Diamond Walnut Growers, Inc. v. National Labor Relations Board

Opinion for the court filed by Circuit Judge HENDERSON. Opinion dissenting in part and concurring in part filed by Circuit Judge WALD. KAREN LECRAFT HENDERSON, Circuit Judge: 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 [487] (Board) found that the employer had committed an unfair labor practice by discriminato-rily 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. I. Background A. 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. B. 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 then* 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. [488] 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, ie., 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 Kus-sair 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 C. 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) [489] 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 reversed. Diamond Walnut Chvivers, Inc., 316 N.L.R.B. 36, 1995 WL 25644 (1995). The Board found that Diamond had discriminated against Miller, Munoz and Kussair because, although the company “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.” Id. at 38. The Board further found that Diamond had failed to establish a substantial and legitimate business justification for its action. The Board ordered Diamond to make Miller, Munoz and Kussair whole for any losses suffered and to post a remedial notice. The Board also set aside the October 1993 election and ordered yet another rerun election, which has yet to take place. Diamond petitions for review and the Board cross-petitions for enforcement of its order. II. Legal Standards Workers have a statutory right to organize and strike, 29 U.S.C. §§ 157, 163, and an economic striker retains his status as an employee so long as he has not obtained any other equivalent work. Id § 152(3). An economic striker who tenders an unconditional offer to return to work has a right to reinstatement only if a vacancy exists in his former position or a substantially equivalent one; he does not have a right to reinstatement to any other job for which he may be qualified. See generally Rose Printing Co., 304 N.L.R.B. at 1076-78. Although an employer has no obligation to reinstate an economic striker to a vacant job that is not substantially equivalent to his former job, the striker nevertheless is entitled to nondiscriminatory treatment when he applies for any job for which he is qualified; an employer cannot prefer a new applicant to the striker solely because the latter went on strike and continues to support the union. Id. at 1078; see also Laidlaw Waste Sys., Inc., 313 N.L.R.B. 680, 681, 682, 1994 WL 57456 (1994). An employer’s discriminatory treatment of former strikers may have either a “comparatively slight” or “inherently destructive” effect on employee rights. Boilermakers Local 88, 858 F.2d at 761-62. The Board appears to concede that Diamond’s conduct had at most a comparatively slight adverse effect on protected activity.5 In a “comparatively slight” case the employer [490] must establish a legitimate and substantial business justification for its conduct in order to avoid an unfair labor practice charge. NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378, 88 S.Ct. 543, 545-46, 19 L.Ed.2d 614 (1967); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1797-98, 18 L.Ed.2d 1027 (1967). If the employer can do this, the General Counsel must then affirmatively establish that the employer’s conduct was motivated primarily by an anti-union animus. Fleetwood, 389 U.S. at 380, 88 S.Ct. at 546-47. Great Dane, 388 U.S. at 34, 87 S.Ct. at 1797-98. We do not disturb the Board’s factual findings if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e). III. Substantial and Legitimate Business Justification for Placement of Miller and Munoz In response to the General Counsel’s charge of unlawful discrimination, Diamond argued that it was justified in its placement of Miller and Munoz because of the unusual circumstances of their return and the risks their return raised. As discussed below, the record allows for only one reasonable conclusion: Diamond established substantial and legitimate business justifications for Miller’s and Munoz’s job assignments. A. We first emphasize what this case does not present. This is not a failure-to-reinstate case. Nor is it a case involving retribution for strike-related conduct; nor is it about the treatment of a former striker who either seeks reinstatement after the strike is over or withdraws his support of the strike and crosses the picket line in order to earn a living. Rather, the case involves an employer’s accommodation of striking union activists who, at the union’s direction and with the union lawyer’s guidance, sought to return to work temporarily — during the employer’s peak season, in the midst of an ongoing strike and shortly before a second representation election — in order to persuade replacement workers to support the union and to monitor the employer’s pre-election conduct. With the strike ongoing and the second election imminent, Diamond was greeted by, in the ALJ’s words, a “union delegation” made up of activists led, not by a local official, but by an official of the International Brotherhood of Teamsters. JA 22. They handed Diamond management a letter from the Union lawyer giving notice that the activists wanted to cross the picket line to campaign for the Union among replacement workers. Diamond was directed not to communicate directly with the Union emissaries (Diamond’s own employees); instead all communications were to go through the Union. The Union lawyer was omnipresent: he drafted the letter, approved Diamond’s release form, received reports after the activists returned to work and prepared the form letters of resignation they submitted after casting their votes. In short the returning strikers and the Union spoke with one voice. From the perspective of a reasonable employer in Diamond’s shoes the strikers sought temporary access to the work place, and work force, as Union envoys, albeit “employees” within the meaning of the Act. Cf. NLRB v. Town & Country Elec., Inc., — U.S. -, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (holding that worker can be “employee” within Act notwithstanding union’s simultaneous “employment” of worker to help organize company).6 [491] Further, the strikers did not cross the picket line to earn a paycheck. For one thing, from the beginning the strikers did not intend to remain past the election. Sttpra note 2. For another, the letter Diamond received from the Union delegation made clear the purpose of their return: so that replacement workers could “have an opportunity to hear from Union sympathizers.” Indeed, a local newspaper (The Stockton Record ) contemporaneously ran a story entitled, “Diamond strikers to lobby for union vote.” JA 672. The story opened with this description of the event: “With a crucial vote on union representation just over two weeks away, three striking Diamond Walnut workers will be going back to work ... to keep tabs on the company’s campaign tactics and urge replacement workers to vote to keep the union.” In that story a Teamsters strike coordinator, who equated the returning strikers to “Daniel going into the Lion’s den,” described the purpose of their return: “[W]e (the Teamsters] feel that we need people who can monitor the company’s conduct during the election and present the union’s side to the replacement workers.” Id. From Diamond’s perspective the return of the Union activists — immediately before a representation election which threatened the replacement workers’ continued employment — presented a high risk of unrest if not renewed confrontation. Strikers had previously physically assaulted replacement workers, verbally attacked and threatened them and vandalized their property, including their residences. See Diamond Walnut Growers, Inc., 312 N.L.R.B. 61, 64-66, 1993 WL 366124 (1993) (detailing incidents occurring earlier during strike and noting that restraining orders had issued against both strikers and replacements). In turn replacement workers had posted in the plant placards critical of the Union and its strikers. Vince Brown, Diamond’s Director of Human Resources and one of the officials who decided where to place the returning strikers, testified that, on learning of the return of the Union activists, the replacements were angry and made comments like, “[G]ee, what happened if they fell down in the rest room or in the locker room” and “Boy, I bet you won’t send them back to bulk storage.” JA 200. Replacement worker Sonja Bubeck testified that her fellow replacements resented the strikers, especially those who came to the plant to campaign for the Union. In fact, Bubeck urged replacement workers to remain calm.7 Diamond further feared that the returning strikers could engage in product tampering, sabotage or otherwise disrupt the company’s operation. Miller and Munoz had already participated in a well-publicized cross-country tour urging a national Diamond boycott, a campaign dramatically disparaging Diamond’s product. Strikers on the tour distributed leaflets charging that Diamond had hired unqualified replacement workers who allowed contaminated and inedible walnuts— with mold, dirt, oil, worms and debris — to be marketed.8 Besides its fear that Miller and [492] Munoz might try to make the charges ring true (e.g., by adulterating Diamond’s product), Diamond knew Miller’s and Munoz’s track record of attempting to damage Diamond economically. Consequently Diamond was concerned that once inside the plant the activists could wreak economic havoc by delaying production or otherwise disrupting its operation during peak season. To sum up, Diamond faced multiple risks in deciding whether to reinstate the strikers, employees who, as the Board concedes, had no statutory right to reinstatement in that neither their former positions nor substantially equivalent ones were available. And Diamond had a substantial and legitimate interest in minimizing the risks. To that end the company placed Miller and Munoz in supervised positions (a supervisor could defuse a violent incident) that did not allow them to roam about the plant but that nonetheless gave them access to replacement workers (they could approach replacement workers during breaks or in their own work areas). Although Miller was qualified to fill a vacancy in the quality control department, Diamond had a legitimate reason not to place her there: quality control involved inspecting nuts for defects, the final step in the production process before shipping. An unenthusiastic or inattentive worker there could allow defective or contaminated nuts to be marketed or, worse, deliberately adulterate the product. As for Munoz, although she was qualified to fill a vacancy as a lift truck driver, Diamond legitimately decided not to put her behind the wheel of the 11,000-pound vehicle. Not only did the lift truck driver move about the plant unsupervised, the truck itself, with an inattentive operator, could cause damage inside the plant. In addition, because the lift truck was an integral part of a production process that was constrained by tight shipping schedules, an inattentive operator could cause production delay. Viewing the totality of the circumstances of record, we conclude that Diamond established substantial and legitimate business justifications for its placement of Miller and Munoz. In so concluding, we note the Board’s reasoning in Sunland Constr. Co., Inc., 309 N.L.R.B. 1224, 1992 WL 390105 (1992): In our experience, when a company is struck it is not “business as usual.” The union and the employer are in an economic battle in which the union’s legitimate objective is to shut down the employer in order to force it to accede to the union’s demands. The employer’s equally legitimate goal is usually to resist by continuing production.... Thus, an employer faced with a strike can take steps aimed at protecting itself from economic injury.... Consistent with these principles, we believe that the employer can refuse to hire, during the dispute, an agent of the striking union. Id. at 1230-31.9 B. The Board painted a different, and incorrect, picture. First, it emphasized the lack of evidence that Miller, Munoz and Kussair personally had attacked or harassed replacement workers or that the replacements were more resentful of Miller, Munoz and Kussair than of other strikers. We do not agree that such evidence is required to create the risk that replacement workers could retaliate against or otherwise vent their anger on the most available Union activists. Especially in light of Brown’s and Bubeck’s testimony, as well as Bubeck’s letter, there is no substan [493] tial evidence to support the Board’s finding that replacements did not harbor hostility toward the returning strikers. Second, the Board points out that the strike-related violence, threats and vandalism occurred in the early stage of the strike and had long since ceased by the time the activists returned to work in September 1993. Even were we to agree with the Board that strike-related threats and vandalism had ceased long before September 1993, that circumstance in no way took away from Diamond’s concern, supported by the record, that replacement workers continued to harbor resentment. The hiatus of calm may have decreased the likelihood that strikers would engage in violence but the record does not support the Board’s conclusion that the replacement workers had short memories. In September 1993 the strike was still on and a second representation election was around the corner. Finally, the Board emphasized that Diamond did not supervise Munoz as she campaigned during breaks and did not establish that it supervised the other returning strikers during their breaks. “Therefore,” the Board concluded, “the potential for violence against the strikers by the replacements existed even in the jobs to which they were assigned.” Diamond Walnut, 316 N.L.R.B. at 38-39 n. 11. Granted, Diamond did not attempt to reduce the risk of violence to a zero probability. But does the Board really suggest that it would have found Diamond’s actions lawful if Diamond had imposed stricter conditions on the returning strikers? Had Diamond done so, it might well have risked an unfair labor practice charge for attempting to influence the outcome of the election. The Board’s all-or-nothing approach is of cold comfort to an employer attempting to balance its business interests and the statutory rights of its employees. The Board also discounted the risk of product tampering, sabotage or disruption, concluding that any earlier disparagement of Diamond or its product constituted protected activity under the Act. Id. at 39. Perhaps, and perhaps the disparagement would not have warranted a refusal to reinstate either Munoz or Miller. The issue before the Board, and us, however, is this: in light of their previous efforts to weaken Diamond economically and their continued obeisance to the Union’s similar objective, was there a reasonable risk that once inside the plant they might again do something to damage Diamond? If so, could Diamond weigh that risk, together with a risk of violence or other disruption, in determining temporary job assignments within days of the election? We conclude that the clear answer is “yes.” C. Because we conclude that Diamond proffered substantial and legitimate business justifications for its assignments of Miller and Munoz, the Board must establish affirmatively with independent evidence (ie., other than the discriminatory conduct) that Diamond’s job-placement decisions were primarily motivated by an anti-union animus. See generally NLRB v. Brown, 380 U.S. 278, 286-90, 85 S.Ct. 980, 985-88, 13 L.Ed.2d 839 (1965); American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 312-13, 85 S.Ct. 955, 964, 13 L.Ed.2d 855 (1965). We see no reason to remand on this issue for, in our view, the record does not allow a finding that Diamond primarily intended “to discourage union membership or otherwise discriminate against union members as such.” Id. at 312, 85 S.Ct. at 964. Diamond’s decisions were made to protect its business interests; indeed, “the record contains positive evidence of the employer[’s] good faith.” Brown, 380 U.S. at 290, 85 S.Ct. at 987. Diamond quickly reinstated the Union activists, who had no statutory right to reinstatement at the time,10 gave them the opportunity to campaign for the Union in the work place [494] and among replacements and allowed them to monitor activities inside the plant. Diamond even allowed Union officials to tour the plant and post literature as often as twice a day (up to two hours per tour), JA 233-34, while under no legal obligation to do so. See Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992). IV. Discriminatory Placement of Kussair Regarding Kussair, who, it appears, did not participate in the boycott campaign or the efforts to disparage Diamond’s product, the Board found that Diamond discriminated against him by placing him in the growers’ inspection department instead of offering him a seasonal loader job. We cannot agree, however, that substantial evidence supports the Board’s finding that in Kussair’s case the General Counsel established “discrimination and a resulting discouragement of union membership” necessary to trigger a section 8(a)(3) violation. Great Dane, 388 U.S. at 32, 87 S.Ct. at 1796; American Ship Bldg., 380 U.S. at 311, 85 S.Ct. at 963-64; Brown, 380 U.S. at 286, 85 S.Ct. at 985. Although Diamond was not aware that Kussair wanted a loader job, it took into account his status as a striker in making Ms job assignment and therefore discriminated within the meaning of the Act. But in light of the facts that Kussair did not initially ask for a loader job and was offered the job when he asked for it, the discrimination was trivial and could not have had even a “comparatively slight” “tendency to discourage union membership,” Brown, 380 U.S. at 287, 85 S.Ct. at 986. See Boilermakers Local 88, 858 F.2d at 761-62 (“It is clear that the Supreme Court intended the phrases ‘inherently destructive’ and ‘comparatively slight’ to encompass the universe of employer actions that have any non-trivial, adverse effect on employee rights.”) (emphasis added). Diamond decided not to assign any crossover employee to a loader position, fearing that it might give rise to an unfair labor practice charge: the position is a particularly arduous one (requiring, for example, the stacking and unstaeking of 30-pound boxes and 55-pound bags throughout the work day) and one its employees often complained about. JA 114, 28. The ALJ found that the loader position “by any objective scale is more onerous and less desirable” than the position to which Kussair was assigned, JA 28, and the Board added that the job is “shunned by most employees,” Diamond Walnut, 316 N.L.R.B. at 39. Nevertheless the Board concluded that Diamond should have offered Kussair that position because it paid more than the one he was assigned. Kussair did not initially ask for a loader job on returning to work in September 1993. Within one week of returning, however, he did ask his supervisor, Lexie Whiteman, for a loader job within his department; when Whiteman told him that there were no vacant loader jobs in the department and asked if he wanted to transfer to a different department with a loader vacancy, Kussair declined. JA 24, 169. About a week later Kussair asked Wendy Heinze if he could transfer to a loader job. Heinze told Kussair that the company would accommodate him but Kussair quit before the transfer could take place. Diamond Walnut, 316 N.L.R.B. at 37. On these facts we conclude that the Board’s finding that Diamond’s treatment of Kussair constituted discrimination that discouraged Union membership is not supported by substantial evidence.11 For the foregoing reasons we grant Diamond’s petition for review and deny the Board’s cross-petition for enforcement of its order. So ordered. Footnotes [1] Before striking, Miller was a quality control supervisor, Munoz drove a lift truck and Kussair operated an air separator machine. All three jobs were permanent but were not available in September 1993. Although a seasonal lift truck driver job was available when Munoz returned, the seasonal job was not substantially equivalent to the permanent one. Diamond Walnut Growers, Inc., 316 N.L.R.B. 36, 37, 1995 WL 25644 (1995). [2] At the hearing below, Kussair was asked, "And did you know when you went to work inside the plant that you would only work up until the vote and then you’d go back on strike.” He answered in the affirmative. Diamond Walnut Growers, Inc., Transcript of March 1994 Hearing Before. Administrative Law Judge, at 241. Munoz likewise was asked, "And was it your understanding you were only going to go in for a limited time period and then quit when the vote happened?” She answered in the affirmative. Id. at 218. Apparently Miller was not asked the question but the Board does not contend that she had any intention of remaining past the election. [3] Each resignation letter stated: "This is to inform you that I have decided to resume the strike against Diamond effective immediately. Working here over the past couple of weeks has convinced me that conditions have significantly deteriorated and I must continue the Union’s efforts to bring decency and respect to the long-term workers of Diamond. Henceforth I will not be crossing the picket lines.” JA712. [4] Section 8(a)(3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment ... to ... discourage membership in any labor organization" 29 U.S.C. § 158(a)(3). Section 8(a)(1) makes it an unlawful labor practice "to interfere with, restrain or coerce employees in the exercise” of their statutory rights. 29 U.S.C. § 158(a)(1). A violation of section 8(a)(3) automatically constitutes a violation of section 8(a)(1). International Bhd. of Boilermakers, Local 88 v. NLRB, 858 F.2d 756, 761 (D.C.Cir.1988). [5] The Board argues: The Company erroneously asserts that the Board found its placement of Miller, Munoz and Kussair to be conduct "inherently destructive” of statutory rights.... The Board, however, never determined the Company’s conduct to be "inherently destructive”.... As shown above, the Board’s theory here is simply that the Company discriminated against the former strikers in considering them for vacancies and failed to provide any legitimate and substantial business justification. Brief for Board at 26 (citations omitted). There is no indication of record that the replacement workers knew the jobs Miller, Munoz and Kus-sair held before they struck and therefore the replacements had no reason to believe the returning strikers were being treated discriminato-rily based on their pro-Union actions. [6] Judge Wald reads far too much into Town & Country. See Opinion dissenting in part and concurring in part at 7-9. There the Supreme Court simply confirmed what this Court had previously held in Willmar Elec. Serv., Inc. v. NLRB, 968 F.2d 1327, 1330-31 (D.C.Cir.1992), cert. denied, 507 U.S. 909, 113 S.Ct. 1252, 122 L.Ed.2d 651 (1993): A paid union organizer can be an "employee” protected by the Act. No one disputes that Miller and Munoz were “employees” protected by the Act. The issue here is, given their status as "employees” protected by the Act’s anti-discrimination provision, did Diamond have a legitimate and substantial justification for the job assignments it gave them? In Town & Country, moreover, the employer raised the risk of sabotage not to assert a Fleetwood defense but to argue that "Congress could not have meant paid union organizers to have been included as 'employees’ under the Act.” — U.S. at -, 116 S.Ct. at 456. Indeed, the Supreme Court declined to "express any view about ... whether or not [the employer’s] conduct (in refusing to interview, or to retain, 'employees’ who were on [491] the union's payroll) amounted to an unfair labor practice.’’ Id. at -, 116 S.Ct. at 457 ("We hold only that the Board's construction of the word ’employee’ is lawful....”). [7] In a letter to "fellow co-workers” regarding the return of the Union activists, Bubeck stated in part: They [strikers] have threatened us — Intimidated us — Called us every name in the book — And even destroyed our property ... But ... Let's not stoop to their level of immaturity. They may still say things that piss you off; but PLEASE for the sake of all of our futures here at Diamond Walnut let’s keep cool and levelheaded in our everyday dealings with these people. JA 278 (emphasis in original). [8] In addition, Diamond's customers and, it appears, the United States Department of Health and Human Services received a letter including the following (false) message: Many of the workers that have actually replaced us, the striker’s [sic] of Diamond Walnut, are people whom [sic] have police records as being drug addicts, drug dealers, alcoholics and even prostitutes. Through blood testing of workers who have broken the picket line, many of them having bad records, it would be found that there is a significant amount of positive results like the detection of the AIDS virus, Sifillis [sic], Gonorrea [sic], Hepatitis and other contagious diseases with high risk of contamination to the public. JA 374-75 (emphasis added). Notwithstanding the highlighted language as well as the signature line which read "The Original and United Workers of Diamond Walnut,” the Union disavowed responsibility for the letter and the ALJ gave it no weight. [9] In Sunland the Board emphasized that the agent was paid by the union. 309 N.L.R.B. at 1231 n. 41. If the returning worker is not on the union's payroll, the Board noted, “it cannot necessarily be presumed that [he] will be seeking to further the union’s object of depriving the employer of employee services during the strike.... [Ejmployers [do not] have carte blanche to refuse to permit prounion employees to return to work during a strike....” Id. Diamond, however, did not refuse to permit Munoz and Miller to return to work, did not seek to use carte blanche authority and did not merely presume that Miller and Munoz qua Union backers would seek to further Union objectives. Assuming without concluding that there is a decisive difference between the paid agent in Sunland and Miller and Munoz, we note that Sunland upheld the employer’s failure to hire. But Diamond did not fail to reinstate; instead it merely assigned the returning strikers to nonsensitive positions during their temporary stint inside the plant. [10] We do not suggest that on the facts of this case Diamond could have lawfully refused to consider Miller and Munoz for vacancies for which they were qualified simply because neither their former jobs nor substantially equivalent ones were available. As noted, although an economic striker's right to reinstatement extends only to an equivalent or substantially equivalent job, the striker is nonetheless entitled to nondiscriminatory treatment when he applies for any job for which he is qualified. Rose Printing and Laidlaw, supra; cf. Diamond Walnut, 316 N.L.R.B. at 38. [11] The Board found that Diamond also discriminated against Kussair by reprimanding him: after receiving three warnings for not meeting job performance requirements, Kussair inappropriately addressed his supervisor and was reprimanded. In effect the Board concluded that Kussair would not have been reprimanded but for his unlawful assignment to the growers’ inspection department. Because we reverse the Board's finding of discriminatory placement, we also reverse its discriminatory reprimand finding.