On Petition for Enforcement of an Order of the National Labor Relations Board.
Before EVANS, KERNER, and MINTON, Circuit Judges.
On February 21, 1942 the National Labor Relations Board filed in this court its petition for enforcement of its order against respondent. Upon stipulation of the parties a consent decree enforcing the order with slight modification was entered thereon on February 26, 1942. Our decree expressly reserved jurisdiction to construe paragraph 2(b) of the Board's order, which ordered respondent to: "(b) Make whole said Anice Swift and Georgia Papas Kelly for any loss of pay which they may have suffered by reason of the respondent's discrimination against them by payment to them, respectively, of a sum of money equal to that which they normally would have earned as wages from June 8 and June 1, 1940, respectively, to the date of the offer of reinstatement, less their net earnings during said period:"
The respondent filed its answer to the Board's petition on March 28, 1942, and we now proceed to construe paragraph 2 (b) of the order.
The questions presented are:
1. Whether under this paragraph respondent was entitled to deduct from the amounts due Swift and Kelly a sum equal to the benefits received by them under the Illinois Unemployment Compensation Act*fn1 during the period set forth in the paragraph; and
2. If paragraph 2(b) is so construed as to preclude respondent from deducting such amounts, whether under the National Labor Relations Act the order to that extent is within the powers of the Board.
In its answer to the Board's petition, respondent alleged full compliance with the Board's order and the court's decree, including payment to Swift and Kelly of such sums as they would have earned during the period prescribed in the decree, less amounts received by them under the Illinois Unemployment Compensation Act during the same period. Whether respondent has fully complied with the order to the extent that the order was within the powers of the Board depends upon the answers to the questions hereinbefore set forth.
Only by distorting the English language could we say that unemployment benefits are "earnings." The word "earnings" denotes an "economic good to which a person becomes entitled for rendering economic service." Webster's New International Dictionary, 2d Ed., unabridged 1937. See also National Labor Relations Board v. Brashear Freight Lines, Inc., 8 Cir., 127 F.2d 198; Words and Phrases, Perm.Ed., Earnings, Volume 14, page 31. The employees concerned did not receive the unemployment benefits in return for srvices rendered, and the amounts so received did not constitute "earnings" within the meaning of the order. Consequently the order did not authorize their deduction.
To show that the order as we have construed it is beyond the powers of the Board, respondent has argued that the order does not effectuate the purposes of the Act; that it makes the reinstated employees more than whole, and that therefore it imposes a penalty upon respondent.
Section 10(c) of the Act, 29 U.S.C.A.Sec. 160(c), confers jurisdiction upon the Board, if it finds that the employer has engaged in unfair labor practices, to 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 [chapter]. * * * "
Under this section, the Board possesses discretion to determine whether an order to pay lost wages will effectuate the purposes of the Act. The Board has ordered that the employees be made whole by payment to them of lost wages less net earnings, and we see no merit in the ...