National Labor Relations Board v. Seven-Up Bottling Company of Miami/Dissent Minton
Mr. Justice MINTON, with whom THE CHIEF JUSTICE joins, dissenting.

It seems to us that we enter a 'bog of logomachy' when we start to retract what we plainly said twelve years ago in Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6, and reaffirmed as late as 1951 in National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337. The statute was the same then as now.

In the Republic Steel case, the Board had ordered the company to deduct from the back pay due wrongfully discharged employees the amounts they had received on 'work relief' projects and to pay the amounts so deducted to the United States Government. On review only of the question of the payment of these amounts to the Government, this Court held that there was no authority for the payment to the Government of the sums the employees had earned on work relief. Such payment to the Government had nothing to do with making the employees whole and only punished the employer.

In construing the pertinent provisions of the statute in this case, the Court said:

'(The Board) can direct the employer to bargain with those      who appear to be the chosen representatives of the employees and it can require that such employees      as have been discharged in violation of the Act be reinstated      with back pay. All these measures relate to the protection of      the employees and the redress of their grievances, not to the      redress of any supposed public injury after the employees      have been made secure in their right of collective bargaining      and have been made whole.

'As the sole basis for the claim of authority to go further      and to demand payments to governments, the Board relies on      the language of Section 10(c) which provides that if upon      evidence the Board finds that the person against whom the      complaint is lodged has engaged in an unfair labor practice,      the Board shall issue an order-'requiring such person to      cease and desist from such unfair labor practice, and to take      such affirmative action, including reinstatement of employees      with or without back pay, as will effectuate the policies of      this Act'.

'This language should be construed in harmony with the spirit      and remedial purposes of the Act. We do not think that      Congress intended to vest in the Board a virtually unlimited      discretion to devise punitive measures, and thus to prescribe      penalties or fines which the Board may think would effectuate      the policies of the Act. We have said that 'this authority to      order affirmative action does not go so far as to confer a      punitive jurisdiction enabling the Board to inflict upon the      employer any penalty it may choose because he is engaged in      unfair labor practices, even though the Board be of the      opinion that the policies of the Act might be effectuated by      such an order'. We have said that the power to command      affirmative action is remedial, not punitive. Consolidated      Edison Co. v. National Labor Relations Board, 305 U.S. 197, 235, 236, 59 S.Ct. 206, 219, 83 L.Ed.      126. see, also, National Labor Relations Board v.      Pennsylvania Greyhound Lines, 303 U.S. 261, 267, 268, 58      S.Ct. 571, 574, 575, 82 L.Ed. 831. We adhere to that      construction.' 311 U.S. 7, 11-12, 61 S.Ct. 79.

As we understand the decisions of this Court up to now, they have all held that the power of the Board to effectuate the policies of the Act is remedial and is for the purpose of making the employee whole and not of punishing the employer. It is conceded and cannot be denied that the rule heretofore applied by the Board in calculating back pay does not fail to make the employee whole.

The rule undoubtedly derives from the common-law rule of damages for the breach by the employer of a contract of employment. The measure of damages is what an employee would have earned if he had not been wrongfully discharged, less what he did earn during the period of the breach. American Trading Co. v. Steele, 9 Cir., 274 F. 774, 782; 5 Williston, Contracts (rev. ed. 1937), § 1358; McCormick on Damages (1935) §§ 158, 160.

By the quarterly calculation approved by the Court in the instant case, not only may a wrongfully discharged employee often receive as back pay a greater amount than he would have received had he worked at his regular job, but the employer must pay more than he would have had to pay if he had had the employee's services during the period. Thus, both of the avowed purposes of the rule which this Court has held must guide the Board in allowing back pay have been violated, namely, the employee is made more than whole, and the employer has accordingly been penalized.

The employees here were not employed or paid on a quarterly basis. The statute does not require that they be reimbursed on a quarterly basis. The statute as interpreted by this Court requires the employees to be made whole. This rule, as heretofore applied, will always do that. The employee is entitled to no more, the employer to no less.

This Court having laid down this rule, the Board having consistently applied it for over twelve years, and Congress having considered and completely overhauled the Act in 1947 without changing this provision of the statute with its long interpretation, we think it has become part of the administrative practice that Congress should change if it is to be changed. Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 114, 59 S.Ct. 423, 425, 83 L.Ed. 536; Taft v. Commissioner, 304 U.S. 351, 357, 58 S.Ct. 891, 894, 82 L.Ed. 1393; Hartley v. Commissioner, 295 U.S. 216, 220, 55 S.Ct. 756, 757, 79 L.Ed. 1399; Stairs v. Peaslee, 18 How. 521, 526, 15 L.Ed. 474. 

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