883 Opinion of BRENNAN, J. finds a Board remedy inadequate is to remand to the Board, rather than attempting in the first instance to fashion its own remedy. Such a rule protects the Board's congressionally delegated power "to fashion remedies that will effectuate national labor policy" from usurpation by the courts. NLRB v. Food Store Employees, 417 U. S. 1, 10 (1974). In this case, however, the Board has fully acquiesced in the remedy developed by the Court of Appeals and, consequently, no purpose would be served by remanding to the Board for further consideration of the remedy question. We should instead approach this case as if the Board had developed the remedial order on its own motion and the Court of Appeals had simply enforced that order. The Court compounds this initial error by devising a new standard for reviewing the propriety of remedies ordered under the NLRA. At the outset of its discussion, the Court correctly states that we have consistently interpreted § 10(c) of the NLRA, 29 U. S. C. § 160(c), as "vesting in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review." Ante, at 898-899. The Court goes on, however, to concoct a new standard of review, which considers whether the terms of a remedial order are "sufficiently tailored" to the unfair labor practice it is intended to redress. Ante, at 901. Applying its newly minted standard to this case, the Court finds that the remedial order challenged here involved the imposition of requirements on petitioners that "d[o] not lie within the Board's own powers.' Ante, at 900. Our prior cases, however, provide no support whatsoever for this new standard. Indeed, we have explained that "[w]hen the Board . . . makes an order of restoration by way of backpay, the order 'should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act."" NLRB v. Seven-Up Bottling Co., 344 U. S. 344, 346-347 (1953) (emphasis added) (quoting Opinion of BRENNAN, J. 467 U. S. Virginia Electric & Power Co. v. NLRB, 319 U. S. 533, 540 (1943)). And we have repeatedly emphasized that a court has only limited authority to review remedial orders developed by the Board to effectuate the purposes of the Act. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S. 258, 262-263 (1969); NLRB v. Seven-Up Bottling Co., supra, at 346; Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194 (1941). Because of that consistent pattern of deference, our cases have never before considered whether a particular remedy is "sufficiently tailored" to the harm it seeks to cure. If the appropriate standard of review is applied to this case, it is clear that the judgment of the Court of Appeals should be affirmed in its entirety as the Board urges. It is undisputed that absent petitioners' illegal conduct, the five employees involved here would certainly have continued working for and receiving wages from petitioners for some period of time beyond February 18, 1977—the date on which they were discriminatorily discharged. It is equally clear, therefore, that each of these employees suffered some loss of income that was directly attributable to petitioners' unfair labor practices. Accordingly, given such circumstances, it is perfectly reasonable that the Board should in the exercise of its broad remedial powers under § 10(c) of the Act fashion a remedy designed to restore those employees "as nearly as possible [to the situation] that . . . would have obtained but for the illegal discrimination," Phelps Dodge, supra, at 194, including reinstatement and an award of appropriate backpay. Such a remedial order is in no sense "punitive," since it serves the dual purposes of making whole those employees who were injured by petitioners' conduct and of vindicating the important public purposes of the NLRA. Virginia Electric & Power Co. v. NLRB, supra, at 543. The reinstatement order and the award of a minimum of six months' backpay ordered by the Court of Appeals and supported here by the Board reflect, in my view, a wholly reasonable effort to effectuate those purposes. 883 Opinion of BRENNAN, J. The Court, however, identifies what it considers to be two significant problems with that order. First, the 6-month backpay award, in the Court's view, rests solely on "conjecture" and "speculation" and is therefore not "sufficiently tailored to the actual, compensable injuries suffered by the discharged employees." Ante, at 901. Second, the Court insists that "in computing backpay, the employees must be deemed 'unavailable' for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States." Ante, at 903. With respect to the Court's first assertion, it is clear that the Board's decision to support the backpay award ordered by the Court of Appeals rests squarely upon its own judgment that this award estimates with a fair degree of precision the period that these employees would have continued working for petitioners had petitioners not reported them to the INS. Indeed, as the Board points out, such an award is no more speculative or conjectural than those developed in other situations commonly confronted by the Board in which it is not clear how long an employment relationship would have continued in the absence of an unfair labor practice. See, e. g., Buncher v. NLRB, 405 F. 2d 787, 789-790 (CA3 1968), cert. denied, 396 U. S. 828 (1969); NLRB v. Superior Roofing Co., 460 F. 2d 1240, 1241 (CA9 1972); NLRB v. Miami Coca-Cola Bottling Co., 360 F. 2d 569, 572–573 (CA5 1966).1 'Under the guidelines developed by the General Counsel of the NLRB, the period covered by a backpay award generally includes the time from the discriminatory discharge until the discriminatee either rejects a bona fide offer of reinstatement or is reinstated. See NLRB Casehandling Manual § 10530.1(a) (1977). In this case, of course, because the five undocumented alien employees accepted voluntary departure as a substitute for deportation immediately following their illegal discharge, this normal method of calculating the period of backpay cannot be applied. Instead, just as in Buncher v. NLRB, an estimate must be made of the income these employees would have earned but for petitioners' unfair labor practices. As the Board has explained, the 6-month period adopted by the Court of Opinion of BRENNAN, J. 467 U. S. As to the second assertion, the Court provides no explanation for its conclusion that these employees were "unavailable" for work, as a matter of law, following their return to Mexico and that any entitlement to backpay that might otherwise have accrued during that period is therefore tolled. In the first place, such a holding overlooks the Board's longstanding practice of forgiving periods of unavailability that are due to the employer's own illegal conduct. See, e. g., Graves Trucking Inc., 246 N. L. R. B. 344, 345 (1979), enf'd as modified, 692 F. 2d 470, 474-477 (CA7 1982); Moss Planning Mill Co., 103 N. L. R. B. 414, enf'd, 206 F. 2d 557 (CA4 1953); cf. J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S. 557, 566-567 (1981) ("[I]t does not come with very good grace for the wrongdoer to insist upon specific and certain proof of the injury . . . it has itself inflicted"). In this case, as the Board explains, see Brief for Respondent 45, n. 44, these employees would not necessarily have been found unavailable, because their immediate departure from the country was plainly and directly attributable to petitioners' illegal conduct. Thus, by presuming to foreclose a remedy that the Board itself is prepared to grant, the Court today is far more guilty of usurping the remedial functions of the Board than was the Court of Appeals.2 Appeals reflects a reasonable estimate, under the particular circumstances of this case, of the earnings that these employees lost as a result of petitioners' illegal conduct. "The Court of Appeals expressed concern that some of the discharged alien employees might not be able to establish—because of their undocumented immigration status-that they were lawfully available for reemployment during the normal backpay period between their illegal discharge and acceptance of reinstatement, and would therefore not be entitled to claim backpay. See 672 F. 2d 592, 606 (CA7 1982); App. to Pet. for Cert. 28a. But, in order to ensure that petitioners bore some responsibility for the "discriminatory act[s] which caused these employees to lose their jobs," the court concluded that a minimum backpay award was necessary to effectuate the purposes of the NLRA. 672 F. 2d, at 606; see also App. to Pet. for Cert. 28a. As the Board explains in its brief, such a 883 Opinion of BRENNAN, J. More importantly, the Court never addresses the disturbing anomaly it creates by holding in Parts II and III that undocumented aliens are "employees" within the meaning of the Act, and thereby entitled to all of the protections that come with that status, but then finding in Part IV that these same alien employees are effectively deprived of any remedy, despite a clear violation of the NLRA by their employer. In Part II, the Court concludes that undocumented aliens must be considered employees protected under the Act, notwithstanding the fact that they are not lawfully entitled to be present in the United States while they are employed here. Ante, at 891-894. But that holding is then flatly contradicted by the Court's assertion in Part IV that these alien employees must be considered "unavailable" for work, and therefore not entitled to backpay under the NLRA, during any period when they were not lawfully entitled to be present in the United States. Ante, at 903. If these undocumented alien employees are entitled, as the Court finds they are, to press an unfair labor practice claim before the Board on the basis of their discriminatory discharge by petitioners, and if the Board may properly find that an unfair labor practice was committed, then I fail to see why these same employees should be stripped of the normal remedial protections of the Act. The contradiction in the Court's opinion is total. In explaining why enforcement of the NLRA with respect to undocumented alien employees is compatible with national immigration policy, the Court observes: "Application of the NLRA helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien backpay award is wholly consistent with its own longstanding policy that "where unavailability is due to an illness, injury, or other event that would not have occurred but for the unlawful discharge, backpay liability will not be tolled for that period." Brief for Respondent 45, n. 44. |