Circuit Judge Silberman I Diamond Walnut processes and packages walnuts for national and international distribution. . . . 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. . . . 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. 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. . . . The rerun election took place as scheduled, and the union lost. Following that election, the General Counsel filed a complaint alleging that Diamond had violated the National Labor Relations Act 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.” II Diamond Walnut challenges the Board’s determination that it lacked substantial business justification for refusing to place the three employees in the specific jobs they sought—quality control assistant, lift truck operator, and loader. It is undisputed that the Fleetwood framework governs this case. The General Counsel under Fleetwood must make out a prima facie case that the employer discriminated within the meaning of the Act, which means the employer’s decision as to how to treat the three returning strikers was attributable to their protected activity. Rose Printing establishes that a struck employer faced with an unconditional offer to return to work is obliged to treat the returning employee like any other applicant for work (unless the employee’s former job or its substantial equivalent is available, in which case the employee is preferred to any other applicant). But Miller and Munoz were not treated like any other applicant for work. Miller was qualified for a seasonal position in quality control that paid 32 cents per hour more than the packing job to which she was assigned. And Munoz was qualified to fill a forklift operating job, a position that paid between $2.75 and $5.00 per hour more than the walnut cracking and inspecting job she received. Diamond admits that it took into account Miller’s and Munoz’s protected activity in choosing to place them in jobs that were objectively less desirable than those for which they were qualified. Petitioner [Diamond], although it contended that the discrimination was comparatively slight, does not dispute that its action discriminated against Munoz and Miller within the meaning of the Act. AFTERWORD After nearly 14 years of bitter struggle, the Diamond Walnut strike was settled in March 2005. The settlement allowed strikers to return to work with full seniority and benefits, although many of them had already returned to Diamond Walnut or had moved to other jobs. [For a time line of the Diamond Walnut strike, see www.teamster.org/divisions/foodprocessing/diamondwalnut/dwtimeline.htm ] Questions 1. Set out the two-part test the court employed to determine whether Diamond Walnut violated the National Labor Relations Act by discriminating against its employees because of their participation in protected union activities. 2. Explain why the court found that Munoz had been wronged by Diamond but Miller had not. 3. a. How would you vote on federal legislation banning the practice of permanently replacing economic strikers? Explain. b. Is there any reason to distinguish between economic strikers and unfair labor practice strikers? Any reason not to do so? Explain. 4. A pilots’ union, Airline Professionals Association, had a collective-bargaining agreement (CBA) with freight carrier Airborne Express (ABX). The union and ABX had a dispute about time-off provisions in the CBA. The union applied pressure to ABX by asking all pilots not to bid on open flying time not covered in the regular monthly schedule. ABX says it lost jobs due to the lack of pilots and filed a complaint saying the union was engaging in an illegal strike. A district court agreed with ABX, and the union appealed. Decide the case. Explain. See ABX Air, Inc. v. Airline Professionals Assn., 266 F.3d 392 (2001); cert. den. 122 S.Ct . 1459 (2002).
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