Disinformation - It's A Matter Of Federal Labor Policy

Recent events in Afghanistan have raised the awareness of disinformation as an instrument of National Defense. While the popular media has spent substantial energy flogging the government, the Department of Defense, and the American psyche over the efficacy or morality of providing disinformation in the defense of human life, this same energy has not been expended in the context of disinformation as a matter of federal labor policy. In fact, disinformation (or lying) is inculcated in federal labor policy, has received the endorsement of the National Labor Relations Board, and the Federal Courts.

In Hoffman Plastic Components v. NLRB, No. 00-1595, (Sup.Ct. March 27, 2002), by the narrowest of margins - five to four - the Supreme Court held a federal criminal statute precluded the NLRB from ordering an employer to pay back-pay to an employee who had obtained employment using fraudulently obtained documents.

In 1989 the employer laid-off Jose Castro, because he had engaged in certain activities in support of a labor organization. The NLRB ordered Hoffman to offer reinstatement and back-pay to Castro. The NLRB then conducted a compliance hearing before an Administrative Law Judge to determine the amount of back pay owed to Castro. In the compliance hearing, conducted in 1993, Castro testified that he had never been legally admitted to or authorized to work in the United States. He admitted gaining employment with Hoffman Plastics by tendering a birth certificate belonging to a friend. He admitted he had used this birth certificate to fraudulently obtain a California driver's license and a social security card. In addition he had used this same birth certificate to fraudulently obtain employment following his lay-off by Hoffman Plastics.

The Administrative Law Judge determined he was precluded from awarding Castro back pay or reinstatement given Castro's testimony regarding his immigration status. The NLRB reversed. It determined that in order to remedy the unfair labor practices, it should treat Castro the same as any other employee. It ordered the payment of back-pay plus reinstatement through the date Hoffman Plastics first learned of his undocumented status. The Court of Appeals denied the employer's Petition for Review.

The Supreme Court majority reviewed the history of judicial review of Board remedies dating from its decision in NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939). In its view of this history, it had consistently set aside awards of reinstatement or back-pay to employees found guilty of serious illegal conduct in connection with their employment. The Court characterized its most recent decision addressing this issue, Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), as prohibiting the NLRB from "rewarding a violation of immigration laws" by ordering the reinstatement of workers not legally authorized to enter or reenter the United States.

The Court characterized the NLRB's position before it as requesting the Court to "allow it to award back-pay to an illegal alien for years of...