The opinion
LEVENTHAL, Circuit Judge
(dissenting) .
I might well join in the court’s opinion if ours were the primary function of implementing the National Labor Relations Act. However, Congress has given the National Labor Relations Board the responsibility of issuing appropriate orders to effectuate the legislative objective. In my view the court’s opinion represents an unwarranted intrusion on the agency’s functioning.
In its prior mandate the court instructed the Board to consider the claimants individually and the possibility of their “lowering sights.” Following the remand there was consideration by the Board, and a lengthy opinion which reflected a different approach from that which we held invalid. There were also differences in result. Apart from the case of Ashby, denied relief because of a failure to register with the state employment service, the Board held that Feltner and Moore had to lower their sights and to go from a teletypesetter job to clerical work at nonprinting sources.
As to the other 10 employees, the Board held that the Company had not carried the burden of proving a willful loss of earnings. In my view this was a reasonable determination, within the Board’s discretion and expertise. It took into account the employees’ periods of service, skills and ages, and the work available elsewhere.
The Board found that the Company did not show that unfilled jobs in the printing trade actually existed. There was substantial evidence to indicate that a few hirings by other printing employers were only for untrained men to work at a minimum wage. The Board could consider it a fact of life that infuses meaning into a cold record that the printing employers from Versailles and North Vernon who visited Madison did not want men who were on the picket line.
As to the claim that respondent had met its burden by showing that alternative work opportunities were available outside the printing industry, the Board felt, and it had a right to conclude, that it is no light matter to tell men with years of service in the printing industry that they forfeited the relief due them, when they were fired in violation of a law passed for the benefit of both employees and public, because they did not scrap their skill in a specialized trade when they put themselves out for hire.
The Board did not say that printers could refuse to go for work outside the printing industry. It concluded that, after considering the skill, background and experience of each of the claimants the various alternative employments were not suitable for the claimants. * I think this was a matter within the Board’s discretion.
The Board surveyed and identified both the various possibilities of alternative non-printing employment, available *407 during the backpay period, and the skill, background and experience of each of the employees. The Board was not required to make a detailed cross-check and analysis, man by man, and job by job. It is not inappropriate for an administrative agency to consider matters like these with some latitude for generalizing.
But if I am wrong in saying that the Board’s findings supported its order, I am still right in saying that this court does not have the authority to make a determination for itself that the employees have rejected suitable employment. It is not our function to try to match printing skills with different kinds of factory production jobs, or to say, as respondent claims, that a printer who was the subject of discrimination for union activity nevertheless lost all right to relief because he did not apply to the Army’s Jefferson Proving Grounds, where ammunition was tested and fired, to take on work that was outside, unpleasant, and even dangerous— with records of persons killed at work.
I would grant the Board’s petition for enforcement of its order.
The Board found: “To hold otherwise would be to force an experienced member of a specialized trade to abandon his chosen craft in order to diminish the Respondent’s liability for its established wrongdoing. Moreover, to force such abandonment would hamper production and employment by causing a discriminatee to prejudice his skills in a highly complex and constantly changing industry. The resulting loss of proficiency and experience would be an inhibiting factor in obtaining new employment in the printing trade as well as in progressing with any job a striker was already performing before the Respondent’s unlawful act.”