104 S.Ct. 2803 ].) (The NLRA does not apply to agricultural workers. ( 29 U.S.C. § 152 (3).))
Prior to Sure-Tan, the immigration status of a worker made no difference in the available remedies under the NLRA. (Local 512, Warehouse & Office Workers v. N.L.R.B. (9th Cir. 1986) 795 F.2d 705 , 717-719, collecting cases.) Since Sure-Tan, there has been a split in the federal appellate courts whether NLRB make-whole remedies are available for undocumented workers who are physically present in the United States, even though their presence is illegal or they are not authorized to be employed. (Compare Del Rey Tortilleria, Inc. v. N.L.R.B. (7th Cir. 1992) 976 F.2d 1115 , with id. at pp. 1123-1125 (dis. opn. of Cudahy, J.) and E.E.O.C. v. Hacienda Hotel (9th Cir. 1989) 881 F.2d 1504, 1517 .)