Diamond Walnut Growers, Inc. v. N.L.R.B., AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation113 F.3d 1259
Docket NumberAFL-CI,I,No. 95-1075,95-1075
Parties155 L.R.R.M. (BNA) 2257, 145 A.L.R. Fed. 769, 324 U.S.App.D.C. 317, 65 USLW 2769, 133 Lab.Cas. P 10,006, 134 Lab.Cas. P 10,006 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.
Decision Date20 May 1997

Page 1259

113 F.3d 1259
155 L.R.R.M. (BNA) 2257, 145 A.L.R. Fed. 769,
324 U.S.App.D.C. 317, 65 USLW 2769,
133 Lab.Cas. P 10,006, 134 Lab.Cas. P 10,006
Cannery Workers, Processors, Warehousemen and Helpers, Local
601 and International Brotherhood of Teamsters,
AFL-CIO, Intervenors.
No. 95-1075.
United States Court of Appeals,
District of Columbia Circuit.
Argued En Banc Jan. 29, 1997.
Decided May 20, 1997.

Page 1260

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Robert G. Hulteng, argued the cause for petitioner, with whom Robert Leinwand, San Francisco, CA, was on the briefs.

Peter D. Winkler, Supervisory Attorney, National Labor Relations Board, Washington, DC, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Washington, DC, and Vincent J. Falvo, Jr., Attorney, Utica, NY, were on the brief. Linda Dreeben, Supervisory Attorney, Washington, DC, and Julie B. Broido, Senior Attorney, Pittsburgh, PA, entered appearances.

Kenneth C. Absalom, San Francisco, CA argued the cause for intervenors, with whom Jonathan Hiatt, Marsha S. Berzon, San Francisco, CA, and Judith A. Scott, Boston, MA, were on the brief. Kirsten S. Spalding, San Francisco, CA, entered an appearance.


Opinion for the Court filed by Circuit Judge SILBERMAN.

Opinion concurring in part and dissenting in part filed by Circuit Judge WALD, with whom Chief Judge EDWARDS and Circuit Judge ROGERS and Circuit Judge TATEL join.

Page 1261

Opinion concurring in part and dissenting in part filed by Circuit Judge HENDERSON, with whom Circuit Judge SENTELLE and Circuit Judge RANDOLPH join.

SILBERMAN, Circuit Judge:

Diamond Walnut Growers, Inc. petitions for review of a National Labor Relations Board order holding that it committed an unfair labor practice in its placement of three returning strikers. We grant the petition for review in part and in part grant the NLRB's cross-application for enforcement.


Diamond Walnut processes and packages walnuts for national and international distribution. The company operates with a year-round workforce, supplemented by additional seasonal hires during the fall harvesting season. Diamond's employees have for years been represented by Cannery Workers, Processors, Warehousemen and Helpers Local 601 of the International Brotherhood of Teamsters, AFL-CIO (the union). In September of 1991, following expiration of the most recent collective bargaining agreement between Diamond and the union, nearly 500 of Diamond's permanent and seasonal employees went on strike. Diamond hired replacement workers to allow it to continue operations.

By all accounts, the strike was, and remains, a bitter affair. The strikers are alleged to have engaged in various acts of violence against the replacement workers, especially at the outset of the strike, and restraining orders issued against both strikers and replacements. See generally Diamond Walnut Growers, Inc., 312 N.L.R.B. 61, 1993 WL 356124 (1993). In addition, as part of its effort to exert economic pressure on Diamond, the union undertook an international boycott of its product. The boycott included a well-publicized national bus tour during which union members distributed to the public leaflets which described Diamond's workforce as composed of "scabs" who packaged walnuts contaminated with "mold, dirt, oil, worms and debris."

Approximately one year into the strike, the Board held a representation election. The union lost the election, but its objections prompted the Board to order a rerun to be held in October of 1993. Just over two weeks prior to the new election, a group of four striking employees, represented by a union official, approached Diamond with an unconditional offer to return to work. According to the letter presented to the company at that time by their representative, the employees were convinced that "a fair election [was] simply impossible." Nonetheless, the employees "fe[lt] that it [was] important that the replacement workers ... have an opportunity to hear from Union sympathizers." Thus, the group of strikers was "available and willing to return to immediate active employment." The following day, the union notified Diamond that pursuant to the above-quoted letter, two additional strikers were willing to return to work.

It is undisputed that for three of the returning strikers, neither the permanent jobs they held before the strike, nor substantially equivalent ones, were available at the time of their return. Diamond placed these three in various seasonal jobs, and it is these placements which led to the order under review. Prior to the strike, Willa Miller was a quality control supervisor; she was placed in a seasonal packing position even though a seasonal inspection job was available. Alfonsina Munoz had been employed as a lift truck operator and, despite the availability of a seasonal forklift job, was given a seasonal job cracking and inspecting nuts in the growers' inspection department at the front end of the production process. Mohammed Kussair, formerly an air separator machine operator, was, like Munoz, placed in a seasonal cracking and inspecting position in the growers' inspection department. Neither Miller nor Munoz complained to Diamond about their job placements. Kussair asked to be transferred to a loader position for which he was qualified after receiving three oral reprimands for failing to meet his daily quota, the third of which led to a written reprimand. Diamond sought to accommodate Kussair's transfer request, but he left to rejoin the strike before it could do so.

The rerun election took place as scheduled, and the union lost. Following that election, the General Counsel filed a complaint alleging

Page 1262

that Diamond had violated sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(3), (a)(1) (1994), 1 by unlawfully discriminating against Miller, Munoz, and Kussair. The General Counsel alleged that because of their protected activity, Diamond declined to put them in certain available seasonal positions for which they were qualified and that were preferable to the positions in which they were actually placed. After a hearing, an administrative law judge recommended that the charges be dismissed. He found that Diamond had "discriminated" insofar as it had placed the employees at least in part because of their protected activity, but he did not think that discrimination "unlawful" under the Board's decision in Rose Printing Co., 304 N.L.R.B. 1076, 1991 WL 197152 (1991), which held that an employer's "obligation to reinstate former economic strikers extends only to vacancies created by the departure of replacements from the strikers' former jobs and to vacancies in substantially equivalent jobs." Id. at 1076. The ALJ also recommended that if the Board should reverse him and find that Diamond did discriminate against the returning strikers within the meaning of the Act, it should conclude that it committed an unfair labor practice, since Diamond "failed to establish legitimate and substantial business justifications for placing the returning strikers in the jobs to which they were assigned."

The Board reversed. It thought the ALJ had overlooked the statement in Rose Printing to the effect that returning strikers who had no right to reinstatement (because of the unavailability of their former jobs or substantially equivalent ones) were nevertheless "entitled to nondiscriminatory treatment in their applications for other jobs." Rose Printing, 304 N.L.R.B. at 1078. As the Board put it, "although [Diamond] was under no legal obligation ... to reinstate the strikers ..., once it voluntarily decided to reinstate them, it was required to act in a nondiscriminatory fashion toward the strikers." Diamond had discriminated against Miller, Munoz, and Kussair, in the Board's view, by declining "to place them in the [seasonal] positions of quality control assistant, lift truck operator, and loader, respectively, because of their union status and/or because of certain protected union activity they engaged in while on strike." Employing the burden-shifting framework spelled out by the Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), and NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967), the Board then examined Diamond's asserted justifications for placing the three returning strikers as it did. The Board rejected the contention that the placements were warranted by the employer's concern that the replacement workers might instigate violence against the three and thus justified placement in well-supervised jobs, since "there [was] no evidence that Miller, Munoz, or Kussair were involved" in the strike-related violence allegedly causing Diamond's concern. The Board also dismissed the notion that the placements of Miller and Munoz were justified by their participation in the boycott and the circulation of disparaging leaflets: "[T]he strikers' conduct constituted protected ... activity and there is no evidence indicating that such protection was lost because of threats made by Miller and Munoz to damage or sabotage [Diamond's] equipment or products." Since Diamond had failed to justify its discrimination, the Board found unfair labor practices, the severity of which, "in light of ... their timing," warranted setting aside the rerun election.

A divided panel of this court granted Diamond's petition for review and denied the Board's cross-application for enforcement. Diamond Walnut Growers, Inc. v. NLRB, 80 F.3d 485 (D.C.Cir.1996). The...

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