KEARSE, Circuit Judge:

Petitioners Christian Palma et al. petition for review of a Supplemental Decision and Order of respondent National Labor Relations Board ("NLRB" or the "Board") following compliance proceedings with respect to the remedies to be ordered for violations of the National Labor Relations Act ("NLRA") by their former employer, Mezonos Maven Bakery, Inc. ("Mezonos"). It having been conceded, for purposes of the compliance proceedings, that petitioners were undocumented aliens, the Board ruled that awards of backpay to the petitioners are precluded by the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) ("Hoffman Plastic"), interpreting the Immigration Reform and Control Act of 1986 ("IRCA"), and the Board therefore refused to approve an order of the administrative law judge ("ALJ") recommending that petitioners be awarded backpay. Petitioners contend (1) that the Board erred in interpreting the majority opinion in Hoffman Plastic to apply to aliens such as petitioners, who had not procured their jobs through the use of fraudulent documentation, and (2) that the Board erred in rejecting, without explanation, the "ALJ's reinstatement order" recommending that Mezonos be required to offer petitioners conditional reinstatement (Petitioners' reply brief on Petition for Review at 17). With respect to petitioners' latter contention, the Board argues that the absence of a Board order for, or discussion of, conditional reinstatement is not error because the ALJ's order did not include a recommendation for that relief. For the reasons that follow, we deny the petition insofar as it seeks awards of backpay; we grant the petition to the extent that it seeks a remand for the Board to consider issues relating to the request for conditional reinstatement.

I. BACKGROUND

Most of the facts are no longer in dispute. Petitioners and several others (collectively, the "discriminatees") are former employees of Mezonos; they engaged in protected concerted labor activity, for which they were unlawfully discharged in 2003. The merits of the unfair labor practice charge alleging that the discharges violated the NLRA were resolved by a stipulation and order, on which a judgment was entered by this Court in 2005 ("2005 Judgment" or "Judgment"); the relief to be ordered for the violations was to be conclusively determined after later proceedings. The Judgment provided, to the extent pertinent here, that Mezonos was to "make [petitioners] whole" with respect to "the amount of backpay due, if any," 2005 Judgment ¶ 2(b) (emphasis added), and that Mezonos was to offer petitioners

id. ¶ 2(a) (emphasis added).

A. The Compliance Proceedings and the ALJ's Decision

In the ensuing compliance proceedings, commenced by an NLRB Compliance Specification and Notice of Hearing ("Compliance Specification") that sought backpay and unconditional offers of reinstatement, Mezonos contended that Hoffman Plastic precluded awards of backpay and/or reinstatement in this case because petitioners were not legally authorized to work in, or to be present in, the United States. Mezonos asserted that it had in fact offered in 2003 to reinstate petitioners if they produced documentation sufficient to comply with IRCA and that none of them had presented proper documentation.

From the beginning of the evidentiary hearing before the ALJ, Mezonos sought to examine the discriminatees as to their immigration status. Counsel for the discriminatees maintained that Mezonos should be prohibited from questioning them on that subject; and the first such witness refused to answer any questions touching on his immigration status, invoking his Fifth Amendment privilege against self-incrimination (see Compliance Hearing Transcript, Aug. 8, 2006 ("Tr."), at 69-70). The ALJ ruled the questioning appropriate, and he adjourned the hearing in order to request, pursuant to § 102.31(c) of the Board's Rules and Regulations, authorization to require the discriminatees to answer such questions. Before a response to that request was received, however, the NLRB General Counsel was allowed to foreclose such questioning by conceding, for purposes of the compliance proceedings, that the discriminatees were undocumented aliens;

ALJ Order Granting Motion To Amend Compliance Specification and Withdrawal of the Section 102.31(c) Request, dated June 2, 2006, at 1 (quoting motion of the General Counsel). Accordingly, the compliance hearing continued on the assumption that the discriminatees were undocumented aliens. The ALJ inquired whether that assumption altered the General Counsel's "request for a remedy" (Tr. 501), and he was informed that the requested relief was modified to include conditional, rather than unconditional, reinstatement (see id. at 501-02).

Following the conclusion of the hearing, the ALJ issued his decision recommending that petitioners be awarded backpay. See ALJ Supplemental Decision dated November 1, 2006 ("ALJ Decision"). The ALJ began by stating that

ALJ Decision at 1 (emphases added). The ALJ answered both questions in the affirmative, finding this case materially different from Hoffman Plastic because the alien in Hoffman Plastic had violated IRCA by procuring his employment by presenting the employer with fraudulent documents, and the employer was unaware of the fraud, see id. at 14.

The ALJ discredited Mezonos's president's testimony that petitioners had been asked to produce IRCA-required documentation before they were hired, and he found that "regardless of whether the employees were asked for documentation and did not produce it, [Mezonos] violated IRCA by hiring them and continuing to employ them without receiving the proper documentation." ALJ Decision at 4. The ALJ also credited the testimony of the petitioners over that of Mezonos's president with respect to the events after petitioners' discharges, finding that Mezonos had not made valid offers to reinstate petitioners if they presented proper documentation. See id. at 9.

The ALJ noted that the Compliance Specification alleged that the backpay period for petitioners began on the date of their discharge and continued to run in the absence of a valid offer of reinstatement, see id. at 4, and that the General Counsel argued that no valid offer of reinstatement had been made, see id. The ALJ noted that the Board in the past had ordered an employer who had hired employees, knowing they were undocumented aliens, to offer them immediate and full reinstatement if, within a reasonable time, they provided documentation satisfying IRCA; and he found that Hoffman Plastic did not preclude such an order of conditional reinstatement. See ALJ Decision at 9. The ALJ stated that the limited concession that petitioners here were undocumented "d[id] not answer the question concerning [Mezonos's] obligation, first to validly offer reinstatement and then to leave those offers open for a reasonable time within which they must present proof of documentation. Those obligations have not been met." Id. And because "[a]n employer's offer of reinstatement must be specific and unequivocal in order to toll backpay," id., and "valid offers of reinstatement have not yet been made to the [discriminatees]," the ALJ found that "backpay has not been tolled," id. at 11.

Quoting extensively from the dissent in Hoffman Plastic, the ALJ concluded that "the backpay remedy is necessary" to make "labor law enforcement credible," ALJ Decision at 16 (internal quotation marks omitted), and is "effective in deterring future conduct," without which, "employers have more, not less incentive to hire undocumented workers," id. at 17.

Having concluded that Mezonos did not make valid offers of reinstatement to the discriminatees sufficient to toll its obligation to pay backpay, the ALJ proceeded to calculate the amount of backpay due each discriminatee and entered an order accordingly. See id. at 19-26. The text of his "recommended Order," id. at 26 n. 15, was as follows:

(Order dated November 1, 2006 ("ALJ Order").) The ALJ Decision noted that in the absence of timely exceptions, "the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the [Board's] Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes." ALJ Decision at 26 n. 15.

B. The Decision of the Board

In a Supplemental Decision and Order dated August 9, 2011, and reported at 357 N.L.R.B. No. 47 ("NLRB Decision"), the Board declined to adopt the ALJ Order. The Board did not disturb the ALJ's findings that Mezonos violated IRCA by hiring and continuing to employ petitioners without obtaining the required documentation, and that petitioners had not violated IRCA because they had not obtained their jobs by presenting fraudulent documents. See NLRB Decision at 1-2. However, the Board concluded that the holding in Hoffman Plastic nonetheless precluded awards of backpay to petitioners as undocumented aliens.

Although the employee at issue in Hoffman Plastic had violated IRCA and his employer had not, the Board stated that Hoffman Plastic's "holding is categorically worded" with "no distinction based on the identity of the IRCA violator," id. at 2, and concluded that that decision "broadly precludes backpay awards to undocumented workers regardless of whether it is they or their employer who has violated IRCA," id.; see id. at 4 ("The [Hoffman Plastic] Court worded its holding in IRCA violator-neutral terms, it invoked IRCA violator-neutral policy grounds, and it otherwise made clear that which party violated IRCA was immaterial to its holding."). The Board noted that "[r]egardless of which party violates the law, the result is an unlawful employment relationship," NLRB Decision at 2, and found its interpretation consistent with Hoffman Plastic's view that any "employment relationship between an employer and an undocumented worker" contravened "explicit congressional policies," id. (internal quotation marks omitted). The Board concluded that an award of backpay would "trench upon `policies underlying IRCA' by legitimizing that relationship" and that such a remedy was therefore "beyond the limits of the Board's remedial discretion." Id. at 3 (quoting Hoffman Plastic, 535 U.S. at 149, 122 S.Ct. 1275).

Having determined that petitioners cannot be awarded backpay, the Board reversed the ALJ Order and dismissed the General Counsel's Compliance Specification. The Board did not discuss whether Mezonos should be required to offer to reinstate petitioners if they would provide IRCA-compliant documentation.

Petitioners moved for reconsideration of the Board's ruling denying them backpay; their motion did not mention any issue of reinstatement. The Board denied the motion in an order dated November 3, 2011. This petition for review followed.

II. DISCUSSION

In support of their petition for review, petitioners contend that the Board erred in its interpretation of Hoffman Plastic as categorically barring backpay for undocumented workers, and they argue that both that interpretation and the Board's failure to explain its decision to deny conditional reinstatement require a remand. The Board opposes the petition on the grounds that its interpretation of Hoffman Plastic was correct and that its silence on the subject of reinstatement was appropriate, given that the ALJ Order had not recommended conditional reinstatement and no party argued to the Board that the ALJ erroneously failed to recommend that relief.

We conclude that the Board's interpretation of Hoffman Plastic was correct; but we remand this matter to the Board for consideration of issues relating to petitioners' requested remedy of conditional reinstatement.

A. Hoffman Plastic, IRCA, and Backpay

In Hoffman Plastic, the employer ("Hoffman") had hired an alien, Jose Castro, who presented to Hoffman documents that appeared to verify his authorization to work in the United States but that, unbeknownst to Hoffman, were fraudulent. After Hoffman violated the NLRA by discharging Castro and others for union-organizing activities, the Board "ordered that Hoffman ... cease and desist from further violations of the NLRA ... and... offer reinstatement and backpay to the ... affected employees." Hoffman Plastic, 535 U.S. at 140-41, 122 S.Ct. 1275. Despite the admission by Castro at a subsequent compliance hearing that he had obtained his job by using false documents and was not authorized to work in the United States, the Board eventually ordered that Hoffman pay Castro backpay. See id. at 141-42, 122 S.Ct. 1275. The Supreme Court reversed that decision, noting that when "the Board's chosen remedy trenches upon a federal statute or policy outside the Board's competence to administer, the Board's remedy may be required to yield," id. at 147, 122 S.Ct. 1275.

The Hoffman Plastic Court began its opinion by stating as follows:

Hoffman Plastic, 535 U.S. at 140, 122 S.Ct. 1275.

In exploring the interplay between the NLRA and IRCA, the Court described at some length its decision in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984), which had been decided two years before the enactment of IRCA and had dealt with the "potential conflict between the NLRA and federal immigration policy, as then expressed in the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq.," Hoffman Plastic, 535 U.S. at 144, 122 S.Ct. 1275. In Sure-Tan,

Hoffman Plastic, 535 U.S. at 144-45, 122 S.Ct. 1275 (emphases added).

The Hoffman Plastic Court noted that "[t]he parties and the lower courts focus much of their attention on Sure-Tan, particularly its express limitation of backpay to aliens `lawfully entitled to be present and employed in the United States.' 467 U.S., at 903 [104 S.Ct. 2803]." Hoffman Plastic, 535 U.S. at 146, 122 S.Ct. 1275 (emphasis added). It noted that

Hoffman Plastic, 535 U.S. at 146, 122 S.Ct. 1275 (emphasis added).

Turning to the more recent restrictions imposed by IRCA, the Hoffman Plastic Court noted that the line of cases of which Sure-Tan was part

Hoffman Plastic, 535 U.S. at 147-48, 122 S.Ct. 1275 (footnote omitted) (emphases added). While IRCA does not provide that an alien who is unauthorized to work commits a crime merely by obtaining employment without presenting fraudulent documents, the Hoffman Plastic Court observed that

id. at 148, 122 S.Ct. 1275 (emphasis added). The Supreme Court continued:

Id. at 149, 122 S.Ct. 1275.

Although petitioners urge us to distinguish the present case from Hoffman Plastic because in that case Castro himself had violated IRCA, whereas the petitioners here did not present fraudulent documents, the Hoffman Plastic Court's discussion of the direct conflicts between IRCA and awards of backpay is equally applicable to aliens who did not gain their jobs through such fraud but who are simply present in the United States unlawfully. The Court pointed out that awarding backpay would "not only trivialize[] the immigration laws," but would "also condone[] and encourage[] future violations":

Id. at 150-51, 122 S.Ct. 1275. And

Id. at 151-52, 122 S.Ct. 1275.

These same concerns exist here in light of the General Counsel's concession for purposes of this case that petitioners are undocumented. Given petitioners' presence in the United States without documentation, their seeking damages stemming from an unlawful employment relationship, and — assuming there has been no change in their undocumented status — their obtaining new unlawful employment following their terminations by Mezonos, awards of backpay would have the same ill-advised propensity discussed in Hoffman Plastic for condoning prior violations of the immigration laws and encouraging future violations.

The fact that Congress chose in IRCA not to impose criminal sanctions on undocumented aliens simply for working without authorization does not in any way suggest that Congress meant to allow the Board to encourage undocumented aliens to work by awarding them backpay; and this Court has previously interpreted Hoffman Plastic as foreclosing such awards, see, e.g., NLRB v. Domsey Trading Corp., 636 F.3d 33, 38 (2d Cir.2011) ("After Hoffman, it is now clear that undocumented immigrants are ineligible for backpay under the NLRA...."). We are not persuaded to reach the opposite conclusion by cases such as Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d Cir. 2006), which ruled that IRCA did not preempt awards to undocumented aliens as compensation for personal injuries caused by an employer's negligence or misconduct, see id. at 239-49. IRCA's focus is on violations of the immigration laws, not on workplace safety.

Finally, although petitioners have argued that awards of backpay are needed in order to discourage employers from hiring undocumented workers, the Hoffman Plastic Court noted that sanctions other than the requirement of backpay are available as deterrents.

Hoffman Plastic, 535 U.S. at 152, 122 S.Ct. 1275. Further, as the Supreme Court observed in a subsequent case, IRCA's requirements that employers verify the employment authorization status of prospective employees and not continue to employ unauthorized workers "are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U.S.C. §§ 1324a(e)(4), (f); 8 CFR § 274a.10." Arizona v. United States, ___ U.S.___, 132 S.Ct. 2492, 2504, 183 L.Ed.2d 351 (2012) (emphases added). As to the perceived need for additional deterrents, the Hoffman Plastic Court ended by stating,

353 U.S. at 152, 77 S.Ct. 763.

IRCA's purpose was "to control illegal immigration to the U.S.," both by deterring employers "from hiring unauthorized aliens" and by "deter[ring] aliens from entering illegally or violating their status in search of employment." H.R.Rep. No. 99-628(1), at 45-46, reprinted in 1986 U.S.Code Cong. & Admin. News 5649, 5449-50 ("USCCAN"). As to aliens who did not present fraudulent documents but who in fact are in the United States illegally or are not authorized to work here, we see

Hoffman Plastic, 535 U.S. at 149, 122 S.Ct. 1275. We conclude that the Board did not err by interpreting Hoffman Plastic to require the denial of backpay to petitioners.

B. Conditional Reinstatement

Finally, petitioners argue that the ALJ properly "order[ed] conditional reinstatement" to their jobs with Mezonos (Petitioners' brief in support of Petition for Review at 6), and that the Board improperly "failed to provide any explanation for its decision to dismiss the ALJ's reinstatement order" (Petitioners' reply brief at 17). The Board argues that it had no need to discuss conditional reinstatement because the ALJ Order did not recommend that relief and petitioners did not file exceptions to its omission. (See NLRB brief in opposition to Petition for Review at 21-27.) The Board ends, however, by requesting, "if th[is] Court believes that the Board must address the appropriateness of reinstatement," that we remand to "the Board... to consider it in the first instance." (Id. at 27.) In light of the record as a whole, we will order such a remand.

We do not understand the Board to have ruled that petitioners were not entitled to offers of reinstatement conditioned upon their presentation to Mezonos of IRCA-compliant documentation to show that they are lawfully present in, and authorized to work in, the United States. The Board's decision simply did not address that question and was instead devoted entirely to the matter of whether Hoffman Plastic precluded the ALJ-recommended awards to petitioners, as undocumented aliens, of backpay.

Nor did the ALJ Order recommend that Mezonos be required to tender to petitioners offers of reinstatement. As described in Part I.A. above, the ALJ Decision contained extensive discussion of Mezonos's contention that offers of reinstatement had been made to the discriminatees in 2003; the ALJ found that Mezonos had an obligation to make valid reinstatement offers, and he found that "[t]hose obligations have not been met," ALJ Decision at 9. Further, after the General Counsel's limited concession that the discriminatees were undocumented, the ALJ expressly inquired whether that concession changed the General Counsel's "request for a remedy" (Tr. 501), and he was informed that the request was modified to seek conditional reinstatement (see id. at 501-02).

Given that inquiry and response, as well as the ALJ's finding that Mezonos had not fulfilled its obligation to make valid offers of reinstatement, we find it surprising that the ALJ Order — quoted in Part I.A. above in its entirety — made no mention of reinstatement. It may be that the parties simply assumed from the findings made in the ALJ Decision that the ALJ had in fact granted petitioners' request for conditional reinstatement. Petitioners did not file any exceptions to the ALJ Order, as they would have been expected to do had they noticed that order's lack of a recommendation for conditional reinstatement. And Mezonos — which should have been pleased about the absence of any order recommending reinstatement — filed exceptions that repeatedly challenged the ALJ's views on reinstatement. (See, e.g., Exceptions letter from Mezonos's counsel to the NLRB dated December 26, 2006, ¶ 5 ("tak[ing] exception to the Judge's position... that the Hoffman Plastic ... case did not disturb ... conditional reinstatement" as a possible remedy); id. ¶ 7 ("tak[ing] exception to the ... Judge['s] state[ment] that the obligations of [Mezonos] to validly offer reinstatement and to leave those offers open for a reasonable time within which the employees must present proof of documentation has not been met.").) Indeed, the Board acknowledges that "Mezonos excepted to the judge's discussion (... in the context of its offers of reinstatement) of conditional reinstatement and argued that it was not an appropriate remedy after Hoffman." (NLRB brief in opposition to Petition for Review at 24 ("not" emphasized in original; other emphasis added).)

As to the validity of Mezonos's contention that conditional reinstatement is not an appropriate remedy after Hoffman Plastic, we are skeptical. The Hoffman Plastic Court noted that Sure-Tan had held that

Hoffman Plastic, 535 U.S. at 145, 122 S.Ct. 1275 (internal quotation marks omitted) (emphasis ours). And there apparently was no need for the Hoffman Plastic Court to consider whether the Board could order conditional reinstatement, given that "[w]hen the Board learned that [Castro] was an undocumented alien, it denied [him] reinstatement," Hoffman Plastic Compounds, Inc. v. NLRB, 237 F.3d 639, 640 (D.C.Cir.2001) (en banc), and the Supreme Court observed that

535 U.S. at 141, 122 S.Ct. 1275. Thus, although the Hoffman Plastic Court did not directly deal with an issue of reinstatement, its discussion plainly did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee's submission of documentation as required by IRCA.

In sum, given (a) that the ALJ Order did not recommend conditional reinstatement despite the findings in the ALJ Decision that reinstatement offers would be appropriate and that Mezonos had not met its obligation to make such offers, and despite an explicit request by the General Counsel for an order requiring offers of conditional reinstatement, (b) that petitioners did not file any exceptions with the Board despite the failure of the ALJ Order to recommend conditional reinstatement, and (c) that the Board did not consider whether an order requiring offers of conditional reinstatement would be appropriate despite Mezonos's explicit argument that the decision in Hoffman Plastic foreclosed any orders for conditional reinstatement, we conclude that this matter should be remanded to the Board for consideration, in the first instance, of issues relating to that form of relief — including issues of waiver, estoppel, and appropriateness.

CONCLUSION

We have considered all of petitioners' arguments in support of their contention that the Board erred in refusing to order awards of backpay and have found them to be without merit. To that extent, the petition for review is denied. The petition for review is granted to the extent that the matter is remanded to the Board for consideration of issues relating to petitioners' request for conditional reinstatement.