Diamond Walnut Growers, Inc. v. N.L.R.B.
| Decision Date | 29 March 1996 |
| Docket Number | I,No. 95-1075,AFL-CI,95-1075 |
| Parties | 151 L.R.R.M. (BNA) 2877, 317 U.S.App.D.C. 9, 64 USLW 2623, 131 Lab.Cas. P 11,558 DIAMOND WALNUT GROWERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cannery Workers, Processors, Warehousemen and Helpers, Local 601, and International Brotherhood of Teamsters,ntervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Robert G. Hulteng, San Francisco, CA, argued the cause for the petitioner. Robert Leinwand, New York City, was on the brief.
Vincent J. Falvo, Jr., Utica, NY, National Labor Relations Board, argued the cause for the respondent. Linda R. Sher, Euclid, OH, Associate General Counsel, Aileen A. Armstrong, Washington, DC, Deputy Associate General Counsel, and Peter D. Winkler, Phoenix, AZ, National Labor Relations Board, were on brief. Julie B. Broido, Pittsburgh, PA, and Linda Dreeben, Washington, DC, National Labor Relations Board, entered appearances.
Kirsten S. Spalding argued the cause for the intervenors. Kenneth C. Absalom and Judith A. Scott were on brief.
Robert E. Williams and Daniel V. Yager were on brief for amicus curiae Labor Policy Association.
Before: WALD, SENTELLE and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Amidst a bitter economic strike and at the union's direction, a small group of striking union activists crossed the picket line and temporarily returned to work, within days of a rerun representation election, for the announced purposes of campaigning for the union among replacement workers and monitoring the employer's pre-election conduct. In deciding which jobs to give the crossovers, the employer took into account the risk that they could be drawn into potentially violent confrontations with replacement workers as well as the risk that they could engage in production tampering or sabotage or otherwise disrupt the employer's business operation. The National Labor Relations Board (Board) found that the employer had committed an unfair labor practice by discriminatorily assigning the returning strikers to positions that paid less than available ones for which they were qualified, the employer having failed to establish a legitimate and substantial business justification for the job assignments it made. Accordingly, the Board ordered the employer to make the strikers whole. It also ordered that the scheduled rerun election be run yet again. We disagree and grant the employer's petition for review.
Diamond Walnut Growers, Incorporated (Diamond) processes and packages walnuts at its plant in Stockton, California and then ships them to national and international markets. The work force consists of permanent year-round employees supplemented by seasonal hires during the harvesting season in September and October. For decades Diamond voluntarily recognized Cannery Workers, Processors, Warehousemen & Helpers Local 601 of the International Brotherhood of Teamsters (Union) as the employees' representative and had a collective bargaining agreement with the Union, the most recent one expiring in June 1991. In September 1991, the start of the peak season, nearly 500 permanent and seasonal employees struck without notice. In response to the economic strike Diamond hired replacement workers, most of whom remain Diamond employees today. The well-publicized strike was marked by violence as well as Union-led campaigns to boycott Diamond both in the United States and abroad.
About a year into the strike a representation election was held to determine whether to certify the Union as the employees' exclusive representative. The Union lost the election decisively and then filed objections, prompting the Board to order that a rerun election be held on October 7-8, 1993. The case centers on Diamond's conduct immediately preceding the rerun election.
On the morning of September 20, 1993, seventeen days before the scheduled rerun election, a group of Union supporters arrived at the plant's main gate without notice. The group consisted of several striking Union activists led by William Freitas, a Union official. The group was escorted to a meeting with Vince Brown and Wendy Heinze, two members of Diamond's management. Freitas began the meeting by handing to Brown and Heinze a letter from the Union lawyer which stated in relevant part:
Several of the strikers share the Union's conviction that because of Diamond management's blind determination to break the Union ... a fair election is simply impossible at this point.
Nevertheless, because a rerun election is to be held, these employees feel that it is important that the replacement workers ... have an opportunity to hear from Union sympathizers, an opportunity denied them last year because few worked with them or attended the mandatory employee meetings in which management personnel campaigned.
Accordingly, the [four] strikers listed below have decided to cease their strike-related activities and have authorized me to inform you that effective upon delivery of this letter, they are available and willing to return to immediate active employment....
Joint Appendix (JA) 704-05. Brown explained that only seasonal positions were available and that the returning strikers, like earlier crossovers, must sign a release form. Freitas said he had to consult with the Union lawyer to see if the form was acceptable. Freitas also instructed Brown and Heinze that all communication between Diamond and the four returning strikers was to be conducted through the Union. Later that afternoon Diamond received by courier executed release forms from three of the four strikers, including Willa Miller. The following day the Union notified Diamond by letter that, pursuant to the above-quoted letter from the Union lawyer, strikers Alfonsina Munoz and Mohammed Kussair also were willing to return to work.
The Union's pre-election strategy placed Diamond in a difficult position. Operating at its peak season, Diamond faced the prospect of Union-sponsored activists temporarily returning to work shortly before a representation election, not to earn a paycheck, but to campaign and monitor. Diamond was concerned for the safety of both the Union activists and the replacement workers: During the strike replacement workers had been the targets of violence, vandalism and threats and the replacements had openly expressed their resentment and hostility toward the Union and its striking members. In addition, Diamond was concerned that the Union activists might try to sabotage the plant, tamper with its product or otherwise disrupt its operation: The Union had engaged in an international boycott campaign to damage Diamond economically, a campaign which involved not only criticism of Diamond but disparagement of its product as contaminated and unfit to eat (e.g., Union activists had distributed a leaflet stating that Diamond was "looking the other way" while "scabs" packaged walnuts with mold, dirt, oil, worms and debris).
Diamond agreed to let the Union activists return to work even though the strikers had no right to reinstatement under the National Labor Relations Act (Act) in that neither their former positions nor substantially equivalent ones were available. 1 See Rose Printing Co., 304 N.L.R.B. 1076, 1991
WL 197152 (1991). But in light of its concerns Diamond decided to place the returning strikers--none of whom requested a specific job assignment--in non-sensitive positions, i.e., positions that were well supervised, not isolated and did not allow them to move around the plant during work hours. Accordingly, the company decided to assign Miller to a seasonal packing position (filling cases with packages of walnuts weighing less than one pound each) and Munoz and Kussair to seasonal positions in the growers' inspection department (cracking and inspecting nuts at the front end of the production process). Their jobs were supervised and required them to remain in their work areas. Only Kussair complained about his placement. He asked to be reassigned as a loader but then quit before Diamond could transfer him.
When the strikers returned to the plant they carried on their campaigning and monitoring and reported their activities and observations to Union officials and to the Union lawyer--after each shift, according to Miller.
The representation election took place as scheduled on October 7-8 and once again the Union lost. After casting their ballots Miller, Munoz and Kussair, who had intended all along to return to the strike after the vote, 2 submitted identical form letters of resignation drafted by the Union lawyer and rejoined the strike. 3
After the election the Board's General Counsel filed a complaint alleging that Diamond had engaged in unfair labor practices in the pre-election period, namely that Diamond had violated sections 8(a)(3) and 8(a)(1) of the Act by failing to assign Miller, Munoz and Kussair to certain seasonal positions for which they were qualified: Miller as a quality control assistant, Munoz as a lift truck driver and Kussair as a loader. 4 After a hearing the administrative law judge (ALJ) found that the General Counsel had failed to establish a prima facie case of discrimination because Diamond was not obligated to reinstate the strikers. The ALJ, quoting Rose Printing, 304 N.L.R.B. at 1076, declared that " 'an employer's obligation to reinstate former economic strikers extends only to vacancies created by the departure of replacements from the strikers [sic] former jobs and to vacancies in substantially equivalent jobs, but not to any other job which a former striker is or may be qualified to perform.' " JA 25.
The Board...
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Diamond Walnut Growers, Inc. v. N.L.R.B.
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