160
Breyer, J., dissenting
that we . . . award backpay to an illegal alien [1] for years of work not performed, [2] for wages that could not lawfully have been earned, and [3] for a job obtained in the first instance by a criminal fraud." Ante, at 148-149. The first of these features has little persuasive force, given the facts that (1) backpay ordinarily and necessarily is awarded to a discharged employee who may not find other work, and (2) the Board is able to tailor an alien's backpay award to avoid rewarding that alien for his legal inability to mitigate damages by obtaining lawful employment elsewhere. See, e. g., Sure-Tan, supra, at 901-902, n. 11 (basing backpay on "representative employee"); A. P. R. A. Fuel, 320 N. L. R. B., at 416 (providing backpay for reasonable period); 326 N. L. R. B., at 1062 (cutting off backpay when employer learned of unlawful status).
Neither can the remaining two features—unlawfully earned wages and criminal fraud—prove determinative, for they tell us only a small portion of the relevant story. After all, the same backpay award that compensates an employee in the circumstances the Court describes also requires an employer who has violated the labor laws to make a meaningful monetary payment. Considered from this equally important perspective, the award simply requires that employer to pay an employee whom the employer believed could lawfully have worked in the United States, (1) for years of work that he would have performed, (2) for a portion of the wages that he would have earned, and (3) for a job that the employee would have held—had that employer not unlawfully dismissed the employee for union organizing. In ignoring these latter features of the award, the Court undermines the public policies that underlie the Nation's labor laws.
Of course, the Court believes it is necessary to do so in order to vindicate what it sees as conflicting immigration law policies. I have explained why I believe the latter policies do not conflict. See supra, at 155-157. But even were I wrong, the law requires the Court to respect the Board's
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