Before: Edwards, Chief Judge, Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel, and Garland, *fn1 Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued En Banc January 29, 1997
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
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.
Opinion concurring in part and dissenting in part filed by Circuit Judge Henderson, with whom Circuit Judge Sentelle and Circuit Judge Randolph join.
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). 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 that Diamond had violated sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Section(s) 158(a)(3), (a)(1) (1994), *fn2 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), 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 burdenshifting framework spelled out by the Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), and NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (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 full court then vacated the panel's judgment and ordered that the case be reheard en banc.
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). See 304 N.L.R.B. at 1078. But Miller and Munoz were not treated like any other applicant for work. *fn3 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, 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. See Great Dane, 388 U.S. at 32; Laidlaw Waste Systems, 313 N.L.R.B. 680 (1994).
Judge Henderson, nevertheless, devotes much of her opinion, Op. at 1-8, to a proposition not argued by petitioner before the Board or this court: that even if Diamond Walnut's placement of Miller and Munoz was discrimination, it was not a violation of Section(s) 8(a)(3) because it was not discrimination that "discourag[ed] membership in any labor organization." *fn4 It was just too insignificant to influence other employees, therefore the General Counsel never even made out a prima facie case. As we discuss infra, however, it is well-established that a party may not raise before us an argument not presented to the Board, see Sheet Metal Workers, Local No. 91 v. NLRB, 905 F.2d 417, 422 n.10 (D.C. Cir. 1990), and equally well-established that we do not consider arguments not presented to us. See Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990). Judge Henderson explains her diversion from petitioner's case by relying on petitioner's broad statement of the issue presented (before the panel): "whether the NLRB properly found that Diamond ... violated Section(s) 8(a)(3) and Section(s) 8(a)(1) of the Act." Judge Henderson's Op. at 1-2, n.1 (emphasis added). Under that reasoning-which we do not accept-we would be equally free to consider any legal issue implicit in that finding, such as whether the statute of limitations on the General Counsel's complaint had expired or, for that matter, whether the General Counsel was an imposter.
Under Fleetwood, after discrimination is shown, the burden shifts to the employer to establish that its treatment of the employees has a legitimate and substantial business justification. See 389 U.S. at 378. Petitioner declined to give Munoz the forklift driver job because of its concern that driving that piece of equipment throughout the plant would be unduly risky in two respects. First, because of the bad feeling between strikers and replacements, Munoz would be endangered if confronted by hostile replacement workers in an isolated area. Second, since Munoz had participated in the bus tour during which the union had accused the company of producing tainted walnuts, Munoz would be tempted to engage in sabotage by using the 11,000 pound vehicle to cause unspecified damage. As for Miller, who was also on the bus tour, the company declined to put her in the "sensitive position of quality control assistant" where "the final visual inspection of walnuts is made prior to leaving the plant." In that position, she would have "an easy opportunity to let defective nuts go by undetected ... or to place a foreign object into the final product, thereby legitimizing the Union's claim of tainted walnuts." *fn5
The Board rejected as insubstantial the employer's reasons for assigning both employees. We discuss the two situations separately below, but before doing so we deal with a generic argument petitioner raises. It is claimed that the Board's entire approach in this case is inconsistent with its recent opinion in Sunland Construction Co., Inc., 309 N.L.R.B. 1224 (1992). In Sunland, the Board considered the claim to reinstatement of a striking employee who was a paid union organizer. The Board concluded that the employer had a legitimate and substantial justification to deny reinstatement because of concerns over the union "agent's" possible conflict of interest. See id. at 1231. Here, the ALJ assumed, and the Board accepted, that the three returning strikers were "agents" (though not paid) of the union. Diamond argues that the Sunland right to deny reinstatement to paid union agents necessarily includes the lesser right to place restrictions on the jobs for which such agents will be considered, and it further contends that the fact that the employees in this case were not paid should make no difference. Insofar as Diamond argues that Sunland is inconsistent with the order under review, or at least should have been reconciled, it is an argument that should have been made to the Board. The ALJ determined that Diamond had not shown legitimate and substantial justifications for its treatment of the returning strikers, and, although he cited Sunland, he did so for the proposition that "the Board has continued to adhere to its view that there is no conflict of interest if an employee of the union seeks employment with a company to organize employees." (Emphasis added.) Although Diamond prevailed on an alternate theory before the ALJ, it naturally filed exceptions to this determination (called a finding). The posture of the case was such that if Diamond thought that under Sunland the existence of an agency relationship, whether paid or not, justified its treatment of the returning strikers, it should have argued as much in its appeal from the ALJ's decision. It did not. Our review of Diamond's brief in support of its exceptions to the ALJ's decision, as well as its opposition to the General Counsel's and union's exceptions, reveals that the company never cited Sunland to the Board, nor did it claim that the principles of Sunland should govern the case. We cannot fault the Board for failing to distinguish arguably applicable precedent when the petitioner never raised it or the proposition it stands for. See 29 U.S.C. Section(s) 160(e); Sheet Metal Workers, 905 F.3d at 422 n.10.
The Board rejected petitioner's proffered justifications for its placement of Munoz on the same grounds as did the ALJ. As to Diamond's purported fear for her safety, no evidence had been produced that Munoz was thought to be responsible for any violence, so there was no reason to believe she would have been a special target. The Board said, "[T]here is no specific evidence that any replacements harbored hostility toward these three strikers, and, if such evidence did exist as [Diamond] claims, we fail to see how placing them in the positions to which they were assigned would lessen the perceived danger of retaliatory acts being committed against them." The Board discounted Diamond Walnut's contention that Munoz would be under greater protection if closely supervised, noting that petitioner had admitted that "Munoz freely roamed the plant unsupervised during her breaks." The Board did not dismiss out of hand, however, the proposition that concern for a returning striker's safety could ever amount to a substantial business justification for a "discriminating" placement; it was careful to state "we find that [Diamond] was not justified in restricting the strikers' job placements out of fear that the replacement employees would retaliate against these three strikers." By so reasoning, the Board implicitly rejected the view urged by Judge Wald *fn6-which is inconsistent with Fleetwood-that an employer is never (or at least "hardly ever," see Op. at 3-4, n.2) entitled to treat returning strikers "discriminatorily" (even with a substantial business justification) based on protected activity. See also NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938). The Board's reasoning also necessarily suggests that it does not consider the substantial justification test as coextensive with the test for employee misconduct because whether the returning strikers were threatened with violence does not turn on their culpability.
As for the possibility that Munoz would engage in forklift sabotage, the Board was more terse, stating only that "the strikers' conduct [referring to the bus tour] constituted protected ... activity," and there was no evidence indicating that such protection was lost because of threats made by Miller and Munoz. If Munoz had uttered specific threats of sabotage, however, she would have lost her protected status and we would not be dealing with a Fleetwood situation at all; the General Counsel would not even have established a prima facie case. See, e.g., NLRB v. W.C. McQuaide, Inc., 552 F.2d 519, 528 (3d Cir. 1977). It is true, as Judge Wald emphasizes, Op. at 4, that the Board has always insisted on specific evidence of striker misconduct before concluding that a striker has lost the protection of the Act. See, e.g., Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 790 (10th Cir. 1995). But that doctrine is not relevant to this case; petitioner, as we have noted, is not claiming that Munoz and Miller were guilty of misconduct. And the Board has not overlapped these two distinct concepts in the manner in which Judge Wald advocates-her newly designated specific evidence "rule." Compare, e.g., Medite of New Mexico, 314 N.L.R.B. 1145 (1995) (examining whether an employee lost protection of the Act due to specific evidence of strike misconduct), enf'd, 72 F.3d 780 (10th Cir. 1995); Calliope Designs Inc., 292 N.L.R.B. 510 (1989) (same), with, e.g., Sunland, supra. *fn7 After all, the Fleetwood substantial justification test assumes that the ...