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,

Petitioner, NLRB No.  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
COUNSEL

David A. Rosenfeld (argued), Caren P. Spencer, Weinberg,

Roger & Rosenfeld, Alameda, California, for the petitioner. 

Joan Hoyte (argued), David Habenstreit, Stacy Garrick Zimmerman, National Labor Relations Board, Washington, D.C.,

for the respondent. 

11258 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB
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 Relations 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 opportunities available to other employees during a four-week retraining period. Given the unique circumstances of this case,

notably the unusually long duration of the lockout, we conclude 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 vegetables out of three refrigerated warehouses in California and

Arizona. In June 1989, Bud Antle and the Union began negotiating 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. 

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11259
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 election 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, positions would be filled based on seniority, and seniority would

be honored equally for locked out and replacement employees. “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 reinstatement to notify the company by Thursday, January 22, 2004.

The locked out employees were told that “the date of reinstatement 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’ prelockout 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 representation 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
Between December 22, 2003 and January 22, 2004, Bud

Antle received twenty-four responses from locked out workers 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 overtime work to be accomplished as quickly as possible and generally 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 administrative law judge (“ALJ”), Burton Litvak, conducted a hearing to determine whether or not Bud Antle had violated

Sections 8(a)(3) and (1) of the NLRA. After hearing testimony, 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

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11261
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 unanimously 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 actually 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 January 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 reemployment. 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 substantial 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 February 23. The ALJ had ordered that all twenty-four employees

11262 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB
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 reinstated, 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 disagreement with the ALJ, that the limitation was not “inherently 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 commodities 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

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11263
to maximize the efficiency of returning employees in completing 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 perform the types of jobs they had performed fourteen years earlier.

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 presumptive 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 violated 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 evidence. 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
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 determining whether or not a company has violated the NLRA, the relevant inquiry is whether or not the employer’s action likely

discouraged union membership and was motivated by antiunion 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 discriminatory. Some employer conduct is so “inherently discriminatory 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 regardless 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 discriminatory conduct on employee rights is ‘comparatively slight,’ ”

and the employer establishes a legitimate and substantial business 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

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11265
(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 reinstatement 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 “inherently destructive” of the employee’s statutory rights because

only the unionized locked out employees, and not the replacement 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 unlawful 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 Portland 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 bargaining” 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 discriminatory. Am. Ship Building, 380 U.S. at 312; see also Erie Resistor, 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
[5] The Supreme Court’s application of this standard is

illustrative of employer conduct that necessarily implies discrimination and anti-union animus. In Erie Resistor, the Court

concluded that an employer granting twenty years of superseniority 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 differently 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 benefits 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 “inherently 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) (concluding 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 “inherently destructive” of employee rights because the employees 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 antiunion animus beyond that expressed by the lockout itself.

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11267
Indeed, since the workers had just voted against union representation by a substantial margin, it is not clear that the company 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 motivation any more than the lockout itself,” and thus was not

inherently destructive of employee’s rights such that antiunion animus can be inferred, is supported by substantial evidence. 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 lockout 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 deference to the Board’s expertise in determining whether

employer conduct is reasonable and supported by legitimate

and substantial business justifications. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967) (citing Great

Dane Trailers, 388 U.S. at 33-34) (“It is the primary responsi4The 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
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 policy.’ ”). 

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 evidence. 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 agreement 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 lockout, the facility was operating with 90 replacement employees. 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 deadline, 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.

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11269
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 Management 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-fiveday strike. The NFL Clubs responded by refusing to allow

players that were ineligible to play on Wednesday from playing 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 reinstatement from October 15 (when the unconditional offer to

return to work was tendered) to October 25 or 26 was reasonable 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 suffi11270 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB
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 eligibility rule. See id. at 82-83. 

The Union’s citation to National Football League and similar decisions fails to deal with the unique circumstances of

this lockout, notably its extraordinary duration. A strike lasting twenty-five days is not the same as a lockout lasting fourteen 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 company. 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 decision 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 Wednesday eligibility rule in a past strike that was twice as long, that

made the Board question the credibility of the asserted business justifications. Id. at 82. Such concerns are not presented

here: the company has not asserted contradictory business justifications. 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

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11271
arise at the conclusion of a lengthy strike. At the close of a

three-year strike, state law required that the returning employees be subjected to medical examinations in order to be eligible 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 determine which employees would be returning to work, and conducted 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 justifications 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 overtime opportunities as all employees. The restrictions on overtime 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
to have any “far reaching effects” or “creat[e] visible and continuing 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 reinstatement 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 justification 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 substantial 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 vegetables. Many of these changes appear to be specific to the company, 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 fourFRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11273
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 protected 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 generally 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 returning 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 justification was pretextual. The Board rejected the Union’s argument 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 prejudicial 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 decision. See Fleetwood Trailer Co., 389 U.S. at 378. 

11274 FRESH FRUIT AND VEGETABLE WORKERS v. NLRB
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 tailored 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 challenging the remedy, must show that the remedy is “clearly inadequate” 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 reasons. In light of the evidence the Board did not abuse its discretion 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

FRESH FRUIT AND VEGETABLE WORKERS v. NLRB 11275
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 reasonable and the NLRB did not err in concluding that the employer’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