Bakery & Confectionery Workers' International Union, Local No. 492 v. National Biscuit Co.

GOODRICH, Circuit Judge

(concurring).

The conclusion reached by the Court in this case seems to me correct. The opinion goes further than I should care to commit myself in making suggestions that the Union could have or might have complained of an unfair labor practice. It does seem to me, however, that the conclusion reached that the pension plan is not to be treated as “layoff” under the contract is the only sound conclusion possible. The Union more than once made a special issue of the pension provisions in contract negotiations and no term of the contract which followed mentioned them. For it to take the position subsequently that retirement under a pension plan is a layoff and already included in the contract seems to me to fly in the face of all the probabilities. I, therefore, agree that no recovery can be had.