National Labor Relations Board v. Seven-Up Bottling Company of Miami/Dissent Douglas
Mr. Justice DOUGLAS, dissenting.

I agree that the Board has the power to use the Woolworth formula in computing back pay awards. But I do not think that its application in every case, regardless of the circumstances, is in accord with the policy of the Act. In the usual case computation of back pay awards on a quarterly basis will serve the purpose of making the employee whole; and it may even be necessary to effectuate the remedy of reinstatement. On the other hand the use of the formula may in some cases produce an inequitable result.

Where, as here, an employer's business fluctuates, the employee's income will not be constant. He will earn more in one month than the next, more in one quarter than the next. Seasonal variations in the business may result in a high total income for one quarter and a low total for the next. A discharged employee, who secures other employment at a normal and constant rate of income, may achieve a yearly rate of pay substantially equal to that of his regular job. That apparently is this case. If, therefore, back pay is computed in this case on a quarterly basis, the employee will probably receive an award in excess of the amount of income he would have earned had he not been discharged. For the quarter during which he would have earned a large amount, he would be awarded the difference between that amount and the lower amount he earned at the outside employment. For a quarter during which his income would have been low he would receive no back pay, provided his outside employment yielded him more than his old job. The net result will probably be that this employee will receive a total amount of earned income, plus back pay, which exceeds what he would have earned at his regular job. Such a result is both inequitable and unwarranted. The Board should not be allowed to use this formula for back pay when in a given case it glaringly works an injustice. There are exceptions to most general rules; and the Board should be the guardian of the exceptions, as well as the formula itself. 

Notes