United States v. 2008-08-20 | 06-72992 | FRESH FRUIT/VEG VNLRB | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 FRESH FRUIT AND VEGETABLE
WORKERS LOCAL 1096, UNITED
FRUIT COMMERCIAL WORKERS No. 06-72992
INTERNATIONAL UNION, NLRB No. Petitioner,  32-CA-21181/21596
v. OPINION
NATIONAL LABOR RELATIONS
BOARD,
Respondent. 
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted
April 14, 2008—San Francisco, California
Filed August 21, 2008
Before: Ronald M. Gould, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Clifton
11255

-- 1 of 20 --

COUNSEL
David A. Rosenfeld (argued), Caren P. Spencer, Weinberg,
Roger & Rosenfeld, Alameda, California, for the petitioner.
Joan Hoyte (argued), David Habenstreit, Stacy Garrick Zim-
merman, National Labor Relations Board, Washington, D.C.,
for the respondent.
11258 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 2 of 20 --

OPINION
CLIFTON, Circuit Judge:
The Fresh Fruit and Vegetable Workers Union (“the
Union”) seeks review of an enforcement order by the National
Labor Relations Board (“NLRB”) declaring that Bud Antle,
Inc., the employer, did not violate the National Labor Rela-
tions Act (“NLRA”), 29 U.S.C. § 158(a)(1) and (3), when,
after a fourteen-year lockout, it delayed reinstatement of
returning employees by approximately one month and it failed
to offer the returning employees the same overtime opportuni-
ties available to other employees during a four-week retrain-
ing period. Given the unique circumstances of this case,
notably the unusually long duration of the lockout, we con-
clude that the NLRB’s decision was supported by substantial
evidence, and we deny the petition.
I. Factual and Procedural Background
Bud Antle processes and distributes lettuce and other vege-
tables out of three refrigerated warehouses in California and
Arizona. In June 1989, Bud Antle and the Union began nego-
tiating for a new labor contract. When negotiations failed to
produce a new agreement, the employees began an economic
strike. In response, Bud Antle locked out its union employees
and hired temporary replacements. The lockout continued for
fourteen years.1
During the fourteen-year lockout, many of Bud Antle’s
operating practices changed. Some changes occurred because
of the introduction of new products and others resulted from
new technology. For example, the company introduced
bagged salads, a product that did not exist when the lockout
started in 1989. The need to maintain the freshness of that
1The legality of the initial strike and the subsequent lockout are not at
issue on appeal.
11259 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 3 of 20 --

product required a more complicated dating and distribution
system than the one used in 1989. Similarly, the company
introduced hand held scanners, the use of which required
additional knowledge and training.
In 2003, the Teamsters Union attempted to organize the
replacement employees. Pursuant to an agreement reached
between the two unions and Bud Antle, a representation elec-
tion was held in which all temporary and striking employees
were permitted to vote whether to be represented by the
Teamsters, by the Fresh Fruit Workers, or by no union. It was
also agreed that, following the certification of election results,
the company would offer reinstatement to the locked out
employees, the offer would remain open for thirty days, posi-
tions would be filled based on seniority, and seniority would
be honored equally for locked out and replacement employ-
ees. “No union” received a majority of the 253 ballots cast in
the election.2 The election result was certified on December
15, 2003.
Bud Antle sent out letters on Friday, December 19, 2003
offering reinstatement to the 133 previously locked out
employees. The letter instructed employees seeking reinstate-
ment to notify the company by Thursday, January 22, 2004.
The locked out employees were told that “the date of rein-
statement and the job to which you will be reinstated will
depend on (1) the number of locked out employees seeking
reinstatement, (2) your seniority relative to other employees,
including both locked out and replacement employees, and (3)
your being qualified to perform the job to which you are
recalled.” The letter also guaranteed that the employees’ pre-
lockout seniority would be used for all purposes.
2According to the tally of ballots, 80 votes were cast in favor of the
Teamsters, 7 votes for the Fresh Fruit Workers, and 146 votes against rep-
resentation by either union. Some ballots were challenged, but a number
too small to make a difference in the outcome.
11260 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 4 of 20 --

Between December 22, 2003 and January 22, 2004, Bud
Antle received twenty-four responses from locked out work-
ers requesting reinstatement. On January 28, Bud Antle sent
out letters to those 24 employees notifying them that it had
established Monday, February 23, 2004 as the return-to-work
day for all formerly locked out employees, that they should
report to the company’s Yuma, Arizona facility, that the first
four weeks of re-employment would consist of mandatory
training and orientation, and that they would receive travel
pay and a per diem during that time. On the first day of work,
only eight of the twenty-four employees reported. One of the
employees who returned the first day did not report to work
after that, due to a pre-existing injury, reducing the group to
seven. None of the other sixteen employees contacted the
company again.
For the first four weeks all returning employees were
trained in the new systems and methods implemented during
the lockout period. In addition, during the training period Bud
Antle limited the overtime work assignments given to the
seven returning employees, effectively treating them as new
employees. The company customarily limited overtime for
new employees during initial training because it wanted over-
time work to be accomplished as quickly as possible and gen-
erally new employees were not as efficient. After the training
period, the overtime assignments were distributed evenly.
The Union filed two complaints against Bud Antle: one for
its failure to reinstate the locked out employees at an earlier
date, and the other for the limitation on overtime assignments
for the returning employees during the four-week training
period. The two complaints were consolidated, and an admin-
istrative law judge (“ALJ”), Burton Litvak, conducted a hear-
ing to determine whether or not Bud Antle had violated
Sections 8(a)(3) and (1) of the NLRA. After hearing testi-
mony, the ALJ determined that Bud Antle violated the Act
because it did not have a substantial and legitimate business
justification for the delay in reinstating the formerly locked
11261 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 5 of 20 --

out employees. He ordered the company to make whole the
twenty-four employees who had requested reinstatement from
the date of their individual acceptances until February 23.
Additionally, the ALJ determined that Bud Antle’s treatment
of the returning employees as new employees for the purpose
of overtime assignment was “inherently destructive” of the
employees’ statutory rights and as such violated the NLRA.
Upon review by a three-member panel of the NLRB, a
majority reached a somewhat different conclusion. It unani-
mously held, in disagreement with the ALJ, that the company
had a legitimate and substantial business justification for
delaying the employees’ reinstatement from December 15 to
January 22 and thus did not violate the NLRA by that delay.
According to the Board, Bud Antle was justified in delaying
reinstatement through January 22 because time was needed to
determine which locked out employees would seek to return
and, after comparing their seniority with the seniority of the
current replacement employees, which employees would actu-
ally be reinstated. The company’s desire to retrain all of the
returning employees and the benefit of doing the retraining of
all returning employees at once also served to justify that
delay.
The Board concluded that the additional delay from Janu-
ary 23 to February 23 was not supported by a substantial and
legitimate business justification, however, thus upholding the
ALJ’s finding of violation for that part of the delayed re-
employment. Although Bud Antle argued to the Board that
the second delay was needed to ensure that the returning
employees could give two-weeks notice to their then-current
employers and so that a particular manager could conduct the
training session, the NLRB determined that these reasons
were merely for “administrative convenience” and not sub-
stantial business reasons. The panel majority then awarded
back pay for the period from January 23 to February 23, but
only to the seven employees that reported for work on Febru-
ary 23. The ALJ had ordered that all twenty-four employees
11262 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 6 of 20 --

who requested reinstatement should be made whole for the
delay, but the Board concluded that the employees who did
not appear for work, despite indicating their desire to be rein-
stated, were ineligible for back pay because the union was
unable to show that “the date of reinstatement affected their
decision to return.”
As for the limitation on overtime for the initial four weeks
of employment, the NLRB majority concluded, again in dis-
agreement with the ALJ, that the limitation was not “inher-
ently destructive” of the employees’ statutory rights and that
the company had legitimate and substantial business reasons
for limiting the overtime opportunities during the retraining
period. The majority noted the significant changes that had
occurred during the lockout period:
With bagged mixed salads, the Respondent, in
selecting products to ship, considers a number of
issues, including where the customer is located. To
illustrate, according to the Respondent, a customer in
New York typically will need a product harvested
from the field on that day, while a customer in Los
Angeles will accept 3-day old product. Thus, it is
incumbent on cooler workers to know the date of the
product and whether the particular customer will
accept that product. Given these requirements, it is
essential that employees know where each product is
located within the cooler in order to efficiently fill
orders, as well as to satisfactorily rotate raw com-
modities to ensure that these products are as fresh as
possible. It is also important to know the location of
products for purposes of combining pallets.
Because of these changes the majority concluded that the
company had a significant interest in retraining the returning
employees. During the retraining period, the employer had a
legitimate business interest in ensuring that overtime work
was completed in the most efficient manner possible. In order
11263 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 7 of 20 --

to maximize the efficiency of returning employees in com-
pleting their duties, they needed to be retrained to follow the
updated company procedures. The training period also helped
the company determine whether the employees could still per-
form the types of jobs they had performed fourteen years ear-
lier.
Board Member Wilma B. Liebman dissented in part. She
concluded that the panel erred in denying the make whole
relief to the sixteen employees who indicated a desire to be
reinstated but who failed to report to work on February 23.
She stated her view that a finding of wrongdoing was pre-
sumptive proof that back pay was owed and that the company
failed to show that the delayed reinstatement did not affect the
employees’ decision to return. The dissent also concluded that
returning employees were not akin to new employees even
though the lockout had spanned fourteen years, and therefore
the company’s failure to give overtime to returning employees
was a violation of the Act.
The Union filed this timely petition for review. Bud Antle
has not challenged any portion of the Board’s conclusions.
Thus the three issues before this court are (1) whether the
employer violated the Act by delaying reinstatement from
December 15 until January 22; (2) whether the employer vio-
lated the Act by failing to offer overtime to the returning
employees; and (3) whether the Board erred in granting back
pay to only the seven employees who arrived for work on the
appointed start date.
II. Discussion
We start by noting the deferential standard of review that
we apply to petitions for review from the NLRB. We will
uphold decisions of the NLRB if the Board’s application of
the law in a specific instance is supported by substantial evi-
dence. See Fall River Dyeing & Finishing Corp v. NLRB, 482
U.S. 27, 42 (1987); see also Allentown Mack Sales & Serv.,
11264 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 8 of 20 --

Inc. v. NLRB, 522 U.S. 359, 366 (1998) (“[W]e must decide
whether [the Board’s] conclusion is supported by substantial
evidence on the record as a whole.”). Furthermore, the NLRB
has “broad discretion to devise remedies that effectuate the
policies of the Act, subject only to limited judicial review.”
Teamsters Cannery Local 670 v. NLRB, 856 F.2d 1250, 1259
(9th Cir. 1988).
A. The Union’s Challenges to Employer Conduct as
Violations of the NLRA
[1] Sections 8(a)(1) and (3) of the NLRA make it an unfair
labor practice for an employer “by discrimination in regard to
hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any
labor organization.” 29 U.S.C. § 158(a)(1) & (3). In determin-
ing whether or not a company has violated the NLRA, the rel-
evant inquiry is whether or not the employer’s action likely
discouraged union membership and was motivated by anti-
union animus. See Metro. Edison Co. v. NLRB, 460 U.S. 693,
700 (1983).
[2] The Supreme Court has established a framework for
determining whether employer conduct is unlawfully discrim-
inatory. Some employer conduct is so “inherently discrimina-
tory or destructive” of employee rights that anti-union
motivation is inferred. NLRB v. Erie Resistor Corp., 373 U.S.
221, 227-28 (1963). If employer conduct is “inherently
destructive,” the Board may find an improper motive regard-
less of evidence of a legitimate business justification. See
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967).
[3] If, on the other hand, “the adverse effect of the discrimi-
natory conduct on employee rights is ‘comparatively slight,’ ”
and the employer establishes a legitimate and substantial busi-
ness justification for its actions, there is no violation of the
Act without a finding of an actual anti-union motivation. Id.
at 34; NLRB v. Bingham-Willamette Co., 857 F.2d 661, 664
11265 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 9 of 20 --

(9th Cir. 1988). Applying this framework we address in turn
each of the Union’s challenges to the Board’s decision.3
1. Delay in Reinstatement
We first address the initial one-month delay in reinstate-
ment from December 15 until January 22, the day by which
all responses from returning employees were due to the
employer. The Union argues that the company’s failure to
immediately reinstate the locked out employees was “inher-
ently destructive” of the employee’s statutory rights because
only the unionized locked out employees, and not the replace-
ment employees, suffered “the adversities of being kept out of
work.” Such conduct, the Union argues, discourages protected
activity by punishing an employee’s lawful right to strike. We
reject this argument because it does not take into account the
length of the lockout or the length of the delay itself.
[4] The Supreme Court has defined “inherently destructive”
conduct as conduct that “carries with it an inference of unlaw-
ful intention so compelling that it is justifiable to disbelieve
the employer’s protestations of innocent purpose.” Am. Ship
Bldg. Co. v. NLRB, 380 U.S. 300, 311-12 (1965); see Port-
land Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir.
1976) (defining “inherently destructive conduct” as conduct
that has “far reaching effects which would hinder future bar-
gaining” and “create[s] visible and continuing obstacles to the
future exercise of employee rights”). If the natural tendency
of the employer’s actions is to severely “discourage union
membership while serving no significant employer interest,”
then the conduct is “inherently destructive” and discrimina-
tory. Am. Ship Building, 380 U.S. at 312; see also Erie Resis-
tor, 373 U.S. at 228.
3The Union also argues that the ALJ and the Board erred in parsing the
company’s behavior and analyzing each alleged violation individually, as
opposed to in the aggregate. This argument is without merit as we have
analyzed each allegation of a violation of the NLRA individually in the
past. See L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337 (9th Cir. 1980).
11266 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 10 of 20 --

[5] The Supreme Court’s application of this standard is
illustrative of employer conduct that necessarily implies dis-
crimination and anti-union animus. In Erie Resistor, the Court
concluded that an employer granting twenty years of super-
seniority to replacement workers and workers who broke the
strike was inherently destructive. See generally Erie Resistor,
373 U.S. 221. In Metropolitan Edison, the Court concluded
that an employer’s discipline of union leaders more severely
than non-union leaders was “inherently destructive” of their
statutory rights. 460 U.S. 702-03. “In each of these cases, the
employer treated employees within a bargaining unit differ-
ently depending upon the degree of their union activity.” Int’l
Paper Co. v. NLRB, 115 F.3d 1045, 1050 (D.C. Cir. 1997)
(emphasis omitted). Thus, from the employee’s perspective
there could be no question that the employees were being
punished for their union activities because those employees
who chose to engage in union activities were given fewer ben-
efits or were punished as compared to those that did not
engage in union activities.
[6] Here, the employer’s one month delay stands in stark
contrast to the above examples of conduct found to be “inher-
ently destructive.” This case does not present a reinstatement
delay that is relatively long compared to the lockout itself. See
Westpac Electric Inc., 321 N.L.R.B. 1322, 1364 (1996) (con-
cluding a reinstatement delay of two to three hours after a
three hour strike was “inherently destructive”). In such a case
the Board may be justified in concluding that a delay is “in-
herently destructive” of employee rights because the employ-
ees could infer that the delay was instituted to punish their
union activities. In contrast, when a reinstatement delay is
short relative to the lockout period, it is less likely that
employees will view the delay as punishment for a protected
activity.
[7] After a fourteen-year lockout, a delay of a few more
weeks prior to reinstatement does not necessarily express anti-
union animus beyond that expressed by the lockout itself.
11267 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 11 of 20 --

Indeed, since the workers had just voted against union repre-
sentation by a substantial margin, it is not clear that the com-
pany had much to gain at the time by taking further action to
discourage union activity. Given the length of the lockout it
is most likely that employees would understand that some
period of time was necessary and normal to accomplish the
reinstatement, and therefore not view the delay as an action
by the company to obstruct or discourage employees from
exercising their statutory rights. Moreover, it was reasonable
to anticipate that many or most of the locked out employees
would likely need some time themselves to prepare for the
possible transition: some employees would need time to make
their decision, leave their current employers, and prepare to
resume working for Bud Antle. Under the circumstances, the
Board’s conclusion that the delay did not “imply hostile moti-
vation any more than the lockout itself,” and thus was not
inherently destructive of employee’s rights such that anti-
union animus can be inferred, is supported by substantial evi-
dence. See NLRB v. Brown, 380 U.S. 278, 284 (1965).
The Union challenges the Board’s determination that the
delay from December 15 to January 22 was supported by a
substantial and legitimate business justification.4 Generally,
an employer is obligated to reinstate employees after a lock-
out without unreasonable delay. “[W]hat is reasonable or
unreasonable depends on all the facts and circumstances of a
particular case and the existence of legitimate and substantial
business reasons for the delay.” Mercy-Memorial Hosp.
Corp., 231 N.L.R.B. 1108, 1113-14 (1977). We give defer-
ence to the Board’s expertise in determining whether
employer conduct is reasonable and supported by legitimate
and substantial business justifications. See NLRB v. Fleet-
wood Trailer Co., 389 U.S. 375, 378 (1967) (citing Great
Dane Trailers, 388 U.S. at 33-34) (“It is the primary responsi-
4The employer has not challenged the Board’s conclusion that the delay
from January 23-February 23 violated the NLRA and therefore we do not
review the Board’s findings on this issue.
11268 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 12 of 20 --

bility of the Board and not of the courts ‘to strike the proper
balance between the asserted business justifications and the
invasion of employee rights in light of the Act and its poli-
cy.’ ”).
The Board found that both of the business justifications
offered by the employer in this case, in the circumstances of
an unusually lengthy lockout, supported the delay through
January 22. First, the Board concluded that the union election
agreement justified a one-month delay for the employer to
organize the reinstatement of the returning employees. This
conclusion was reasonable and supported by substantial evi-
dence. The notice had to be prepared and sent to the locked
out employees after the election results were certified, and at
least a little time was needed to accomplish that. The agree-
ment with the Union provided that workers would have at
least thirty days to respond to the notice. The replacement
employees and the locked out employees would have equal
seniority rights, so the company would not know which
employees would be bumped based on seniority until it had
a complete list of employees seeking to return at the end of
the notification period on January 22. At the end of the lock-
out, the facility was operating with 90 replacement employ-
ees. There were 133 previously locked out employees to
whom notices were sent. Thus, there were potentially more
than 220 employees who would seek to fill between 90-100
jobs. Bud Antle could not know, prior to the January 22 dead-
line, how many employees would be seeking jobs, and what
their respective seniority levels would be.5 Thus, it could not
know which employees would be bumped and which would
not. Even if, as the Union argues, at least one of the returning
5Though the company might have assumed that there would not be
many employees returning after fourteen years, over 250 individuals voted
in the union election, far more than the number of current workers. It was
not unreasonable for the company to anticipate at least a possibility that
more workers would be returning than turned out to be the case and thus
to proceed cautiously with determining who would wind up with the jobs.
11269 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 13 of 20 --

employees had sufficient seniority to guarantee that he would
be at the front of the line, that could not have been clear for
all of the potentially returning employees.
[8] The Board also concluded that the company’s desire to
train all the returning employees together was an independent
reason to support the delay. This conclusion was reasonable.
Fourteen years had passed. Some level of retraining would
seem justified under any circumstances after that long an
interval off the job. The changes in the company’s operations
and products gave further support for the Board’s conclusion
in this case that it was not unreasonable for the company to
retrain the returning employees after fourteen years. It was
likewise not unreasonable for the company to wish to train all
of the returning employees together. Although the company
representative testified that the company had trained new
employees individually in the past, he noted that they had
never had to train a large number of employees one-on-one
before.
The Union argues that National Football League Manage-
ment Council, 309 N.L.R.B. 78 (1992), contradicts the
Board’s decision and establishes that the delay here was
unreasonable and unsupported by a substantial and legitimate
business justification. In that case, NFL players agreed to
return to work on Thursday, October 15, after a twenty-five-
day strike. The NFL Clubs responded by refusing to allow
players that were ineligible to play on Wednesday from play-
ing in the upcoming weekend’s games. Id. at 79. Thus
because the striking players agreed to return to work on
Thursday, instead of Wednesday, they were unable to play in
the games scheduled that week on October 18 and 19. The
Board rejected the employer’s argument that the delay in rein-
statement from October 15 (when the unconditional offer to
return to work was tendered) to October 25 or 26 was reason-
able and supported by a substantial business justification. The
Board concluded that, under the circumstances, the Club’s
claims that the striking players may not have been in suffi-
11270 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 14 of 20 --

cient physical condition to play, and that they had to deal with
the administrative inconvenience of juggling both the roster of
replacement players and striking players were not substantial
and legitimate business justifications for the Wednesday eligi-
bility rule. See id. at 82-83.
The Union’s citation to National Football League and simi-
lar decisions fails to deal with the unique circumstances of
this lockout, notably its extraordinary duration. A strike last-
ing twenty-five days is not the same as a lockout lasting four-
teen years. Because of the extraordinary time gap, the
employer’s concerns here were magnified. For example, Bud
Antle had to determine where the striking employees were,
whether they would return, whether they could continue to
perform the job, and how to integrate them back into the com-
pany. Although the owners faced similar questions in
National Football League, it is difficult to ignore the effect a
fourteen-year time period can have on the employer’s deci-
sion making. In National Football League, there was other
evidence, including contradictory explanations for the delay,
and the fact that the Clubs had failed to enforce the Wednes-
day eligibility rule in a past strike that was twice as long, that
made the Board question the credibility of the asserted busi-
ness justifications. Id. at 82. Such concerns are not presented
here: the company has not asserted contradictory business jus-
tifications. Additionally, the circumstances of the election
agreement materially differed from those in National Football
League. The agreement here required the company to rehire
both striking and replacement employees based upon the
seniority of all workers. The company, therefore, needed to
wait until the end of the reinstatement period to dovetail the
list of employees so that it could determine which employees
would be hired and retained.
The NLRB has noted the importance of evaluating an
employer’s conduct based upon the unique circumstances in
the record, and properly so. In Mercy-Memorial Hospital, the
NLRB recognized that reasonable delays in reinstatement can
11271 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 15 of 20 --

arise at the conclusion of a lengthy strike. At the close of a
three-year strike, state law required that the returning employ-
ees be subjected to medical examinations in order to be eligi-
ble to work in the employer’s hospital. 231 N.L.R.B. at 1114.
The Board concluded that the nearly one-month delay in
which the company updated employee files, waited to deter-
mine which employees would be returning to work, and con-
ducted physical examinations for returning employees was
reasonable given “the problems necessarily occasioned by the
sudden termination of a 3-year-old strike.” Id.
[9] Given the length of the lockout here, the uncertainties
surrounding who would request reinstatement, and the letter
of agreement that held the reinstatement period open for thirty
days, there was substantial evidence supporting the Board’s
conclusion that substantial and legitimate business justifica-
tions supported the employer’s conduct and thus the employer
did not violate the NLRA.
2. Denial of Overtime
The Union also challenges the Board’s conclusion that the
limitation on the returning employees’ overtime opportunities
during the four-week retraining period did not violate the
NLRA.
We first consider whether substantial evidence supported
the Board’s conclusion that the retraining period and overtime
policy was not inherently destructive of the employees’ rights.
We conclude that there was substantial evidence to support
the conclusion that the overtime policy had only a minimal
effect on the rights of the employees.
[10] The four-week period was temporary, and after the
period ended the returning workers were given the same over-
time opportunities as all employees. The restrictions on over-
time were the only limitations placed on the returning
employees. Thus the four-week retraining period was unlikely
11272 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 16 of 20 --

to have any “far reaching effects” or “creat[e] visible and con-
tinuing obstacles to the future exercise of employee rights”
because the limitations were minimal and of short duration.
See Portland Willamette, 534 F.2d at 1334.
Furthermore, it was reasonable for the Board to conclude
that it was unlikely, in light of the length of the lockout, that
the returning employees would perceive the retraining period
and the limitations on overtime as punishment for exercising
their labor rights. After fourteen years of being locked out of
Bud Antle, the employees could logically view the retraining
and overtime limitations as an ordinary part of their reinstate-
ment and not as an attempt to severely discourage or punish
union membership or striking. See id.
The Union also challenges the Board’s determination that
the company had a substantial and legitimate business justifi-
cation for curtailing the employees’ overtime during this
period. The Board concluded that the changes in operations
that occurred during the fourteen-year period justified the
retraining period for two reasons. First, the training period
was necessary to update the employees on the procedures
used in the coolers and to assess the returning employees’
abilities to perform the new tasks. Second, new employees are
generally not as adept as existing employees and because
overtime is paid at a premium, the company had a significant
business interest in determining that the returning employees
could perform that work quickly and efficiently. We uphold
the Board’s conclusions because they are supported by sub-
stantial evidence.
As discussed above, although much of the job was similar
in 2004 to what it was in 1989, significant changes had
occurred that required a new system of handling the vegeta-
bles. Many of these changes appear to be specific to the com-
pany, not necessarily to the industry generally. It was not
unreasonable, then, for the returning employees to be treated
like new employees and given a retraining period after four-
11273 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 17 of 20 --

teen years out of service with the company. Furthermore,
given the premium at which overtime is paid, the employer
would reasonably wish to ensure that the work was performed
as efficiently as possible. This interest could plausibly be pro-
tected by instituting limits on overtime while the employer
determined the ability levels of its returning employees.
[11] The Union makes two main arguments challenging the
Board majority. First, the Union argues that the company gen-
erally may not assume that a returning employee is unskilled
at performing his or her duties. Although a company may not
normally presume that a returning striker cannot perform the
job upon return, in this case such a presumption is entirely
logical. Cf. Lehigh Metal Fabricators, Inc., 267 N.L.R.B. 568
(1983) (refusing to allow a company to presume that a return-
ing employee could not perform relevant job duties after a
sixty-seven-day strike). It was not unreasonable for the Board
to conclude that after fourteen years the returning employees
would need retraining to bring them up to speed on the new
technology and organization.
The Union also argues that the fact that the returning
employees were permitted to perform some overtime during
their training establishes that the company’s business justifi-
cation was pretextual. The Board rejected the Union’s argu-
ment because the employer treated all new employees the
same, regardless of union affiliation. Additionally, the
employees were given full overtime rights as soon as they
showed their true abilities. Thus, the Board concluded that the
business justification was unlikely to be a pretext for a preju-
dicial motive. In light of our deferential standard of review,
we cannot say that the Board was wrong in its conclusion that
the company established a legitimate business justification.
We leave it to the Board to strike a balance between the
asserted business justifications and the invasion of employee
rights and in this case we will not disturb the Board’s deci-
sion. See Fleetwood Trailer Co., 389 U.S. at 378.
11274 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 18 of 20 --

B. The Challenge to the Board’s Remedy
The Union argues that the Board incorrectly limited back
pay to the seven employees who reported to work on February
23 for the reinstatement delay from January 23 to February
23. The Union argues that back pay should have been
awarded to all twenty-four employees who responded to the
offer of reinstatement.
The NLRA empowers the Board to “take such affirmative
action including reinstatement of employees with or without
back pay, as will effectuate the policies” of the Act. See 29
U.S.C. § 160(c). A back pay remedy “must be sufficiently tai-
lored to expunge only the actual, and not merely speculative,
consequences of the unfair labor practices.” Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 900 (1983). The Board may not impose
a back pay award in the absence of “record evidence as to the
circumstances of the individual employees” because such an
award would be purely conjectural. Id. at 901. The Board
enjoys broad discretion and the Union, as the party challeng-
ing the remedy, must show that the remedy is “clearly inade-
quate” in light of the Board’s findings. Teamsters Local
Union No. 639 v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir.
1991). The Union has failed to do so.
[12] The Act does not require the Board “to order that
which a complaining party may regard as complete relief for
every unfair labor practice.” Id. (internal quotation marks and
citations omitted). The Board here awarded back pay to those
who were demonstrably harmed by the labor violation, not
those that may have been harmed or may have chosen not to
accept the reinstatement position for any number of other rea-
sons. In light of the evidence the Board did not abuse its dis-
cretion in limiting the back pay award to only those seven
employees who reported for work on February 23.
III. Conclusion
The NLRB’s order must be viewed within the context of
the extraordinary circumstances of this case. The employer
11275 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 19 of 20 --

was faced with an extensive list of unknowns in dealing with
the reinstatement of employees following a fourteen-year
lockout. It did not know how many employees would return,
what their seniority levels would be, whether they had worked
in the same industry during the lockout period, whether they
would be familiar with their new procedures, and how long it
would take to train the returning employees. Given these
unknowns the employer’s decisions at issue here were reason-
able and the NLRB did not err in concluding that the employ-
er’s actions did not violate the NLRA. Additionally, the
Board did not abuse its discretion in limiting the back pay
award.
PETITION DENIED.
11276 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB

-- 20 of 20 --