Lead Opinion
I. INTRODUCTION
This challenge to the National Labor Relations Board’s (the Board) petition for enforcement questions whether the Board may disregard interim earnings when calculating backpay awards for employees whose labor injury falls short of unlawful termination. Respondent Mimbres Memorial Hospital and Nursing Home (the Hospital) argues the Board failed to provide adequate support for its decision to disregard interim earnings and therefore requests that we reverse the Board’s back-pay calculation. We defer to the Board’s policy-based rationale in support of its remedial decision and affirm and enforce its order.
II. BACKGROUND
A. The Unfair Labor Practice Allegations and Proceedings
The complicated procedural history of this case stems from the Hospital’s 1999 decision to reduce the hours of its full-time, respiratory-department employees. Cmty. Health Servs., Inc.,
B. The Compliance Proceedings
The case proceeded to the compliance phase, where an administrative law judge (ALJ) determined the Hospital owed thirteen current and former employees approximately $105,000 in backpay. Cmty. Health Servs., Inc., No. 28-CA-16762,
The Hospital filed exceptions and supporting briefs to the Board, challenging the ALJ’s decision. But in its Compliance Order, the Board affirmed the ALJ’s rulings, findings, and conclusions. Cmty. Health Servs., Inc., 356 N.L.R.B. No. 103,
The Hospital next petitioned the United States Court of Appeals for the District of Columbia
The D.C. Circuit also noted that, since Ogle, the Board had been inconsistent in its approach to calculating backpay in the absence of a cessation of employment. Id. at 201. In light of this unclear precedent, the court ruled the Board had not adequately explained its rationale for refusing to consider interim earnings here. It therefore remanded the Compliance Order “for a more thorough analysis of the issue.” Id.
On remand, the Board issued a Supplemental Order reaffirming its original ruling. Cmty. Health Servs., Inc., 361 N.L.R.B. No. 25, slip op. (Aug. 25, 2014). The Board identified the sole issue on remand as “whether the Board should deduct an employee’s interim earnings from other employment when calculating back-pay in cases where the employee suffers no cessation of employment with the wrongdoing respondent-employer and has no duty to mitigate by seeking interim employment” and concluded that “the deduction of interim earnings in this situation would not best effectuate statutory policy.” Id. at *1. In reaffirming its prior conclusion, the Board provided five new policy justifications for its choice of remedy. Specifically, the Board explained that declining to deduct interim earnings where there is no cessation of employment (1) encourages employment and production, (2) is more consistent with the Board’s policy of not deducting interim earnings obtained from work performed above and beyond an employee’s duty to mitigate, (3)
Next, General Counsel filed an application in this court for enforcement of the Board’s decision, and the Hospital responded in opposition. We exercise jurisdiction under 29 U.S.C. § 160(e), (f).
III. DISCUSSION
On this petition for enforcement, we are asked to determine whether the Board provided sufficient support for its decision to exclude interim earnings from backpay calculations when the employer has wrongfully reduced employee hours, but not terminated employment. The Hospital contends the Board’s Supplemental Order is inadequate, arguing the Board’s reliance on- Ogle Protection Service, Inc.,
The Board’s power to award back-pay arises under § 10(c) of the NLRA, which permits the Board to “take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act].” 29 U.S.C. § 160(c). Because a backpay' award is “only an approximation,” the Board “has considerable discretion in selecting a method reasonably designed to approximate the amount of pay” due to a wronged employee. NLRB v. Velocity Express, Inc.,
It is through this deferential lens that we assess the Hospital’s opposition to the Board’s Supplemental Order. We first review the Board’s interpretation of Ogle and its progeny, and we then turn to the Hospital’s criticism of the Board’s policy justifications.
A. The Supplemental Order Properly Interpreted Ogle
To properly assess the Board’s application of its decision in Ogle, we begin by explaining the Board’s historical approach to two underlying concepts: the duty to mitigate and the calculation of backpay awards.
First, we consider the duty to mitigate. Under longstanding Board and Supreme Court precedent, employees who believe they have been unlawfully terminated have a duty to seek out substitute employment while they await a Board decision on that issue. Phelps Dodge Corp. v. NLRB,
Where unlawfully terminated employees are under an obligation to seek work, the policy holds that backpay calculations logically should include a deduction for interim earnings. Without such a deduction, employees who are willing to bet on the outcome of the claims against the former employer or whose short-term financial needs are minimal would have little incentive to comply with their mitigation obligation. Instead, they could wait for a favorable decision from the Board to make them whole. The duty to seek interim employment gives these employees an incentive to remain productive during the period the claims against the former employer are unresolved.
Conversely, employees who are not unlawfully terminated but suffer other labor injuries — e.g., reduction in hours or wage — have no duty to seek secondary employment pending a decision on their unfair labor practices claim. See 88 Transit Lines, Inc.,
The Board’s two seminal backpay decisions — F.W. Woolworth, Co.,
Ogle, on the other hand, involved employees who had not been unlawfully terminated, and thus had no duty to mitigate, but who were otherwise injured when their employer repudiated the terms of a collective bargaining agreement.
2. The Board’s Assessment of Ogle in the Supplemental Order
With this backdrop in mind, we turn to the Board’s discussion of Ogle in its Supplemental Order. The Board acknowledged that “the literal language of Ogle Protection Service does not compel the conclusion that interim earnings, where proven, should not be deducted in eases where there is no job loss.” Cmty. Health Servs., Inc., 361 N.L.R.B. No. 25,
The Hospital takes issue with the Board’s analysis of Ogle and its progeny, contending the Board was merely speculating when it described the decisions in which it deducted interim earnings, despite no cessation of employment, as “inadvertently mistaken.” Instead, the Hospital argues these decisions demonstrate that, until now, the Board has never expressly declined to deduct interim earnings in cases that do not involve a cessation of employment, and at best, the Board has been inconsistent in its approach to back-pay calculations in such cases.
We agree with the Hospital that the Board’s precedent has been unclear. But in its Supplemental Order, the Board acknowledges this inconsistency and the need to adopt a consistent approach for future cases.
B. The Board’s Policy Justifícations Were Reasonable
We turn next to the Board’s policy justifications for concluding that interim earnings should not be deducted from backpay awards when there has been no cessation of employment.
1. Encouraging Production and Employment
First, the Board reasoned that deducting interim earnings from backpay calculations in this context would discourage production and employment by making employees who seek additional work no better off than their counterparts who remain underemployed. Cmty. Health Servs., Inc., 361 N.L.R.B. No. 25, at *7. As the Board noted, “by declining to deduct interim earnings absent a cessation of employment, we offer employees a greater incentive to voluntarily seek interim employment, thereby affirmatively promoting production and employment.” Id. (internal quotation marks omitted). In support of its reasoning, the Board turned to Phelps Dodge Corp. v. NLRB, in which the Supreme Court relied on the same underlying policy to justify the imposition of a duty to mitigate and the deduction of interim earnings, including amounts “which the workers ‘failed without excuse to earn,’ ” where there has been an unlawful cessation of employment.
Although it is seemingly counterintuitive to use the rationale underlying the duty to mitigate in cases where no such duty exists, the goal of promoting production and employment is advanced in both instances. In wrongful termination cases, employees know their backpay award will be reduced by imputed interim earnings if they breach their duty to mitigate and are motivated to seek actual employment. Likewise, where the violation does not involve the cessation of employment, employees who have no duty to mitigate will be encouraged to seek supplemental employment if they can retain the benefit of that effort. Although the extent to which productivity is impacted is greater in a termination case, we are not convinced the Board’s reliance on this rationale in a case where there is no cessation of employment constitutes a patent attempt to achieve ends contrary to those that can be said to fairly effectuate the goals of the NLRA. This is so even though promoting production is not one of the NLRA’s express policy objectives because,
2. Rewarding “Extra Effort”
Second, the Board posited that declining to deduct interim earnings in this situation is more consistent with its backpay calculations in other contexts. Cmty. Health Servs., Inc., 361 N.L.R.B. No. 25, at *7. Specifically, the Board analogized employees who have a duty to mitigate but go above and beyond that duty with employees who have no mitigation duty but nonetheless obtain additional work. Under established Board policy, employees who perform more work than required are entitled to retain the benefit of such “extra effort.” See N.L.R.B. Casehandling Manual, pt. 3, § 10554.3 (2014), https://www. nlrb.gov/reports-guidance/manuals, (explaining in the context of employees who have a duty to mitigate, “only interim earnings based on the same number of hours as would have been available at the gross employer should be offset against gross backpay”). Through this policy, the Board rewards the employees who do more than is required, rather than the wrongdoing employer. See In re Center Constr. Co.,
The Hospital challenges this policy justification by advancing a different definition of “extra effort.” In contrast with the Board’s definition, which equates' extra effort with any work employees perform beyond their legal obligation, the Hospital would define extra effort as work employees perform beyond what they would have done for the noncompliant employer. In this case, for example, the Hospital unlawfully reduced its respiratory-department employees’ hours from forty hours to between thirty-six and thirty-two per week. Under the Hospital’s definition, “extra effort” would mean any work employees completed for a secondary employer during the backpay period that exceeded the four to eight hours per week necessary to meet a forty-hour work week.
Although the Board could have adopted either version, we will uphold its definition of extra effort for purposes of fashioning an appropriate remedy unless the choice conflicts with the policies of the NLRA. We see no such conflict here.
3. Accounting for Additional Hardships
Third, the Board justified its decision to ignore interim earnings through its observation that an employee who seeks work from a secondary employer generally suffers additional hardships, “such as resolving scheduling conflicts between the two jobs and traveling to a second workplace.” Cmty. Health Servs., 361 N.L.R.B. No. 25
The Board could have conceivably accounted for some of these hardships by requiring the wrongdoing employer to reimburse its employees for the costs associated with working a second job, such as travel expenses. See Crossett Lumber Co.,
The Hospital does not disagree that employees who work a second job while remaining employed by the wrongdoing employer may face these added obstacles. But it nonetheless challenges the Board’s reliance on this rationale because General Counsel put forth no evidence of any additional hardships the employees actually suffered in this case, But we are not convinced General Counsel was required to introduce such evidence or that the Board needed to make specific findings on this issue. The Board articulated a general policy that will apply beyond the facts of this case. In doing so, “the Board is not confined to the record of a particular proceeding.” NLRB v. Seven-Up Bottling Co. of Miami
When applying its general remedial policy to the facts of this case, the Board was required to consider any unique circumstances that would make the remedy’s “application to [the] particular situation oppressive and therefore not calculated to effectuate a policy of the Act.” Id. But the Hospital, not General Counsel, had the burden of putting forth evidence demonstrating the existence of unique circumstances. See Velocity Express,
4. Preventing Dilatory Conduct
Fourth, the Board explained that the potential for an employer to engage in dilatory conduct similar to that which prompted it to adopt the Woolworth formula is present when an employer unlawfully reduces hours or wages. Cmty. Health Servs., 361 N.L.R.B. No. 25 at *9. •The Board reasoned that deducting interim earnings from a backpay calculation would create an incentive for wrongdoing employers to delay rescinding their unlawful conduct, “knowing that the longer an employee worked a second job, the greater could be the reduction in backpay owed.” Id. The Board explained that declining to deduct interim earnings in this context has the same deterrent effect as the quarterly computation has in the context of an unlawful termination. Id.
The Hospital acknowledges the Board’s remedy would have this deterrent effect, but argues the Board could simply have applied the Woolworth formula in this context to achieve the same result. But so long as the Board provides reasonable support for its selection of remedies and its rationale aligns with the policies of the Act, we will not second guess the Board’s choice. Velocity Express,
5. Allocating Windfalls
Finally, the Board considered the benefits conferred on the employer and em-
ployee by the alternative approaches to calculating backpay under the present circumstances. On the one hand, the Board concluded that deducting interim earnings when an employee has no obligation to seek additional work “would represent an unwarranted windfall to the employer and discourage compliance with the law.” Cmty. Health Servs., 361 N.L.R.B. No. 25, at *8. Alternatively, however, if interim earnings are not deducted, the Board acknowledged that the employee may enjoy a windfall by collecting backpay and interim wages that total more than the employee would have earned in the absence of a violation. The Board ultimately concluded that where one of the parties will obtain a windfall, it is more appropriate for it to be the employee whose extra effort resulted in the interim earnings, rather than the recalcitrant employer. See United Aircraft Corp.,
And we cannot agree with the Hospital’s argument that the potential for a windfall to the employee makes the Board’s remedy punitive and therefore impermissible. See Republic Steel Corp. v. NLRB,
In summary, the Board provided reasonable justifications for declining to deduct interim earnings in cases where there is no cessation of employment. Although other reasonable remedies undoubtedly exist, so long as the Board’s selected remedy is not contrary to the policies of the NLRA, we must defer to its remedial choice.
IV. CONCLUSION
For the reasons explained above, we affirm and enforce the Board’s Supplemental Order.
Notes
. Under 29 U.S.C. § 160(f), a party "aggrieved by a final order of the Board” may obtain review of the order "in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United.States Court of Appeals for the District of Columbia.”
. Before the Board decided F.W. Woolworth, Co.,
. In creating the exception to the Woolworth formula, the Board in Ogle explained that a quarterly computation is unnecessary for "a violation of the Act which does not involve cessation of employment status or interim earnings that would in the course of time reduce backpay.” Ogle Prot. Serv., Inc.,
. Although inconsistent guidance from the Board could raise fair notice concerns, the Hospital has not made a fair notice argument in the proceedings before the Board, or in its appellate briefing. We therefore lack the power to consider this issue. 29 U.S.C. § 160(e) ("No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”); Woelke & Romero Framing, Inc. v. NLRB,
. As to the breadth of the Board’s Supplemental Order, we interpret it as declining to deduct any interim earnings, regardless of their source. Thus, interim earnings made from a new second job are treated the same as those made from increased hours at a preexisting second job. We acknowledge the NLRB's Casehandling Manual lends some support for distinguishing between interim earnings an employee makes by increasing hours at a preexisting second job from those made at a new second job. See N.L.R.B. Casehandling Manual, pt. 3, § 10554.4 (2014), https://www. nlrb.gov/reports-guidance/manuals. Specifically, section 10554.4 indicates that if an employee “held a second job prior to the unlawful action and then increased the hours of employment at that job during the backpay period, earnings derived from the increase in hours are deductible interim earnings.” But we interpret the Board’s decision here as limiting the applicability of section 10554.4 and all other rules regulating interim-earnings calculations to cases involving a cessation of employment. The Casehandling Manual itself has signaled as much, noting in its overview
. The Hospital would exclude earnings made from secondary work the employee held prior to the Hospital's unlawful action.
Dissenting Opinion
dissenting.
The NLRB’s order effectively seeks to adopt a new rule governing the calculation of backpay in cases where a collective bargaining employer unlawfully reduces the hours of unionized employees. There can, of course, be no doubt that Congress has invested the Board with considerable power to shape labor relations in this country and to provide remedies like backpay in response to employer misconduct. But in our legal order federal'agencies must take care to respect the boundaries of their congressional charters. They may not treat similarly situated classes of persons differently without a rational explanation. And they may not depart from their own existing rules and precedents without a persuasive explanation. See, e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
Since 1935 Congress has tasked the Board with the job of “eliminating] the causes of certain substantial obstructions to the free flow of commerce” by promoting collective bargaining. 29 U.S.C. § 151. In aid of that expansive charge, Congress has endowed the Board with considerable remedial authority. If and when it should find that an employer subject to its jurisdiction has engaged in an unlawful labor practice, the Board may 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 backpay, as will effectuate the policies” of the Act. 29 U.S.C. § 160(c).
Over the last eighty years, the Board has developed a finely reticulated set of rules aimed at implementing these statutory directives. Of special relevance in this case about backpay, the Board has held that when an employer unlawfully fires an employee or reduces her hours the employer must pay all the wages the employee lost as a result. N.L.R.B. Casehan-dling Manual, pt. 3, § 10536.1. At the same time, this general rule sometimes yields to more specific ones in order to avoid over- or under-compensating the employee. So, for example, after an unlawful labor action an employee may find a new job or increase her hours at a pre-existing second job and in that way replace some or all of her lost wages. Allowing the em
Now eighty years on, the Board seeks to carve out a class of cases from its tested and pretty ancient backpay procedures. When the employer unlawfully reduces the employee’s hours to zero (termination cases), the Board says it will continue to employ its traditional backpay rules. But when the employer unlawfully reduces the employee’s hours to anything short of zero (hours-reduction cases), the Board now says it will never, under any circumstances, deduct interim earnings from a backpay award. Thus treating cases that seem to differ mostly in degree as different in kind.
The hospital-employer in our case first challenged the Board’s new carve-out rule for hours-reduction cases in the D.C. Circuit. There the Board tried to suggest that its new rule wasn’t really anything new at all but compelled by an existing administrative decision, Ogle Protection Service, Inc.,
Forced to acknowledge that its carve-out rule represents a departure from preexisting practice, the Board offered an alternative rationale in its defense. Now the Board argued that, in response to unlawful reductions in their hours, employees should not face a duty to seek out secondary employment — to mitigate their loss
Now the Board has tried again, and the hospital-employer has petitioned for review again — this time to our court. In an apparent abundance of caution the Board has offered five new rationales to replace the two the. D.C. Circuit found wanting. But though the Board’s rationales may now be more prolific, I do not find them more persuasive for it.
1. “Promoting Production and Employment.” First and primarily the Board argues that its new policy of refusing to deduct interim earnings in hours-reduction cases will allow employees who take on second jobs to keep both their interim earnings and backpay for the same hours they would have worked for their primary employer. Of course this means a whole class of employees (those in hours-reduction cases who seek and win second jobs) won’t be restored to the same position they would’ve been in but-for the employer’s misconduct, but will be made better off instead. The Board accepts that its new rule creates an employee “windfall” in just this way and seemingly at odds with its prior practice. Yet it defends this consequence not as a bug in the design of its new rule but as its whole point. Promising employees double payment for the same hours, the Board says, will offer them a “greater incentive to voluntarily seek interim employment” and in this way advance the policy of “promoting production and employment.” Cmty. Health Sens., Inc., 361 N.L.R.B. No.25,
It seems to me that this line of argument fundamentally misconceives the Board’s remedial charter. The Board’s statutory charge isn’t to promote full employment. See 29 U.S.C. § 151. It’s not some sort of reincarnation of the Works Progress Administration. Instead, Congress invested the Board with the more prosaic — if still vital — job of providing “backpay” arising from “unfair labor practices.” 29 U.S.C. § 160(c). And the Supreme Court has held that this statutory charter means exactly what it says — allowing the Board to restore the “actual losses” employees suffer — no more or less. Phelps Dodge v. NLRB,
In saying this much, I hardly mean to suggest the Board lacks leeway in carrying out its remedial charge. Any attempt to recreate a lost but-for world and calculate losses due to a defendant’s misconduct always requires a degree of estimation. As well, the Board must balance its two statutory remedial duties — providing backpay for actual losses and promoting reinstatement — and those two duties can'sometimes conflict in interesting and difficult ways. See, e.g., NLRB v. Seven-Up Bottling Co. of Miami,
Besides exceeding its congressional charter, the Board’s rationale faces still two more problems. In the first place, a consistent (non-arbitrary) application of its new rule would seem to forbid the deduction of interim earnings for both termination and hours-reduction cases. After all, if double pay for the same hours will encourage you to take on outside work when the hours in your primary job are reduced to something short of zero, it will encourage you to take on outside work in cases when the hours in 'your primary job are reduced t‘o zero too. Nothing about the Board’s rationale is rationally confined to hours-reduction cases. Yet it’s those cases alone the Board today wishes to carve out, without any explanation why. Beyond even that, by enforcing a backpay regime that is markedly more generous in hours-reduction cases than termination eases the Board’s new rule would seem to create a paradoxical incentive for employers to engage in behavior even more inimical to the “promotion of production and employment” — pushing them in marginal eases toward termination and away from hours-reductions in order to reduce their backpay liability. Yet another problem the Board neither ponders nor offers reason for disregarding.
2. “Rewarding Extra Work.” If its primary rationale should fail, the Board ar
By its terms, however, this provision can be fairly described as no better than irrelevant. Section 10554.3 merely provides that an employee gets to keep interim earnings for hours above and beyond those she would have worked at the original employer — promising that the employee can always retain earnings from a true second or “moonlighting” job. And exactly none of this is at issue here. Everyone before us readily accepts that the sort of wages § 10554.3 discusses belong to the employee. The only question presented in this case is what to do about earnings for those hours the employee would have worked for the original employer but-for the unlawful action — and on that question § 10554.3 stands mute. •
Maybe the Board’s citation to § 10554.3 is meant less than literally, as a sort of analogy. Maybe the Board means to suggest that, just as an employee shouldn’t have her backpay hours reduced for hours beyond those she could have worked at her employer, she shouldn’t ever have her hours reduced for taking on a second job when she didn’t have to. But if that’s the analogy that’s intended, it’s one that fails. It fails because the point of § 10554.3 is to ensure that the employee is made whole for her actual losses by guaranteeing that her backpay award isn’t reduced by earnings she would have enjoyed whether or not her primary employer engaged in an unfair labor practice. Section § 10554.3 removes from the backpay analysis interim earnings without a causal connection to the employer’s misconduct. The rale is, in this way, all about helping create an accurate picture of what the world would’ve looked like but-for the employer’s misconduct — and in that way all about helping fulfill the Board’s statutory remedial charge. Meanwhile, the Board’s new carve-out rule has again (and admittedly) nothing to do with its statutory charter. The Board doesn’t attempt to defend its new rule on the ground that it helps create a more accurate picture of an employee’s actual losses. Or that it has anything to do with that purpose at all. Instead, it argues the rule aims to reward “extra work” in the very particular (and very different) sense that, thanks to the wind-, fall it offers employees, it encourages them to take on second jobs and, in that way, promotes “production and employment.” So it is the Board’s second, “extra work” rationale at best folds right back into its first and returns us to all the problems we’ve already encountered.
3. “Accounting for Additional Hardships.” Here the Board points to the fact that, unlike employees in termination cases, employees who face reductions in their hours and proceed to seek a second job must “adjust any outside employment hours to accommodate [the primary] employer’s demands.” So, for example, they have to “resolv[e] scheduling conflicts between the two jobs and- traveling to a second workplace.” By refusing t.o deduct interim earnings, the Board seems to imply, its new rale will ensure that the particular costs borne by employees in hours-reduction cases are fully compensated.
The problem is the Board’s existing rules already do this. Under its existing remedial regime, the Board is indubitably
Perhaps the Board might respond by suggesting that some costs employees suffer are intangible and incalculable — and that its new carve-out rule does a better job of compensating for such costs. But it’s far from clear the Board means to pursue such an argument. After all, the Board itself cites by way of support the entirely tangible and calculable costs associated with “traveling to a second workplace.” And even if it were fair to read the Board as making a sort of “intangible cost” argument, it would still face its problems. For the Board nowhere explains how its statutory charge to order backpay entails with it the authority to afford tort-like remedies for psychic and other losses not associated with lost wages. And even on its own terms the Board’s argument proves too much. While employees in hours-reduction cases may face unique costs in traveling between and juggling two jobs, it’s surely not the case that they alone suffer intangible hardships: you might even expect the intangible human costs associated with wrongful terminations to be worse than those associated with wrongful hours-reduetions. Yet the Board’s new rule seeks to distinguish between the two types of cases when it comes to intangible hardships — and does so without offering an explanation why the one situation should receive solicitude the other does not.
4. “Preventing Dilatory Conduct.” Here the Board points out that the duty to provide backpay sometimes can have unintended consequences on “the companion remedial requirement” of reinstatement— by giving employers ah incentive to prolong their unlawful labor practices while an employee’s interim earnings grow and the employer’s corresponding backpay obligation diminishes. The Board suggests its new carve-out rule will help curb this incentive.
I don’t see how. No one doubts that the Board must create remedial rules that balance between the statutorily authorized remedies of backpay and reinstatement. No one doubts either that pursuing one remedy without an eye on the other can create strange incentives like the one the Board has identified. But many decades ago the Board identified and devised a solution to the very problem it points to today. Before In re F.W. Woolworth Co.,
5. “Allocating Windfalls.” Finally, the Board contends that, if it deducts interim earnings, employers will receive a windfall. But if it refuses to deduct interim earnings, employees will receive a windfall. One side or the other will inevitably come out better than they would have but-for the unlawful labor practice, the Board says, so it should have the discretion to allocate the windfall as it wishes. And because the employee seeking additional work is promoting production and employment through her extra effort (back once more to that doubtful rationale), that’s tiebreaker enough.
This is perhaps the Board’s most curious argument yet. Over eight decades the Board has taken pains to develop a set of rules that prevents windfalls for either side. To prevent employee windfalls, the Board has long deducted interim earnings. And to prevent employer windfalls, the Board’s existing rules and precedents afford it the power to order the employer to (1) pay backpay, without deduction if an employee chooses not to find a second job in hours-reduction cases, (2) pay any and all costs an employee incurs if she does take oh a second job,' and (3) ensure any backpay deductions • for interim earnings are limited to the hours the employee would’ve worked for the wrongdoing employer. In this light, it’s hard to see what windfall might fall into the employer’s lap — or how, should the problem arise, the Board could not lawfully get at it. For again, the Board’s existing remedial precedents and rules permit it to order compensation for all actual losses. Strangely, .the Board ignores all this — all the careful handiwork of generations of Board members aimed at securing a tailored remedy approximating actual losses — nowhere explaining why those efforts fail only now and only in the context of hours-reduction cases.
In the end, it’s difficult to come away from this case without wondering if the Board’s actions stem from a frustration with the current statutory limits on its remedial powers — a frustration that it cannot pursue more tantalizing goals like punishing employers for unlawful actions or maximizing employment; that it is limited instead to the more workmanlike task of ensuring employees win backpay awards that approximate the actual losses they’ve suffered. A frustration that seems to parallel the frustration the Board experienced when it sought in Republic Steel and Phelps Dodge to issue similarly expansive extra-statutory remedies. But then as now frustration should not beget license. In our legal order the proper avenue for addressing any dissatisfaction with congressional limits on agency authority lies in new legislation, not administrative ipse dixit. I respectfully dissent.