The opinion
BAZELON, Chief Judge
(concurring in part and dissenting in part):
I agree that the Board’s findings of violations of § 8(a) (1) and § 8(a) (5) of the National Labor Relations Act should be enforced. I do not agree, however, that the Board correctly applied § 10(b) statute of limitations in its determination of the § 8(a) (2) violation.
The Trial Examiner found that the evidence within the six months limitation period established a violation of § 8(a) (2). Terming the violation one of “assistance” rather than “domination,” the Examiner refused to order the disestablishment of the Association. In making this determination he excluded certain significant evidence because the events took place prior to the § 10(b) period. 1
There is no disagreement as to the applicable law. Pre-limitation evidence may not be used where “conduct occurring within the limitations period can be charged to be an unfair labor practice *1321 only through the reliance on an earlier unfair labor practices.” 2 But where, as here, a violation has been found on the basis of conduct within the six month period, the Board may fully consider evidence of earlier events in formulating a remedy. 3 The Court today restricts the use of pre-limitation evidence for remedial purposes by viewing “domination” as an unfair labor practice separate and distinct from “assistance” as an unfair labor practice. Majority opinion at-of 146 U.S.App.D.C., at 1319 of 452 F.2d. But the Supreme Court has recognized the distinction between “assistance” and “domination” only for remedial purposes. 4 Moreover, the wide range of discretion properly accorded the Board in formulating a remedy 5 counsels against any characterization of the choice between assistance and domination which would limit that discretion.
Nor does the policy underlying § 10 (b) support a more restricted use of prelimitation evidence. Section 10(b) is designed to bar litigation of stale claims, hence the Supreme Court’s admonition against “a finding of violation which is inescapably grounded on events predating the limitations period.” 6 But since conduct within the limitations period has already been found to be an unfair labor practice, there is no danger of a stale claim; pre-limitation evidence will be relevant only if the conduct evidenced is still operative on the union-company relationship.
In my view the Board should have fully considered the pre-limitations evidence and a remand should be ordered for that purpose Local 833, UAW v. NLRB, 112 U.S.App.D.C. 107 , 300 F.2d 699 , cert. denied, Kohler Co. v. Local 833, 370 U.S. 911 , 82 S.Ct. 1258 , 8 L.Ed. 2d 405 (1962).
. The Trial Examiner described these events as follows:
Respondent through its supervisors, assisted in the formation of the Association, took an active part in the administration of that organization, and, on occasion, apparently sat on both sides of the bargaining table, as when Horowitz was a member of the Association’s bargaining committee. The fact that Horowitz and Tarre were treasurers of the Association for so many years also accounts for the established habit of the salesman, difficult to understand otherwise, of paying dues into the organization although they received little or no benefit from it. The record is also clear that Respondent gave substantial financial assistance to the Association, whether the money be considered a gift or an indefinite advance. However, all of this occurred prior to January, 1967, and may not in itself be found to be an unfair labor practice.
Trial Examiner’s Decision, JA-I, p. 32-33.
His opinion later makes explicit that his finding of no domination is conditioned by the limitation on the available evidence he felt was imposed by § 10(b):
However, as Respondent well argues, the proof presented by the General Counsel, falling within the six month period prior to the filing of the charge, does not support his contention that the Association was dominated by Respondent and it is so found.
Trial Examiner’s Decision, JA-1, p. 37.
. Local Lodge No. 1424, I.A.M. v. NLRB, 362 U.S. 411, 416 , 80 S.Ct. 822, 827 , 4 L.Ed.2d 832 (1960).
. NLRB v. Lundy Mfg. Co., 316 F.2d 921 (2nd Cir.), cert. denied, 375 U.S. 895 , 84 S.Ct. 171 , 11 L.Ed.2d 124 (1963).
. In NLRB v. District 50, UMW, 355 U.S. 453 , 78 S.Ct. 386 , 2 L.Ed.2d 401 (1957), the Supreme Court recognized the distinction between “assistance” and “domination” but justified that distinction in terms of the choice of an appropriate remedy:
The basis for the distinction is that, in the Board’s judgment, the free choice by employees of an agent capable of acting as their true representative, in the case of a dominated union, is improbable under any circumstances, while the free choice of an assisted tut undominated union, capable of acting as their true representative, is a reasonable possibility after the effects of the employer’s unfair labor practices have been dissipated.
Id. at 459 , 78 S.Ct. at 390 (emphasis in the original). A finding of domination suggests the disestablishment of the union; a finding of mere assistance suggests a withdrawal of recognition until recertification. Id. at 468 , 78 S.Ct. 386 , 2 L.Ed.2d 401 .
. See, e. g., NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 , 73 S.Ct. 287 , 97 L.Ed. 377 (1953) ; International Brotherhood of Operative Potters v. NLRB, 116 U.S.App.D.C. 35, 38-39 , 320 F.2d 757 , 760-761 (1963).
. Local Lodge No. 1424, I.A.M. v. NLRB, 362 U.S. 411, 422 , 80 S.Ct. 822, 829 , 4 L.Ed.2d 832 (1960).