## Facts

- Sure-Tan, Inc. and Surak Leather Company operated as a single integrated employer in Chicago.
- Employees supported unionization and authorized a union to represent them in 1976.
- After the union won an NLRB election and was certified over the employer’s objection that many voters were undocumented, the company president contacted immigration authorities requesting investigation of specific employees.
- Immigration officials investigated; five union-supporting employees were found to be undocumented and left the United States to avoid deportation.
- The NLRB charged the employers with retaliating against protected union activity, treating the referral to immigration authorities as a constructive discharge violating NLRA § 8(a)(1) and § 8(a)(3).
- The Board ordered cease-and-desist relief and the conventional remedies of reinstatement and backpay, leaving questions about tolling and availability for later compliance proceedings.
- The court of appeals enforced liability but modified the remedy, including extended reinstatement offers to allow lawful reentry and a minimum backpay component; the Supreme Court reviewed coverage and remedy.

## Issues

1. Whether undocumented workers are “employees” protected by the NLRA against unfair labor practices.
2. Whether the NLRB may award reinstatement and backpay (including a minimum backpay award) to undocumented workers who left the United States and lacked lawful work authorization.

## Decision

- The Court held that undocumented workers fall within the NLRA’s definition of “employee” and are protected from retaliation for union activity.
- The Court upheld the Board’s finding that retaliatory referral of union supporters to immigration authorities could constitute an unfair labor practice and constructive discharge.
- The Court limited remedies: backpay may not accrue for periods when workers are outside the United States and not lawfully available for work.
- The Court rejected a minimum backpay award detached from actual availability or economic loss as impermissibly punitive.
- The Court held reinstatement may be conditioned on lawful reentry and authorization to work, so relief does not require unlawful employment.
- The judgment was affirmed in part and reversed in part.

## Legal Principles

- Undocumented workers are “employees” under the NLRA unless Congress expressly excludes them; the Act’s broad definition and enumerated exceptions do not omit them.
- Employer retaliation against employees for protected organizing activity, including using immigration enforcement as a retaliatory tool, can violate NLRA § 8(a)(1) and § 8(a)(3) and amount to constructive discharge.
- The NLRB’s remedial authority under NLRA § 10(c) is remedial rather than punitive and must be applied consistently with traditional make-whole limits.
- Backpay is tolled when an employee is not “available for work,” including periods when the employee is outside the country without lawful authorization to work in the United States.
- Reinstatement may not compel unlawful employment; it can be ordered only on conditions that permit lawful return and work.

## Conclusion

The Court recognized that undocumented workers are protected “employees” under the NLRA and that retaliatory immigration reporting can be an unfair labor practice, but it restricted reinstatement and backpay to avoid awarding make-whole relief for periods when the workers could not lawfully work in the United States and to prevent remedies that function as penalties.


Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)