VAN DUSEN, Circuit Judge
(dissenting).
I respectfully dissent from the majority opinion because this record shows that the determination of back pay, based on the seniority system adopted by the General Counsel, is arbitrary and unreasonable under the circumstances and that the substantial award is punitive, rather than remedial, in nature.1
The trial examiners in both the original unfair labor practice case and the present back pay case made detailed findings of the peculiar nature of Bunch-er’s business and his employment practices. Buncher operated out of three locations: Nine Mile Run, Leetsdale, and the Yard.” The business was quite diversified, including scrap reclamation, scrap breaking, construction and leasing of industrial buildings, demolition and salvage of buildings and bridges, steel fabrication, and operation and maintenance of a large river port, including a half-mile long dock with gantry cranes and vessels. Buncher’s diversification apparently resulted from efforts to avoid sole dependence on the steel industry’s fluctuating needs for scrap retrieved from slag. He needed men who could perform various jobs at the several locations, jobs ranging from the construction of warehouses and docks to the demolition of buildings and the operation of several complicated machines. The lengthy 1960 Intermediate Report in the unfair labor practice proceeding discussed in great detail Buneher’s defense that the discharges beginning January 15, 1960, were motivated by economic reasons considered by the employer as early as December 1959 (131 N.L.R.B. at 1456-59). This defense included the argument that discrimination could not be shown from the fact that some men retained had less seniority than those discharged because Buncher used no seniority system. The trial examiner accepted this proposition, but also found that, despite the strong economic defense (131 [792]*792N.L.R.B. at 1456), the discrimination was shown by the “timing of the terminations” (131 N.L.R.B. at 1457) and the fact that all discriminatees were union adherents (131 N.L.R.B. at 1460). In reaching this conclusion, he noted that:
“It is appreciated that in an economic cutback, selection of men equally competent requires fine decisions, particularly in the absence of a seniority agreement or practice, and the Company’s business judgment is not to be lightly cast aside and errors in judgment substituted for proof of discrimination. The Company’s asserted reasons for its selections, however, cannot be considered apart from the considerable evidence indicating discrimination in selection set forth above.” 131 N.L.R.B. at 1460.
The Board, in its decision of June 30, 1961 (131 N.L.R.B. at 1444), approved this finding of lack of a seniority system and of the peculiar nature of Buncher’s business,2 to which this court explicitly referred in enforcing the order, 316 F.2d at 929. In light of these prior findings and after an examination of the testimony offered by petitioner3 to support the back pay computation,4 the use of seniority (in the Board’s back pay formula quoted in the majority opinion) appears arbitrary and unreasonable. The unfair labor practice proceeding, with its finding of a violation of § 8(a) (3), proves only that some back pay is owed; if the precise amount cannot be determined, the Board’s approximation must still have a rational basis. This basis for the back pay does not become more rational because the second trial examiner rejects, for the first time in his Second Supplemental Decision, some of the employer’s evidence as subjective and self-serving, particularly where the first trial examiner did not find the testimony of substantially the same Company witnesses “fraught with inconsistencies, internal [793]*793contradictions, exaggerations and implausibilities.”5
Not only is there an absence of substantial evidence to support the seniority system used to calculate the back pay, but the sole reliance on such a seniority system (and its “ground rule” that a seven-day layoff would break seniority, but only for purposes of determining seniority up to January 14, 1960) is in contradiction to other and previous findings of two trial examiners concerning Buncher’s business operation which were based upon substantial evidence in the record as a whole.6
No reason has been shown to justify rejection of the findings of the trial examiner in his Intermediate Report, 131 N.L.R.B. 1448, affirmed by the Board, 131 N.L.R.B. 1444, and by this court, N. L. R. B. v. Buncher, 316 F.2d 928 (3rd Cir. 1963); cf. N. L. R. B. v. United States Air Con. Corp., 336 F.2d 275 (6th Cir. 1964); N. L. R. B. v. Biscayne Television Corporation, 337 F.2d 267 (5th Cir. 1964). On the basis of this first trial examiner’s findings that various modifications and improvements were made to Buncher’s plant during the 1959 steel strike (131 N.L.R.B. at 1457); that Buncher had decided there were too many employees on the payroll and determined to lay some off (131 N.L.R.B. at 1457); and that only 7 or 8 acres of the original 200-acre slag dump at Nine Mile Run remained to be worked, and less heavy equipment was, therefore, needed (131 N.L.R.B. at 1457), he concluded that Buncher had an economic justification for reducing the staff (131 N.L.R.B. at 1460-61). The only questions in the back pay proceeding then were which employees were to be laid off, at what time, and by what standards (see 131 N.L.R.B. at 1457).
At best, the record made at the back pay hearings is incomplete and the case deserves a remand in order to benefit from further testimony. An example of the incompleteness of the testimony to support even the specific findings in the Second Supplemental Decision is evidenced by the finding that “on and after May 12, 1960, Respondent had jobs available at Nine Mile for * * * two shovel operators * * (731a-32a). The only testimony shows that there were two shovels being used on March 10, 1960, but that when the back pay testimony was given in 1965, Mr. Green, the General Manager of Buncher Company, made clear that only one shovel was then, and had been, in operation at that location. Also, he testified that only one shovel was being operated there following May 12, 1960. It is unclear from the testimony whether Buncher ever operated two shovels at the same time at Nine Mile Run after May 12, 1960, but the record makes this seem most unlikely. That fact would be significant for two reasons. First, there were five discriminatees whose job it was to operate the shovel. It is, therefore, necessary to determine which two of the five, if any, would have been retained, absent the discrimination. When the operation was reduced to one shovel, the back pay for one of the operators should be terminated on that date. Sec[794]*794ond, three of the discriminatee shovel operators (Greene and the Cindricks) were found to be entitled to no back pay after January 12, 1962.
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VAN DUSEN, Circuit Judge
(dissenting).
I respectfully dissent from the majority opinion because this record shows that the determination of back pay, based on the seniority system adopted by the General Counsel, is arbitrary and unreasonable under the circumstances and that the substantial award is punitive, rather than remedial, in nature.1
The trial examiners in both the original unfair labor practice case and the present back pay case made detailed findings of the peculiar nature of Bunch-er’s business and his employment practices. Buncher operated out of three locations: Nine Mile Run, Leetsdale, and the Yard.” The business was quite diversified, including scrap reclamation, scrap breaking, construction and leasing of industrial buildings, demolition and salvage of buildings and bridges, steel fabrication, and operation and maintenance of a large river port, including a half-mile long dock with gantry cranes and vessels. Buncher’s diversification apparently resulted from efforts to avoid sole dependence on the steel industry’s fluctuating needs for scrap retrieved from slag. He needed men who could perform various jobs at the several locations, jobs ranging from the construction of warehouses and docks to the demolition of buildings and the operation of several complicated machines. The lengthy 1960 Intermediate Report in the unfair labor practice proceeding discussed in great detail Buneher’s defense that the discharges beginning January 15, 1960, were motivated by economic reasons considered by the employer as early as December 1959 (131 N.L.R.B. at 1456-59). This defense included the argument that discrimination could not be shown from the fact that some men retained had less seniority than those discharged because Buncher used no seniority system. The trial examiner accepted this proposition, but also found that, despite the strong economic defense (131 [792]*792N.L.R.B. at 1456), the discrimination was shown by the “timing of the terminations” (131 N.L.R.B. at 1457) and the fact that all discriminatees were union adherents (131 N.L.R.B. at 1460). In reaching this conclusion, he noted that:
“It is appreciated that in an economic cutback, selection of men equally competent requires fine decisions, particularly in the absence of a seniority agreement or practice, and the Company’s business judgment is not to be lightly cast aside and errors in judgment substituted for proof of discrimination. The Company’s asserted reasons for its selections, however, cannot be considered apart from the considerable evidence indicating discrimination in selection set forth above.” 131 N.L.R.B. at 1460.
The Board, in its decision of June 30, 1961 (131 N.L.R.B. at 1444), approved this finding of lack of a seniority system and of the peculiar nature of Buncher’s business,2 to which this court explicitly referred in enforcing the order, 316 F.2d at 929. In light of these prior findings and after an examination of the testimony offered by petitioner3 to support the back pay computation,4 the use of seniority (in the Board’s back pay formula quoted in the majority opinion) appears arbitrary and unreasonable. The unfair labor practice proceeding, with its finding of a violation of § 8(a) (3), proves only that some back pay is owed; if the precise amount cannot be determined, the Board’s approximation must still have a rational basis. This basis for the back pay does not become more rational because the second trial examiner rejects, for the first time in his Second Supplemental Decision, some of the employer’s evidence as subjective and self-serving, particularly where the first trial examiner did not find the testimony of substantially the same Company witnesses “fraught with inconsistencies, internal [793]*793contradictions, exaggerations and implausibilities.”5
Not only is there an absence of substantial evidence to support the seniority system used to calculate the back pay, but the sole reliance on such a seniority system (and its “ground rule” that a seven-day layoff would break seniority, but only for purposes of determining seniority up to January 14, 1960) is in contradiction to other and previous findings of two trial examiners concerning Buncher’s business operation which were based upon substantial evidence in the record as a whole.6
No reason has been shown to justify rejection of the findings of the trial examiner in his Intermediate Report, 131 N.L.R.B. 1448, affirmed by the Board, 131 N.L.R.B. 1444, and by this court, N. L. R. B. v. Buncher, 316 F.2d 928 (3rd Cir. 1963); cf. N. L. R. B. v. United States Air Con. Corp., 336 F.2d 275 (6th Cir. 1964); N. L. R. B. v. Biscayne Television Corporation, 337 F.2d 267 (5th Cir. 1964). On the basis of this first trial examiner’s findings that various modifications and improvements were made to Buncher’s plant during the 1959 steel strike (131 N.L.R.B. at 1457); that Buncher had decided there were too many employees on the payroll and determined to lay some off (131 N.L.R.B. at 1457); and that only 7 or 8 acres of the original 200-acre slag dump at Nine Mile Run remained to be worked, and less heavy equipment was, therefore, needed (131 N.L.R.B. at 1457), he concluded that Buncher had an economic justification for reducing the staff (131 N.L.R.B. at 1460-61). The only questions in the back pay proceeding then were which employees were to be laid off, at what time, and by what standards (see 131 N.L.R.B. at 1457).
At best, the record made at the back pay hearings is incomplete and the case deserves a remand in order to benefit from further testimony. An example of the incompleteness of the testimony to support even the specific findings in the Second Supplemental Decision is evidenced by the finding that “on and after May 12, 1960, Respondent had jobs available at Nine Mile for * * * two shovel operators * * (731a-32a). The only testimony shows that there were two shovels being used on March 10, 1960, but that when the back pay testimony was given in 1965, Mr. Green, the General Manager of Buncher Company, made clear that only one shovel was then, and had been, in operation at that location. Also, he testified that only one shovel was being operated there following May 12, 1960. It is unclear from the testimony whether Buncher ever operated two shovels at the same time at Nine Mile Run after May 12, 1960, but the record makes this seem most unlikely. That fact would be significant for two reasons. First, there were five discriminatees whose job it was to operate the shovel. It is, therefore, necessary to determine which two of the five, if any, would have been retained, absent the discrimination. When the operation was reduced to one shovel, the back pay for one of the operators should be terminated on that date. Sec[794]*794ond, three of the discriminatee shovel operators (Greene and the Cindricks) were found to be entitled to no back pay after January 12, 1962. Assuming two of these three were entitled to back pay originally, the back pay for one of these two should have been cut off prior to January 12, 1962, provided, as the record indicates, operation of one of the shovels did not resume between May 12 and that date. No reason has been shown why the trial examiner, who made back pay awards based on the operation of two shovels, could not determine when single shovel operations began, which two of the five discriminatees, if any, would have operated the shovels but for the discrimination, and, when only one shovel was operated, which discriminatee, if any, would have operated the shovel absent the discrimination.7
Also, the findings and comments in the Second Supplemental Decision contain references, favorable to General Counsel’s Backpay Specifications, concerning certain discriminatees but fail to refer to further explanatory or additional testimony of the same witness which points to the opposite conclusion. In the case of John Cindrick, for example, the trial examiner relies on respondent’s admission that Cindrick was an excellent shovel operator, but fails to consider that the same witness testified that Cindrick refused to go to Leetsdale, “wouldn’t get his hands dirty with grease,” and would not do any other work.7 I have been unable to find any support in the record for statements in the Second Supplemental Decision such as that Gerald Hinger, a retained employee, had “an admitted lack of proficiency in the jobs in which the Cindricks and Greene concededly excelled * * *."8
This language of the Supreme Court of the United States appears to apply to the situation presented by this record: [795]*795The arbitrary imposition of this seniority system under these peculiar facts fails to take job assignments and employee capabilities into account. There are five discriminatee shovel operators, for example, yet there were, at most, only two shovels at Nine Mile Run. The seniority system adopted in the Backpay Specification would cause arbitrary assignment of discriminatees to jobs for which they are unqualified, and would require that certain retained employees be dismissed to make room for discriminatees who are incapable of performing the tasks incident to such jobs and would not have been assigned such work but for the fictional solution of seniority.
[794]*794“* * * [T]he Board may [not] apply a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act.” National Labor Relations Board v. Seven-Up Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377 (1953). See, also, N. L. R. B. v. Ozark Hardwood Company, 282 F.2d 1, 7-8 (8th Cir. 1960).9
[795]*795The propriety of the determination that petitioner had admitted liability for back pay up to May 12, 1960, seems doubtful if based, as it appears, solely on the ground that Buncher sought to relitigate the unfair labor practice proceeding.10 However, a new Backpay Specification might make this issue moot.11
[796]*796For the foregoing reasons, I would grant the Petition to Review, set aside the Board’s order, remand the case to the Board for proceedings in the light of this opinion, and deny the Board’s cross-petition to enforce its order.
Kalodner and Aldisert, Circuit Judges, join in this dissent.