(dissenting in part) :
In this backpay proceeding before the board it developed on this record that certain of these employees owed this employer undisputed, liquidated debts which the employer was not allowed by the board to recoup against such back-pay allowances and therein I am unable to accede to the view of the majority opinion in this case. The board is vested by Congress with broad powers in implementing the wholesome policy and purpose of the National Labor Relations Act under 29 U.S.C., 1964 Edition, § 160. Subsection (c) of said § 160 authorizes the board to enjoin an unfair labor practice as it did in this case “and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter, etc.” This is a proceeding in equity with its dominant objective being full restitution to the employee for his losses occasioned by the unfair labor practice of the employer. While the individual recovery of the particular employee is by no means the primary objective of this backpay provision, it is not designed or intended as any sort of fine or punishment but is imposed with the view and for the purpose of making the employee whole and saving him harmless against loss from the recalcitrant action of the employer. It is sought to excuse and justify the action of the board in refusing the employer credit against such losses for undisputed, liquidated counter obligations of the employee to the employer by saying that the proceeding is not one for the recovery of a private debt or enforcement of a private right. But that observation and contention completely loses sight of the equity nature and character of this backpay adjudication. This record shows that these employees have been accommodated by this employer by extension to them of credit as employees wherein debts have thus been incurred which are outstanding and not discharged. It is unthinkable in any sort of atmosphere of fairness and justice and equity that any board could be authorized to make any kind of determination of backpay due these employees under these circumstances without taking into account these debts thus incurred and not discharged by these employees to this employer. Such action is arbitrary and capricious and completely lacking in all of the tenets of fair play and common justice supposed to be vouchsafed to citizens of this country by the Federal Constitution. An examination and analysis of the cases cited in the majority opinion to justify this capricious rejection of these just credits simply does not support the contention or the conclusion. It is no answer to excuse this board from such action to say that it is a mere administrative agency. Section 160(b) even provides for this high ranking agency to receive its evidence in accordance with the Federal Rules of Civil Procedure. The *815principle of restitution has never envisioned such capriciousness. Fairness and justice and equity is the keynote of ■a backpay proceeding. Only actual losses of these employees were ever intended by Congress to be made good in a back-pay proceeding and it was never intended that they should be paid twice for the same loss. That sort of award certainly may not be justified or excused by the administrative nature of the proceeding. When this board decided in furtherance of public policy as to the propriety of the backpay proceeding, it became thereby mandated by Congress to make a proper award or none at all. If this employee account had not been liquidated and undisputed, or if the claim against the employee were complicated and unrelated to the particular account, there may have been some justification of the board in declining to pass upon such claim for mitigation in an action where restitution was the objective. That is the philosophy of Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 854, 85 L.Ed. 1271 where the Court said: “Simplicity of administration is thus the justification for deducting only actual earnings and for avoiding the domain of controversy as to wages that might have been earned. But the advantages of a simple rule must be balanced against the importance of taking fair account, in a civilized legal system, of every socially desirable factor in the final judgment. The Board, we believe, overestimates administrative difficulties and underestimates its administrative resourcefulness.” The Court there thought the board thoroughly capable in its final judgment of rendering a fair account according to facts:
The other questions in dispute are supported on record by substantial evidence and are conclusive here. I must, therefore, respectfully dissent from the majority opinion to the extent indicated, and would thus refuse relief in part and remand this case to the board for a proper award of backpay allowances accordingly.