dissenting in part:

I concur in that part of the majority opinion which holds that substantial evidence in the record supports the findings of the National Labor Relations Board (“NLRB” or “Board”) that Felbro, Inc. engaged in unfair labor practices by laying off certain workers without engaging in bargaining with the union and by refusing to execute a collective bargaining agreement that had been negotiated. I also agree that we have proper jurisdiction to review the Board’s backpay remedy.

*723 However, I conclude that the Board’s decision to condition the payment of back-pay to layed-off workers upon proof of their legal immigration status is mandated by the Supreme Court’s decision in Sure-Tan, Inc. v. NLRB, 467 U.S. 883 , 104 S.Ct. 2803 , 81 L.Ed.2d 732 (1984). Consequently, I dissent from the denial of enforcement of that remedy portion of the NLRB order.

A. Background

All of the workers who had been layed-off by Felbro in violation of the labor laws have been reinstated with the company and are currently present in the United States. None of Felbro’s alien employees is presently the subject of any Immigration and Naturalization Service (“INS”) deportation proceeding. However, several of these aliens were admittedly undocumented. They testified under assumed names at the NLRB hearings and refused to answer questions concerning their immigration status.

Accordingly, the Board amended the remedial order to read:

274 N.L.R.B. No. 186, slip op. at 5.

In sum, the NLRB concluded that the Supreme Court’s decision in Sure-Tan restricted backpay awards to those alien employees who could demonstrate lawful presence and entitlement to work in the United States. This court now reverses the Board, by interpreting the Sure-Tan holding as narrowly applying to situations where the alien employee was not only unlawfully present in the United States but had actually been deported during the backpay period. I cannot agree with this strained interpretation.

B. The Sure-Tan Decision

In Sure-Tan, Inc. v. NLRB, an employer had retaliated against undocumented alien employees who had engaged in union activities by reporting them to the INS. Agents of the INS arrested five of the employer’s workers. Rather than face deportation proceedings, those alien employees accepted immediate voluntary departure to Mexico.

The Supreme Court upheld the NLRB’s interpretation of the National Labor Relations Act (“NLRA”) as applying to unfair labor practices committed against undocumented aliens. 467 U.S. at 891-94 , 104 S.Ct. at 2808-10 . The Court accepted the Board’s longstanding view that undocumented alien workers are “employees” within the meaning of section 2(3) of the NLRA, 29 U.S.C. § 152 (3). Id. at 891 & n. 5, 104 S.Ct. at 2808 & n. 5. Turning to the facts of the case, the Court held that the reporting of the undocumented workers to the INS had been a retaliatory constructive discharge for the exercise by the employees of federally protected rights to engage in concerted activities. Accordingly, the Court ruled that the employer’s conduct constituted an unfair labor practice in violation of section 8(a)(3) of the NLRA, 29 U.S.C. § 158 (a)(3). Id. at 894-98 , 104 S.Ct. at 2810-12 .

However, the Court limited the availability of individual remedies for the violation by saying that the departed alien employees could be reinstated only upon legal re-entry to the United States, and that “the employees must be deemed ‘unavailable’ for work (and the accrual of backpay therefore tolled) during any period when they *724 were not lawfully entitled to be present and employed in the United States.” Id. at 903 , 104 S.Ct. at 2815 .

In the instant case, the NLRB interpreted this language quoted from Sure-Tan to mean that an alien worker discharged in violation of the NLRA is entitled to back-pay only for the period during which he was lawfully present and entitled to work in the United States. Consequently, the Board’s order indicated that each alien employee’s immigration status must be ascertained during compliance proceedings before being granted backpay for the unlawful lay-off by Felbro.

The union instead contends, and the majority of this court today agrees, that the Sure-Tan decision should be narrowly limited to its specific factual context — where the aliens involved were unavailable for work because they had immediately departed the country and thus were physically outside the United States during the entire backpay period. The union argues that the Supreme Court’s only concern in Sure-Tan was to overturn the decision of the Seventh Circuit, which had suggested an award of a minimum amount of backpay to the departed aliens by speculating that those aliens would have worked an average of six more months had the employer not reported them to the INS. See 672 F.2d 592, 606 (7th Cir.1982). In reversing the Seventh Circuit, the Supreme Court held that the NLRB and any reviewing court must consider whether the aliens were actually available for work and thus entitled to backpay for the period in question. 467 U.S. at 900-05 , 104 S.Ct. at 2813-16 . The union concludes that the Court was holding only that the workers must be physically available for work in order to be entitled to backpay, and thus backpay awards to undocumented aliens are tolled only if they are outside the United States during the backpay period.

The holding of the Supreme Court in Sure-Tan cannot be read so narrowly. The language used by the Court clearly indicates that individual remedies for labor law violations are to be limited to those aliens who can establish legal immigration status. The Court held that the backpay period is tolled unless the alien is “lawfully entitled to be present and employed in the United States.” Id. at 903, 104 S.Ct. at 2815 (emphasis added). The Court did not limit its holding to situations where the alien has been physically removed from the United States through deportation or voluntary departure.

The Court held that the Seventh Circuit had erred in providing for a minimum amount of backpay because that court failed to take into account the alien employees’ “legal availability for work” as well as any actual economic losses sustained. Id. at 904-05 , 104 S.Ct. at 2815-16 (emphasis added). The Court acknowledged that it was uncertain whether any of the discharged employees could “establish at the compliance proceedings that they were lawfully available for employment during the backpay period.” Id. at 904 , 104 S.Ct. at 2815 (emphasis added).

This reference to “legal availability for work” and the query as to whether the aliens were “lawfully available for employment” further confirms the Court’s intent that legal immigration status be a crucial relevant factor in determining whether backpay is tolled. The essence of the Court’s ruling is that an alien worker is entitled to backpay for a lay-off or discharge in violation of the labor laws only when that alien has been legally present in the United States and authorized by the government to obtain employment during the backpay period.

It is instructive that Justice Brennan, dissenting from this holding, broadly interpreted the Court’s decision as “restrict[ing] drastically the remedies available to undocumented alien employees.” Id. at 912 , 104 S.Ct. at 2819 (Brennan, J., concurring and dissenting in part). Justice Brennan went on to warn:

Id.

Justice Brennan plainly read the majority’s holding as limiting the availability of backpay to all aliens without legal documentation, regardless of whether they had thus far escaped deportation. Commentators evaluating the Sure-Tan decision have likewise taken at face value the Court’s express limitation of backpay to aliens lawfully entitled to be present and work in this country. See, e.g., Comment, Immigration Reform: Solving the “Problem” of the Illegal Alien in the American Workforce, 7 Cardozo L.Rev. 223, 244 (1985) (“Sure-Tan mandates that illegal aliens do not receive the remedies granted their legal coworkers.”); Bethel, Recent Labor Law Decisions of the Supreme Court, 45 Maryland L.Rev. 179,196 (1986) (“[T]he effect of Sure-Tan is to deprive undocumented employees of any effective remedy for unlawful discrimination”).

In sum, the Supreme Court in Sure-Tan held that, while the provisions of the NLRA apply to illegal alien “employees” in general terms to promote the public policies of the Act, the individual remedies normally provided for violations may not be available. The Court effectively directed the NLRB to take into account the individual circumstances of each employee, including his immigration status, in determining entitlement to individual awards of back-pay or reinstatement. An undocumented alien is not entitled to such individual relief. 1

The unstated premise behind this holding appears to be that an undocumented alien has not been legally harmed by a lay-off or termination. An alien who had no right to be present in this country at all, and consequently no right to employment, has not been harmed in a legal sense by the deprivation of employment to which he had no entitlement. It may promote the purpose of the NLRA to guarantee the collective bargaining rights of the NLRA to every employee, regardless of immigration status. But the award provisions of the NLRA are remedial, not punitive, in nature, and thus should be awarded only to those individuals who have truly suffered harm. Undocumented aliens, who often enter into the United States without inspection in violation of federal criminal law, 2 *726 are not harmed by removal from employment they could obtain only after such an unlawful entry and can retain only through continued unlawful presence.

The union argues that denial of awards of backpay to aliens unlawfully present in the United States would eliminate any incentive by an employer to obey the requirements of the NLRA, and thereby encourage unscrupulous employers to hire undocumented aliens. The union also contends that undocumented alien employees are unlikely to petition for redress of labor law grievances due to the lack of an effective remedy. The Supreme Court expressly rejected such an argument in Sure-Tan by noting that its decision—

. 467 U.S. at 904 n. 13, 104 S.Ct. at 2815 n. 13. The Court further noted that if there remains “[a]ny perceived deficiencies in the NLRA’s existing remedial arsenal,” the proper solution lies with Congress and not the courts. Id. at 904 & n. 13, 104 S.Ct. at 2815 & n. 13.

C. Consistency With Immigration Laws

The approach adopted by the Board in this case of limiting backpay awards to aliens “lawfully entitled to be present and employed in the United States” is entirely consistent with the immigration laws. Section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182 (a)(14), provides for the exclusion from the country of aliens who seek skilled or unskilled employment without certification by the Secretary of Labor. This section thus creates “a presumption that aliens seeking employment are illegally present in the United States unless certified by the Secretary of Labor.” Note, The Alienation of American Labor: The National Labor Relations Act and the Regulation of Illegal Aliens, 13 N.Y.U.J. Int’l L. & Pol. 961, 978 (1981).

For that reason, an alien who has entered the country and obtained employment contrary to section 212(a)(14) cannot complain when that employment is terminated. Moreover, it could be argued that permitting backpay awards to such aliens has the effect of sanctioning the continuing violation of the law engendered by the alien’s very presence in this country. See INS v. Lopez-Mendoza, 468 U.S. 1032 , -, 104 S.Ct. 3479, 3490 , 82 L.Ed.2d 778 (1984).

Although the union correctly points out that an undocumented alien may later have his status adjusted or be granted relief from deportation, that does not alter the fact that his presence is unlawful until such official relief is obtained. If an alien is without documentation, such as a grant of lawful permanent residence which constitutes federal permission to remain in this country, his status is unlawful.

By adopting this approach, the NLRB need not become enmeshed in immigration law nor will it be required to make difficult judgments of immigration status which are reserved to the expertise and discretion of the INS. If the alien is without documentation, his status is unlawful. In Sure-Tan, the Court used the terms “undocumented aliens” and “illegal aliens” interchangeably. Other agencies of the federal government withhold benefits from aliens without proper documentation 3 and this *727 has not appreciably burdened those agencies nor deprived the INS of exclusive control over immigration law. Furthermore, the NLRB in its discretion may deem it appropriate to stay labor law compliance proceedings with regard to certain individual aliens until their status is conclusively determined in INS proceedings.

D. Conclusion

Unquestionably, the Board’s approach does add some complication to remedy compliance proceedings before the NLRB by introducing the element of legal immigration status to its considerations. In addition, denial of backpay and reinstatement awards to illegal aliens does withdraw some of the remedial bite of the labor laws against an unscrupulous employer. Indeed, it may well be that the majority opinion’s approach is preferable as a matter of policy. But that approach simply cannot be reconciled with the Supreme Court’s teaching in Sure-Tan. Such an alternative solution to the problematic interaction between federal labor and immigration laws will have to be requested from that Court or obtained through new legislation from Congress.

I respectfully dissent.

. The union has cited Bevles Co. v. Teamsters Local 986, 791 F.2d 1391 (9th Cir.1986), as additional authority for the proposition that Sure-Tan does not preclude an award of backpay to undocumented aliens still present in the United States.

In Bevies, this court upheld an arbitration award of reinstatement and backpay to undocumented aliens who had been discharged without just cause. The Bevies Co. opinion held that the Sure-Tan decision did not prohibit the arbitrator's remedy, notwithstanding the immigration status of the employees.

The Bevies Co. decision is distinguishable as it involved an arbitrator’s interpretation of a collective bargaining agreement, rather than an NLRB application of federal labor law. ”[T]his court’s review of an arbitrator’s interpretation of a collective bargaining agreement is much more limited than its review of a decision of the NLRB in a labor dispute.” 791 F.2d at 1393 (footnote omitted). An arbitrator’s award will not be vacated because of erroneous findings of fact or conclusions of law. Id. at 1392 n. 2; American Postal Workers v. United States Postal Service, 682 F.2d 1280, 1285 (9th Cir.1982), cert. denied, 459 U.S. 1200 , 103 S.Ct. 1183 , 75 L.Ed.2d 43 (1983). Only an error by the arbitrator that contitutes a “manifest disregard of the law” will justify reversal of an award. Bevles Co. 791 F.2d at 1392 n. 2; George Day Constr. Co. v. United Bhd. of Carpenters, 722 F.2d 1471, 1477 (9th Cir.1984). Moreover, an employer may affirmatively agree through a bargaining agreement to make backpay payments that he would not be obligated by the labor laws to make.

To the extent that the Bevies Co. decision is precedent for our situation, or adds support to the majority’s conclusions, I do not believe it can be reconciled with Sure-Tan. See Bevles Co., 791 F.2d at 1394 (Sneed, J., dissenting).

. Under 8 U.S.C. § 1325 , any alien who (1) enters the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection at the border, or (3) obtains entry by a willfully false or misleading representation or the willful concealment of a material fact, is guilty of a misdemeanor. See United States v. Reyes-Or-opesa, 596 F.2d 399 (9th Cir.1979).

A subsequent unlawful entry by aliens into the United States or unlawful entry after deportation constitutes a felony. 8 U.S.C. §§ 1325 , 1326.

. For example, under the Social Security Act, 42 U.S.C. § 405 (c)(2)(B)(i)(I), the Secretary of Health and Human Services is required to take affirmative measures to assure that social security numbers will be assigned only to aliens lawfully admitted and to aliens who may lawfully engage in employment.

Under the regulations, before an applicant is granted a social security number, there must be satisfactory proof of age, citizenship or alien status, and true identity. 20 C.F.R. § 422.107 (a) (1985). The regulations also provide that a non-citizen shall not be assigned a number until it can be established that the person is not prohibited from engaging in employment in the United States or is procuring a number for nonwork purposes. Id. at § 422.104 to .107. An alien seeking to obtain a number may demonstrate *727 residence in the United States "under color of law” by presenting various specified forms of documentation from the INS. 20 C.F.R. § 416 .-1618(a). If the alien cannot provide such documentation, the Social Security Administration will contact the INS to ascertain the alien's immigration status. 20 C.F.R. § 416.1618 (b)(2). A social security number will not be granted to an applicant who presents "invalid or expired Immigration and Naturalization Service documents.” Id. at § 422.107(e)(4).

It cannot seriously be contended that the NLRB is less able to examine and review INS documentation than is the Social Security Administration.

As a further example, under regulations enacted pursuant to 42 U.S.C. § 1302 of the Social Security Act, payment of certain federal welfare benefits is restricted to citizens and lawfully admitted aliens. 42 C.F.R. § 405.205 (1985).