Bud Antle, Inc.

National Labor Relations Board - Board Decisions

May 30, 2006

347 N.L.R.B. 87 (N.L.R.B. 2006)

BUD ANTLE, INC.
347 NLRB No. 9
87
Bud Antle, Inc. and Fresh Fruit and Vegetable Work-
ers Local 1096, United Food & Commercial
Workers International Union.1 Cases 32–CA–
21181 and 32–CA–21596
May 30, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 17, 2005, Administrative Law Judge Bur-
ton Litvack issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The Respon-
dent filed a reply brief. The Charging Party filed excep-
tions, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions in
part and reverse them in part and to adopt the recom-
mended Order as modified and set forth in full below.
This case arises from the end of a 14-year-long lock-
out, pursuant to an agreement among the Respondent, the
Charging Party Union, and a second union. Each union
sought, ultimately unsuccessfully, to represent the Re-
spondent’s employees. The judge found that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
delaying reinstatement, without a legitimate and substan-
tial business justification, from December 19, 2003,
through February 23, 2004, of 24 formerly locked-out
employees who had timely accepted its offer of rein-
statement. The judge also found that the Respondent
violated Section 8(a)(3) and (1) of the Act by treating the
returning formerly locked-out employees as new em-
ployees during their first 4 weeks back on the job for the
purpose of assignment of overtime.
Contrary to the judge, we find that the Respondent
possessed a legitimate and substantial business justifica-
tion for its delay of reinstatement for the period of De-
cember 19, 2003, through January 22, 2004. However,
we agree with the judge that the Respondent did not pos-
sess a legitimate and substantial business justification for
its delay of reinstatement for the period of January 23
through February 23, 2004, and therefore violated Sec-
tion 8(a)(3) and (1) of the Act. We also find, contrary to
the judge, that the Respondent did not violate Section
8(a)(3) and (1) of the Act by treating the returning for-
merly locked-out employees as new employees for the

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
purpose of the assignment of full overtime during their
first 4 weeks back on the job, because the Respondent
possessed a legitimate and substantial business justifica-
tion for this treatment.
I. FACTUAL BACKGROUND
The Respondent, a California corporation, processes
and distributes lettuce and other salad products and vege-
tables. It operates three refrigerated warehouses, called
“coolers,” in Marina and Huron, California, and in
Yuma, Arizona. The Respondent and the Charging Party
Union have had a collective-bargaining relationship since
1976, with the Union representing a unit of the Respon-
dent’s cooler, dock, warehouse, cold room, and loading
employees working at its coolers.
In June 1989, the parties began negotiating for a suc-
cessor agreement; however, with negotiations unsuccess-
ful, the bargaining unit employees commenced an eco-
nomic strike in August. The Respondent immediately
hired temporary replacements, and, in November 1989, it
locked out its employees. That month, the Union, on
behalf of the striking employees, made an unconditional
offer to return to work. In response, the Respondent ad-
vised the Union that the lockout would continue until a
successor contract was signed. The lockout continued
for 14 years.2
In mid-2003, Teamsters Local 890 began an organiz-
ing campaign among the Respondent’s replacement em-
ployees. On August 6, 2003, the Teamsters filed a peti-
tion in Case 32–RC–5174 to represent these employees.
A representation hearing was held in the matter on Au-
gust 19, 2003. On that same date, the Respondent, the
Union, and the Teamsters entered into a Stipulated Elec-
tion Agreement and an accompanying “Letter of Agree-
ment.” The voting unit agreed upon consisted of all
“current and locked-out” employees.3 The “Letter of
Agreement” provided that:
1) Following certification of the results of the
election
. . . the Company will offer reinstatement to those
employees who were locked out as of 1989 . . . .
2) The offers of reinstatement, which will be
open for 30 days, shall include the opportunity to re-
turn to work at the current terms and conditions of
employment and retention of seniority (defined as
actual years of service as of the date of the lockout).
Such seniority will be honored for all purposes, as

2 The legality of the lockout is not at issue in this proceeding.
3 Absent the parties’ agreement, the Respondent’s temporary re-
placements would not have been eligible to vote in the representation
election. Harter Equipment (Harter II), 293 NLRB 647 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD88
will the seniority accumulated by the replacement
workers since the commencement of the lockout.
Pursuant to the parties’ election agreement, a mail-
ballot election among the locked-out and replacement
employees was held in September, November, and De-
cember 2003. On December 3, 2003, a tally of ballots
was issued which showed that neither Union received a
majority of the 253 ballots cast during the election.4 On
December 15, 2003, the Regional Director for Region 32
issued a certification of results of the election.
On or about December 19, 2003, the Respondent sent
identical letters offering reinstatement to the 133 for-
merly locked-out employees. Those letters read in their
entirety:
We are pleased to inform you that the Company
is formally ending the lockout of its cooler employ-
ees. This decision follows the NLRB’s certification
of election results issued on December 15, 2003.
In accordance with this decision, we hereby offer
you reinstatement to your former position of em-
ployment with Bud Antle. If you are reinstated, you
will return to work under the Company’s current
terms and conditions of employment. In addition,
your pre-lockout seniority will be used for all pur-
poses.
If you are interested in reinstatement, you must
notify the Company by returning the enclosed form
with the requested information by January 22, 2004.
Please bear in mind that the date of reinstatement
and the job to which you will be reinstated will de-
pend on (1) the number of locked-out employees
seeking reinstatement, (2) your seniority relative to
other employees, including both locked-out and re-
placement employees, and (3) your being qualified
to perform the job to which you are recalled.5
Between December 19, 2003, and January 22, 2004,
the Respondent received hand-delivered and mailed let-
ters from 24 formerly locked-out employees requesting
reinstatement. The earliest request was received on De-

4 The tally of ballots showed that 80 votes were cast in favor of the
Teamsters, 7 votes were cast in favor of the Union, and 146 ballots
were cast against representation by either labor organization. Twenty
ballots were challenged, a number insufficient to affect the results of
the election.
5 The Charging Party excepts to the judge’s failure to find that the
reinstatement offer was invalid, because it was not immediate, and to
provide a remedy for the allegedly deficient offer of reinstatement.
However, we do not pass on these allegations because they were not
included in the complaint and therefore were not properly before the
judge. “It is well established that the General Counsel’s theory of the
case is controlling, and that a charging party cannot enlarge upon or
change that theory.” Raley’s, 337 NLRB 719 (2002).
cember 22, 2003, and the latest ones were received on
January 22, 2004.
On January 28, 2004, the Respondent sent identical
letters to each of the 24 formerly locked-out employees
from whom it received reinstatement requests. Those
letters confirmed receipt of their acceptance of the Re-
spondent’s offer and informed the employees that the
Respondent had established February 23, 2004, as the
return-to-work date for all formerly locked-out employ-
ees. The letters went on to inform the employees that
they would be required to spend their first 4 weeks at the
Respondent’s Yuma cooler undergoing mandatory train-
ing and orientation and that they would be entitled to
travel pay to Yuma and weekly per diem while there. Of
the 24 employees who accepted the Respondent’s rein-
statement offer, only 7 reported to work at Yuma on Feb-
ruary 23, 2004.6 The Respondent treated those seven
returning employees as new employees for purposes of
training and orientation and restricted the amount of
overtime work they performed during their 4-week train-
ing period.
II. THE JUDGE’S DECISION
The judge found that the Respondent’s 2-month delay
in reinstating the 24 formerly locked-out employees who
accepted its offer of reinstatement was not “inherently
destructive” of employee statutory rights under NLRB v.
Great Dane Trailers, 388 U.S. 26, 33 (1967). He, thus,
concluded that, at most, the Respondent’s conduct had a
“comparatively slight” impact on employee rights. Nev-
ertheless, the judge concluded that the Respondent vio-
lated Section 8(a)(3) and (1) because it did not have a
legitimate and substantial business justification for its
delay. He recommended that the Respondent be ordered
to make whole the 24 formerly locked-out employees
who accepted its offer of reinstatement, from the date of
their individual acceptances of the Respondent’s offer
until February 23, 2004.
The judge also found that the Respondent’s treatment
of the seven returning formerly locked-out employees as
new employees for the purpose of assignment of over-
time during their first 4 weeks back on the job was “in-
herently destructive” of employee statutory rights. The
judge found that the Respondent violated Section 8(a)(3)
and (1) because it did not have a legitimate and substan-
tial business justification for its denial of overtime. He
recommended that the Respondent be ordered to make

6 Charles Collenback also appeared at Yuma on February 23, 2004,
but advised the Respondent that he had not been working because of a
workers’ compensation claim. Collenback participated in the first
day’s orientation but did not report for work thereafter.
BUD ANTLE, INC. 89
those employees whole for their lost overtime opportuni-
ties.
III. DELAY IN REINSTATEMENT
It is well settled that locked-out employees cannot be
permanently replaced. Employers may use only tempo-
rary replacements in order to engage in business opera-
tions during an otherwise lawful lockout. Harter Equip-
ment (Harter I), 280 NLRB 597 (1986), affd. sub nom.
Operating Engineers Local 825 v. NLRB, 829 F.2d 458
(3d Cir. 1987). As a result, once a lockout ends, tempo-
rarily replaced locked-out employees are entitled to rein-
statement. Id. Therefore, under extant law, once the
election results in Case 32–RC–5174 were certified, the
Respondent’s lockout was officially over under the terms
of the parties’ agreement, and the Respondent was obli-
gated to reinstate all of the locked-out employees.
Nevertheless, the parties entered into a “Letter of
Agreement” which effectively placed the Respondent’s
replacement employees and the locked-out employees on
equal footing in the bargaining unit. The seniority that
the replacement employees accumulated during the lock-
out was honored. However, the replacement employees
were entitled to continue working only so long as they
had greater seniority than any of the locked-out employ-
ees seeking reinstatement.7
In NLRB v. Great Dane Trailers, 388 U.S. at 33, the
Supreme Court set forth guidelines for assessing em-
ployer motivation in the context of asserted 8(a)(3) viola-
tions. Specifically, the Court explained that there are
two categories of discriminatory conduct which, depend-
ing on the nature of their impact on employee rights,
require a different analysis in assessing employer moti-
vation. If an action is deemed “inherently destructive” of
employee rights, antiunion motivation is inferred and the
conduct may be found unlawful, even if such conduct
was based on legitimate and substantial business consid-
erations.8 In determining whether conduct is inherently
destructive of employee rights, the Board examines: (1)

7 The General Counsel did not challenge the legality of the parties’
agreement.
8 The Court said:
That is, some conduct carries with it unavoidable consequences which
the employer not only foresaw but which he must have intended and
thus bears its own indicia of intent. . . . If the conduct in question falls
within this inherently destructive category, the employer has the bur-
den of explaining away, justifying or characterizing his actions as
something different than they appear on their face, and if he fails, an
unfair labor practice charge is made out. And even if the employer
does come forward with counter explanations for his conduct in this
situation, the Board may nevertheless draw an inference of improper
motive from the conduct itself and exercise its duty to strike the proper
balance between the asserted business justifications and the invasion
of employee rights in light of the Act and its policy. [NLRB v. Great
Dane Trailers, 388 U.S. at 31 (citations and internal quotes omitted).]
“the severity of the harm suffered by the employees for
exercising their rights as well as the severity of the im-
pact on the statutory right being exercised”; (2) whether
the conduct “is potentially disruptive of the opportunity
for future employee organization and concerted activity”;
(3) whether the conduct “exhibits hostility to the process
of collective bargaining”; and (4) whether the conduct
“discourages collective bargaining in the sense of mak-
ing it seem a futile exercise in the eyes of employees.”
International Paper, 319 NLRB 1253, 1269–1270
(1995), enfd. denied 115 F.3d 1045 (D.C. Cir. 1997).
However, a finding that an employer’s conduct is inher-
ently destructive does not conclude the inquiry. Rather,
the Board must additionally weigh in each case the as-
serted business justification—“justifying or characteriz-
ing [the employer’s] actions as something different than
they appear on their face”—against the “invasion of em-
ployee rights in light of the Act and its policy” in order to
weigh whether under the circumstances it will find that
an employer has committed an unfair labor practice.
NLRB v. Great Dane Trailers, 388 U.S. at 33. See also
NLRB v. Erie Resistor Corp., 373 U.S. 221, 229 (1963).
On the other hand, if the action is deemed to have only
a “comparatively slight” impact on employee rights, once
the employer establishes a legitimate and substantial
business justification for its action, no violation of the
Act may be found unless the General Counsel makes an
affirmative showing of antiunion motive. NLRB v. Great
Dane Trailers, 388 U.S. at 34. An employer’s action has
only a comparatively slight impact on employee rights if
its impact is some measure less than inherently destruc-
tive. See Boilermakers Local 88 v. NLRB, 858 F.2d 756,
761–762 (D.C. Cir. 1988).
For the reasons set forth in his decision, we agree with
the judge that the Respondent’s delay in reinstating the
24 formerly locked-out employees who accepted its offer
of reinstatement was not “inherently destructive” of em-
ployee statutory rights and that it had only a “compara-
tively slight” impact on them.9 As a result, the Respon-
dent bears the burden of showing that its delay in rein-
stating the formerly locked-out employees had a legiti-
mate and substantial business justification.
The Respondent has bifurcated its defense for its fail-
ure to immediately reinstate into two time periods: (1)
December 22, 2003, through January 22, 2004, the pe-
riod from the date the Respondent received the first ac-
ceptance of its reinstatement offer to the agreed-upon
cutoff date for accepting its reinstatement offer; and (2)

9 The Charging Party excepts to the judge’s failure to make a finding
that the delay in reinstatement was “inherently destructive” of employ-
ees’ Sec. 7 rights. For the reasons stated by the judge, we find no
merit in this exception.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD90
January 23 through February 23, 2004, the period from
the date the Respondent had all of the acceptances of its
reinstatement offer to the return-to-work date. We ad-
dress these two time periods in turn.
A. December 22, 2003–January 22, 2004
The judge found that the Respondent did not possess a
legitimate and substantial business justification for delay-
ing reinstatement until January 22. He concluded that
the Respondent should have reinstated the formerly
locked-out employees immediately upon receipt of their
individual acceptances. We disagree. While we find that
the Respondent’s obligation to reinstate the formerly
locked-out employees arose on the date that each indi-
vidual accepted its offer to return to work, given the un-
usual circumstances surrounding this case, we conclude
that the Respondent’s obligation did not mature until
January 23, 2004, the date the Respondent knew how
many formerly locked-out employees wanted to return to
work and their varying degrees of seniority. See Pacific
Mutual Door Co., 278 NLRB 854 (1986).
We recognize that the Board has held in the context of
a strike that after an unconditional offer to return to
work, a failure to be able to predict with certainty which
strikers would accept reinstatement to unfilled jobs does
not relieve an employer of the obligation to reinstate
those who desire to return to work in a timely manner.
Coca Cola Bottling Works, 186 NLRB 1050, 1051
(1970), enfd. in relevant part sub nom. Retail Wholesale
Union v. NLRB, 466 F.2d 380 (D.C. Cir. 1972). How-
ever, the facts in Coca-Cola Bottling Works, supra, are
quite different from the facts presented here. In Coca
Cola Bottling Works, the employer insisted that the union
first provide it with a list of the names of all strikers who
desired reemployment and waited until the receipt of the
list before it offered reinstatement to any striker. The
union considered the employer’s request unreasonable
but complied under protest. The Board found that the
employer’s action was unlawful because the employer
unlawfully demanded that the union assume obligations
which properly rested with the employer. Here, by con-
trast, we find that the Respondent had a legitimate and
substantial business justification in delaying postlockout
reinstatement based on the need to determine the identity
and the number of returning employees and to dovetail
their seniority with the seniority of the replacement
workers; and the efficiencies created by starting and
training a potentially large number of returning workers
all at once.
On December 19, 2003, the Respondent sent a letter
offering reinstatement to 133 locked-out employees. On
the same date, the Respondent’s facility was operating
with approximately 90 replacement employees. There-
fore, there was a potential to have more than 220 em-
ployees seeking to fill between 90 and 100 jobs. As a
result, the December 19 letters offering reinstatement did
not guarantee the locked-out employees an immediate
job. Instead, those letters provided that “the date of rein-
statement and the job to which you will be reinstated will
depend on (1) the number of locked-out employees seek-
ing reinstatement, (2) your seniority relative to other em-
ployees, including both locked-out and replacement em-
ployees, and (3) your being qualified to perform the job
to which your are recalled.”
Responses to the reinstatement offers arrived between
December 22, 2003, and January 22, 2004. The Respon-
dent had no way of knowing how many formerly locked-
out employees would accept its offer of reinstatement
until January 22.10 This point is important because it
explains why the Respondent did not reinstate high sen-
iority employees and/or bump replacement employees
immediately upon receiving their responses. If enough
employees opted to return to work, the Respondent
plainly would not have been able to accommodate a full
complement of both the returning formerly locked-out
employees and replacements. This scenario would have
resulted in the Respondent bumping a number of em-
ployees.11
Thus, rather than bump employees who might not need
to be bumped and/or bump a number of employees who
ultimately would be needed if and when formerly locked-
out employees failed to return as they said they would,
the Respondent waited until January 22 before taking
steps that earlier might have unnecessarily disrupted its
work force. As it turned out, because only 24 formerly
locked-out employees accepted the offers to return to
work, there was no need to bump any employees. Yet, as
of December 22, 2003, when the first acceptance was
received, the Respondent did not know whether that
would be the case. Indeed, it was only on January 22,
when all the acceptances were received, that the Respon-
dent was able to conclude that it did not need to bump
any employees. We therefore find that the Respondent
had a substantial and legitimate business justification for

10 The judge points to the fact that a union official told the Respon-
dent’s manager of labor relations that “less than 30, around 30” of the
locked-out employees would accept reinstatement. This statement was
made at the preelection hearing—before any voting took place—and
arguably was contradicted by the large number of locked-out employ-
ees who voted in the election. Apart from the fact that the Respondent
knew that several of the locked-out employees were either dead or
disabled or had left California, there is no evidence of how many re-
turning locked-out employees the Respondent expected as of December
2003.
11 In this case, “bumping” could encompass both shifting work as-
signments and/or layoffs.
BUD ANTLE, INC. 91
its decision to consider all offers of reinstatement at the
same time rather than on a piecemeal basis.
Furthermore, given the length of the lockout and the
uncertainty surrounding the number of employees who
would return, we accept, as a legitimate and substantial
business justification, the Respondent’s desire to train all
the returning employees together. It is undisputed that
the Respondent’s operations had changed during the 14
years of the lockout. Unlike a more typical lockout
situation, in which employees return to work when there
can be little doubt that they are still qualified to perform
their jobs, each returning formerly locked-out employee
would need to be trained on all aspects of the Respon-
dent’s modernized operation. Although the Respondent
could have trained all the returning employees individu-
ally, it was reasonable for the Respondent, given the cir-
cumstances, to want to train the potentially large number
of returning employees as a group.
We also find that it was reasonable for the Respondent
to believe that the 30-day response period in the August
“Letter of Agreement” gave it the right to delay making
reinstatement (and possible bumping) decisions until
January 22.12 Although the letter does not explicitly
state that the Respondent could wait until the end of the
30-day period to reinstate the formerly locked-out em-
ployees, it does not require the immediate reinstatement
of all locked-out employees upon the acceptance of the
Respondent’s offer. Further, delaying until all employ-
ees desiring reinstatement responded to the Respondent’s
offer appears evident from the provision of the “Letter of
Agreement” whereby the Respondent would honor both
the seniority of the returning employees as well as the
seniority earned by the replacement workers from the
date of the lockout. As mentioned, in order to do so, the
Respondent would need to know the identity of all the
formerly locked-out employees desiring reinstatement
before it commenced putting them back to work.
In conclusion, we find, contrary to the judge, that the
Respondent had a legitimate and substantial business
justification for delaying the reinstatement of its formerly
locked-out employees from December 22, 2003, through
January 22, 2004. Because no party submitted independ-
ent evidence that the Respondent’s actions were moti-
vated by an antiunion motive, we find that the Respon-
dent did not violate Section 8(a)(3) and (1) of the Act.

12 The judge found that the Respondent did not timely raise this ar-
gument, which he characterized as a “waiver-based defense.” While
the Respondent did not present its defense in terms of “waiver,” we
find that the argument was raised because it forms the basis of the
Respondent’s second separate and additional defense in its answer.
Also, the Respondent explicitly made this argument during the trial.
Contrary to the assertion of the General Counsel, this argument was not
raised for the first time on exceptions to the Board.
B. January 23–February 23, 2004
Despite the foregoing, we agree with the judge that the
Respondent did not have a legitimate and substantial
business justification for further delaying reinstatement
of the formerly locked-out employees from January 23
through February 23, 2004. We find, as explained be-
low, that the Respondent’s later decisions about the tim-
ing and procedures for reinstatement are insufficient to
justify its failure to reinstate the formerly locked-out em-
ployees at an earlier date.
The Respondent advanced several reasons why it de-
layed reinstating the formerly locked-out employees until
February 23, 2004. First, the Respondent wanted the
employees to begin working on a Monday, as it was the
beginning of a pay period. Monday, February 2, was
ruled out because it was too soon after the employees
received the January 28 letter. The following Mondays,
February 9 and 16, were also considered and rejected.
As to the former, the Respondent felt it needed to give
employees a reasonable amount of time to give their cur-
rent employers’ 2 weeks notice. When Dave Davis, the
Respondent’s director of cooler operations, was asked at
the trial if he ever inquired as to whether any of the 24
individuals actually needed to give 2 weeks notice to a
current employer, he admitted that he had no personal
knowledge but based his decision on what he heard from
someone else. As to February 16, there were two reasons
advanced for its rejection: first, the Respondent posited
that a February 16 start date did not give the returning
employees enough time both to give their current em-
ployers 2 weeks notice and to travel to Yuma; and sec-
ond, Plant Manager Terry Chappell was on vacation that
week and he was the only supervisor who had also been
a supervisor in 1989. The Respondent apparently wanted
him to be involved in training because he presumably
knew the prior skill level of the returning employees and
what needed to be done to get them performing on the
same level as current employees.
Examining the Respondent’s proffered reasons for fur-
ther delay, we find that the Respondent has failed to jus-
tify its actions. The Respondent’s desire to have the
formerly locked-out returning employees return on a
Monday was nothing more than an administrative con-
venience that does not rise to the level of a legitimate and
substantial business justification. Also, other than uncor-
roborated hearsay, there is no evidentiary support for the
Respondent’s assumptions regarding the need for all
formerly locked-out employees to give their current em-
ployer 2 weeks notice before quitting or regarding re-
quests for additional time to move.
Finally, concerning the necessity of Plant Manager
Chappell’s presence for training, the record evidence is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD92
that he was available for training during the entire month
of January, and during the weeks of February 2 and 9.
Moreover, the Respondent admitted that other managers
could have performed the training for the returning em-
ployees. Davis testified that although the plant manager
customarily performs this training, if he is unavailable
one of the other managers does it. Asked why that was
not done on this occasion, Davis answered, “I guess it
could have.” In fact, when asked if Chappell actually did
the safety training for the returning locked-out employ-
ees, Davis replied that there “were probably two or three
supervisors and Terry that were in the room together,”
and he did not know who in fact conducted the safety
session. In this regard, the record discloses that other
supervisors, department foreman, and senior employees
performed at least some if not all of the training.13
Nor do the Respondent’s proffered reasons for delay-
ing reinstatement for this second month find support in
Board law. See Anaheim Plastics, 299 NLRB 79, 98
(1990) (2-week delay in reinstating strikers justified in
part because, the day before application for reinstate-
ment, tornado rendered production machines temporarily
inoperative, left plant full of standing rainwater, and cre-
ated a danger of injury from electrical malfunctioning);
Sonoma Mission Inn & Spa, 322 NLRB 898, 900 (1997)
(justification for a 1-day delay in reinstating economic
strikers found where employer was faced with the diffi-
culty of getting the hotel rooms ready, room keys and
housekeeping carts were already assigned, and replace-
ment employees were already in transit); Snowshoe Co.,
217 NLRB 1056 (1975) (justification for a 1-day delay in
reinstating economic strikers found where strikers’ sud-
denly offered to return to work on morning when newly
hired employees had already commenced work); Ran-
dall, Burkart/Randall, 257 NLRB 1, 6–7 (1981), en-
forcement granted in part and denied in part on other
grounds 687 F.2d 1240 (8th Cir. 1982) (justification for
at least a 30-day delay in reinstating economic strikers
found where inventory build up in anticipation of strike,
and poststrike production levels, obviated need for the
immediate employment of a substantial number of the
strikers); Mercy-Memorial Hospital, 231 NLRB 1108,
1113–1114 (1977) (justification for an approximately 20-
day delay in reinstating economic strikers found where
complete physical examination of returning hospital
workers mandated by State law and due to problems nec-
essarily occasioned by the sudden termination of 3-year-
old strike).

13 Jim Kesinger conducted the safety tailgate meeting and the reports
accounting for the forms and documents given to the returning employ-
ees were executed by either Rosie Keeton or Vera Martinez.
In conclusion, we find, in agreement with the judge,
that the Respondent did not possess a legitimate and sub-
stantial business justification for delaying reinstatement
of its formerly locked-out employees from January 23
through February 23, 2004. Therefore, we find that the
Respondent violated Section 8(a)(3) and (1) of the Act.14
C. Appropriate Remedy
Based on our findings, we must modify the judge’s
recommended backpay remedy. The judge recom-
mended that the Respondent be ordered to make whole
all 24 formerly locked-out employees from the date of
their individual acceptances of the Respondent’s rein-
statement offer until February 23, 2004. As we have
found that the Respondent possessed a legitimate and
substantial business justification for its December 22,
2003, through January 22, 2004 delay, we conclude that
the Respondent is obligated to make the employees
whole only for the time period of January 23 through
February 23, 2004.
Further, the judge recommended that the Respondent
be ordered to make whole all 24 employees who ac-
cepted the Respondent’s offer of reinstatement, regard-
less of whether they reported for work on February 23,
2004. We disagree with the judge and find that backpay
is an appropriate remedy only for those seven employees
who requested reinstatement and actually reported for
work on February 23. Therefore, Danny Gutierrez, Gary
E. Jackson, Rigoberto Lopez, Rod Kenneth Penny, Ale-
jandro Rivas, John C. Rodriguez, and Robert D. Tully
are entitled to backpay for the time period of January 23
through February 23, 2004, to compensate them for the
Respondent’s undue delay in reinstating them.15
The Supreme Court has stated that “Section 10(c) . . .
charges the Board with the task of devising remedies to
effectuate the policies of the Act,” and that its remedial
power is “a broad discretionary one, subject to limited
judicial review.” Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203, 216 (1964), citing NLRB v. Seven-
Up Bottling Co. of Miami, 344 U.S. 344, 346 (1953).16

14 The Charging Party excepts to the judge’s failure to make a find-
ing that the delay in reinstatement from January 23 through February
23, 2004, was a separate and distinct violation of the Act. As we have
found this delay to be the Respondent’s only violation of the Act, we
need not pass on this exception.
15 Employee Charles Collenback appeared at Yuma on February 23,
2004, and advised the Respondent that he had not been working be-
cause of a workers’ compensation claim. Collenback participated in
the first day’s orientation but did not report for work thereafter. There-
fore, backpay for Collenback, if any, is limited to that portion of the
period from January 23 to February 23, 2004, when Collenback’s abil-
ity to work for the Respondent was not negated by his earlier work-
related injury.
16 Furthermore, in devising an appropriate remedy, the Board is not
limited by the parties’ failure to request or oppose any specific remedy.
BUD ANTLE, INC. 93
In devising an appropriate backpay award, we are mind-
ful that a “backpay remedy must be sufficiently tailored
to expunge the actual rather than the speculative conse-
quences of the unfair labor practices.” Sure-Tan v.
NLRB, 467 U.S. 883, 900 (1984). The relief granted “is
to be adapted to the situation which calls for redress.”
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333,
348 (1939).
By using our broad discretion to limit backpay only to
those employees that reported for work on February 23
we are devising an award that is sufficiently tailored to
expunge actual rather than speculative consequences of
the unfair labor practices at issue. Those employees who
actually reported for work on February 23, were the em-
ployees who were directly affected by the Respondent’s
unfair labor practices. In the absence of evidence to the
contrary, it was incorrect for the judge to presume that
the Respondent’s unlawful delay in reinstating the for-
merly locked-out employees caused 16 other employees
not to report for work. Significantly, there is no evidence
that the date of reinstatement affected their decision to
return.
We accept our dissenting colleague’s contention that
the ultimate burden of persuasion rests on the wrongdoer.
Thus, if the evidence were in equipoise as to the reasons
why these 16 employees failed to report for work on Feb-
ruary 23, we would agree that the Respondent had not
met its burden of persuasion. However, the burden of
going forward with the evidence is a different matter.
That burden reasonably rests on the persons who are the
likely repositories of the evidence. Where, as here, the
evidence concerns reasons for accepting the reinstate-
ment offer but not reporting for work, it is particularly
appropriate to have those employees come forward with
their explanations which are best known to them. Oth-
erwise, the Respondent is placed in the untenable posi-
tion of having to introduce evidence of another person’s
reasons for inaction. Further, had the delay caused prob-
lems for these employees, it would seem that they would
have made some effort to contact the Respondent and
determine whether alternative arrangements could be
made. In sum, where, as here, the record is totally de-
void of proof, it is not appropriate to award make-whole
relief based on assumptions.
Nor is it appropriate to reserve this issue for later com-
pliance proceedings, as our dissenting colleague would.
Doing so would not alleviate the central problem of plac-

Nabco Corp., 266 NLRB 687 fn. 1 (1983); Keller Aluminum Chairs,
165 NLRB 1011 fn. 1 (1967). See also Shepard v. NLRB, 459 U.S. 344,
352 (1983) (The Act does not require the Board “to reflexively order
that which a complaining party may regard as ‘complete relief’ for
every unfair labor practice”).
ing on the Respondent the burden of going forward with
evidence of the employees’ personal reasons for not re-
porting to work. Further, even if the Respondent could
successfully find and subpoena these employees, the Re-
spondent would be placed in the position of calling, as its
own witnesses, employees who are adverse to its posi-
tion. These events arose out of a 14-year lockout. All
parties had an opportunity to present all of their evidence
as to all of the issues. In these circumstances, it makes
little sense to provide another opportunity to present evi-
dence as to why certain employees failed to report to
work on February 23.17
IV. DENIAL OF OVERTIME
It is undisputed that the Respondent routinely consid-
ers a newly hired employee’s initial 4 weeks of employ-
ment as a training period during which the assignment of
overtime is limited. With respect to the application of
this policy, the Respondent does not make accommoda-
tions for the differing levels of experience that new em-
ployees might bring to the job. After this initial period,
overtime is distributed evenly among all employees
without regard to seniority. Although the parties agreed
that the returning workers had acquired the same over-
time privileges as other employees before the lockout,
they also agreed that it takes 4 weeks for employees with
the returning workers’ type of experience to become
fully proficient in the Respondent’s operations. Thus,
the Respondent limited the overtime opportunities for the
returning employees during their initial 4-week training
period. During this time, each of the seven returning
employees worked some overtime, albeit less than other
employees not in their training period.18 Finally, it is
undisputed that at the completion of their training period,
all seven returning employees were given the same over-
time opportunities as existing employees.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by limiting the overtime
worked by the seven returning formerly locked-out em-

17 For this reason, Mercy-Memorial Hospital Corp., 231 NLRB
1101, 1116 (1977), relied on by our dissenting colleague, is distin-
guishable. In that case, the Board found that the employer violated the
Act by unlawfully delaying the reinstatement of its formerly striking
nurses. As noted by our dissenting colleague, the Board ordered back-
pay to an employee who failed to report to work on her scheduled re-
turn to work date and resigned 9 days later. However, the employee
reported to work earlier to take a state-mandated physical examination
and remained in contact with the respondent when she formally re-
signed. Based on those facts, the judge found no basis to infer that the
employee never had an intention of returning to work. Here, the 16
employees in question made no further attempt to contact the Respon-
dent after purportedly accepting reinstatement.
18 The Respondent’s payroll records disclose that each of the seven
employees worked overtime on multiple Saturdays during the 4-week
period commencing on February 23.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD94
ployees during the 4 weeks after they returned to work.
In doing so, the judge analogized this case to cases that
involve the discriminatory treatment of returning eco-
nomic strikers and concluded that the Respondent’s con-
duct was “inherently destructive” of employee statutory
rights. See, e.g., Oregon Steel Mills, 291 NLRB 185
(1988); Wisconsin Packing Co., 231 NLRB 546 (1977);
Transport Co. of Texas, 177 NLRB 180 (1969), enfd.
438 F.2d 258 (5th Cir. 1971). Further, the judge found
that the Respondent did not have a legitimate and sub-
stantial business justification for its treatment of the re-
turning employees.
We disagree with the judge’s finding that the Respon-
dent’s conduct was “inherently destructive” of employee
statutory rights. Instead, we find that the Respondent’s
conduct had a “comparatively slight” effect on employee
statutory rights in the circumstances of this case. Addi-
tionally, and contrary to our dissenting colleague, we
find that the Respondent has articulated a legitimate and
substantial business justification for briefly treating the
seven formerly locked-out employees who returned to
work as new employees for the purpose of assignment of
overtime during the retraining period. Specifically, in
view of the many years that the returning employees had
not worked for the Respondent, and given the operational
changes that took place between 1989 and 2004, it was
reasonable for the Respondent to require these employ-
ees to be retrained and not take on full overtime until that
training period had been completed.
A careful examination of the evidence, under the
“guiding principles” described in International Paper,
319 NLRB 1253, 1269–1270 (1995), establishes that the
Respondent’s actions do not qualify as inherently de-
structive of employee rights.19 Although the employees
were deprived of overtime opportunities, the severity of
the harm suffered by them was not substantial. The Re-
spondent temporarily limited overtime opportunities for
the period of time that it would take employees to again
become proficient in their jobs. While the returning em-
ployees initially did not have the same overtime opportu-
nities as existing employees, they were not completely
precluded from working overtime during their first 4
weeks back on the job. Thus, the Respondent treated the
returning workers as it treats all workers in need of train-
ing—without regard to whether they were locked out.
Further, given the short duration of the limitation, the
Respondent’s conduct did not have a severe or lasting
impact on employee statutory rights. See, e.g., Interna-
tional Paper, supra (permanently subcontracting bargain-

19 We note that even our dissenting colleague does not argue that the
actions were “inherently destructive” of employee rights.
ing unit work during a lockout); Transport Co. of Texas,
supra (treating reinstated strikers as a class first consid-
ered for layoff).
We do not find that initially treating the returning em-
ployees as new employees for the purpose of overtime
assignment can be characterized as potentially disruptive
of the opportunity for future employee organization, po-
tentially hostile to the concept of collective bargaining,
or discouraging collective bargaining in the sense of
making it seem a futile exercise in the eyes of the em-
ployees. There is simply no support in the record for the
judge’s speculation that the Respondent’s conduct was
seen by the formerly locked-out employees “as nothing
less than retaliation for their support for the bargaining
unit employees’ strike and their Union’s bargaining posi-
tion and, by the existing employee complement, as a
warning of the consequences of their support for a un-
ion.” The Respondent’s conduct affected employees for
only 4 weeks and cannot be said to have created “visible
and continuing obstacles to the future exercise of em-
ployee rights.” Inter-Collegiate Press v. NLRB, 486 F.2d
837, 845 (8th Cir. 1973). Given the 14 years of the lock-
out, we find that the Respondent’s temporary limitation
of overtime opportunities would not reasonably be
viewed as a penalty for exercising Section 7 rights. In
sum, we conclude that the Respondent’s conduct had
only a comparatively slight impact on employee rights.
Further, we conclude, contrary to the judge and our
dissenting colleague, that the Respondent had a legiti-
mate and substantial business justification for limiting
overtime opportunities for the seven returning employ-
ees. We find that the judge failed to properly account for
the unique circumstances of this case. The Respondent
had a substantial and legitimate business justification for
its decision to limit the returning employees’ overtime
based on: (1) its lack of specific information as to what
work the seven employees had performed during the pre-
vious 14 years, whether the seven continued to possess
the physical skills and abilities needed to perform the
work at the Respondent’s coolers, and whether the em-
ployees would experience difficulty in learning the new
systems and methods now utilized at the Respondent’s
coolers; and (2) the fact that the seven employees would
require the training period to enable themselves to per-
form their work assignments quickly and efficiently.
The cooler operation that the returning formerly
locked-out employees returned to in February 2004 was
substantially different from the operation that they had
left more than 14 years earlier. Specifically, in 1989,
loaders were handed a manifest and told to locate boxes
of lettuce or other commodities and put them on a truck
without considering the age of the product, the location
BUD ANTLE, INC. 95
of the customer, or the location of the product within the
cooler. Significantly, one of the Respondent’s primary
products—bagged mixed salads—essentially did not
exist in 1989. Nor did the Respondent use barcoding and
scanners to track its various products.
By contrast, these items were critical in 2004. With
bagged mixed salads, the Respondent, in selecting prod-
ucts 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 require-
ments, it is essential that employees know where each
product is located within the cooler in order to efficiently
fill orders, as well as to satisfactorily rotate raw com-
modities to ensure that these products are as fresh as pos-
sible. It is also important to know the location of prod-
ucts for purposes of combining pallets.20 Although some
of the seven returning employees had relevant work ex-
perience during the lockout, they all had to learn these
aspects of the work in order to become fully proficient at
their jobs.21 For employees such as these who were un-
familiar with these particular operations, the parties
stipulated that it usually took a 4-week period to become
fully proficient in: the use of scanners to load and con-
solidate pallets, how to determine the appropriate age of
the product to be loaded, the location of the product in
the cooler, and product codes for the Respondent’s prod-
ucts.
Apart from teaching the returning employees the new
aspects of the cooler operations, the Respondent needed
to find out whether they could still perform the jobs they
last performed for the Respondent 14 years earlier.
Thus, unlike a normal lockout situation in which em-
ployees return to work when there can be little doubt that
they are still qualified to perform their job assignments,
this case involves an enormous gap of time between the
commencement of the lockout and the employees’ return
to work. As of February 23, 2004, the Respondent had
no specific information about whether the seven return-
ing formerly locked-out employees still had the physical
skills and abilities to perform the cooler work, or whether

20 Because some customers may want different products that do not
take up a full pallet, it is the responsibility of the cooler employees to
combine properly dated products onto the same pallet.
21 For example, while Alejandro Rivas had worked as a dispatcher at
another produce company which used scanners, he had not worked with
the bagged salad product and needed to learn the more complicated
dating requirements for the Respondent’s products.
they would have any difficulty learning the new systems
and methods utilized at the cooler. The Respondent also
had no idea how quickly these employees would adapt to
the new procedures.
This point is significant with respect to the assignment
of overtime. Because employees receive premium pay
for this work, the Respondent had an interest in their
work being performed as efficiently and quickly as pos-
sible. It is primarily for this reason that new employees
receive fewer overtime opportunities during their 4-week
training period. Once training is completed, overtime is
evenly distributed among all employees without regard
to seniority.
Our dissenting colleague criticizes us for overlooking
several “serious flaws” in the Respondent’s argument
that it had a legitimate and substantial business justifica-
tion for initially limiting overtime to the returning em-
ployees. She argues that the Respondent was required to
treat the returning employees as if they had not been out
of the Respondent’s work force for 14 years and that the
Respondent’s failure to formally document their progress
during their initial 4-week training period belies its ar-
gument that it was necessary to limit their overtime op-
portunities. We do not agree. Our dissenting colleague
argues that we ignore the essential similarities between
the operations before and after the 14-year lockout.
While the employees still move product from point A to
point B, the job changed significantly in the method and
technology used to track product, in the location of prod-
uct, and in the Respondent’s customers’ needs. Thus, the
parties stipulated that it usually takes 4 weeks for indi-
viduals like the returning employees to become fully
proficient in the use of the Respondent’s new equipment
and systems, and in locations of products. Further, that
the returning employees were working independently
within 5 days of their return and were permitted to work
some overtime shifts does not detract from the Respon-
dent’s justification for its actions. It is undisputed that
the Respondent allows new hires to work some overtime
during their initial training period, and there is no indica-
tion that other new hires do not work independently dur-
ing their training period. Far from undermining the Re-
spondent’s contention, we believe that the Respondent
has supported its case by showing that full overtime was
restored as soon as employees showed their full abilities.
Accordingly, these facts do not imply that the returning
employees were fully capable of performing their jobs
efficiently without the need for the 4-week training pe-
riod. And, contrary to our dissenting colleague, there is
nothing speculative about the need for this 4-week train-
ing period as the parties themselves have stipulated to its
necessity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD96
Our colleague concedes that the lockout was “a
lengthy one.” Indeed it was. In these highly unusual
circumstances, it was reasonable for the Respondent to
initially treat the returning employees as new ones for
overtime purposes, even though ordinarily it might have
been appropriate to treat them as if they had not been
locked out. They had, after all, not performed those ser-
vices for the Respondent during the previous 14 years.
Similarly, it was reasonable for the Respondent to at-
tempt to ensure that the employees could perform the
jobs in question, which were not identical to the ones
they left.
This is not a case where an employer has denied recall
to an economic striker. Rather, it is a case where an em-
ployer, for prudential reasons, has denied some overtime
to employees who have returned to work after a 14-year
lockout. The cases relied on by our dissenting colleague
did not arise in the context of the unprecedented 14-year
lockout involved here.
In conclusion, we find, contrary to the judge, that the
Respondent’s decision to treat the seven formerly
locked-out employees who returned to work on February
22, 2004, as new employees for the purpose of the as-
signment of overtime had only a “comparatively slight”
impact on employee rights. Further, we find that the
Respondent possessed a legitimate and substantial busi-
ness justification for its actions. Because no party sub-
mitted independent evidence demonstrating that the Re-
spondent’s actions were motivated by antiunion animus,
we find that the Respondent did not violate Section
8(a)(3) and (1) of the Act.
Conclusion
As emphasized throughout this opinion, the facts of
this case are unusual. Given the extraordinary length of
the lockout, and the preelection agreement between the
parties, we find, contrary to the judge, that the Respon-
dent possessed a legitimate and substantial business justi-
fication for delaying reinstatement of its formerly
locked-out employees for the period of December 19,
2003, through January 22, 2004. However, we agree
with the judge that the Respondent did not possess a le-
gitimate and substantial business justification for its de-
lay for the period of January 23 through February 23,
2004, and therefore violated Section 8(a)(3) and (1) of
the Act. Accordingly, because of its undue delay, we
have ordered the Respondent to make whole those em-
ployees who reported for work on February 23, for their
lost wages from January 23 through February 23, 2004.
We also find, based on the unique circumstances of this
case and contrary to the judge, that the Respondent did
not violate Section 8(a)(3) and (1) of the Act by treating
the returning formerly locked-out employees as new em-
ployees during their first 4 weeks back on the job for the
purpose of assignment of full overtime because the Re-
spondent possessed a legitimate and substantial business
justification for this treatment.
ORDER
The National Labor Relations Board orders that the
Respondent, Bud Antle, Inc., Yuma, Arizona, and Ma-
rina and Huron, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to promptly reinstate its for-
merly locked-out bargaining unit employees who ac-
cepted its offer of reinstatement.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employees John C. Rodriguez, Charles Col-
lenback, Danny Gutierrez, Rod Kenneth Penny, Robert
D. Tully, Alejandro Rivas, Rigoberto Lopez, and Gary E.
Jackson whole for any loss of earnings and other benefits
suffered as a result of the Respondent’s failure to rein-
state them from January 23 through February 23, 2004,
in the manner set forth in the remedy section of the
judge’s decision.
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its coolers located in Yuma, Arizona, and Marina and
Huron, California, copies of the attached notice, marked
“Appendix.”22 Copies of the notice, in Spanish and Eng-
lish, on forms provided by the Regional Director for Re-
gion 32, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BUD ANTLE, INC. 97
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 23,
2004.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER LIEBMAN, dissenting in part.
The majority wrongly reverses the judge’s decision in
two respects. First, it errs in denying make-whole relief
to 16 locked-out employees whose reinstatement was
unlawfully delayed by the Respondent, without requiring
the Respondent to prove that the failure of those employ-
ees to report to work was unrelated to the delay. As the
wrongdoer here, the Respondent should bear that burden.
Second, the majority errs in permitting the Respondent to
treat seven returning locked-out employees as if they
were new employees, for the purposes of overtime eligi-
bility. Those employees were analogous to returning
economic strikers, who must be treated as qualified to
perform their job, unless their inability to perform is ac-
tually demonstrated (and not merely assumed).1
I.
It is well established that a finding by the Board that
loss of employment was caused by a violation of the Act
is presumptive proof that some backpay is owed. See,
e.g., Cassis Management Corp., 336 NLRB 961, 962
(2001). However, despite finding that the Respondent
violated the Act by failing to timely reinstate 24 formerly
locked-out employees who requested reinstatement, the
majority declines to order the Respondent to make whole
16 of those employees. These 16 employees clearly sig-
nified their desire to return to work by accepting the Re-
spondent’s reinstatement offer, but did not report for
work when the Respondent eventually notified them to
report.
The only apparent reason for their not reporting is the
Respondent’s unlawful delay in providing them with a
report date. The majority contends that it was incorrect

1 I agree with the majority that the Respondent possessed a legiti-
mate and substantial business justification for delaying reinstatement of
its formerly locked-out employees from December 19, 2003, through
January 22, 2004, and that the Respondent violated Sec. 8(a)(3) and (1)
of the Act by failing to reinstate the formerly locked-out employees
from January 23 through February 23, 2004, because it did not possess
a legitimate and substantial business justification during this latter time
period.
for the judge to presume that the Respondent’s unlawful
delay caused the 16 employees not to report for work.
But there is no better basis for presuming, as the majority
does, that these employees abandoned their jobs for rea-
sons unrelated to the delay in reinstatement.2 To the ex-
tent that their not reporting to work created any ambigu-
ity as to their initial intent to return to work, this ambigu-
ity has no bearing on the legal finding that the Respon-
dent unlawfully delayed reinstatement beyond January
22, 2004. Accordingly, because the employees’ reasons
for not reporting present, at best, remedial issues, the
judge correctly resolved the ambiguity against the Re-
spondent, the wrongdoer.
The judge provided that the Respondent could adduce
evidence at the compliance stage that these 16 employees
never intended to work for the Respondent again, or oth-
erwise abandoned their jobs for reasons other than the
Respondent’s unlawful delay in reinstating them. The
severance of compliance issues is the Board’s standard
procedure for addressing alleged unfair labor practices.
In a backpay proceeding, the burden is upon the em-
ployer to establish facts that would mitigate its liability.
See, e.g., St. Barnabas Hospital, 346 NLRB 731(2006);
La Favorita, Inc., 313 NLRB 902 (1994). The Respon-
dent, therefore, would not find itself in a position differ-
ent from any other employer that is trying to mitigate its
backpay liability.
Further, contrary to the majority, the Respondent
would not be put in the difficult position of having to
prove, by itself, the nonreporting employees’ reasons for
not reporting. Rather, it could require the nonreporting
employees to testify under oath as to why they did not
report for work on February 23.
Because the Respondent would have had the opportu-
nity in compliance to establish that some or all of these
employees abandoned their jobs for reasons unrelated to
the Respondent’s unlawful conduct, the majority’s rever-
sal of the judge’s make-whole order goes well beyond

2 The Board has rejected such baseless presumptions in analogous
circumstances. In Mercy-Memorial Hospital Corp., 231 NLRB 1108,
1116 (1977), the employer delayed the reinstatement of its formerly
striking nurses. The employer scheduled an employee to return to work
on April 1. Nevertheless, the employee did not report to work on that
date or any other date thereafter, but instead resigned on April 9. The
employer argued that the employee was not entitled to any backpay
because she did not report to work on April 1. The judge found and the
Board agreed that the employer had no basis for inferring from the
employee’s resignation that she never intended to come back to work.
Consequently, the employee was awarded backpay from the date of her
acceptance of the reinstatement offer to April 1, the date she was
scheduled to return to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD98
any need to insure that the Respondent is not deprived of
a full opportunity to litigate this issue.3
II.
The judge also correctly determined that the Respon-
dent unlawfully discriminated against the seven returning
formerly locked-out employees when it limited their
overtime opportunities. The Respondent treated its re-
turning employees as if they were recent hires, and de-
prived them of the status they would have retained but
for the bargaining unit’s strike and subsequent 14-year
lockout. The judge correctly analogized the Respon-
dent’s treatment of the seven employees to cases involv-
ing the discriminatory treatment of returning economic
strikers. The Board has recognized that returning strikers
are not to be treated as new employees or entry-level
employees, but rather must be treated the same as they
would have been, had they not withheld their services.
Detroit Newspapers, 340 NLRB 1019 (2003); Rose
Printing Co., 304 NLRB 1076, 1078 (1991).
In this case, the parties stipulated that each of the
seven returning employees had acquired the same over-
time privileges as other full-time bargaining unit em-
ployees. In an effort to get around this stipulation, the
Respondent asserts that it needed to see whether the re-
turning employees were able to perform on the job be-
fore assigning them overtime. The majority accepts this
argument, finding that it constitutes a legitimate and sub-
stantial business justification for not affording the return-
ing employees their full overtime. Unfortunately, they
overlook several serious flaws in the Respondent’s ar-
gument.
First, while the parties stipulated that all seven return-
ing employees needed to learn the location of product in
the cooler, product codes, and product dating require-
ments for the Respondent’s product, their need to learn
these aspects of the Respondent’s cooler operation hardly
supports the Respondent’s much broader assertion that
each of these employees also needed 4 weeks of training
to become sufficiently proficient in their work to be enti-
tled to unrestricted overtime. The employees were not
akin to new employees, as the majority seems to find, but
were in fact old employees returning after a lockout, al-
beit a lengthy one. The majority ignores the essential
similarities between the pre and postlockout operations
(i.e., the routine task of loading and unloading product).
An employer may not rely on speculative preconcep-
tions regarding employee qualifications to satisfy its bur-

3 Cf. Concrete From Walls, Inc., 346 NLRB No. 80 (2006) (holding
that the employer may argue in compliance proceedings that its back-
pay liability can be reduced under Hoffman Plastics Compound, Inc. v.
NLRB, 535 U.S. 137 (2002)).
den to show a legitimate and substantial business justifi-
cation for treating returning strikers as new employees.
Rather, as the Board has held in the context of an eco-
nomic strike, “employer misgivings concerning the
qualifications of an economic striker are to be tested on
the job through recall, with the employer, later, permitted
to take appropriate action if the recalled striker is in fact
‘unqualified or cannot do the work.’” Lehigh Metal Fab-
ricators, 267 NLRB 568, 575 (1983) citing Brooks Re-
search & Mfg., 202 NLRB 634, 637 fn. 13 (1973).4
Thus, the Respondent was not permitted to deny the re-
turning employees overtime benefits based on a concern
that they would be unable to perform unless the employ-
ees had actually demonstrated an inability to perform.
The Respondent’s contention that it wanted to see “dem-
onstrated ability” to perform is contrary to Board prece-
dent under which employees are properly given the bene-
fit of the doubt.
Further, the Respondent admitted that it failed to
document the progress, work performance, or any limita-
tions in job performance of the seven employees during
the 4 weeks after February 23. Therefore, the Respon-
dent cannot credibly argue that it made a good-faith ef-
fort to ascertain the employees’ ability to perform during
their initial 4 weeks of reemployment.
Finally, any assertion that the returning employees
were unqualified to perform their jobs and, therefore,
were not qualified to work overtime is belied by the fact
that within 5 days of their return, the seven employees
were working independently, and that even during the
initial 4 weeks of their reinstatement the Respondent
permitted the returning employees’ to work overtime,
albeit a lesser amount than their replacements. The Re-
spondent’s own assessment of the employees’ ability to
perform was that they had demonstrated an acceptable
degree of proficiency. Contrary to the majority, this cer-
tainly “detracts” from the Respondent’s justification for
its action.
Thus, the Respondent’s asserted business justification
for treating the returning employees as new employees in
terms of overtime assignments fails to withstand scru-
tiny.5 The judge was correct to find that the Respondent

4 See also Alaska Pulp Corp., 326 NLRB 522, 562 (1998), enf.
granted in part, denied in part on other grounds sub nom. Sever v.
NLRB, 231 F.3d 1156 (9th Cir. 2000) (“It is not until the returning
striker demonstrates an inability to do the work that the employer may
take steps to assure itself that the incumbent needs some sort of special
scrutiny.”).
5 Given the judge’s determination that the Respondent did not have a
substantial and legitimate business justification for restricting the over-
time opportunities of the reinstated locked-out employees, the Respon-
dent would still have violated the Act even if the denial of overtime is
not seen as “inherently destructive” of employees’ statutory rights but
BUD ANTLE, INC. 99
violated Section 8(a)(3) and (1) of the Act by limiting the
overtime worked by the returning employees, and to or-
der the Respondent to make these employees whole for
any overtime payments they would have earned but for
the Respondent’s unlawful discrimination.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to promptly reinstate our
employees, whom we locked out in 1989 and who ac-
cepted our offer of reinstatement after the lockout.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make employees John C. Rodriguez, Charles
Collenback, Danny Gutierrez, Rod Kenneth Penny,
Robert D. Tully, Alejandro Rivas, Rigoberto Lopez, and
Gary E. Jackson whole for any loss of earnings and other
benefits suffered as a result of our failure to reinstate
them, less any net interim earnings, plus interest for the
period from January 23 through February 23, 2004.
BUD ANTLE, INC.
Michelle M. Smith, Esq., for the General Counsel.
William D. Claster, Esq. (Gibson, Dunn & Crutcher, LLP), of
Irvine, California, appearing on behalf of the Respondent.
David A. Rosenfeld, Esq. (Weinberg, Roger & Rosenfeld), of
Oakland, California, appearing on behalf of the Charging
Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. United Fruit
& Vegetable Workers Local 1096, United Food & Commercial

rather, as the majority finds, as only having a “comparatively slight”
impact on those rights.
Workers International Union, AFL–CIO (the Union) filed the
unfair labor practice charge in Case 32–CA–21181 on January
29, 2004. After an investigation, on June 18, 2004,1 the Re-
gional Director for Region 32 of the National Labor Relations
Board (the Board) issued a complaint, alleging that Bud Antle,
Inc. (Respondent) engaged in, and continues to engage in, un-
fair labor practices within the meaning of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). Thereafter,
Respondent filed a timely answer, essentially denying the
commission of the alleged unfair labor practices. Pursuant to a
notice of hearing, the unfair labor practice allegations came to
trial before me in Oakland, California, on September 9. At the
trial, all parties were afforded the opportunity to present, to
examine, and to cross-examine witnesses; to offer into evidence
any relevant documentary evidence, to argue their legal posi-
tions orally, and to file posthearing briefs. Such briefs were
filed by counsel for the General Counsel, by counsel for Re-
spondent, and by counsel for the Union. The Union filed the
unfair labor practice charge in Case 32–CA–21596 on August
27, 2004, and, after an investigation, on October 25, the Re-
gional Director for Region 32 of the Board issued a complaint,
alleging that Respondent had engaged in, and continues to en-
gage in, unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act. Thereafter, and pursuant to a motion
filed by the General Counsel, on November 1, I issued an order,
consolidating the above-captioned unfair labor practice cases.
Respondent filed an answer, essentially denying the commis-
sion of the alleged unfair labor practices. On December 7,
counsel for the General Counsel, counsel for Respondent, and
counsel for the Union filed a joint motion to approve a stipu-
lated record and a stipulation of facts, and, on December 8, I
approved the motion. Subsequently, counsel for the General
Counsel and counsel for Respondent filed briefs. Accordingly,
based upon the entire record in the consolidated matters, in-
cluding the parties’ briefs and my observation the demeanor of
the witness,2 who testified during the hearing in Case 32–CA–
21181, I issue the following
FINDING OF FACTS
I. JURISDICTION
At all times material, Respondent, a State of California cor-
poration, with its principal office and place of business in
Salinas, California, has been engaged in the business of the
processing and nonretail distribution of lettuce and other vege-
tables. In connection with its business operations, during the
12-month period preceding the issuance of the complaint in
Case 32–CA–21181, Respondent, in the course and conduct of
its business operations, purchased and received goods valued in
excess of $50,000 directly from suppliers located outside the
State of California.
II. LABOR ORGANIZATION
The Union is now, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.

1 Unless otherwise stated, all events herein occurred during 2004.
2 Most of the facts herein are taken from stipulations of the parties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD100
III. THE ISSUES
Concerning the allegations of the complaint in Case 32–CA–
21181, the parties stipulated that, on December 19, 2003, Re-
spondent offered approximately 130 locked-out employees
reinstatement to their former positions of employment. As to
the alleged unfair labor practices, the issue involves whether
Respondent engaged in conduct violative of Section 8(a)(1) and
(3) of the Act by failing and refusing to immediately reinstate
24 of the individuals, who had accepted Respondent’s offers.
The corollary issue, posed by Respondent’s defense, is whether
the latter possessed legitimate and substantial business justifica-
tion for delaying the reinstatement of the 24 individuals until
February 23, 2004. There is no dispute that only eight former
locked-out employees reported for work on February 23, and
the parties stipulated that the issue, raised by the allegations of
the complaint in Case 32–CA–21596, concerns whether Re-
spondent violated Section 8(a)(1) and (3) of the Act by limiting
the overtime worked by seven of the employees during the 4
weeks after they returned to work on February 23.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a California corporation and a wholly-owned
subsidiary of Dole Fresh Vegetables, is engaged in the business
of the processing and the nonretail distribution of lettuce and
other salad products and vegetables, and, in this regard, oper-
ates refrigerated warehouses, termed “coolers,” where the
above products which, having been trucked from the field, are
cooled down to a low temperature and stored for short periods
of time while awaiting shipment to distribution centers. Cur-
rently, Respondent maintains three coolers in Yuma, Arizona,
Marina, California (located near Salinas), and Huron, Califor-
nia (located near Fresno).3 The record establishes that, given
the times of the growing seasons in the surrounding areas, Re-
spondent’s business operations are seasonal in nature with the
Marina cooler being in “full operation” from the end of March
until the end of November of each year, the Yuma cooler being
in full production between the end of November and the end of
March each year, and the Huron facility, in which the sole
product stored is lettuce, being in operation during two growing
seasons from March 15 through April 15 and from October 15
through November 15 each year. While in full production,
Respondent normally employs approximately 100 employees at
the Marina cooler, approximately 90 employees at the Yuma
cooler, and 35 employees4 at the Huron facility. The record
further establishes that, at its Yuma and Marina facilities, Re-
spondent employs a fairly stable work force with employees
moving between each as the growing seasons commence and
conclude and that, as a growing season in an area begins to
wind down, the necessary employee complement at Respon-

3 In 1989, when the lockout at issue herein occurred, in addition to
the facilities in Marina and Huron, Respondent operated coolers located
in Guadalupe, Calipatria, and Poston, Arizona. The Yuma facility was
opened in 1990 or 1991.
4 Apparently, only a “few” employees will go form Marina to Huron
and, then, to Yuma and from Yuma to Huron and, then, to Marina each
year.
dent’s area cooler concomitantly decreases so that, at the end of
a season, no more than 8 to 10 employees and 1 supervisor
remain working. Dave Davis, who was the only witness at the
hearing, is the director of cooler operations for Dole Fresh
Vegetables, and Terry Chappell is plant manager of the Yuma
cooler.
The parties stipulated that, since about 1976, Respondent and
the Union have had a collective-bargaining relationship with
the Union acting as the bargaining representative of Respon-
dent’s full-time and regular part-time seasonal and yearround
cooler, dock, warehouse, cold room, and loading employees at
its Marina, Yuma, and Huron facilities and that the parties had
successive collective-bargaining agreements with the last of the
agreements having expired in 1989. The parties commenced
negotiating for a successor agreement in June 1989; however,
with negotiations unsuccessful, the bargaining unit employees
commenced an economic strike in August. Respondent imme-
diately hired temporary replacements, and, in November 1989,
it locked out its aforementioned employees. That month, the
Union, on behalf of the striking employees, made an uncondi-
tional offer to return to work; however, in response, Respon-
dent advised the Union that the lockout would continue in ef-
fect until a successor contract was signed. The lockout contin-
ued for 14 years, and, in 2003, Teamsters Local 890 (the Team-
sters) began an organizing campaign amongst Respondent’s
replacement employees. On August 6, 2003, the Teamsters
filed a petition in Case 32–RC–5174 to represent the employ-
ees, and a representation hearing was held in that matter on
August 19. On that same date, Respondent, the Union, and the
Teamsters entered into a Stipulated Election Agreement5 and an
accompanying letter of agreement. The latter document reads
as follows:
This letter confirms the following agreement between
[t]he Union and Respondent.
(1) Following certification of the results of the
election . . . the Company will offer reinstate-
ment to those employees who were locked out
as of 1989. . . .
(2) The offers of reinstatement, which will be
open for 30 days, shall include the opportunity
to return to work at the current terms and con-
ditions of employment and retention of senior-
ity (defined as actual years of service as of the
date of the lockout). Such seniority will be
honored for all purposes, as will the seniority
accumulated by the replacement workers since
the commencement of the lockout.
As scheduled, an NLRB representation election was conducted
at each of Respondent’s three facilities during September, No-
vember, and December 2003, and, on December 3, a tally of
ballots was issued, showing that, of approximately 280 eligible

5 The voting unit consisted of all “current and locked-out full-time
and regular part-time seasonal and year-round cooler, dock, warehouse,
cold room and loading employees employed by Respondent.”
BUD ANTLE, INC. 101
voters,6 80 votes were cast in favor of the Teamsters, 7 votes
were cast in favor of the Union, and 146 ballots were cast
against representation by either labor organization. Subse-
quently, on December 15, the Regional Director for Region 32
issued a certification of results of election, stating that a major-
ity of the valid votes were not cast for either labor organization
and that no labor organization was the exclusive representative
of Respondent’s employees in the bargaining unit, which had
been formerly represented by the Union.
On or about December 19, 2003, Respondent sent identical
letters, offering reinstatement to each of approximately 130
locked-out employees. Said letters read as follows:
We are pleased to inform you that the Company is for-
mally ending the lockout of its cooler employees. This
decision follows the NLRB’s certification of election re-
sults issued on December 15, 2003.
In accordance with this decision, we hereby offer you
reinstatement to your former position of employment with
Bud Antle. If you are reinstated, you will return to work
under the Company’s current terms and conditions of em-
ployment. In addition, your pre lockout seniority will be
used for all purposes.
If you are interested in reinstatement, you must notify
the Company by returning the enclosed form with the re-
quested information by January 22, 2004. Please bear in
mind 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 sen-
iority relative to other employees, including both locked-
out and replacement employees, and (3) your being quali-
fied to perform the job to which you are recalled.
Thereafter, and continuing through January 22, 2004, Respon-
dent received hand-delivered and mailed letters, requesting
reinstatement, from 24 locked-out employees. Their names and
the dates, on which Respondent received the letters, are listed
below:
John C. Rodriguez December 22, 2003
Charles Collenback December 23, 2003
Ray Valasquez December 26, 2003
Danny Gutierrez December 28, 2003
Alvin Anderson December 29, 2003
John Todd December 29, 2003
Rod Kenneth Penney December 29, 2003
Matt Forstedt December 30, 2003
Cheryl Vaz December 30, 2003
Robert D. Tully December 31, 2003
Jerry McBride January 2, 2004
Loretta Heinz January 7, 2004
Alejandro Rivas January 7, 2004
Rigoberto Lopez January 8, 2004
Eugene Navavoli January 12, 2004
Salvatore Escobar January 14, 2004
Gary E. Jackson January 15, 2004
Thomas O. Norris January 15, 2004

6 R. Exhs. 1 and 2 establish that, as of the date of the election, there
were 133 locked-out employees and 127 replacement workers.
Joe Flores Olvera January 15, 2004
Louie Pestoni January 16, 2004
Michael Kemp January 17, 2004
Russ Christiansen January 19, 2004
Larry Joe Azlin January 22, 2004
Mel Southworth January 22, 2004
On January 28, Respondent sent identical letters to each of the
above-named 24 employees. The letters read as follows:
This letter confirms receipt of your acceptance of our
offer of reinstatement to your employment at Bud Antle,
Inc. Set forth below are the details of your returning to
work.
We have established Monday, February 23, 2004 as
the return to work date for all locked-out employees. Be-
cause of the amount of time that has elapsed since you last
worked for the Company, all returning employees, regard-
less of seniority, will be required to spend the first 20 days
of their re-employment at the Company’s Yuma, Arizona
cooler where they will undergo orientation and training.
After this initial period, you may be reassigned to another
facility depending on your seniority. For your informa-
tion, we have enclosed the seniority guidelines, which in-
clude the Company’s policy on traveling to different fa-
cilities at the end of each season. Please note that this 20-
day orientation and training period is mandatory—any
employee who fails to attend is subject to termination for
job abandonment.
All locked-out employees will be entitled to travel pay
to Yuma, weekly per diem of $225 pursuant to the Com-
pany’s 2003–2004 per diem policy, and pay and benefits
according to the attached exhibits. . . .
We look forward to seeing you at the Yuma Cooler . . .
on February 23.
Dave Davis testified that, while the lockout continued for 14
years during which time Respondent continued to operate its
coolers with replacement employees, all locked-out employees
were permitted to vote in the election; that, at the time Respon-
dent mailed the December 19, 2003 letters to the individuals, its
Yuma cooler was in full operation7 with “about 90” employees
working there;8 and that Respondent was expecting a “rela-
tively high” rate of acceptances. In this regard, when asked
why the December 19 letter set forth conditions for reinstate-
ment, Davis, who was involved in the decisionmaking process,
replied, “Basically, because if everybody came back, we

7 Davis testified that, during the prior season at Marina, Respondent
hired new hires on different days with each placed on “the same 20
days probation period” as the reinstated locked-out employees. He
admitted that the training given to each was similar to that given to the
returning locked-out employees and was done on an individual basis for
any hired alone. According to Davis, training is on an individual basis
“if we hire just one, yeah.”
8 During cross-examination, Davis estimated that, each season, there
are between 5 and 10 new hires employed at the Yuma cooler. Accord-
ing to him, the number of new hires and whether or not they are hired
as a group or on a piecemeal basis are solely products of necessity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD102
wouldn’t have enough jobs for everybody.”9 Based upon this
uncertainty, according to Davis, Respondent’s intent when the
January 22, 2004 deadline for reinstatement acceptances ar-
rived was “to determine how many workers we had in total
between both the locked-out people and the current employees.
And put the seniority list together accordingly. And figure out
where everybody stood.”10 As to why Respondent failed to
reinstate each locked-out employee upon receipt of his or her
request for reinstatement, Davis reiterated that “. . . until the
22nd or the 23rd when we had them all, we didn’t know how
many people we were going to have.” He added that Respon-
dent was also concerned about the lack of “efficiency” in rein-
stating employees on a piecemeal basis—“I didn’t . . . think it
would be very efficient in the business to bring back two guys
and train them today and three more guys tomorrow and train
them. It was more efficient to do it one time.”11 Further, Davis
believed that language of the parties’ “stipulation,” which held
Respondent’s offer open for 30 days, permitted it to delay rein-
statement of any locked-out employee, who responded to Re-
spondent’s offer, for 30 days. With regard to why, after Janu-
ary 22, Respondent failed to immediately reinstate the 24
locked-out individuals, who had requested reinstatement, Davis
testified that, shortly after that day, he met with Respondent’s
human resources personnel, “and we talked about things such
as where the reinstatement should be because we were currently
operating mostly in Yuma . . . were going to give them travel
pay . . . per diem. And . . . what date the training should be
. . . . because the business has changed quite a bit in 14 years.”

9 Inasmuch as, given the total number of ballots cast in the election,
a significant number of locked-out employees, probably in excess of
100, must have voted, this apparently was not an unreasonable concern.
However, during cross-examination, Davis acknowledged being aware
that several locked-out employees had left California or were either
dead or disabled. Moreover, during the representation case hearing, a
company official, Danny Urbano, the head of labor relations, testified
that “. . . some people are no longer around . . . ” and that a union offi-
cial told him “less than 30, around 30” individuals would return.
10 While, during cross-examination, Davis denied that Respondent
would have been able to put each of the 24 locked-out employees back
to work in his former job immediately after acceptance of Respondent’s
offer “. . . because . . . there might have been some classifications
where by their seniority, they wouldn’t have had a position,” analysis
of R. Exhs. 2 and 3 discloses that all of the 24 locked-out employees
had greater seniority than at least one replacement worker in their re-
spective job classifications. Moreover, several, including Azlin,
Christiansen, Escobar, Forstedt, Jackson, Lopez, Navavoli, Norris,
Olvera, Penny, Southworth, Tully, and Valasquez, had in excess of 13
years seniority. Specifically, during cross-examination, Davis admitted
that John Rodriguez, a forklift operator, who had in excess of 6 years of
seniority prior to the lockout, had more seniority than some replace-
ment forklift operators and would have had the right to bump if imme-
diately reinstated. Likewise, Davis conceded that Respondent could
have immediately reinstated locked-out employees Robert Tully and
Danny Gutierrez to their former positions.
11 However, during cross-examination, asked if, for training pur-
poses, there would have been any practical problem for training locked-
out people if reinstated on the day of acceptance of the offer to return,
Davis replied, “We could have,” but “I would have preferred to do it in
some kind of groups.”
As a result of their discussion, according to Davis, Respondent
mailed its January 28 letter to each of the above 24 employees.
Monday, February 23, 2004, was the date Respondent se-
lected as the reinstatement date for the 24 returning locked-out
employees, and Davis advanced several reasons for its choice
of that day. First, Respondent wanted the employees to begin
working “on a Monday” as “our pay period starts on Sunday.”
As to this, Davis explained, Respondent decided against the
following Monday, February 2, as the reporting date; for the
employees would receive its letter on Thursday or Friday, “and
it seemed unreasonable to have them show up on the 2nd,
which was two days later.” February 9 and 16 were considered,
but, as to the former, “. . . we felt that we needed to give people
. . . a reasonable amount of time to . . . give their current em-
ploy[ers] notice,” the “standard” 2-weeks notice.12 As to Feb-
ruary 16, according to Davis, “[T]here were two issues with
that week. One is our plant manager was on vacation that
week,” and “[Chappell, who was the only current supervisor
who was also a manager in 1989 and who would be involved
with the training,] was the one that knew exactly what the skill
level of the 24 people was and what needed to be done to get
them from that level to the current requirements.” The other
issue was the 2-weeks notice, which the returning locked-out
employees presumably would give to their employers—“. . . if
some of the people are from out-of-state . . . it seemed maybe
unreasonable for them to work at their job on Friday and be in
Yuma Sunday night to start on Monday.” Specifically regard-
ing Chappell, Davis testified that the training, which was to be
conducted by the plant manager, was to last 20 days and had
two aspects. The first was the “usual . . . HR stuff,” such as
benefits and policies. The other involved the so-called “current
requirements” of the work, the “actual job skills that were re-
quired,” many of which had changed since the lockout was
instituted in 1989. According to Davis, Respondent’s products
now are commodities, such as lettuce heads, celery, and cauli-
flower, and value-added products, which are bagged salads and
which did not exist in 1989. Also, the job has become more
technologically advanced. In 1989, loaders worked from
printed manifests and merely were instructed to load a given
amount of product on to a truck “generally” on a first-in-first-
out basis;13 while, currently, “. . . all of our product has a bar
code on a pallet. In that bar code is all the information about
the history of that pallet. So we know what day it came [in],

12 Asked if he ever inquired as to whether any of the 24 individuals
actually needed to give 2-weeks notice to a current employer, Davis
admitted that he had no personal knowledge but based his decision-
making on what he heard from another individual, Vera Martinez. She
reported that locked-out employee, Danny Gutierrez, had called to say
he wanted to give 2-weeks notice in order not to leave his job “on a bad
note,” and locked-out employee, Larry Joe Azlin, was then living in
Oklahoma and required time to move his “stuff” to Yuma. Of course,
the foregoing was uncorroborated hearsay, and Respondent’s counsel
assured me Davis’ testimony was not being offered for its truth.
13 Bagged salads, in the vernacular of the industry—salad mix, are
not shipped on a first-in-first-out basis. Rather, for this, Respondent
must ship “today’s product” to customers in New York but can ship
“three-day-old product” to customers in Los Angeles. Thus, in contrast
to lettuce heads or celery, cooler workers must be aware of the product
age and shipping location for Respondent’s bagged salads.
BUD ANTLE, INC. 103
what crew it came from, what item it is, how many units are on
the pallet.” To read the bar codes, employees utilize “hand-
held scanners.” A dispatcher types in an order number, which
appears on the screen of a scanner, and a loader must scan the
bar code on a pallet to ensure he has pulled the correct order.14
Davis added that the importance of Chappell’s presence was
that he alone knew what the employees’ skills were prior to the
lockout and what skills each required to learn in order to do his
job in 2004.
There is no dispute that, on February 23, 2004, only 8
(Charles Collenback,15 Danny Gutierrez, Gary E. Jackson,
Rigoberto Lopez, Rod Kenneth Penny, Alejandro Rivas, John
C. Rodriguez, and Robert D.Tully) of the 24 locked-out indi-
viduals, who had requested reinstatement, reported for work.16
Davis stated that Respondent never again heard from the other
16 locked-out employees and that they were “. . . terminated for
job abandonment after two days.”17 The record reveals that, on
their first day of work, the returning locked-out employees
filled out forms, including the I-9, the W-4, and benefit enroll-
ment documents, received orientation training on house rules
and company policies, underwent drug screens, and attended a
safety training session.18 Subsequent training for the returning
employees included receipt of a manual, on use of the company
scanners, for each to read, an “interactive” class, regarding use
of the scanners, with Chappell, and some “specialized” training
on skills, which were different than in 1989, with supervisors or

14 This is significant inasmuch as Respondent often ships pallets,
which contain a combination of product, to customers, and it is impor-
tant that the correct product mix is in a pallet.
15 According to Davis, Collenback appeared on February 23, claimed
he had not been working because of a workers’ compensation claim,
and failed to report for work thereafter.
16 The parties stipulated that, as of this date, Respondent did not have
any specific knowledge about what work the seven returning locked-
out employees had performed over the previous 14 years, whether they
continued to have the physical skills and abilities to perform the work
at Respondent’s facilities, or whether they would have any difficulties
learning the new systems and methods utilized at the coolers since the
lock-out commenced in 1989. Thus, with regard to returning locked-
out employee Rodriguez, Davis admitted that “I had no idea what he’d
been doing during the last 14 years,” and “I had no idea what his skills
were like.”
17 Davis testified that, even if all 24 locked-out employees had re-
ported on February 23, “we would not have laid anybody off until the
end of the season.” He added that, at that time, “. . . if we had too many
people . . . the lowest seniority people would not have been transferred.
They would nave just been laid off at the season.”
18 According to Davis, the plant manager customarily performs this
training; however, if Chappell was unavailable, it was done by “one of
the other managers.” Asked why such was not done on this occasion,
Davis opined, “I guess it could have.” In fact, when asked if Chappell
did the safety training for the returning locked-out employees, Davis
said, “There were probably two or three supervisors and Terry that
were in the room together,” and he did not know who actually con-
cocted the safety session. In this regard, GC Exh. 2, the safety tailgate
meeting report, shows the instructor as being Jim Kesinger, and GC
Exhs. 3(a) through (h), the reports accounting for the forms and docu-
ments given to the returning employees, were executed by either Rosie
Keeton or Vera Martinez. Finally, Davis stated, during cross-
examination, that Chappell would have been available for training on
most days in the last 3 weeks of January 2004.
senior employees. During cross-examination, asked if there
was anything different as to the treatment of the reinstated em-
ployees compared with that given to new hires, Davis said,
“[N]o.” He added, and the parties stipulated, that this identical
treatment included the 20-day training/probation period, which
always begins with “an official-type” training program, a drug
screen, and, thereafter, on-the-job training sessions with super-
visors and/or senior employees.
The parties stipulated that, when new employees are hired by
Respondent, their initial 4 weeks are considered a training pe-
riod. During this period of time, Respondent limits the assign-
ment of overtime to these employees inasmuch as it wants this
work, which involves higher pay, to be done as quickly and
efficiently as possible and as the new hires generally are not as
adept as existing employees at performing their work assign-
ments in the required manner. After employees have worked
their initial 4 weeks, overtime is distributed evenly among all
employees without regard to seniority. The parties further
stipulated that Respondent treated the seven returning locked-
out employees as if they were new employees for purposes of
overtime assignments during their initial 4 weeks back at work
and that its reasons for doing so were (1) its lack of specific
information as to what work the seven employees had per-
formed during the previous 14 years, whether the seven contin-
ued to possess the physical skills and abilities to perform the
work at Respondent’s coolers, and whether the said employees
would experience difficulty in learning the new systems and
methods now utilized at Respondent’s coolers and (2) its belief
that the seven employees would require the training period to
enable themselves to perform their work assignments quickly
and efficiently. In particular, based upon its experiences with
other employees, Respondent believed that the seven returning
locked-out employees would need the entire 4-week training
period to become fully proficient in using the scanners to load
and consolidate pallets and to learn how to determine the ap-
propriate age (based upon when the product was harvested and
produced and customers’ requirements) of the products to be
loaded, the location of the products in the cooler, and the vari-
ous codes for Respondent’s products. Further, the parties stipu-
lated that, after the 4-week training period, the seven returning
locked-out employees were given the same overtime opportuni-
ties as existing employees.
The parties also stipulated that, of the seven returning
locked-out employees, Tully and Penny returned as loaders,
Gutierrez returned as a picker, Rodriguez and Lopez returned
as inside forklift drivers, Jackson returned as an outside forklift
driver, and Rivas returned as a dispatcher19 and that Respon-
dent failed to expend any effort to ascertain the job experiences,
skills, education, or job-related training maintained or acquired
by any of the above-seven employees during the time period
August 1989 through February 23, 2004.20 For example, Re-
spondent did not know that, prior to returning to work with

19 A foreman is always present when employees, new or veteran,
work, including overtime.
20 Respondent has no documents showing the job experience, skills,
or job-related training acquired by any of the returning locked-out
employees during the period of the lockout.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD104
Respondent, returning locked-out employee Rivas had been
working as a dispatcher for many years at Skyview Produce, a
Yuma-based company which also runs Dole product, and that,
as a dispatcher for Skyview Produce, Rivas utilized the same
hand-held scanners used by Respondent and otherwise per-
formed work similar to that which he performed for Respon-
dent upon his return to work on February 23.21 Also, the par-
ties stipulated that not all employees use the hand-held scanners
or computers. For example, returning locked-out employee
Rodriguez did not use a hand-held scanner in the performance
of his duties as an inside forklift driver. In addition, returning
locked-out employees Jackson, Lopez, Penny, Rodriguez, and
Tully did not need any training on the mechanical operation of
a forklift or the mechanics of loading and unloading product,
and they were all operating forklifts for Respondent by Febru-
ary 24. In addition, none of the seven of the former locked-out
employees had to learn the location of product in the cooler,
product codes, or dating requirements for Respondent’s prod-
uct, and other employees and foremen were available to answer
any of their questions.22
The parties next stipulated that, prior to the commencement
of the lockout in 1989 by Respondent, returning locked-out
employees Gutierrez, Jackson, Lopez, Penny, Rivas, Rodri-
guez, and Tully each had acquired the same overtime privileges
as other employees, that they were not probationary employees,
that Respondent did not limit their overtime assignments, and
that, during the 4-week period commencing on February 23,
2004, while treating each of the seven returning locked-out
employees as a new employee and limiting his overtime hours,
each of the seven employees worked some overtime.23 The
parties further stipulated that, in connection with the assign-
ment of overtime, Respondent does not possess any documents
showing its policy or practice, regarding the assignment of
overtime to new employees, to employees returning to work
after any kind of absence, or to existing, nonprobationary em-
ployees, in effect during the period January 1 through March
31, 2004.
B. Legal Analysis
The parties agree, and I concur, that the issues presented
herein, involving the alleged right of former locked-out full-
time employees to immediate reinstatement upon the accep-
tance, by each, of his employer’s offer of reinstatement and
their alleged right, upon reinstatement, to be treated, by their

21 One difference in the work was that Skyview Produce handled
only raw commodities; whereas Respondent also handles bagged salad
product. Raw commodities are dated and require rotation in order to
assure that the first product in from the field is the first product out.
Moreover, the dating system used to manage the distribution of bagged
salad products is more complicated, and Rivas needed to learn the more
complicated dating requirements for Respondent’s products.
22 Respondent failed to document the progress, work performance, or
any limitations of the job performance of either Danny Gutierrez, Gary
Jackson, Rigoberto Lopez, Rod Kenneth Penny, Alejandro Rivas, John
C. Rodriguez, or Robert Tully during the 4 weeks after each returned to
work on February 23, 2004.
23 Respondent’s payroll records, Jt. Exhs. 9(a) through (kk), disclose
that each of the seven employees worked overtime on multiple Satur-
days during the 4-week period commencing on February 23.
employer, in the same manner as existing full-time employees,
for the purpose of receiving overtime assignments, are matters
of first impression. There is also no dispute that, as to whether
Respondent’s failure to immediately reinstate the 24 locked-out
employees, who accepted its offer to return to work, and its
treatment of the 7 locked-out employees, who returned to work,
as new employees for the purpose of assigning overtime work
were, as alleged, violative of Section 8(a)(1) and (3) of the Act,
the proper analytical approach is that which has been articu-
lated by the Supreme Court. Thus, the Court holds that “. . .
there are some practices which are inherently so prejudicial to
union interests and so devoid of significant economic justifica-
tion that no specific evidence of intent to discourage union
membership or other antiunion animus is required,” and “. . .
that the employer’s conduct carries with it an inference of
unlawful intention so compelling that it is justifiable to disbe-
lieve the employer’s protestations of innocent purpose.”
American Ship Building Co. v . NLRB, 380 U.S. 300, 311–312
(1965). Further, the Court directs that, if an employer’s con-
duct is within this category of misconduct,24 “the Board can
find an unfair labor practice even if the employer introduces
evidence that the conduct was motivated by business considera-
tions,” no proof of antiunion motive is needed,” and the Board
must “. . . strike the proper balance between the asserted busi-
ness justifications and the invasion of employee rights” in order
to determine whether the employer’s conduct is so destructive
of said employee rights as to mandate finding a violation of
Section 8(a)(1) and (3) of the Act. NLRB v. Great Dane Trail-
ers, 388 U.S. 26, 34 (1967); Capehorn Industry, 336 NLRB
364, 365 (2001). On the other hand, according to the Court, in
cases alleging other acts of alleged unlawful discrimination, if
the impact, upon employees’ statutory rights, of an employer’s
discriminatory conduct is found to be “. . . comparatively slight,
an antiunion motivation must be proved to sustain the charge if
the employer has come forward with evidence of legitimate and
substantial business justification for the conduct.” Great Dane
Trailers, supra at 34. Once the employer establishes such le-
gitimate and substantial business justification for its actions, its
conduct is “prima facie lawful,” and no violation of the Act
may be found unless the General Counsel makes an “affirma-
tive showing of unlawful motivation.” Id.
While not specifically deciding the issues posed herein, the
Supreme Court, Federal courts of appeals, and the Board have
decided numerous cases, involving employer lockouts of bar-
gaining unit employees and related issues, and have utilized the
above analytical framework in examining the impact of such
conduct upon employees’ statutory rights and whether such
conduct was violative of Section 8(a)(1) and (3) of the Act.
Thus, the Supreme Court has held that, following impasse, the
impact, upon employees’ Section 7 rights, of an employer’s
lockout of its bargaining unit employees for the sole purpose of
exerting economic pressure in support of a legitimate bargain-
ing position is comparatively slight rather than inherently de-

24 Such “inherently destructive” conduct is of a type, which has “un-
avoidable consequences which the employer not only foresaw but
which he must have intended.” Erie Resistor, 373 NLRB 221, 228
(1963).
BUD ANTLE, INC. 105
structive and, absent unlawful motivation, does not violate
Section 8(a)(1) and (3) of the Act. American Ship Building,
supra. Further, the Court has found that nonstruck employers
in a multiemployer bargaining association do not engage in
inherently destructive conduct and do not violate Section
8(a)(1) and (3) of the Act by continuing operations with tempo-
rary replacements after lawfully locking out bargaining unit
employees in response to a whipsaw strike against one associa-
tion member.25 NLRB v. Brown Food Stores, 380 U.S. 278
(1965). Similarly, the Court of Appeals for the D.C. Circuit
determined that an employer acted lawfully when it imposed a
lockout to force its bargaining unit employees to cease employ-
ing a so-called “inside game weapon” during a contract dispute.
The court decided that, rather than being inherently destructive
of its employees’ Section 7 rights, the lockout, which was an
economic response to the employees’ strategy, had a compara-
tively slight impact upon their rights and was undertaken to
support the employer’s bargaining strategy. Electrical Workers
Local 702 v. NLRB, 215 F.3d 11 (D.C. Cir. 2000). Likewise, in
Harter Equipment, 280 NLRB 597 (1986) (Harter 1), affd. sub
nom. Operating Engineers Local 825 v. NLRB, 829 F.2d 458
(3d Cir. 1987), rationalizing that the employer’s use of tempo-
rary replacements in order to engage in business operations
during an otherwise lawful lockout had only a comparatively
slight impact upon its employees’ statutory rights, the Board
held that, absent evidence of unlawful animus, a single em-
ployer, such as Respondent, does not engage in conduct viola-
tive of the Act by engaging in such a tactic. Also, in Interna-
tional Paper Co., 319 NLRB 1253 (1995), the Board held that
an employer engaged in conduct, “inherently destructive of
employee rights” and violative of Section 8(a)(1) and (3) of the
Act, by permanently subcontracting bargaining unit work dur-
ing a lawful lockout of its employees; and, in Ancor Concepts,
Inc., 223 NLRB 742, 744 (1997), revd. on other grounds 166
F.3d 55 (2d Cir. 1999), which involved a strike, the hiring of
replacements, and a subsequent lockout of the striking employ-
ees, the Board ruled that, after declaring its replacements were
permanent employees, an employer’s failure to reinstate strik-
ing employees upon their unconditional offer to return to work
was “. . . inherently destructive of employee rights . . . and vio-
lates Section 8(a)(3) and (1)” of the Act.26

25 Assessing the impact upon employees’ Sec. 7 rights, the Court
concluded that the use of temporary replacements added only slightly to
the impact of the lawful lockout upon the employees’ Sec. 7 rights.
Brown Food Stores, supra at 288.
26 In her posthearing brief, counsel for the General Counsel correctly
argues that “locked-out employees may not be permanently replaced”
and that “. . . once a lockout ends, they are entitled to immediate rein-
statement.” Then, while recognizing the existence of no exact case
precedent for the precise issues involved herein, contrary to counsel for
Respondent, she contends that locked-out employees’ rights to immedi-
ate reinstatement in place of temporary replacements and to treatment
as regular full-time employees after returning to work are akin to those
of economic strikers who have been temporarily replaced. While con-
ceptually counsel’s arguments have merit, I do not agree with her in
regard to these matters. Thus, it is true that the essential fact of a lawful
lockout is the locking out all the bargaining unit employees, with those
hired into unit jobs during the lockout necessarily being temporary
replacements for the locked-out bargaining unit and not eligible to vote
I believe that, in determining whether Respondent engaged
in acts and conduct, violative of Section 8(a)(1) and (3) of the
Act, by failing and refusing to immediately reinstate 24 former
locked-out employees upon the acceptance, by each, of its offer
of reinstatement at the conclusion of its 14-year lockout and by
failing and refusing to treat the 7 returning former locked-out
employees the same as regular full-time employees for pur-
poses of the assignment of overtime, I am required to assess the
impact of said acts on three statutory rights—the right to bar-
gain collectively, the right to strike, and the right to engage in
union activities. Harter 1, supra at 597. With regard to Re-
spondent’s failure to immediately reinstate each of the 24
locked-out employees, who accepted its December 19, 2003
offer of reinstatement, at the outset, I note that, inasmuch as
such was instituted to induce the Union to enter into a new
collective-bargaining agreement presumably upon terms favor-
able to it, Respondent’s November 1989 lockout of its bargain-
ing unit employees and its hiring of temporary replacements
appear to have been typical of such employer actions, which the
Supreme Court, lower Federal courts of appeals, and the Board
have found lawful. Further, in my view, notwithstanding that
the lockout did not culminate with a new contract but, rather,
with the replacement employees and the locked-out employees
voting against representation by either the Union or the Team-
sters, Respondent had been obligated to offer reinstatement just
as if the Union had agreed to enter into a new collective-
bargaining agreement, and Respondent’s agreement to offer
reinstatement to the locked-out employees should be viewed as
necessary rather than beneficent. Put another way, as to the
bargaining unit employees’ right to immediate reinstatement, I

in a representation election. Harter Equipment, 296 NLRB 647, 648
(1989) (Harter 2). However, notwithstanding the apparent clear Board
law, with the approval of the Regional Director for Region 32, the
parties entered into a stipulated election agreement, which effectively
placed Respondent’s replacement employees and the locked-out em-
ployees on an equal footing in the bargaining unit. In these circum-
stances, given the agreement of the parties, I am not sufficiently san-
guine regarding the status of Respondent’s replacement employees to
justify reliance upon those Board decisions, concerning the rights of
strikers to immediate reinstatement to jobs occupied by temporary
replacements, as precedent for my legal conclusions on the matters at
issue herein. Nevertheless, in NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 378 (1967), a case involving the right of employees to immediate
reinstatement to their jobs, which remained unfilled during the strike,
upon their unconditional offer to return to work at the conclusion of an
economic strike, the Supreme Court stated that Sec. 2(3) of the Act
provides, in part, that the term “employee . . . shall include any individ-
ual whose work has ceased as a consequence of, or in connection with,
any current labor dispute . . . and who has not obtained any other regu-
lar and substantially equivalent employment.” As the administrative
law judge in International Paper Co., supra at 1352, noted, “The same
language in Section 2(3) preserves the continued employee status (and,
therefore, the statutory rights concomitant to that status) of individuals
whose work has ceased because their employer has lawfully locked
them out in an effort to induce their bargaining representative to accept
his contractual proposals.” In these circumstances, I believe Board
decisions, involving the asserted right of strikers to be reinstated to jobs
which are not filled by temporary replacements, may be utilized as
precedent for deciding the right to immediate reinstatement issue
herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD106
think the vote of the employees against representation was tan-
tamount to a bargaining unit’s acceptance of a new collective-
bargaining agreement and, if Respondent had refused to offer
reinstatement to the locked-out employees, such would have
unlawfully converted the status of the replacement workers to
that of permanent employees. Ancor Concepts, supra.
During the 14 years since 1989, in adamantly adhering to the
Union’s bargaining position while Respondent perpetuated its
lockout of them, the bargaining unit employees had collectively
exercised their Section 7 rights to assist the Union and to bar-
gain collectively through the Union as their bargaining repre-
sentative. In these circumstances, one may persuasively con-
tend that, by delaying reinstatement to the 24 locked-out em-
ployees even for a relatively short period of no more than 60
days, Respondent conveyed to the above individuals and to its
replacement workers a message of retaliation against its em-
ployees’ exercising of the rights even after the bargaining unit
employees, by voting against representation by the Union or the
Teamsters, had signified a desire to cease engaging in the ac-
tivities. Moreover, Respondent’s act of delaying reinstatement
of the locked-out employees, to some extent, arguably served to
chill the future exercise of the above statutory rights by the
returning bargaining unit employees and by the replacement
employees. Further, Respondent’s locked out employees sig-
naled their desire to return to work by voting against union
representation and, while not arising to permanent loss of jobs,
Respondent’s failure to immediately reinstate those locked-out
employees, who accepted its offer, subjected them to continued
loss of wages. Finally, the Board has found an employer’s
delayed, rather than immediate, reinstatement of strikers, who
unconditionally offered to end their strike and return to work, to
jobs, which remained unoccupied during their strike, to be vio-
lative of Section 8(a)(1) and (3) of the Act. Westpac Electric,
323 NLRB 1322, 1364 (1996). Notwithstanding the foregoing,
the record herein is devoid of any actual evidence, regarding
the adverse effect, if any, of Respondent’s failure to immedi-
ately reinstate each of the 24 locked-out employees upon the
above-stated statutory rights of its employees. Therefore, in the
context of its payment of weekly per diem payments and travel
expenses to the 24 locked-out employees and, after 14 years,
the relatively short period of delay in reinstating them, I agree
with counsel for the General Counsel that Respondent’s actions
were not “inherently destructive” of its employees’ statutory
rights and, at most, had had a “comparatively slight” impact on
them.
In these circumstances, the burden shifted to Respondent to
establish that it had “legitimate and substantial business justifi-
cation” for denying immediate reinstatement to each of the
locked-out employees, who accepted Respondent’s offer, upon
receipt of the acceptance. In this regard, Respondent appar-
ently bifurcates its defense into two separate time periods—the
30-day time period, ending on January 22, 2004, which the
locked-out employees were afforded in order to accept Respon-
dent’s reinstatement offer, and the time period from January 23
through February 23, 2004. With regard to the former time
period, Respondent’s defense concentrates upon its expecta-
tions as of December 19, the date of its offers, and emphasizes
two points—that, not until January 22, would it possess specific
knowledge as to the exact number of locked-out employees
who would accept its reinstatement offer and that reinstating
said individuals on a piecemeal basis would be administratively
inefficient and a disruptive business practice.27 As to the first
point, Dave Davis asserted that Respondent expected a “rela-
tively high” rate of acceptances and that, in such circumstances,
not only would there be an insufficient number of jobs for all
employees but also, if Respondent commenced immediately
reinstating those who accepted its offer, by necessity, it would
be faced with the burdensome task of reassessing seniority and
job bumping rights on a daily basis. However, while, perhaps,
an unexpectedly large number of the locked-out unit employees
voted in the election, the Board has held, in the context of a
strike, that, after an unconditional offer to return, a failure to be
able to predict, with certainty, the number of strikers, who
would accept reinstatement to unfilled jobs, does not relieve an
employer of the obligation to reinstate those, who desire to
return to work, in a timely manner. Coca Cola Bottling Works,
186 NLRB 1050, 1051 (1970). Moreover, Respondent was
aware that several locked-out employees had left California or
were either dead or disabled and that, prior to the representation
election, a union official had informed Danny Urbano, the
manager of labor relations, he thought “less than 30, around
30” of the locked-out employees would accept reinstatement.
Further, while, on December 19, 2003, Respondent’s facility
was operating at full capacity, with approximately 90 replace-
ment employees, and, if all or close to all of the locked-out
employees accepted Respondent’s offer and sought immediate
reinstatement, the availability of jobs may have been a problem,
the fact, which Respondent does not dispute, is that most, if not
all, of the 24 individuals, who did accept its offer, had suffi-
cient seniority for immediate reinstatement by bumping into
jobs currently held by replacements. In any event, according to
Davis, Respondent had no plans to lay off any employees even
if all 24 locked-out employees returned to work in February.
As to Respondent’s contention, that reinstating returning
locked-out employees on a piecemeal, rather than group, basis
would have been an inefficient and disruptive business practice,
Davis conceded that Respondent could have given each of the
above 24 individuals individual training. Moreover, he admit-
ted that new hires are trained on an individual basis when nec-
essary. Also, while it locked out its bargaining unit employees
in response to their strike, notwithstanding the employees’ un-
conditional offer to end the strike and return to work, Respon-
dent acted on its own volition to continue the lockout until the
Union capitulated on a new contract, presumably on terms fa-
vorable to the former, and must bear the consequences of the
act. Therefore, that Respondent may have perceived adminis-

27 While Dave Davis raised the language of the parties’ August 19,
2003 side letter as a justification for delaying reinstatement and while
he presumably was raising the matter of waiver, such was not men-
tioned as an affirmative defense by Respondent in its answer to the
complaint in Case 32–CA–21181, and counsel for Respondent, who
undoubtedly was aware of and formulated all of Respondent’s defenses,
never mentioned the putative issue in his posthearing brief. In these
circumstances, while agreeing with counsel for the General Counsel’s
and counsel for the Charging Party’s analysis of the issue, I will assume
waiver is not a component of Respondent’s defense and not discuss it.
BUD ANTLE, INC. 107
trative problems regarding immediately reinstating its locked-
out employees is, in my view, irrelevant to its duty to reinstate.
In these circumstances, I do not believe that Respondent’s lack
of knowledge as to the exact number of locked-out employees
who would accept its offer of reinstatement or its administrative
and efficiency concerns constitute legitimate and substantial
justifications for its alleged discriminatory actions. Accord-
ingly, even absent evidence of unlawful animus, I find that,
during the time period December 19, 2003, through January 22,
2004, by failing to immediately reinstate each of the 24 locked-
out employees upon receipt of his and her acceptance of its
offer of reinstatement, Respondent engaged in discriminatory
acts and conduct, which impacted upon its employees’ statutory
rights in violation of Section 8(a)(1) and (3) of the Act.28
Turning to Respondent’s alleged unlawful discriminatory
treatment of the seven29 returning locked-out employees as new
employees for the purposes of overtime assignments after their

28 Further, assuming arguendo Respondent had legitimate business
reasons for delaying until January 22, I believe that it failed to justify
its additional delay, from January 23 until February 23, 2004, in rein-
stating the above 24 locked-out employees. In this regard, I note, ini-
tially, that, as stated above, the Board countenances almost no delay in
striker reinstatement cases and that Respondent failed to explain why a
letter, similar to its January 28 letter, could not have been mailed to
each locked-out employee, who accepted Respondent’s reinstatement
offer, immediately upon receipt of said acceptance in December, why
each of the individuals could not have been reinstated as soon as Janu-
ary 26, the first Monday after the January 22 deadline, or why, after the
January 22 deadline, Respondent inexplicably delayed until January 28
to send its letter, outlining reinstatement procedures, to the locked-out
employees, who had accepted its offer. In any event, ignoring January
26, Respondent asserts that it wanted to have the entire group begin
working on a Monday, which day is the start of a pay period, but that
Monday, February 2 was ruled out as it was too close to January 28,
thereby affording the employees, who were coming from outside Ari-
zona, little time to report after receipt of the January 28 letter. The next
two Mondays (February 9 and 16) were considered and rejected as
reporting dates, for such would have left no time for the employees to
give their current employers the standard 2-weeks notice, and, specifi-
cally with regard to February 16, Plant Manager Chappell, who was to
be central in retraining the returning employees and who was the only
existing manager with knowledge of the bargaining unit employees’
skill levels, was scheduled for vacation. As to February 9, other than
uncorroborated hearsay, there is no evidentiary support for Davis’
assumptions regarding the need for any locked-out bargaining unit
employee to give his current employer 2 weeks notice before quitting
or regarding requests for additional moving time. In any event, even
crediting the basis for Davis’ decision regarding February 9, the rejec-
tion apparently was based upon the comments of merely 2 of the 24
locked-out employees. Concerning the necessity of Plant Manager
Chappell’s presence for training, the record evidence is that he was
available for training during the entire month of January, and during the
weeks of February 2 and 9, 2004. Moreover, Davis admitted that other
managers could have performed the training for the returning locked-
out employees, and, in fact, the record evidence is that other managers
performed some of the training on February 23. In these circum-
stances, Respondent failed to establish a “legitimate and substantial
business justification” for delaying reinstatement after, at the latest,
January 26, 2004.
29 Of course, Charles Collenback, a returning locked-out employee,
also reported for work on February 23. I shall further discuss his status
in the remedy section of this decision.
reinstatement on February 23, the parties stipulated that, inas-
much as it had no specific information about what work the
seven returning locked-out employees performed during the 14
years of the lockout, whether the returning employees had the
physical skills and abilities to perform their required job duties,
and whether they would have any difficulties learning the new
systems and methods, utilized by it, and as it believed that the
returning locked-out employees would need a training period to
be able to perform all aspects of their jobs efficiently and
quickly as the existing employees, Respondent placed the re-
turning locked-out employees on 4-week training periods just
as if they were new employees. Specifically as to Respondent’s
limiting overtime assignments for said employees, citing to
cases involving discriminatory treatment of returning economic
strikers, with regard to seniority, job assignments, layoff rights,
and benefits, such as Oregon Steel Mills, 291 NLRB 185
(1988); Wisconsin Packing Co., 231 NLRB 546 (1977), and
Transport Co. of Texas, 177 NLRB 180 (1969), counsel for the
General Counsel contends that, upon their reinstatement, re-
turning locked-out employees “. . . [should have been] treated
uniformly with non-locked-out employees with respect to
whatever benefits accrue[d] to the latter from the existence of
the employment relationship” and that, therefore, Respondent
violated Section 8(a)(1) and (3) of the Act by treating the seven
returning locked-out employees as new employees for purposes
of assigning overtime. The parties stipulated that, prior to the
lockout, each of the seven returning locked-out employees had
acquired the same overtime privileges as other full-time bar-
gaining unit employees. Thereafter, even for the short 4-week
time period after reinstatement, by treating each as a new em-
ployee for purposes of overtime assignments, Respondent
placed each returning locked-out employee in a position subor-
dinate to every existing full-time employee, thereby denying
him the full and complete reinstatement to which he was enti-
tled. In such circumstances, I believe, Respondent’s conduct
was seen, by the seven alleged discriminatees, as nothing less
than retaliation for their support for the bargaining unit em-
ployees’ strike and their Union’s bargaining position and, by
the existing employee complement, as a warning of the conse-
quences of their support for a union. I further believe that,
notwithstanding the relatively short period of the limited over-
time assignments herein, the adverse effect of Respondent’s
actions upon its employees’ aforementioned statutory rights to
engage in support for a labor organization and to bargain col-
lectively may not be characterized as “slight.” Rather, and
contrary to counsel for Respondent, given the language of Sec-
tion 2(3) of the Act, I can see no difference between Respon-
dent’s treatment of its returning locked-out employees and the
employers’ inherently discriminatory treatment of returning
economic strikers in the above-cited Board decisions. Bluntly
put, Respondent treated its seven returning locked-out employ-
ees as if they were recent hires and deprived them of the status
they would have retained but for the bargaining unit’s strike
and its subsequent 14-year lockout of the employees. There-
fore, counsel for the General Counsel’s citations to Board deci-
sions, involving discriminatory actions against returning strik-
ers, constitute binding legal precedent and, in accord with such
decisions, I view Respondent’s discriminatory treatment of its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD108
the returning locked-out employees as inherently destructive of
its employees’ statutory rights. Transport Co. of Texas, supra
at 187; Oregon Steel Mills, supra; Wisconsin Packing Co., su-
pra.
As stated above, the Supreme Court directs that the Board
balance a respondent’s actions with its claimed business justifi-
cation in order to determine if such may be found violative of
Section 8(a)(1) and (3) of the Act. In this regard, I note that, in
his posthearing brief, counsel for Respondent argues that the
“primary” reason Respondent failed to provide equal overtime
opportunities for the seven returning locked-out employees,
during their first four weeks back at work, was that “overtime
work involves higher pay.” Thus, counsel asserts, given that it
did not know whether these employees continued to possess the
physical skills and abilities necessary for their jobs and that,
assuming they did have the requisite skills and ability, it be-
lieved they required the short 4-week time period to “get up to
speed” so they could perform their job tasks as quickly and
efficiently as its existing employees, who do receive premium
pay for overtime work, Respondent had a legitimate business
reason for temporarily limiting the overtime opportunities for
returning locked-out employees. On this point, counsel notes
the differences between work at Respondent’s Yuma facility in
1989 and work there in 2004, including the necessity today for
employees to know how to use the computerized scanners and
the exact dates and locations of product within the cooler facil-
ity in order to maximize their freshness, especially mixed sal-
ads, which product did not exist in 1989, and argues that these
changes in operations were something the returning locked-out
employees were required to learn in order to perform their job
tasks proficiently. While Respondent may have assumed that
the returning strikers were in need of training on February 23,
in the absence of underlying data, such was unadorned specula-
tion, and the stipulated facts are that, within 5 days of their
return, the seven employees were working independently and,
while each did need to learn the location of product in the
cooler, product codes, and product dating requirements, not all
utilized the hand-held scanners to perform their job duties,
neither Jackson, Lopez, Penny, Rodriguez, nor Tully needed
training on the mechanical operation of a forklift or the me-
chanics of loading and unloading product and all were operat-
ing forklifts the day after their return to work, and other em-
ployees and foremen were available to answer questions, if any.
Moreover, Respondent failed to document the progress, work
performance, or any limitations of the job performance of the
seven employees during the 4 weeks after February 23. Fur-
ther, in a decision involving the analogous aftermath of a strike,
the Board held that “it is not until the returning striker demon-
strates an inability to do the work that the employer may take
steps to assure itself that the incumbent needs some sort of
special scrutiny.” Alaska Pulp Corp., 326 NLRB 522, 562
(1998). In the above circumstances, Respondent’s asserted
business justifications are insignificant and without merit when
compared to the discriminatory nature of its treatment of the
returning locked-out employees. Accordingly, I find that, by
treating the individuals as new employees for purposes of as-
signing overtime for a 4-week period after their return to work
on February 23, 2004, Respondent engaged in conduct inher-
ently discriminatory of employees’ rights in violation of Sec-
tion 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material herein,
an employer engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is, and has been at all times material herein, an
employer engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(5) of the Act.
3. By failing and refusing to immediately reinstate the 24
locked-out employees, who accepted its December 19 offer of
reinstatement at the conclusion of its lockout, upon receipt of
the acceptance from each, Respondent discriminated against its
employees, who exercised their statutory rights, in violation of
Section 8(a)(1) and (3) of the Act.
4. By treating returning locked-out employees as new em-
ployees for the purposes of assigning overtime during the initial
4 weeks of their reinstatement, Respondent discriminated
against its employees, who exercised their statutory rights, in
violation of Section 8(a)(1) and (3) of the Act.
5. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I have found that Respondent engaged in serious unfair labor
practices, directly impinging upon employees’ statutory rights,
within the meaning of Section 8(a)(1) and (3) of the Act. In
order to remedy these, I shall recommend that it be ordered to
cease and desist from engaging in said acts and conduct and to
take certain affirmative actions designed to effectuate the pur-
poses and policies of the Act. I have found that Respondent
discriminatorily failed and refused to immediately reinstate the
24 locked-out employees, who accepted its December 19 offer
of reinstatement, upon receipt of the offers from each of them.
Accordingly, I shall recommend that Respondent be ordered to
make employees John Rodriguez, Charles Collenback, Ray
Velasquez, Danny Gutierrez, Alvin Anderson, John Todd, Rod
Kenneth Penny, Matt Forstedt, Cheryl Vaz, Robert Tully, Jerry
McBride, Loretta Heinz, Alejandro Rivas, Rigoberto Lopez,
Eugene Navavoli, Salvatore Escobar, Gary Jackson, Thomas
Norris, Joe Flores Olvera, Louie Pestoni, Michael Kemp, Russ
Christiansen, Larry Joe Azlin, and Mel Southworth whole for
any wages and other benefits lost from the date on which Re-
spondent received the acceptance from each of its offer of rein-
statement until February 23, 2004, the date which Respondent
established for reinstatement, with interest to be computed in
BUD ANTLE, INC. 109
accord with the Board’s holding in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).30 Also, I have found that Re-

30 I have carefully considered whether any of the 15 individuals, who
failed to report for work on February 23, 2004, should receive any
backpay. In this regard, it may be argued that, by failing to report, they
abandoned their right to backpay or that they never had any intention of
returning to work for Respondent. However, by accepting Respon-
dent’s offer, each of the 15 clearly signified his or her desire to return
to work for Respondent. Moreover, one may reasonably argue that
Respondent’s unlawful delay in reinstating each caused him or her to
decide not to return. Traditionally, the Board concludes that any ambi-
guity be resolved in favor of the aggrieved party. Accordingly, I have
fashioned a make-whole remedy for each of the 15 locked-out employ-
ees, who accepted Respondent’s offer but did not report for work on
February 23. Mercy-Memorial Hospital Corp., 231 NLRB 1108, 1116
(1977). Of course, if Respondent possesses any evidence, or is other-
wise able to establish, that any of the 15 individuals, who failed to
report for work on February 23, actually had no desire of accepting
Respondent’s offer, it may offer said evidence at the compliance stage.
With regard to employees Gutierrez and Azlin, counsel for Respondent
acknowledged that Davis’ testimony was, of course, uncorroborated
hearsay. He did not offer it for the truth, and I have given it no weight.
spondent discriminated against returning locked-out employees
Gutierrez, Jackson, Lopez, Penny, Rivas, Rodriguez, and Tully,
all of whom reported for work on February 23, 2004, by treat-
ing each as a new employee for purposes of the assignment of
overtime work. Accordingly, I shall recommend that Respon-
dent be ordered to make each of the employees whole for any
overtime payments, to which he would have been entitled but
for Respondent’s discrimination against him, with interest to be
computed in accord with the Board’s decision in New Horizons
for the Retarded, supra.
[Recommended Order omitted from publication.]

Accordingly, each is entitled to the full backpay remedy; however,
during the compliance stage, Respondent is entitled to establish that
any backpay for either should be limited with direct evidence regarding
his ability to report for work on the scheduled date. Finally, in accord
with counsel for the General Counsel, backpay for employee Collen-
back is limited to the period from Respondent’s receipt of his accep-
tance of the former’s offer until the date of his work-related injury
while employed elsewhere.