99-2828 & 99-3049 U.S. Can Company v. NLRB

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“A direct offset would permit the employer to appropriate a portion of the employee’s own economic-benefits package. Deterrence would be reduced, and the employee would be worse off to boot. U.S. Can therefore is wrong to say that it is entitled to a dollar-for-dollar offset. … Allowing a simple offset would be equivalent to permitting the employer to treat the severance benefit as wages (canceling the back-pay obligation for the six months of unemployment), without restoring that benefit when the employee was lawfully let go. If the employer is to deduct the benefit from the back-pay obligation, it must restore the benefit for later use; otherwise the employee’s fringe benefit has vanished into the employer’s pocket.”

“The Board’s order is enforced, subject to the proviso that if within 30 days U.S. Can informs the Board that it wishes to offer actuarial calculations along the lines we have described, the Board must reopen the record and make new back-pay awards using the methods approved in this opinion.”

Enforced as modified.