Unions and their members are currently fighting in the courts and on the shop floor for the right of undocumented workers to reinstatement and back pay when they are the victims of unfair labor practices. In the past, the National Labor Relations Board (the “Board” or the “NLRB”) forcefully protected the rights of undocumented workers regardless of their immigration status.’ This policy, however, changed dramatically after the Supreme Court’s decision in Sure-Tan v. NLRB. Beginning in 1985, a year after the Sure-Tan decision, the Office of the General Counsel of the NLRB began issuing policy memoranda which virtually eliminated the right of undocumented discriminatees to reinstatement and back pay by conditioning such relief in both administrative and court proceedings on proof of lawful presence and authorization to work.

The passage of the Immigration Reform and Control Act of 1986 (“IRCA”) provided the Board with an additional basis for asserting that the labor rights of undocumented workers should be curtailed. Although the General Counsel’s office has recently retreated somewhat from this position, its current practice still raises substantial issues of law and policy and contravenes its fundamental obligation to protect the labor rights of all workers.

The initial impact of IRCA on unionized workers was relatively limited, primarily because a number of unions provided employers with information about the employer sanctions provisions to prevent hasty and illegal reactions by employers. IRCA’s sanctions, however, are in effect, and the INS has promulgated regulations enforcing them.6 It is, therefore, likely that in the near future we will see an increase in violations of the rights of undocumented workers in the union context as well. The NLRB, and ultimately the courts, will have to decide in what ways IRCA will influence their current practice and policy.

The position set forth in this article is that IRCA provides some increased protection to two groups of undocumented workers: those covered by the “grandfather clause” of IRCA and those eligible for legalization under the Act. For other undocumented workers, IRCA poses additional questions but should not result in a diminution of rights under the National Labor Relations Act (the “NLRA”).

This article will examine the conflict between the NLRB and the courts over the remedies of reinstatement and back pay for undocumented workers as well as the impact of IRCA on these remedies. The first section summarizes the Board’s decisions prior to Sure-Tan v. NLRB, the Supreme Court decision which addressed the rights of undocumented workers under the NLRA. The second section reviews the history and reasoning of the Sure-Tan decision. The third section describes two recent cases, decided by the United States Court of Appeals for the Ninth Circuit, in which unions successfully obtained relief for their members. The final section evaluates the impact of IRCA on labor rights and the battles which lie ahead.