Reinstatement and Back Pay Remedy for Illegal Discharge

Following a representation election campaign in which the union was elected by a majority vote to represent a group of company employees, the employer was found guilty of unlawfully discharging 20 employees during the election campaign for engaging in lawful union organizing activities. The employer entered into a voluntary settlement agreement with the National Labor Relations Board (NLRB), agreeing to reinstate and pay a certain amount of back pay to each illegally discharged person. After the NLRB reviewed approved the proposed voluntary settlement agreement, the employer refused to comply with the terms of the agreement it had negotiated with the NLRB because the company claimed to have evidence that many of the affected individuals were illegal immigrants. According to the employer, if the affected individuals were to be reinstated, the employer would be in violation of both federal (Immigration and Reform Control Act of 1986) and state (the Legal Arizona Workers Act) immigration laws. Both of these laws prohibit the hiring of unauthorized aliens.

The general counsel of the NLRB petitioned the court for an order enforcing the terms of the voluntary settlement agreement. The employer originally hired these individuals and admitted illegally discharging them during the course of the union organizing campaign. The employer voluntarily entered into the settlement agreement approved by the NLRB and did not at the time raise any claim that the affected individuals were illegal aliens. In order to effectively remedy an unlawful discharge by putting the individual back in the place they should have been absent their unlawful termination, reinstatement to their former job or a substantially equivalent one and compensation in the form of back pay for economic losses suffered as a direct result of the illegal employer action is an appropriate remedy and should be enforced by the court.

1. As a matter of public policy, should an employer be required to reinstate an unlawfully terminated employee even when that person is an illegal alien? Explain your reasoning.

2. In this case, is it possible for the court to enforce the voluntary settlement agreement between the employer and the NLRB without violating any immigration laws? Explain your reasoning.