NATIONAL LABOR RELATIONS BOARD

VII. PRINCIPLES ESTABLISHED 201
Where, even after such persons have been dismissed, fall reinstatement
of employees discriminated against is rendered impossible by
curtailment of operations, the Board has ordered that the necessary
reduction of staff be made among the respondent's employees on a
nondiscriminatory basis, and that those employees for whom immediate
reinstatement is not available be placed upon a preferential
list to be offered employment as it becomes available, before other
persons are hired. 97 In such cases the Board has required that to
the extent that a system of seniority has been in force at the respondent's
plant it shall be observed in making staff reductions.98
In addition to requiring the reinstatement of employees discriminated
against, the Board usually orders employers to make them
whole for loss of pay. 99 Such back pay orders require payment of a
sum of money equal only to that which the employees would normally
have earned had the unfair labor practices not occurred. Explaining
its order in Matter of Atlas Mills, Inc., the Board stated :
If the respondent can show, however, that due to the seasonal character of
its business, certain of the employees of low seniority would not have been
employed full time during the entire period which has elapsed since the discharges,
we will order the payment to them of only that amount of back pay
which they would in fact have earned under normal conditions.1
The period for which back pay is computed begins at the time of
the discrimination,' and ends at the time at which reinstatement is
Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R.
B. 1252; Matter of Jacob A. Hunkele, trading as Tri-State Towel Service of the Independent
Towel Supply Company and Local No. 40 United Laundry Workers Union, 7 1.C.
L. R. B. 1276.
97 In Matter of Smith Wood Products, Inc. and Plywood and Veneer Workers Local No.
2691, International Woodworkers of America, 7 N. L. R. B. 950, the manner in which
reinstatement should be effected was set forth, as follows :
All persons hired after September 21, 1937 [the date of the discriminatory practice],
shall, it necessary to provide employment for those to be offered reinstatement, be dismissed.
If, thereupon, by reason of a reduction of force, there is not sufficient employment
immediately available for the remaining employees, including those to be offered
reinstatement, all available positions shall be distributed among such remaining employees
In accordance with the respondent's usual method of reducing its force, without discrimination
against any employee because of his union affiliation or activities, following a system
of seniority to such extent as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution, for whom no
employment is immediately available, shall be placed upon a preferential list prepared in
accordance with the principles set forth in the previous sentence, and shall thereafter,
In accordance with such list, be offered employment in their former or in substantially
equivalent positions, as such employment becomes available and before other persons are
hired for such work."
In Matter of Frederick R. Barrett and International Longshoremen's Association,
Local No. 978, 3 N. L. R. B. 513, 525, the Board required the application of a seniority
rule in making reinstatement for the following reasons
"We accept as true the respondent's contention that a decreased volume of business
necessitates the employment of fewer men than were employed prior to February 21, 1936.
It is impossible to order the reinstatement of the 32 discharged employees when such positions
are not now available. However, since the manner of selection of employees for
discharge was in direct violation of the provisions of the Act, as many of the discharged
employees are entitled to reinstatement as would not have been discharged had the selection
been made in some manner not constituting discrimination because of union affiliation.
The respondent does not keep efficiency records so selection on this basis is impossible.
The only remaining objective test available which will prevent discrimination and will
not be unfair to the respondent, is selection on the basis of seniority."
99 A typical back pay order is that in Matter of Atlas Mills, Inc. and Textile House
Workers Union No. 2269, United Textile Workers of America, 3 N. L. It. B. 10, in which
reimbursement of employees was ordered "by payment to each of them, respectively, of a
sum of money equal to that which each of them, respectively, would normally have earned
as wages during the period from the date of their discharge to the date of such offer of
reinstatement, less any amount earned by each of them, respectively, during that period."
1 Matter of Atlas Mills, Inc. and Textile House Workers Union No. 2269, United Textile
Workers of America, 3 N. L. R. B. 10, 23.
2 In Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial
Association Local No. 33, 3 N. L. R. B. 84, order enforced in Black Diamond Steamship
Corp. v. National Labor Relations Board, 94 F. (2d) 875 (C. C. A. 2d, 1938). certiorari
denied, 304 U. S. 579, back pay for marine engineers who had been denied reinstatement
was ordered computed for the period commencing on the date of the first sailing after the
discriminatory refusal to reinstate of vessels upon which they, respectively, had been
employed.