dissenting:
I respectfully dissent.
The initial violation of §§ 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 158(a)(1) and (3) (1982), by respondent Donald Browne d/b/a Bailey Distributors (“Browne”) is no longer in dispute. Further, the majority sustains, expressly or implicitly, the findings of the National Labor Relations Board (“Board”) that Browne, though ordered by the Board to offer Timothy Nevins reinstatement, made a bad-faith offer of reinstatement, and that, in the absence of these violations, Nevins would have been promoted to the position of driver. Given these circumstances, I cannot agree with the majority that, simply because Nevins’s driver’s license was suspended or revoked during most of the period in question, the Board’s award of backpay to Nevins at the driver’s rate for the entire period was an abuse of discretion.
The mere fact that Nevins did not have a license during most of the backpay period is not a material circumstance under the labor laws. The majority’s premise, i.e., that reinstatement of a driver’s license was not automatic but lay within the discretion of the state’s commissioner of motor vehicles and hence Nevins might not have been able to drive Browne’s vehicles, does not give proper deference to the Board. Since reinstatement of the license was a matter of the state official’s discretion, it cannot be said with any degree of assurance that Nevins could not have gotten it back immediately upon application. There was no evidence that Nevins tried to get his license renewed and was denied. Rather, the evidence was that in lieu of the job he would have had in the absence of Browne’s violations, Nevins worked as, inter alia, a carpenter and did not need to *611drive. And Nevins did thereafter obtain a license of the type he needed, when he needed it. The Board concluded that any uncertainty as to whether Nevins would have been able during the backpay period to get relicensed to drive vehicles of the type used by Browne should be resolved against Browne, who had discriminated against Nevins in violation of the labor laws in the first instance and made a bad-faith offer of reinstatement thereafter. This plainly was not an abuse of the Board’s discretion. See Kawasaki Motors Manufacturing Corp. v. NLRB, 850 F.2d 524, 531 (9th Cir.1988); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 572-73 (5th Cir.1966).
The Board was entitled to conclude that since Nevins did not need a driver’s license in his substitute jobs, his failure to have such a license did not warrant forfeiture of his right to backpay at the rate applicable to the position he would have held had Browne not violated the NLRA. Though none of us countenances Nevins’s traffic derelictions or his failure to pay summonses, it was not the responsibility of the Board to enforce the state traffic laws, and I cannot agree with the majority’s conclusion that the manner in which the Board chose to enforce the labor laws was an abuse of discretion. I would enforce the Board’s supplemental order.