Diamond Walnut Growers, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1129 (N.L.R.B. 2003)

DIAMOND WALNUT GROWERS, INC. 1129
Diamond Walnut Growers, Inc. and Cannery Work-
ers, Processors, Warehousemen & Helpers Local
601, International Brotherhood of Teamsters
AFL–CIO. Cases 32–CA–17353, 32–CA–17449,
and 32–CA–17938
November 28, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
On September 24, 2001, Administrative Law Judge
James M. Kennedy issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Respondent filed an answering brief, cross-
exceptions, and a supporting brief. The General Counsel
filed an answering brief to the Respondent’s cross-
exceptions.
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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions as modified below and to adopt the rec-
ommended Order as modified below.1
Introduction
The primary issues presented by the parties’ excep-
tions are whether the Respondent violated Section
8(a)(3) and (1) of Act by: (1) failing to reinstate former
economic strikers; and (2) failing to offer former eco-
nomic strikers available positions which were not sub-
stantially equivalent to their prestrike jobs. We agree
with the judge that the Respondent violated the Act by
failing to reinstate former strikers Rosa Elena Juarez and
Willie Smith.2 We also agree with the judge that the
Respondent did not violate the Act by failing to reinstate
and/or offer nonequivalent employment to former strik-
ers Mari Ledezma, Elpidia Pina, Mariano Tobin, Virginia
Galabis, Amanda Gomez (Sigman), Chiu Mar, Joel
Perez, Hector Rosas, Maria Ruiz, Florentina Zuniga,
Maria Estrada, Marissa Maria Martinez, Horacio Rami-
rez, Alfredo Rodriquez, Maria Romero, Maria L. Marti-
nez Vallejo, Maldera Gidion, Rachel Pacheco (Peralta),
Ramlal Singh, Linda Acevedo, Socorro Garcia, John
Gonzalez, Alfonsina (Margret) Munoz, Estella Curiel,

1 We shall modify the judge’s recommend Order to reflect our find-
ings set forth below. In addition, we shall modify the recommended
Order to require that the Respondent rescind its unlawful no-
distribution rule and notify its employees in writing that it has done so.
We shall also substitute a new notice in accordance with our recent
decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
2 For the reasons set forth below, however, we find that Smith is
only entitled to backpay for a period of 6 weeks.
and Gregorio Correa.3 Contrary to the judge, however,
we also find that the Respondent did not violate the Act
by failing to reinstate and/or offer nonequivalent em-
ployment to former strikers Regina Herbert and Art Tor-
res.
1. The Union’s offer to return to work
As a preliminary matter, we address the judge’s find-
ing that certain of the Union’s offers on behalf of striking
employees to return to work were not unconditional. The
offers were contained in a series of letters, the earliest of
which was dated August 9, 1999. The letters state either
“(the named employees) have decided to make an un-
conditional offer to return to work immediately” or “(the
named employees) would like to return to work.” At
various points in his decision, the judge found that the
offers were not unconditional because they were preca-
tory, i.e., they indicate that the named employees have
decided to make an offer to return to work but do not
actually go on to make the offer. We disagree.
The Union’s letters are specific, unequivocal, and do
not impose any conditions on the strikers’ return to work.
Although some of the offers do not expressly state that
they are unconditional, an offer to return to work does
not have to use the word “unconditional” in order to be
valid. Concededly, some of the letters simply stated that
the employee would “like to return to work.” However,
this language is tantamount to an offer to return to work,
and there are no conditions attached to the offer. See,
e.g., SKS Die Casting, 294 NLRB 372 (1989), affd. in
relevant part 941 F.2d 984 (9th Cir. 1991) (statement that
“The Union is willing to . . . have our members return to
work” held to be a valid unconditional offer to return to
work). Accordingly, we reverse the judge and find that
the Union’s letters constituted valid unconditional offers
to return to work.
2. Failure to offer former strikers nonequi-
valent positions
In adopting the judge’s conclusion that the Respondent
did not violate the Act by failing to offer former strikers
nonequivalent positions, we specifically affirm his find-
ing that the Respondent was not obligated to notify for-
mer strikers when it placed such positions up for bid pur-
suant to an internal job posting system. Thus, for the
reasons set forth below, we find no merit in the General
Counsel’s contention that the judge’s finding in this re-
gard is inconsistent with Board precedent and should be
reversed.
3 No exceptions were filed to the judge’s findings that the Respon-
dent did not unlawfully fail to reinstate or offer nonequivalent employ-
ment to Ledezma, Pina, Tobin, Galabis, Perez, Rosas, Zuniga, Estrada,
Martinez, Ramirez, Rodriguez, Romero, Pacheco, and Munoz.
340 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
The relevant facts, more fully set forth in the judge’s
decision, are as follows. The Respondent fills job open-
ings through a bid procedure in which jobs are posted on
a company bulletin board. The Respondent places two
types of jobs up for bid: regular and seasonal bid jobs.
Regular jobs are full-time year-around positions. Sea-
sonal bid jobs are temporary, lasting only during the 2 to
3 month walnut harvest season.
The Respondent controls access to the plant through
the use of guarded gates. Only persons with current
company-issued badges or those who make prior ar-
rangements with the Respondent are permitted to enter
the gates. On many occasions, former strikers and union
officers have requested, and were granted, access to the
plant.
The Respondent placed a number of regular and sea-
sonal jobs up for bid after strikers tendered unconditional
offers to return to work. It is undisputed that the Re-
spondent did not inform any unreinstated former strikers
of the postings. The General Counsel contends that, by
failing to inform unreinstated former strikers of the post-
ings while at the same time allegedly restricting access to
the plant, the Respondent effectively prohibited them
from bidding on the positions. This, the General Counsel
contends, amounted to discrimination on the basis of
their former-striker status, in violation of Section 8(a)(3)
and (1). In support, the General Counsel cites Medite of
New Mexico, Inc., 314 NLRB 1145 (1994), enfd. 72 F.3d
780 (10th Cir. 1995) (employer violated Section 8(a)(3)
by failing to give former strikers the opportunity to bid
on posted vacancies). The General Counsel contends
that the Board’s holding in Medite compels us to find
that the Respondent’s failure to notify unreinstated for-
mer strikers of the job postings violated the Act. We
disagree.
This case differs from Medite in several important re-
spects. First, in Medite, the Board found that the em-
ployer’s plant manager had issued specific instructions to
deny unreinstated strikers access to the plant. Here, in
contrast, there is no evidence that the Respondent ever
denied unreinstated strikers access to the plant. Rather,
as stated above, the record reflects that the Respondent
permitted them access on many occasions. Indeed, the
record does not even show that any former striker ever
requested access to the plant for the purpose of viewing
job postings. Further, there is no evidence indicating that
the Respondent would have denied such a request.
Second, nearly all of the job postings at issue in this
case were for seasonal bid jobs. As found by the judge,
the Respondent fills seasonal bid jobs only with incum-
bent regular employees. This is because when an incum-
bent regular employee fills a seasonal bid job, the em-
ployee retains both the seasonal bid job and his regular
job. When the season ends, the employee returns to his
regular job. Hence, the award of a seasonal bid job to an
incumbent regular employee does not result in the expan-
sion of the Respondent’s regular work force—as would
the award of a seasonal bid job to an unreinstated striker.
Accordingly, unlike in Medite, most of the postings at
issue here did not represent actual vacancies. Therefore,
the Respondent could lawfully restrict bidding on such
postings to incumbent regular employees.4
Finally, there is no legal requirement that an employer
apprise strikers of nonequivalent jobs, and no legal obli-
gation to allow strikers to bid on same. There is only the
legal requirement not to treat strikers discriminatorily
because they are strikers. Compare Medite, where the
employer treated strikers discriminatorily by failing to
give them the opportunity to bid on nonequivalent jobs
while permitting nonstrikers to do so. There is no such
discrimination here.
3. Regina Herbert
The judge found that the Respondent violated Section
8(a)(3) of the Act by failing to offer Regina Herbert a
seasonal lift truck operator position that it placed up for
bid. We disagree.
Regina Herbert was a full-time regular employee as-
signed to drive a forklift at the time of the strike. It is
undisputed on the record that no vacancies occurred in
Herbert’s prestrike job or in substantially equivalent po-
sitions. However, after Herbert submitted an uncondi-
tional offer to return to work, the Respondent posted sev-
eral seasonal bid lift truck operator positions. The lift
truck operator position is similar to that of forklift driver.
As we have previously found, unreinstated former
strikers were not entitled to be considered for seasonal
bid jobs, because they do not represent actual vacancies.
The Respondent does not add to its regular workforce
when it awards a seasonal bid. It merely shifts its work-
force around to accommodate its changing needs during
the 2 to 3 month walnut harvest. Accordingly, we find,
contrary to the judge, that the Respondent did not violate
the Act by failing to offer Herbert a seasonal bid job as a
lift truck operator.
4. Art Torres
Art Torres was a lead maintenance mechanic when the
strike began. It is undisputed on the record that no lead
maintenance mechanic positions became available. The

4 See Textron, Inc., 257 NLRB 1, 4 (1981), affd. in relevant part 687
F.3d 1240, 1243–1244 (8th Cir. 1982), cert. denied 461 U.S. 914
(1983). See also Oregon Steel Mills, 291 NLRB 185, 191–192 (1988),
enfd. 134 LRRM 2432 (9th Cir. 1989), cert. denied 496 U.S. 925
(1990) and cases cited therein.
DIAMOND WALNUT GROWERS, INC. 1131
judge found, however, that a packaging machine me-
chanic position that the Respondent placed up for bid
after Torres submitted an unconditional offer to return to
work was substantially equivalent to Torres’ prestrike
position. The judge based this finding on the fact that
Torres’ prestrike duties included working as a packaging
machine mechanic and supervising others performing
such work. Thus, the judge concluded that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by failing
to reinstate Torres to the packaging machine mechanic
position.
The Respondent excepts, arguing that the packaging
machine mechanic position is not substantially equiva-
lent to Torres’ prestrike job. We find merit in the Re-
spondent’s exception. As explained in Rose Printing
Co., 304 NLRB 1076, 1077–1078 (1991):
[T]he touchstone for determining reinstatement
rights is ascertaining whether the job is the same as,
or substantially equivalent to, the prestrike job. To
be sure, the striker’s qualifications are not irrelevant.
The issue of whether the striker is qualified to per-
form the job may shed light on whether the job is
substantially equivalent. . . . it may well be that the
job must be substantially equivalent to the prestrike
job and the striker must be qualified to fill it. But
the essential point is that mere qualification to per-
form the job will not suffice.
Thus, in Rose Printing, the Board reversed the judge, who
had found that “[t]he Board clearly obligates an employer to
offer former strikers any available unit position for which
they are qualified,”5 and found that the Respondent did not
violate Section 8(a)(3) by failing to offer certain former
economic strikers reinstatement to entry level general
worker positions. The Board reasoned that the general
worker positions were not substantially equivalent to the
former strikers’ prestrike jobs because of the lower wages
and skill levels required for the general worker position.
Applying these principles to the facts in this case, we
find that the Respondent was not obligated to reinstate
Torres to the packaging machine mechanic position.
Prior to the strike, Torres was a lead maintenance me-
chanic charged with responsibility for overseeing the
work of other mechanics, including those who repaired
packaging machines. He also occasionally performed
such work himself. Accordingly, he was clearly quali-
fied to fill the position at issue. However, under the
above stated principle of Rose Printing, the mere fact
that Torres was qualified to perform the job of packaging
machine mechanic does not suffice to establish substan-
tial equivalency.

5 304 NLRB at 1083.
The lead maintenance mechanic position involves sig-
nificantly more responsibility and requires more skills
than the packaging machine mechanic position. Indeed,
as found by the judge, the packaging machine mechanic
position is the “lower half” of Torres’ prestrike job.
Thus, reinstatement as a packaging machine mechanic
would, in effect, be a demotion for Torres. We note,
moreover, that the General Counsel adduced no evidence
comparing the wages, hours or working conditions of the
two positions. Accordingly, we find that the record does
not support the judge’s finding that the packaging ma-
chine mechanic position was substantially equivalent to
Torres’ prestrike position. We therefore reverse the
judge and find that the Respondent did not violate Sec-
tion 8(a)(3) and (1) by failing to offer Torres the packag-
ing machine mechanic position.
5. Willie Smith
Willie Smith was an ESM operator when the strike be-
gan. On October 8, 1998, he unconditionally offered to
return to work. The judge found that the Respondent
should have reinstated Smith to a vacancy in the ESM
operator position that was posted in October 1998. The
Respondent excepts, contending that the position it
posted in October 1998 was not substantially equivalent
to the ESM operator position Smith held prior to the
strike. We find no merit in the Respondent’s exception.
The record shows that both before and after the strike,
the primary function of the ESM operator was to sort
walnuts using an Elbascan sorting machine. During the
strike, the Respondent apparently purchased new Elbas-
can machines that were more highly automated and com-
puterized. In addition, the Respondent consolidated a
number of functions that were formerly performed by
different employees into the ESM operator position. As
a result of these changes, the ESM operator job as it ex-
isted, 1998 was somewhat more difficult than it had been
before the strike. However, the primary function of the
ESM operator, sorting walnuts using an Elbascan sorting
machine, remained the same. Accordingly, we do not
find that the position changed to such a degree that it was
no longer substantially equivalent. We therefore affirm
the judge’s conclusion that the Respondent unlawfully
failed to reinstate Smith to the ESM operator position
that it posted in October 1998.
Contrary to the judge, however, we find that Smith is
only entitled to backpay for a period of 6 weeks. In
March 2000, the Respondent offered to train Smith in the
newly constituted ESM operator position. Smith ac-
cepted the Respondent’s offer, trained for approximately
6 weeks, and then voluntarily “signed off,” i.e., relin-
quished his bid right to perform that specific job, because
he “had difficulty learning the new job . . . preferring
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
forklift work.” (Section II.j. fn. 23 of judge’s decision.)
In light of these facts, we find that had the Respondent
offered Smith the ESM operator position in 1998, as it
was so required, Smith would have received the same
training that he received in 2000, and would have re-
signed before completion, as he did in 2000. We further
find that by his resignation, Smith voluntarily abandoned
his interest in the ESM operator position. Accordingly,
his backpay period shall run for 6 weeks, and the Re-
spondent shall not be obligated to offer him reinstate-
ment.6
Our dissenting colleague would not limit Smith’s
backpay period. He would strictly rely on a provision in
the Board’s Case Handling Manual defining the backpay
period as “beginning when the unlawful action took
place and ending when a valid offer of reinstatement is
made,” and find that Smith is entitled to backpay for the
entire period between the unlawful discrimination and
his valid offer of reinstatement, notwithstanding his re-
jection of the ESM operator position in 2000.
This argument misses the mark on three levels. First,
although there is a presumption, whenever there is an
unlawful deprivation of employment, that backpay is
owed for the entire period between the discrimination
and a valid offer of reinstatement, the presumption is
rebuttable. Thus, a respondent is entitled to establish
facts which would negate the existence of liability or
which would mitigate that liability. Phelps Dodge Corp.
v. NLRB, 313 U.S. 177, 198–200 (1941); NLRB v. Cam-
bria Clay Products Co., 215 F.2d 48, 56 (6th Cir. 1954).
Here, the Respondent has shown that Smith rejected the
ESM operator position in 2000 because, as noted above,
after completing 6 weeks of training he had difficulty
learning the position and signed off, preferring forklift
work. There was no rebuttal evidence, i.e., there was no
evidence that the training result would have been differ-
ent in 1998.
Second, our colleague fails to recognize the Board’s
duty and “broad discretionary” authority under Section
10(c) to tailor its remedies to varying circumstances on a
case by case basis, in order to ensure that its remedies are
congruent with the facts of each case. NLRB v. J. H.
Rutter-Rex Mfg. Co., 396 U.S. 258, 262–263 (1969);
NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333,
348, (1938) (“the relief which the statute empowers the
Board to grant is to be adapted to the situation which
calls for redress”). Here, in fashioning an appropriate
remedy, we have tolled Smith’s backpay period after 6

6 We shall leave to the compliance stage of this proceeding the ques-
tion of whether any of Smith’s earnings, while training as an ESM
operator in 2000, should serve as an offset to the amount of backpay
due.
weeks because the evidence shows that had the Respon-
dent offered Smith the ESM operator position in 1998, he
would have resigned after 6 weeks. This remedy is de-
signed to restore Smith as closely as possible to the eco-
nomic position he would have been in, but for the Re-
spondent’s unlawful failure to reinstate him.7 See gener-
ally, Phelps Dodge Corp. v. NLRB, supra.
Third, the remedy espoused by our colleague would
place Smith in a better position than he would have been
in had the unfair labor practice not occurred. Not only
would such a remedy be a windfall for Smith, it would
also be punitive for the Respondent. The authority of the
Board to fashion an appropriate remedial order pursuant
to Section 10(c) of the Act does not extend to imposition
of what in effect is a punitive remedy. Phelps Dodge
Corp. v. NLRB, supra.
Our colleague would find that the Respondent did not
meet its evidentiary burden to rebut the presumption that
Smith would have worked the entire period between the
unlawful deprivation of employment and his acceptance
of the ESM operator trainee position in 2000. However,
we believe that the dissent’s reasoning places an unrea-
sonably high burden of proof on the Respondent.
Respondents in proceedings before the Board must
prove diminution of damages by the usual standard in
civil cases—a preponderance of the evidence. A “pre-
ponderance” of evidence means evidence sufficient to
permit the conclusion that the proposed finding is more
probable than not. See McCormick on Evidence Section
339, at 957 (3d ed. 1984). See also Jack in the Box Dis-
tribution Center Systems, 339 NLRB 40, 66 (2003); The
Fresno Bee, 337 NLRB 1161, 1196 (2003); Sahara Las
Vegas Corp., 284 NLRB 337, 347 (1987).
Hence, the Respondent is not required to prove to a
certainty or “conclusively,” as the dissent would have it,
that Smith would have left Respondent’s employ after 6
weeks in 1998. The Respondent must only show that it
is more likely than not. We believe Smith’s testimony
that he rejected the ESM operator position in 2000 after
training for 6 weeks because of the changes in the job—
changes that also existed in 1998—shows that it is more
likely than not that he similarly would have quit after 6
weeks if offered the position in 1998.
Aneco, Inc., 333 NLRB 691 (2001), enf. denied 285
F.3d 326 (4th Cir. 2002), cited by our colleague, is dis-
tinguishable. In Aneco, the Board concluded that the
7 Our colleague also contends that Smith’s rejection of the position
in 2000 cannot be “time-shifted” and related back to 1998. However,
he has cited no authority, and we are not aware of any, holding that in
devising an appropriate make-whole remedy the Board is precluded
from taking into account events that occurred outside the backpay
period.
DIAMOND WALNUT GROWERS, INC. 1133
respondent failed to carry its burden of showing that the
discriminatee would not have worked during the entire
backpay period, because it did not present “specific evi-
dence” of factors that would have led to the discrimina-
tee’s departure from work. Here, in contrast, we find that
the Respondent has presented “specific evidence” of fac-
tors that would have led to Smith’s departure from work.
Thus, the Respondent here has “bridge[d] the gulf from
could to would.”
Significantly, in Aneco, the Board did not, as our col-
league suggests, hold that in determining the length of
the backpay period, events occurring outside the backpay
period should not be taken into account. Rather, the
Board ruled that the employer had the burden of proving
that the paid union organizer, Cox, would have left the
job after 5 weeks in 1993, when the employer wrongfully
refused to hire him, as Cox did in 1998 when he left the
job in furtherance of the union’s organizing strategy 5
weeks after his remedial hire. Then, the Board, after
giving detailed consideration to the arguments made and
evidence offered by the employer, concluded that it was
insufficient to satisfy the employer’s burden of proof.8
Thus, Aneco supports, rather than undermines, our reli-
ance on such evidence in this case.
Our colleague finds that Smith’s actions in 2000 are
insufficient to warrant a finding that he would necessar-
ily have done the same thing in 1998, and that any uncer-
tainty about this issue should be resolved against the Re-
spondent. Specifically, he argues that Smith’s personal
circumstances (e.g., health or financial situation or avail-
ability of alternative employment) may have changed
between 1998 and 2000.
In this regard, our colleague asserts that we have en-
gaged in speculation. In truth, it is he, not we, who has
engaged in speculation. He says that Smith’s personal
circumstances “may have changed.” (Emphasis added).
The fact of the matter is that there is no evidence to sug-
gest such a change. Thus, our colleague has engaged, by
definition, in pure speculation.9
By contrast, we have not speculated. The job in 2000
was the same as it was in 1998, and the training in 2000
was the same as it was in 1998. Thus, there is a reason-
able inference, based on facts, that Smith’s inability to

8 The Fourth Circuit disagreed. It found that the Board abused its
discretion when it failed to toll the backpay period based on evidence
that the discriminatee worked only 5 weeks when reinstated by the
employer. 285 F.3d at 332. Neither Chairman Battista nor Member
Schaumber participated in the Board’s Aneco decision and express no
view as to whether it was properly decided.
9 Indeed, if Smith was ill, or had alternative employment, or had a
satisfactory financial situation, one wonders why he sought the job.
complete training in 2000 would not have been different
in 1998.10
Contrary to our colleague, we have not ignored the
principle that the burden of uncertainty rests with the
wrongdoer. Smith testified that his reasons for leaving
the position in 2000 related to the changes in the position
that were instituted during the strike. These changes
were present both in 1998, when Smith should have been
offered reinstatement, and in 2000. And, as stated above,
there is no evidence to suggest that Smith’s circum-
stances were any different in 1998 than they were 2000.
In sum, a preponderance of the affirmative evidence, and
an absence of contrary evidence, clearly show that Smith
would have left the job in 1998 as he did in 2000.11
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Dia-
mond Walnut Growers, Inc., Stockton, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order, as modified.
1. Substitute the following for paragraph 1(b).
“(b) Failing to recall strikers who have unconditionally
requested reinstatement where their prestrike job or a
substantially equivalent job has become available.”
2. Substitute the following for paragraphs 2(a) and (b).
“(a) Rescind House Rule No. 25, and advise the em-
ployees in writing that the rule is no longer being main-
tained.
(b) Make Rosa Elena Juarez and Willie Smith whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the Remedy section of the decision.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER WALSH, dissenting in part.
Contrary to my colleagues, I would not limit Willie
Smith’s backpay period to 6 weeks. My colleagues’
limitation of Smith’s backpay to a 6-week period is
based on pure speculation and unwarranted inference,
10 In this regard, our colleague’s statement that Smith “ultimately did
not choose to retain the ESM position in 2000” is a bit off the mark.
Smith did not simply “choose” not to retain the ESM job. The judge
found that he “had difficulty learning the new job [and] eventually
signed off [of it], preferring forklift work.” (Sec. II.j. fn. 23 of judge’s
decision.)
11 Our colleague says that he is not “certain” that this is so. How-
ever, he appears to use the term “certainty” to mean a 100 percent
guarantee of correctness. Of course, in life, there are rarely, if ever,
such guarantees. Thus, if that were the test, the burden would be virtu-
ally impossible to meet. We agree that the wrongdoer has the burden of
proof. In our view, that burden is satisfied upon showing, by a clear
preponderance of the evidence, that a given assertion is true.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134
and is completely contrary to Board practice and prece-
dent.
Smith was an ESM operator before the strike. During
the strike, the Respondent changed the duties of the ESM
operator position. When an ESM operator position be-
came available in 1998, after Smith’s unconditional offer
to return to work, the Respondent did not offer the posi-
tion to Smith and did not give him an opportunity to train
for the position.
My colleagues properly reject the Respondent’s con-
tention that it was not required to offer Smith the ESM
position in 1998 because the positions were not substan-
tially equivalent. The judge found, and my colleagues
and I agree, that even if the position were redesigned
during the strike, Smith was entitled to be trained in the
modified position, and the Respondent’s failure to offer
training to Smith in 1998, when the vacancy arose, was a
violation of the Act.
My colleagues find, however, that Smith’s backpay for
this violation should be limited to 6 weeks because when,
in March of 2000, the Respondent finally did call Smith
back as an ESM operator trainee, he decided after 6
weeks to reject the job because it was not to his liking
under the circumstances that existed then. I disagree
with my colleagues’ limitation of Smith’s backpay, and
would find, consistent with Board precedent, that Smith
is entitled to backpay from 1998, when he should have
been offered the ESM training, until 2000, when Smith
was offered the opportunity to train for the ESM posi-
tion.
My colleagues assume that because Smith rejected the
position after 6 weeks in 2000, he necessarily would
have done the same in 1998. That assumption is unwar-
ranted. The fact that Smith ultimately did not choose to
retain the ESM position when he was finally trained for it
in 20001 does not necessarily mean that he would have
made the same decision in 1998, had he been offered the
position as he should have been. Because Smith’s per-
sonal circumstances may have changed (e.g., health or
financial situation or availability of alternative employ-
ment) between 1998 and 2000, it is pure speculation to
make the assumption that Smith would have resigned his
position after 6 weeks in 1998. The Board cannot le-
gitimately impute Smith’s later actions to an earlier time
when circumstances may have been very different.2

1 My colleagues say that I am “a bit off the mark” by characterizing
Smith’s actions in 2000 as a choice. This criticism is unwarranted.
The fact that Smith may have had difficulty performing the job in 2000
and may have preferred forklift work at that time, does not make his
decision to reject the ESM job any less of a choice.
2 My colleagues claim that I am engaging in “pure speculation” by
pointing out possible reasons why it is not necessarily a foregone con-
clusion that Smith would have rejected the ESM job in 1998 had it been
Smith’s actions in 2000 are simply insufficient to war-
rant a definitive finding that Smith would necessarily
have rejected the position in 1998. My colleagues’ oblit-
eration of a major part of Smith’s backpay period based
on such an unwarranted assumption, in fact, stands Board
precedent on its head. Under established Board prece-
dent Smith is entitled to backpay for the entire period
between the unlawful discrimination and his valid offer
of reinstatement. See NLRB Casehandling Manual (Part
3) Compliance Proceedings Sec. 10530.2 (defining back-
pay period as “beginning when the unlawful action took
place and ending when a valid offer of reinstatement is
made”).3 Smith’s entitlement to backpay for that period
is unaffected by Smith’s rejection of the position in 2000
because that rejection cannot be time-shifted and related
back to 1998.
My colleagues state that they are aware of no authority
holding that in devising an appropriate remedy, the
Board is precluded from taking into account events oc-
curring outside the backpay period. However, in Aneco,
Inc., 333 NLRB 691 (2001), enf. denied 285 F.3d 326
(4th Cir. 2002), the Board found that an administrative
law judge erred by reducing the length of a discrimina-
tee’s backpay period based on speculation that, in light of
the discriminatee’s subsequent actions in quitting the job
at issue, the discriminatee would not have remained on
the job for the entire backpay period had he been offered
the job when he should have been. In that case, the re-
spondent unlawfully refused to hire Cox, a paid union
organizer. Five years later, after the Board found unlaw-
ful discrimination, Aneco offered Cox a job. Cox ac-
cepted the position and worked for a period of 5 weeks.
The General Counsel argued that Cox was entitled to
backpay for the entire 5-year period between the time he
applied for the job and the time Aneco offered him that
job. However, the judge found that Cox would not have
worked for Aneco for the entire 5-year period. He con-
cluded that if Aneco had offered Cox employment when
he first applied in 1993, Cox would have worked there
only for about 5 weeks and then quit, because that is
what occurred in 1998, after Cox began employment.

offered to him at that time. To the extent that I am engaging in “specu-
lation,” I am doing so only to demonstrate the fallacy in my colleagues’
conclusion that it is certain that Smith would have made the same deci-
sion concerning the ESM position in 1998 that he did in 2000.
3 My colleagues concede that there is a presumption, whenever there
is an unlawful deprivation of employment, that backpay is owed for the
entire period between the discrimination and a valid offer of reinstate-
ment. However, they contend that this presumption is rebuttable and
that a respondent is entitled to establish facts which would negate the
existence of liability or which would mitigate that liability. I do not
disagree. However, contrary to my colleagues, for the reasons set forth
herein, the respondent has not established such facts.
DIAMOND WALNUT GROWERS, INC. 1135
The judge accordingly limited Cox’s backpay to 5
weeks.
The Board reversed, finding that Cox was entitled to
backpay for the entire 5-year period. In so concluding,
the Board stated that “[i]t is the Respondent’s evidentiary
burden to bridge the gulf from could to would when dis-
puting the propriety of a backpay period,” and that the
respondent had failed to do so. The Board found that in
relying on Cox’s subsequent actions as determinative of
what would have occurred earlier, the judge had “contra-
vened the well-established principle that ‘the Board re-
solves compliance-related uncertainties or ambiguities
against the wrongdoer.’” 333 NLRB at 692, citing Fer-
guson Electric Co., 330 NLRB 514 (2000). While the
Board’s decision in Aneco was not enforced by the
Fourth Circuit, it remains Board law and is based on
well-established legal principles with regard to the appli-
cable burdens of proof in a backpay case.
Here, it is simply uncertain what would have occurred
back in 1998 if Smith had been offered the ESM position
at that time. Any doubts or uncertainty as to what would
have occurred in 1998 should be resolved against the
Respondent as wrongdoer, not against the discriminatee.
Kansas Refined Helium Co., 252 NLRB 1156, 1157
(1980), enfd. 683 F.2d 1296 (10th Cir. 1982). My col-
leagues’ assumption that Smith would have rejected the
position in 1998 impermissibly resolves the uncertainty
in favor of the Respondent.
I find, based on the Respondent’s failure to submit
evidence demonstrating that Smith’s postreinstatement
conduct in 2000 establishes what his response to a rein-
statement offer in 1998 would have been, that it is inap-
propriate to rely on Smith’s conduct in 2000 to establish
that he would have remained on the job only for the same
amount of time in 1998. As in Aneco, the Respondent
did not “bridge the gulf” between could and would.
While the Respondent may have raised some uncertainty
as to what could have occurred in 1998 had the Respon-
dent acted lawfully at that time, it has not met its burden
of establishing what would have occurred.4 The Respon-
dent has shown merely that the position was not to

4 In finding that the “evidence shows that had the Respondent of-
fered Smith the ESM operator position in 1998, he would have resigned
after six weeks,” my colleagues rely on Smith’s testimony that his
reasons for leaving the position related to the changes in the position.
That testimony does not, in my view, support a finding as to what
would have occurred in 1998 if Smith had been offered the ESM posi-
tion at that time. The fact that changes in the position may have been
intolerable to Smith at one time (2000) does not preclude them from
being acceptable to him at another time (1998). I am unwilling to
contravene established Board precedent and deny a discriminatee back-
pay to which he is otherwise entitled on the basis of this tenuous testi-
mony.
Smith’s liking in 2000. But that evidence does not con-
clusively prove anything about 1998. “In compliance
matters, a wrongdoing employer bears the burden of
proving that a discriminatee would not have remained at
the same job which he was unlawfully denied.” Aneco,
supra, 333 NLRB at 691, citing Dean General Contrac-
tors, 285 NLRB 573 (1987). The Respondent has not
met that burden.5
My colleagues maintain that I am requiring the Re-
spondent to meet too high a standard, and that the Re-
spondent’s “burden is satisfied upon showing, by a clear
preponderance of the evidence, that a given assertion is
true.” Even applying that standard, however, the Re-
spondent has not met its burden of showing that Smith
would have remained in the ESM position for only 6
weeks had he been offered that position in 1998.6
For these reasons, I believe that Smith’s backpay pe-
riod should properly run from the time the ESM vacancy
occurred in 1998 until Smith was offered the opportunity
to train for the ESM position in 2000. However, because
Smith rejected the ESM position after being trained for it
in 2000, I would toll Smith’s backpay at the time Smith
rejected the position, and I would not require the Re-
spondent to offer Smith reinstatement to that position at
this time.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
5 My colleagues fault the General Counsel for failing to present “re-
buttal evidence” that the training result would have been different in
1998. It is not, however, the General Counsel’s burden to present “re-
buttal evidence” where the Respondent has not presented sufficient
evidence to rebut the presumption that backpay is owed for the entire
backpay period. Here, the Respondent has not done so.
6 My colleagues accuse me of failing to recognize the Board’s duty
and discretionary authority to tailor its remedies in accordance with the
facts of each case. I do not dispute that the Board has such authority. I
am merely asserting that my colleagues are not properly exercising that
authority. They see the “facts” here as establishing that Smith would
have acted in the same manner in 1998 as he did in 2000. I see the
“facts” differently. The Respondent has failed to meet its burden of
establishing what would have occurred in 1998. In light of that failure,
there are no “facts” to warrant a departure from established Board
precedent.
My colleagues also aver that my application of established Board
precedent would place Smith in a better position than he would have
been in had the unfair labor practice not occurred, and that the remedy
is punitive for the Respondent. Again, my colleagues base this argu-
ment on speculation as to what would have occurred in 1998. Because
the Respondent has not met its burden of proving what would have
occurred, any argument that Smith would receive a windfall is based on
speculation and must fail. Nor is my application of established Board
precedent punitive in this case. The Respondent is the wrongdoer here
and thus had the burden of proving that Smith was not entitled to back-
pay for the entire backpay period. It failed to do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated 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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT maintain or give effect to any rule
which requires employees to seek management permis-
sion before distributing any written or printed material.
WE WILL NOT fail to recall strikers who have un-
conditionally requested reinstatement where their pre-
strike job or a substantially equivalent job has become
available.
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 rescind House Rule No. 25, and WE WILL
advise you in writing that the rule is no longer being
maintained.
WE WILL make Rosa Elena Juarez and Willie Smith
whole for any loss of earnings and other benefits suffered
as a result of our discrimination against them, including
interest.
DIAMOND WALNUT GROWERS, INC.

Sharon Chabon, for the General Counsel.
Robert G. Hulteng and Robert Leinwand (with Zev J. Eigen on
Brief) of Littler Mendelson, of San Francisco, California,
and William E. Hester III, (The Kullman Firm), of New Or-
leans, Louisiana, for the Respondent.
Kenneth C. Absalom (Nevin & Absalom), of San Francisco,
California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried in Stockton, California on 6 hearing days begin-
ning January 9, 2001,1 upon a consolidated complaint issued
May 30, 2000, by the Director for Region 32. The complaint is
based upon unfair labor practice charges filed on April 1 and
May 18, 1999, and February 4, 2000 by Cannery Workers,

1 The hearing was noticed for January 8, 2001, but that day was util-
ized to resolve certain prehearing issues, review of subpoenaed mate-
rial, clarification of the complaint and the like. The hearing itself took
place on January 9–11, February 15 and March 20–21.
Processors, Warehousemen & Helpers Local 601, International
Brotherhood of Teamsters, AFL–CIO (the Union or the Charg-
ing Party). The complaint alleges that Respondent, Diamond
Walnut Growers, Inc., has violated Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act). Respondent denies
the allegations. Briefs were filed by both the General Counsel
and Respondent. Due to certain vicissitudes in the complaint, I
permitted both Respondent and the General Counsel to file
responsive briefs. All briefs have been carefully considered,
and I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation which operates a fac-
tory in Stockton, California, where it processes, sells and dis-
tributes walnuts. It annually sells products valued in excess of
$50,000 to customers located outside California. It has admit-
ted both that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act. I so find.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
For the most part, this is a striker replacement case, although
there is one allegation concerning a no-distribution rule. Con-
nected to the striker replacement issues are two allegations
affecting employee reinstatement rights: that Respondent failed
to use corrected telephone numbers for seasonal work calls and
denied unreinstated strikers access to the job bid bulletin board.
B. The Complaint Track
This should have been a straightforward case, but the com-
plaint as originally presented was both confused and confusing.
It had no clear organizational system, it is neither consistently
chronological nor consistently topical; it is not set logically by
discriminatee name, and even those have been shifted around
the complaint. It is directed at 1998, 1999, and 2000 fact pat-
terns affecting unreinstated strikers who had struck on Septem-
ber 4, 1991.
Both at my order and on her own initiative, counsel for the
General Counsel has attempted to correct, clarify and amend
the complaint in an effort to achieve a stable focus on the is-
sues. In some respects that effort failed, for even in her brief,
counsel for the General Counsel seeks to withdraw allegations,
add people to certain theories and even correct some dates. At
this juncture there is no single document to which one can look
to become apprised of all the issues.
I cite those modifications which I can follow. On January 8,
2001, 11 changes were made. On January 9, paragraphs 9(a)
and (b) were expanded to name nine and five specific employ-
ees respectively, where none had been listed before. On Janu-
ary 10, an employee was added to paragraph 11(f). During a
hiatus, on January 18, the General Counsel by letter motion (at
my direction) moved to substitute paragraphs 9(c) and (e) in
their entirety. This was done because the original versions
were said to be class-action-type allegations but without appro-
priate definition. As originally drafted, Respondent had no
DIAMOND WALNUT GROWERS, INC. 1137
opportunity to know how many or which employees were in-
volved. The letter motion sought to cure this deficiency. It
named eight employees in the new 9(c). The old 9(e) blos-
somed into 11 subsets, naming individuals for the first time.
At that point I concluded the General Counsel had been give
sufficient opportunity to perfect the complaint. Up ‘til then, all
the amendments had been made before or during the General
Counsel’s case-in-chief and the hiatuses between sessions had
been of sufficient duration to negate any claim by Respondent
that it had been surprised or prejudiced. Indeed, the General
Counsel acknowledged that further amendments would not be
necessary. Yet, on March 21, the last day of the hearing, dur-
ing Respondent’s case and shortly before cross-examining Re-
spondent’s principal witness, once again the General Counsel
sought to amend the complaint. The motion was denied as
untimely. Despite that, the effort has continued in the General
Counsel’s initial brief, filed on May 29. There, in both text and
footnote, the General Counsel offers 15 proposed amendments,
2 of which aim to add employees to two existing paragraphs, 10
of which seek to withdraw claims, and 3 which may be charac-
terized as corrections. Some of the withdrawals are supported
by assertions that the allegations are unproven; some are not
supported at all, though presumably they, too, are also regarded
as unproven. However, the Charging Party, in response to my
inquiry, has voiced no objections to those withdrawals, and the
motion to withdraw them is granted.
By number, this leaves the following unfair labor practice
paragraphs of the complaint intact:

amended 9(c) [except Thelma Pompa];
9(d),
amended 9(e)
(i) [except Rosa Elena Rodriguez]
(iii) [except Gurmeet Shergill]
(iv) [except Juana Silva]
(v)
(vii)
(viii)
(ix)
(x)
(xi)
10
11(b) [except Juana Silva]
Amended 11(c) [including Alfredo Rodriguez]
11(d)
Amended 11(f) (Alternative 1). [including Amanda Gomez
(Sigman)]
Amended 11(f) (Alternative 2). [including Amanda Gomez
(Sigman), but excluding Willie Smith]
11(g)
11(h) [except Steve Bosche]
Amended 11(i)
12
13(b)

Some of the confusion arises because of the fact that Re-
spondent changed its characterization of employees in one of
the collective-bargaining proposals which caused the impasse
in 1991, and which was later implemented. Respondent had
always had a complement of year-round employees and had
always hired short-term employees during the 6–7 week walnut
harvest season which usually begins in late September or early
October. One of the strike issues was Respondent’s proposal to
reclassify the year-round employees as “regular” and the short-
term employees as “seasonal.” This system changed the exist-
ing seniority and intracompany bid systems. These changes
have never been challenged as unfair labor practices, and inso-
far as this case is concerned, are entirely nondiscriminatory.
One thing which did not change was Respondent’s need for
employees to work only during the harvest.
Respondent needs, for that 6-week period, about 350 addi-
tional employees, always on short notice. To obtain them, it
tries to have a pool of about 1200 people it can call. To estab-
lish the pool each year, it starts with the people who had
worked the season the year before. It routinely sends them a
postcard asking if they wish to be considered for the upcoming
season, setting a deadline for a response. It also accepts appli-
cations from the outside. Those names, since shortly, before
the 1991 strike have been kept in a computer database known
as the HP 3000 system. This system includes all active payroll
people, whether regular or seasonal. It is used, among other
things, to generate the daily call sheets for those who want to be
considered for seasonal work. None of the strikers was acti-
vated on the HP system for seasonal calling until they advised
the Company that they were unconditionally asking for rein-
statement and also advised that they were willing to perform
seasonal work.
What often happened was that the Union would transmit ei-
ther a letter on an employee’s behalf, or a list of employees,
advising the Company that the employee was now willing to
come back to work. While this letter does approach an uncon-
ditional offer to return, it is actually somewhat precatory 2 on
the point. It doesn’t really offer their unconditional return;
instead it says “the employees have decided to make an uncon-
ditional offer to return to work immediately,” but doesn’t go on
to actually make the offer. The remainder of the letter is suffi-
cient to give the recipient some, but perhaps not complete, con-
fidence that such is the letter’s intent. E.g., GC Exh. 30 series.
Sometimes the “unconditional” language was not used at all.
E.g., GC Exhs. 43, 48.
When such an offer was made, both to defeat any ambiguity
that the incomplete usage or absence of the word “uncondi-
tional” might cause, and also to ascertain the employee’s
wishes concerning seasonal work, Respondent asked the em-
ployee to fill out a form, known in this record as the “Diamond
form.” In use since 1993,3 that form first gave the employee

2 As used here ‘precatory’ means “referring to a wish or advisory
suggestion which does not have the force of a demand or a request
which under the law must be obeyed.”
3 The Union has never raised any objection concerning the form. In
September 1998, Respondent’s director of human resources, Arthur
Reyes, sent union secretary-treasurer Lucio Reyes a packet of the
forms. In the letter he explained that the company wished to have
unconditional return to work offers on file and to clarify that the return-
ing employee was (or was not) willing to accept seasonal positions.
Lucio Reyes responded that the Union’s own letters fully satisfied the
employees’ legal obligations, but he concluded, “Nonetheless, we have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138
the opportunity to state with certainty that his or her offer to
return was unconditional, and second, under the heading “Ap-
plicable During the Walnut Harvest Season Only”, an opportu-
nity to say whether he or she was willing to accept seasonal
work.
In many respects this was no different from previous season
employees responding to being sent the postcards, except this
occurred throughout the year for returning strikers. It did not
matter whether the returning striker was seasonal or had held a
bid job (now called regular bid) at the time of the strike. If the
employee was willing to perform seasonal work even where his
or her regular job had not yet come open, Respondent activated
that person’s name in the HP system where it had resided (with
some possible exceptions) since 1991.
Moreover, all unreinstated regulars (bid job holders) who
asked to return (either by themselves or through a union re-
quest, and without regard to whether they had utilized the Dia-
mond form), were placed on a computer program spreadsheet
(the Excel spreadsheet) created just for that purpose. Accord-
ing to Respondent, whenever a regular job comes open, it con-
sults that spreadsheet to see if a striker can fill the job; if not, it
is put open for bid.
Another feature of the Diamond form was that it contained
Respondent’s statement, somewhat broader than the Laidlaw
Corp.4/Rose Printing5 obligations, that the Company will notify
the employee “[i]f individuals outside the current regular work-
force are being considered for positions” for which the em-
ployee is “qualified.”
In addition, there are “seasonal bids.” These differ from
regular bids in that they are available only to persons holding
regular jobs. When the season begins, there are several jobs
which open only for the season. These often involve skills not
used by the employee during the year, are higher paying or
offer a different type of work. These jobs are also posted, but
as a seasonal bid, and they last only for the harvest season. A
year-round employee, learning of a seasonal bid job may
choose to bid for it. As with all bids, there are certain require-
ments and certain disqualifications. Plus, the jobs are limited in
number. Thus, not every regular employee seeking a seasonal
bid job will succeed in being selected. Seasonal bidding is
nonetheless a perquisite of being an incumbent regular em-
ployee.
Nonbid seasonal employees are usually assigned to one of
four labor intensive tasks: loader, general labor, production
worker, and case packer. In addition, seasonal employees may
not bid on seasonal jobs, nor do seasonal workers acquire any
plant seniority or eligibility for fringe benefit plans.
The pleadings confusion occurred because many of these
facts were not understood by the General Counsel at the time
the complaint was issued. Furthermore, the General Counsel
was unaware that nearly all regular jobs continued to be held by
replacement employees. Thus the complaint withdrawals are

no objection of our members signing the forms you have provided if
they wish.”
4 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970).
5 304 NLRB 1076 (1991).
designed to eliminate theories found to be inconsistent with the
facts as now known. For example, paragraph 9(a) alleges that
since October 7, 1998 Respondent had discriminated in four
ways against striking regular employees who had offered to
return: refusing to offer them their old or substantially equiva-
lent job; refusing to put employees on a preferential recall
(Laidlaw) list; refusing to consider them for nonequivalent
work on a nondiscriminatory basis (except for seasonal work);
and refusing to hire them for nonequivalent work on a nondis-
criminatory basis (except for seasonal jobs). Those allegations
fell when the General Counsel learned of the Excel spreadsheet
and when it learned that no nonequivalent work had come open.
The General Counsel asked to withdraw paragraph 9(a) by its
brief. Paragraph 13(a), dealing with 1999 offers to return was
handled similarly and for the same reasons.
In general, the allegations which remain are not global, but
individual. Their circumstances are governed by the usual legal
principles of Laidlaw Corp., supra, and Rose Printing Co.,
supra. Those cases stand for the proposition that upon an un-
conditional offer to return to work, an economic striker is enti-
tled to his or her job back when the permanent replacement
employee separates from that job. In addition, the employer
must offer the returning striker a substantially equivalent job if
one should come open. However, the striker is not entitled to
an offer to any job for which he or she may also be qualified.
In addition, in Diamond Walnut Growers, 316 NLRB 36, 37
(1995), the Board observed that the General Counsel had con-
ceded that seasonal jobs at this plant are not substantially
equivalent to the year-round jobs. That is because, as already
noted, even if the skills are identical, e.g., lift truck driver, qual-
ity control inspector, machine operator (all of which are bid
jobs during the year, but also become available for 6 weeks as a
seasonal bid job to some other regular worker), the jobs are of
short duration, without fringe benefits, lack seniority and carry
no expectancy of permanence. So far as I can tell, the General
Counsel has not drawn back from that concession.
Moreover, the nonskilled regular workers, i.e., packers, load-
ers, production worker, laborer, are the ones who hold (together
with the bid job holders) the right to bid for the seasonal bid
jobs. Thus it is a mistake, due to both the governing law and
company policy, to conclude that there is some sort of equiva-
lency between regular and seasonal jobs, even though the jobs
carry similar titles or descriptions or where the skills overlap.
1. The no-distribution rule
Paragraph 7 of the complaint asserts that since “at least No-
vember 18, 1998, Respondent has maintained” an unlawful no-
distribution rule. Specifically, it asserts that House Rule No. 25
states: “Distribution of written or printed material of any de-
scription without written permission of management is not
permitted.” Respondent agrees that the rule has been in exis-
tence since at least that time, but observes that the rule and its
predecessors have been in effect since at least 1970 and origi-
nally appeared in a slightly different form in the 1970–1973
collective-bargaining agreement as a plant rule. See Exhibit B
to that contract, rule 19, which states that an employee shall not
“circulate petitions or distribute handles or pamphlets on asso-
ciation property without proper authority.” As time passed the
DIAMOND WALNUT GROWERS, INC. 1139
house rules were separated from the collective bargaining con-
tract but the distribution regulation continued to require man-
agement permission. By 1988 the rule had found its way into
the employee handbook as an item of misconduct: “Distribu-
tion of written or printed material of any description without
written permission of management.” Similarly, in the 1988-
1991 collective-bargaining agreement, article II, section 4 with
respect to bulletin board posting and distribution, requires the
Union prior to posting and/or distributing a notice, to submit a
copy to the Company’s industrial relations director. The rule
also put limits on the nature of material to be posted upon the
Union’s bulletin board. And, the provision reappears, un-
changed, in the 1995 and 1998 implemented proposals. All
three contain a clause obligating the parties to bargain over the
posting or distribution of documents not specifically discussed
in the clause.
The General Counsel argues that this is the exact type of rule
which the Supreme Court held to be unlawful in NLRB v. Le-
Tourneau Co. of Georgia, 324 U.S. 793 (1945). Respondent
counters that the rule and its predecessors have been in effect
since 1970 and have at all times had the consent of the Union.
It asserts that as a result the union has waived the right to com-
plain about the nature of this rule.
Curiously, there is no showing that the Union has made any
effort to distribute any written material inside the plant. In
some respects, therefore, the complaint is aimed at a hypotheti-
cal situation. Yet, one can see the defects in the rule itself. On
its face is not limited to working time or working areas. Our
Way, Inc., 268 NLRB 394 (1983). Yet, I suppose, if the Union
chose to distribute written material and sought to follow the
rule by getting management permission, given Respondent’s
benign approach, it is quite likely that the only limits which
would be placed upon the distribution would be those which
would guarantee that work not be disrupted. In fact, the Union
and Respondent have amicably worked together under these
rules since at least 1970 and no problem seems to have arisen,
no doubt due to the mature relationship the parties had until the
strike. Even now there seems to be no problem with respect to
the distribution portion of the rule. At least no party has con-
tended otherwise and the record is devoid of evidence that Re-
spondent has been obstructive of the Union’s desire to distrib-
ute material not listed in the contract (implemented proposal).
Despite all that, both the Supreme Court and the Board are
clear that such a rule interferes with the employees’ exercise of
their rights under Section 7. A nearly identical issue was pre-
sented to the Court in NLRB v. Magnavox of Tennessee, 415
U.S. 322, 325 (1974). The prohibition there was found in the
collectivebargaining agreement and was equally long-standing.
It said at 325–326:

The place of work is a place uniquely appropriate for dis-
semination of views concerning the bargaining representative
and the various options open to the employees. So long as the
distribution is by employees to employees and so long as the
in-plant solicitation is on nonworking time, banning of that
solicitation might seriously dilute Section 7 rights. For Con-
gress declared in §1 of the Act that it was the policy of the
United States to protect ‘the exercise by workers of full free-
dom of association, self-organization, and designation of rep-
resentatives of their own choosing.’

Section 7, the Court held, protects employees as they evalu-
ate the job their union is doing. They are free to support the
incumbent, get rid of it, or change unions. Prohibitions such as
this, it said, tend to favor protecting the incumbent union, giv-
ing it an advantage to which it is not entitled. Accordingly, the
Court struck down the contract prohibition on in-plant distribu-
tion. Thus, Magnavox actually expanded NLRB v. LeTourneau
Co. of Georgia, supra. It is true that the rule here, requiring
prior approval before distribution, is the same type of rule
stricken in LeTourneau, but Magnavox added that the fact that
the rule was collectively bargained did not amount to a waiver
of employee rights, except in some narrow circumstances not
present here. See also The Mead Corp., 331 NLRB 509, 510
(2000) and Awrey Bakeries, 335 NLRB 138 (2001).
I therefore find the rule to be unlawful and in violation of
Section 8(a)(1) of the Act.
2. Paragraph 9(b); alleging that four seasonal employees who
made unconditional offers to return were denied reemployment
for the 1999 season
As amended, paragraph 9(b) asserts that employees Rosa
Elena Juarez, Mari Ledezma, Elpidia Pina, and Mariano Tobin
were seasonal employees at the time of the strike and that they
had unconditionally offered to return on August 9, 1999. It
further asserts that they were denied seasonal employment in
1999 because their names were not activated on the HP system
as they did not file a Diamond form. [Two of these individuals,
Pina and Tobin, are also alleged as discriminatees in complaint
paragraph 9(e)(iii)].
All four of these individuals are included in a list which un-
ion secretary-treasurer Lucio Reyes submitted on August 9,
1999 advising Respondent that all wished to be unconditionally
reinstated. In 1999, none of these individuals submitted a Dia-
mond form or in any other way advised of their interest (or lack
of interest) in seasonal work. In July 2000, Juarez did file a
Diamond form. She was activated on the HP system and called
for seasonal work in late September, first as a case packer and
subsequently as a conveyor operator.
With respect to Juarez, Respondent’s records show that
shortly before the 1991 strike she had worked for 2 days, one as
a general laborer (for 6 hours) and one as a machine operator
trainee (for 8 hours).
Records for the other three do not appear to exist. According
to Hector Bolanos, currently one of Respondent’s human re-
sources managers, all of the 1990 seasonal employees were
considered to be strikers, unless they had been separated for
some reason. Those who were not considered strikers were
those who had terminated the employment relationship in some
fashion, including failing to return the 1991 postcard. We also
know that before July 1991 Respondent did not keep its payroll
records on a computerized system. It was at that time that the
HP payroll system was established. It may therefore be pre-
sumed (though not without some niggling doubt) that if indi-
viduals worked for Respondent before July 1991, but not after-
wards, their names will not appear in the HP system. It is pos-
sible therefore, that a few 1990 seasonals who had been cleared
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140
for 1991 work but who had not yet been called by the time of
the September 4, 1991 strike, could be considered striking em-
ployees. It is also possible that a few 1990 seasonals never
returned the 1991 postcard and were therefore not 1991 em-
ployees and not actual strikers, even if they later joined the
Union’s picket line.
The burden of demonstrating that an individual is a striker
entitled to reinstatement rights rests with the General Counsel.
The Board has long held that the burden of proving discrimina-
tion lies with the General Counsel. Rubin Bros. Footwear, 99
NLRB 610, 611 (1952). It has also held that it is the General
Counsel’s burden to prove that a Laidlaw vacancy has oc-
curred. Aqua-Chem, Inc., 288 NLRB 1108, 1110 fn. 6 (1988).6
To that end, the General Counsel is obligated to first prove that
the alleged discriminatee was an employee of the employer at
the time of the strike. It must then show that the individual
joined the strike by withholding his or her labor from a specific
job and subsequently, that the striker sought to be uncondition-
ally reinstated. For reinstatement purposes the job from which
the striker left to join the strike is the job to which the striker is
entitled under the Laidlaw rule.
The only individual listed in this paragraph who the General
Counsel has shown was employed at the time of the strike is
Juarez. Neither she nor the other three actually gave testimony
concerning their situations. The General Counsel had the op-
portunity to put on such evidence during her case-in-chief, but
did not do so. It is true that at the end of the hearing she made
an offer of proof which I denied as inappropriate for rebuttal.
Respondent had offered nothing to rebut. It had observed that
there was no evidence presented by the General Counsel to
demonstrate what three of the four individuals had been doing
at the time of the strike. It was certainly not Respondent’s bur-
den to respond to a lack of evidence, and thus rebuttal was not
fitting.
Accordingly, I conclude that the General Counsel has failed
to prove that Ledezma, Pina and Tobin were employees who
went on strike in September 1991. The allegation will be dis-
missed with respect to them.
Juarez is a little different. Here, Respondent’s records dem-
onstrate that she was employed at the time of the strike. It may
also be inferred that she was a seasonal employee since her
1991 employment seems to have begun on August 30 (for Au-
gust she had only 8 hours work). And, she was employed on
September 3, the day before the strike began. Therefore the
record shows that Juarez was a seasonal employee at the time
of the strike.
The question then is whether her failure to submit a Dia-
mond form in 1998 is a sufficient reason for Respondent to
have not activated her on the HP system for seasonal calls. In
some respects the arguments made here are one of finger-
pointing. The General Counsel asserts that when seasonal em-
ployees sought to return, that the Union’s letter should have
been sufficient, since these employees were only seasonals, and
could not have been seeking reinstatement to bid jobs. Re-
spondent counters that even though they were seasonals, sea-

6 Enfd. 910 F.2d 1487 (7th Cir. 1990), petition for rehearing denied
922 F.2d 403 (7th Cir. 1991), cert. denied 501 U.S. 1238 (1991).
sonal employment was periodic and that seasonals were ex-
pected to make some minimal effort to advise the Company
that they wanted to work in the upcoming season. To remain
eligible, seasonals were asked to do the absolute minimum in
the ordinary course of things—fill out and return the postcard.
Since postcards had not been sent to strikers, Respondent at-
tempted to make it equally easy by having them fill out the
Diamond form. From its point of view, the Diamond form and
the postcard were equivalent notices. If one chose not to return
the postcard, then one was not considered for seasonal work. In
parallel, if one did not fill out the Diamond form advising that
one wanted seasonal work, one was likewise not considered.
Yet, the Diamond form was a redundancy, at least insofar as
a seasonal job is concerned. If the only job employee held was
seasonal, it is hardly any great step to know that when the em-
ployee files a reinstatement request, he or she wishes to be
reinstated to a seasonal job. Here, Juarez was known at the
time of the strike to be holding a seasonal post. When her
name appeared on the Union’s list, she matched up as a sea-
sonal employee. The Union’s transmission was more than
adequate for seasonal purposes. Respondent should have rec-
ognized Juarez as such and treated her as requesting seasonal
employment for the 1998 season. It was a violation of Section
8(a)(3) and (1) to have failed to do so.7
3. Paragraph 9(c); alleging that since October 7, 1998 Respon-
dent failed to offer regular and/or seasonal employment to
seven strikers because it did not update telephone numbers
The seven individuals who are alleged to have been dis-
criminated against in this complaint paragraph are: Virginia
Galabis, Amanda Gomez (Sigman), Chiu Mar, Joel Perez, Hec-
tor Rosas, and Maria Ruiz. The first problem which all seven
of these individuals face is whether the General Counsel has
shown them to be strikers in the first instance. It is true that all
of them filed offers to return, either through the Union or by
filing a Diamond form. Indeed all filed Diamond forms in
August or September 1998, indicating that they wished to be
considered for seasonal work. And, all are listed in an October
28, 1998 transmission from Respondent’s Art Reyes as “em-
ployees who worked before the strike and are currently active
in the [HP] system.” A careful reading of that document does
not lead to the conclusion that Respondent has acknowledged
those listed to have been strikers, although no doubt most of
them were. All of them, however, had been employed during
some period before the strike. Some had been 1990 seasonals
while others may have separated from employment before the
strike began. Their employee numbers were known and were
listed in the transmission. But, to conclude that the individuals
who appear on that list were all strikers would be presuming
too much. Yet, I think it is fair to conclude that the Union and
employees themselves in 1998, 7 years after the strike began,
7 I do not accept the General Counsel’s argument that the Diamond
form was designed to extinguish the preferential employment right of
the strikers. Among other things, it was a well-intentioned effort to
assist strikers in obtaining interim employment if their regular job had
not yet come open. In this instance, it would appear that a seasonal
employee fell through the proverbial crack in an attempt to treat strikers
neutrally. Lack of motive, of course, is not a defense to the conduct.
DIAMOND WALNUT GROWERS, INC. 1141
believed themselves to be strikers. Certainly they behaved that
way, seeking reinstatement in the routine way. The main
common thread for these individuals is that after they filed their
Diamond form, Respondent sought to call them for seasonal
work but failed to contact them despite the fact that either they
or the Union had supplied updated telephone numbers, usually
on the Union’s offer to return. Still, the company records are
not clear on all of these individuals and only Gomez was called
to testify. Keeping that in mind, I proceed to each of the dis-
criminatees alphabetically.
Virginia Galabis. The General Counsel concedes that it is
uncertain whether before the strike Virginia Galabis held regu-
lar or seasonal status. Indeed, she has made no effort to deter-
mine what job Galabis held or when she held it. Certainly the
record is of no assistance. The only thing we know about her
previous employment is that she had been employed at some
point before the strike, since she has an employee number and
she was listed in the HP system, together with telephone num-
bers. That suggests that she may have had some work after
July 1991. We also know that in September 1998 she filed both
a union request to return and a Diamond form saying she
wished to be considered for seasonal work. As a result, Re-
spondent did activate her for purposes of calling her for the
1998 season. Despite the fact that her union request showed an
updated telephone number, that number was not checked
against the number in the HP system. As Bolanos explained,
changes are made in that system only when an employee files a
change of name/address/telephone number form. Had any of
the employees listed in this complaint paragraph done so, he
explained, the system would have picked them up.
In Galabis’ case the October call sheets show that she was
called on October 2 and 14, but the number was disconnected.
Bolanos explained that due to the sheer numbers that are called
during the season, Respondent’s callers make no effort to ob-
tain correct numbers, relying on the employee to file change
forms if they want to work. The callers simply operate from a
computer-generated document, trying to fill slots as quickly as
they can. If they are unable to contact an individual, they sim-
ply move on to the next.
Given the fact that Galabis’ prestrike status is unknown, and
it was the General Counsel’s responsibility to demonstrate her
to have been striker, I must conclude that there is no showing
that Galabis was entitled to return at all under the Laidlaw doc-
trine. The telephone number issue is simply immaterial. Ac-
cordingly, that portion of paragraph 9(c) relating to her must be
dismissed.
Amanda Gomez (Sigman). At the time of the strike Gomez
was a regular employee who had just become a machine opera-
tor trainee. Until July 1991 she had been a laborer. She was on
modified work until late August when she became the trainee.
When she decided to return to work in 1998, she filled out a
Diamond form on August 28, saying she would consider sea-
sonal work, later filling out a second Diamond form as well as a
union offer to return dated September 10. She was activated in
the HP system and on October 12 and 13 a scheduler called the
numbers shown in the system but received no answer. She had
listed her current telephone number on her union offer to return
of September 16. Following its normal procedure, Respondent
had not picked it up.
Clearly Gomez was entitled to a Laidlaw reinstatement when
her regular job came open. However, she was not entitled to
seasonal work under Laidlaw. It is true that Respondent sought
to call individuals in Gomez’ situation since they had advised
that they would accept seasonal work. Had the numbers been
correct, she clearly would have been given the opportunity to
accept seasonal employment. It does not follow however that
Respondent was discriminating against her by failing to pick up
her current telephone number from the union offer. I think it is
fair to say that a striker such as Gomez is entitled to be consid-
ered for employment on a nondiscriminatory basis when she
seeks a non-Laidlaw job. However, the General Counsel has
not shown that a failure to update a telephone number had any
discriminatory motive or impact. Indeed, as a regular employee
Gomez was familiar with Respondent’s procedure for updating
personal information in the company records.8 I think it can be
said that at best this was some kind of mistake, either Gomez’
or Respondent’s. Both can be faulted to some degree. Either
way, no claim of discrimination will lie. This portion of para-
graph 9(c) will be dismissed.
Chiu Mar. Bolanos acknowledges that at the time of the
strike Chiu Mar was a regular employee, although her actual
job is not known, nor is it necessary to know it. She was not
called as a witness. On September 1, 1998, she filed both a
union offer to return and a Diamond form in which she said she
would consider seasonal work. She was activated in the HP
system and on October 3, 12, and 13 Respondent attempted to
reach her by telephone, but the number dialed was discon-
nected. The number which Respondent called was one digit
different from the number which she had included on her union
offer to return. It would appear that the number in the HP sys-
tem had been entered incorrectly many years before. (She had
a 1984 seniority date.)
As with Gomez, Mar appears to have been the victim of
some type of error. She was, of course, entitled to her pre-
strike job under Laidlaw. However, those rights did not extend
to seasonal work. She was entitled, insofar as seasonal work is
concerned, to be treated in a nondiscriminatory manner. Re-
spondent accepted her offer to perform seasonal work and acti-
vated her in its system. Unfortunately, the system contained an
error which prevented the Company from reaching her. An
error of this nature does not qualify as a discriminatory act. As
the victim of an ancient clerical error, what happened was un-
fortunate but it did not offend Section 8(a)(3). That portion of
paragraph 9(c) relating to Mar will be dismissed.
Joel Perez. Again, the General Counsel concedes that it
does not know whether Joel Perez was a seasonal or regular
employee at the time of the strike. Indeed, the General Counsel
has not shown that Perez was even employed when the strike
began. Respondent has no records concerning his employment
at that time. Nonetheless, Perez does appear in the HP system
with an August 26, 1991 rank date. He also appears on the
October 28, 1998 transmission to the Union as having been

8 In fact, on May 17, 2000, Gomez did fill out the proper form.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
activated in the system. He was not called as a witness and we
therefore do not have the benefit of his recollection.
On September 16, 1998, he filed both a union request to re-
turn form and a Diamond form. On the union form he included
a current telephone number which differed from the two found
in the HP system. On October 3 and 13, 1998, a caller tele-
phoned the number in the system, learning that it was a wrong
number.
While one might surmise that Perez had been hired as a sea-
sonal worker judging from the rank date which appears on the
call sheets, and that he had worked for only a few days before
the strike, that would only be speculation. The General Coun-
sel has not shown that Perez had actually been called to work at
the time of the strike. More likely, assuming he was a seasonal,
he had been accepted for seasonal work, but had not actually
been called. Had he been called, the Company would have a
payroll record so reflecting. As noted, the HP payroll system
was instituted in July 1991. That would explain why he has an
employee number but no record of any wages being paid. Any
problems which may have arisen with respect to the correct
telephone number which was in the system is simply not a con-
cern. He wasn’t entitled to an offer of seasonal work and the
telephone number issue is overrun by the fact that he was never
eligible in the first place. Therefore Respondent’s failed effort
to contact him is irrelevant to this analysis.
Accordingly, I conclude that the General Counsel has failed
to prove that Perez, even as a seasonal, had any Laidlaw rights
whatsoever. This portion of paragraph 9(c) of the complaint
will be dismissed.
Hector Rosas. Again the General Counsel concedes that it
does not know whether Rosas was a regular or seasonal em-
ployee. By that concession it is admitting that it does not know
whether Rosas was employed at the time of the strike. Rosas’
name does appear on the October 28, 1998 transmission from
Respondent to the Union advising that he had worked before
the strike and was currently active in the system. That activa-
tion occurred as result of Rosas’ filing in September 1998 both
a union request for reinstatement and a Diamond form indicat-
ing a willingness to consider seasonal work. On October 2 and
13 a caller attempted to contact Rosas but discovered that the
number in the HP system was disconnected and that the alterna-
tive number was a wrong number.
It appears from the call sheet that Rosas had a rank date of
September 12, 1990. Again one might surmise that he had been
hired for the 1990 season and would have been eligible for
1991 seasonal work had he returned the postcard. It would be
no surprise, therefore, that information about him, including an
employee number, would be found in the HP system or in other
personnel records. Therefore, when in 1998 he filed his Dia-
mond form, his name would have been picked up and he would
have been activated, as he was, for seasonal work.
Still, the General Counsel has not shown that he had worked
in 1991 prior to the strike. Again, there is no payroll record
which would be expected if he had worked between July 1991
and the September 4 strike. As with the others, this suggests
that he was not on the active payroll at the time of the strike.
Certainly there is no persuasive evidence that he was working
at the time the strike began.
In that circumstance, I am unable to conclude that Rosas had
a Laidlaw right to be returned to seasonal work. Thus, any
problems which may have arisen with respect to the correct
telephone number which was in the system is simply not a con-
cern. He wasn’t entitled to an offer of seasonal work and the
telephone numbers issue is simply superseded by the fact that
he was never eligible in the first place. Therefore Respondent’s
abortive effort to contact him is irrelevant to this analysis. The
portion of paragraph 9(c) relating to Rosas will be dismissed.
Maria Ruiz. Like Mar, Maria Ruiz was a regular employee.
However, there are no records which exist showing her job at
the time of the strike. Whatever regular job she may have had
is not in issue here. She may well have Laidlaw rights to that
job. The focus of this complaint paragraph is on whether she
was entitled to 1998 seasonal work. Thus the question is
whether or not the fact that in September 1998, she filed a
Diamond form suggesting that she would consider seasonal
work gives her any right of recall. As with the others in her
situation, I conclude that it does not. Respondent was under no
obligation to offer seasonal work to her. The only obligation it
had was to consider her request for consideration in a nondis-
criminatory manner. In this regard when it received the Dia-
mond form it activated her in the HP system. Subsequently, on
October 3, 4, and 12 a caller telephoned the numbers which
appeared in that system. This resulted in an answer machine
from which no response ever came because it was a wrong
number. She had, as with some of the others, placed the correct
telephone number on her union offer to return which seems to
have been filed sometime in September 1998. Oddly, it is not
stamped as having been sent, as were the vast majority.
Accordingly, I am unable to find that any discrimination oc-
curred here. Respondent was under no obligation to offer her
seasonal work 1998; it was only obligated to treat her in a non-
discriminatory manner if she applied for other work. It appears
that Respondent did so. When it received her Diamond form it
activated her in the HP system and proceeded to attempt to
contact her about seasonal work. She, too, as a regular em-
ployee was aware of Respondent’s procedures for changing
personal information in the company records. She made no
effort to do so and Respondent treated her exactly the same as it
treated all persons on the call sheets that it was unable to reach.
No discrimination occurred here, only some kind of error.
Accordingly, this portion of complaint paragraph 9(c) will be
dismissed.
Florentina Zuniga. The General Counsel makes no repre-
sentation concerning the job, if any, Zuniga held at the time of
the strike. Nor are there any company records showing that
information. Call sheets utilized for her show that she has a
rank date of September 3, 1987. The October 28, 1998 com-
pany transmission to the Union shows that she has an employee
number and that she was activated in the HP system prior to
that date. That activation was no doubt due to the fact that she
had filed a Diamond form on October 1, 1998. (She had earlier
filed a union offer to return on September 4.) She was not
called as a witness and we do not have the benefit of her testi-
mony concerning what she was doing at the time of the strike.
The absence of any payroll records suggests that she was not on
the active payroll at the time of the strike, nor had she been
DIAMOND WALNUT GROWERS, INC. 1143
since July 1991. Again, surmise might take us to the conclu-
sion that she was a seasonal worker, but that would certainly
not be proof. If so, however, Respondent would have consid-
ered her to be on strike. Certainly she had a past employment
history and was in the HP database, together with what turned
out to be an outdated telephone number.
However, as with the others, conjecture is not proof and the
General Counsel was obligated to prove that she was a striker
on September 4, 1991. That has not been shown, and therefore
I cannot conclude that Zuniga has any reinstatement rights as a
striker under the Laidlaw rule. Therefore, whatever problems
the incorrect telephone numbers may have caused, they have no
bearing on her rights as a striker. So far as I can determine, she
was not a striker. Accordingly, this portion of paragraph 9(c)
will be dismissed as well.
4. Paragraph 9(d); alleging that respondent since October 7,
1998 has denied strikers the opportunity to review job
postings at the plant
Respondent’s facility consists of multiple buildings not all of
which are clearly described in the record. It has a main office
building for the executive and administrative staff. Most out-
siders would utilize the main entrance in this building to gain
access to the facility. When anyone, outsider or employee,
enters the main building, they must pass a receptionist before
proceeding elsewhere in the plant. Plant employees are barred
from that entry and usually enter the plant directly from one of
the two employee parking lots some distance away from the
administrative building and much nearer the plant. Employee
entry into the plant from that location must be approved by a
plant guard, either at the parking lots or in the walkway leading
to the plant building. Active employees have badges or identity
cards (depending on what is being used in any given year).
These are shown to the guard on request. During the height of
the strike, 1991–1992, security was much stronger than it was
in 1998 when individuals covered by this complaint began to
seek to return. Now, as then, if an outsider seeks to enter the
plant from that location, the guard determines if the individual
has legitimate business and, if so, arranges entry, usually with
the approval and/or accompaniment of a manager.
Between the main office and the plant, there is a cafeteria
building. A breezeway connects the main building and the
cafeteria, and there is a walkway between the plant and the
cafeteria. At the breezeway there is a roll-up steel-grated door
which is usually in the down or closed position. If one comes
onto the property there, via the walkway to the door from the
street, one can see into the breezeway. The company bulletin
board can be seen at that location, the only spot utilized for the
posting of job bids.9 It is difficult to view the bulletin board

9 This location has been utilized for job bids for many years and is
well-known to all employees as well as to the union officials, many of
whom have worked in that plant. Indeed, the job posting procedure can
be found in the 1970 collective-bargaining contract and, although per-
haps modified since then, is a well ingrained plant procedure. That
contract called for such postings to be placed on the employee bulletin
board, and it would appear that the procedure has been followed ever
since. Over the years there has been no other location for the posting of
from that vantage point, both because of the distance (6 to 7
feet) and because the board angles away from a viewer standing
at that location. One could see, from the goldenrod color of the
posting, that a job bid had been placed on the board, but one
would probably not be able to read it.
Yvette Battles is a quality-control assistant who had partici-
pated in the strike. By 1998 she had returned to work. She
reported to the union’s Lucio Reyes many, if not all, of the job
bids which were posted on the breezeway bulletin board. There
is no evidence that the Union did anything with the information
she supplied. Lucio Reyes did not ask Respondent for copies
of the bids, nor did he advise any unreinstated striker to enter
the plant for the purpose of filling out a bid form.
Respondent’s Art Reyes testified that Respondent has never
advised individuals who were not actually within the plant of
any bid postings, including laid-off employees, vacationing
employees, ill employees, or employees on disability. Thus, it
apparently never occurred to him or anyone else in authority to
notify the Union of the bids as they were put on the board. He
was, of course, cognizant of the Laidlaw rule and was on the
lookout, through the Excel spreadsheet, for openings which the
Company was obligated to offer an unreinstated striker.
Two types of bids are posted. One is for regular job open-
ings, which during the period in question, seem to have been
very few. The second was for seasonal bids. As noted earlier
in this decision, the only individuals who were eligible to sign
applications for seasonal bids were regular employees, that is,
incumbents. As noted, they also had to meet several other re-
quirements and there was no guarantee that a signer would be
selected. No seasonal worker was eligible even if they pos-
sessed the requisite skills, because they were not incumbent
regular employees.
Thus, the initial question which needs to be asked here is
whether unreinstated strikers were eligible for seasonal bids. In
the abstract, it would appear that they should be. After all,
many of them had performed similar jobs prior to the strike.
Forklift driving skills, for example, would be the same whether
they did it on a seasonal or regular basis. The same can be said
for many of the other jobs which were posted as seasonal bids.
Yet this is not in the abstract. It was only a regular job
holder who was entitled to make application for seasonal bid.
That was true whether or not the incumbent ever went on strike.
In fact, the right to bid on seasonal bids was one of the privi-
leges of being a regular employee. Therefore, it can easily be
said that unreinstated strikers had no right to be considered for
a seasonal bid, at least if regular employees had signed the bid
sheet for, analytically, there was no open job. If the seasonal
bid was held by a regular employee, who was also a permanent
replacement, that employee’s job remained filled and no Laid-
law slot had come open. The only job which might have come
open, depending on manning needs, would have been the regu-
lar employee’s regular job, now temporarily open for a seasonal
employee. When the season ends the regular employee will
return to his regular job and the seasonal will depart. This type
of employee shuffling does not create a Laidlaw opening. Tex-

bids. Nor, does it seem, has the Union ever been routinely notified of
job bids.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
tron, Inc., 257 NLRB 1, 4 (1981), enfd. in pertinent part, 687
F.2d 1240, 1243–1244 (8th Cir. 1982), cert. denied 461 U.S.
914 (1983).
Given the fact that no seasonal bids had come open for
which an unreinstated striker was eligible, it is difficult to con-
clude that Respondent’s handling of the bids had any impact on
those who wished to be considered for jobs other than their
Laidlaw position. The General Counsel’s argument is that
Respondent’s bid posting procedure had the effect of prevent-
ing qualified, yet unreinstated strikers, from being employed in
jobs which they might be able to do. That, she says, is dis-
criminatory.
I am well aware of the holdings in the cases which the Gen-
eral Counsel cites, Pirelli Cable Corp., 331 NLRB 1538
(2000); Medite of New Mexico, 314 NLRB 1145 (1994); Ore-
gon Steel Mills, 291 NLRB 185 (1988) and Arlington Hotel v.
NLRB, 785 F.2d 249 (8th Cir. 1985) (a pre-Rose case). None-
theless, I do not believe any of them have applications here.
The primary reason for that is the fact pattern presented here is
significantly different from those. First, none of those cases
involved a seasonal bid eligibility perk to their regular Laidlaw
job. Second, in those cases, one can perceive that the bidding
procedure was part of a plan to discriminate against strikers.
There is no evidence of such a plan here. Indeed, Respondent,
since 1993, has been offering strikers seasonal work if they
wished to accept it while awaiting their Laidlaw opening.
It is fundamental under the Act that employees who engage
in a lawful strike are protected by Section 7 of the Act. NLRB
v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). To
protect employees who have engaged in such a strike, the Laid-
law doctrine requires an employer to reinstate an economic
striker who has unconditionally requested reinstatement upon
the departure of the permanent replacement employee holding
the same or an equivalent job. In Rose Printing, the Board held
that a striker holding a Laidlaw privilege was not entitled to
reinstatement to any other job which he might also be qualified
to perform. It limited his right to return to the same or an
equivalent job. In Rose, the Board also held, somewhat self-
evidently I think, that a striker who has offered unconditionally
to return, but whose job has not yet come open, is entitled to
nondiscriminatory treatment with respect to any other job open-
ing. In this regard, I do not agree with the General Counsel that
strikers who are seeking jobs other than their Laidlaw job are to
be given Fleetwood10 (inherently destructive) treatment, where
union animus is not an element of the violation.
Instead, the proper analysis in those situations requires some
proof of animus. See, Pepsi-Cola Bottling Co. of Topeka, 227
NLRB 1959 fn. 2 (1977)11 (where the respondent legally termi-
nated all its employees, including former economic strikers, the
Court’s language in Fleetwood with respect to the reinstatement
rights of economic strikers who have been permanently re-
placed is inapposite; incumbent upon the General Counsel to
prove that the respondent was motivated by discriminatory
intent in refusing to rehire former employees who had engaged
in protected strike activity); Atlantic Creosoting Co., 242

10 NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967).
11 Enf. denied on other grounds, 615 F.2d 266 (10th Cir. 1980).
NLRB 192 (1979) (where the respondent eliminates a job dur-
ing the course of a strike, animus is required to prove the con-
duct was discriminatory); and Handy Andy, 313 NLRB 616
(1993), enfd., 53 F.3d 1334 (D.C. Cir. 1995) (animus required
where respondent inherited returning strikers from predecessor
but did not hire them). Often, the animus is clear because the
conduct is part of a scheme to avoid recalling strikers. See e.g.,
Outboard Marine Corp., 307 NLRB 1333 (1992), enfd., 9 F.3d
113 (7th Cir. 1993). Therefore, as I read the Rose Printing
reference to how an employer must treat a striker seeking some
job other than his or her Laidlaw job, there must be some evi-
dence of animus to make out a violation; the inherently destruc-
tive analysis of Fleetwood, Great Dane,12 and like cases does
not apply.
In my opinion, the conduct in the cases upon which the Gen-
eral Counsel relies for the proposition that denying strikers the
right to bid on other jobs violates the Act, Pirelli, Medite and
Oregon Steel, all supra, must be analyzed as part of a scheme to
defeat rehiring strikers. It is not the manner of the posting itself
which offends the Act, but the fact that it was part of an unlaw-
ful program to avoid recalling strikers. If the posting is not part
of such a plan, it must be regarded as neutral. In this case, I do
not find that Respondent had such a plan, although, as will be
seen, a small number of returning strikers were not given their
full measure of Laidlaw rights. That seems to have been more
oversight than anything else.
Thus, the question presented by this complaint paragraph is
whether or not Respondent, by maintaining its long-standing
posting practice, has discriminated against strikers who have
offered to return to work. Unlike Pirelli and Medite this Re-
spondent has not taken any affirmative-action against strikers
with respect to postings. It has simply done what it has always
done, put the postings on the breezeway board. It is true that
the custom makes it difficult for an unreinstated striker to find
out about them, but it is not impossible. Employees could have
sought access to the bulletin board or the Union could have
asked to be copied as the bids were posted.
Indeed, Battles provided the information about postings to
the Union on a regular basis. Had the Union wished, or thought
it was appropriate, to publicize those postings, it would have
done so, by asking Respondent for its own copy or doing some-
thing with Battles’ information. While there is no direct testi-
mony regarding why the Union did not advise its members of
the slots, it seems to me that it is reasonable to infer that the
Union already knew the unreinstated strikers were not eligible
for seasonal bid work. Therefore, there was no real point in
testing Respondent’s willingness to allow those same individu-
als into the plant to view the postings. That is also the reason,
it may be inferred, that the Union did not ask for copies of the
postings. Had employees been turned away by the guards, or
had there been evidence of the type of discrimination seen in
Pirelli and Medite, a different conclusion might be reached.
However, because the employees had no realistic chance at
these seasonal bid jobs, and because the Union knew it, there
seems to be little proof, and no reason to assume, that Respon-
dent’s continuation of its long-standing past practice of posting
12 NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
DIAMOND WALNUT GROWERS, INC. 1145
seasonal bids could have had an impact on the strikers. Among
other things, neither the strikers, nor their union, had advised
Respondent that the strikers were even interested in jobs other
than those to which they held Laidlaw rights.
It is true that there were a few regular bids which were
posted and for which reasonable arguments can be made that
some discrimination occurred. Those instances will be dealt
with below in appropriate sections, on an employee-by-
employee basis.
5. Paragraph 9(e)(i); alleging that since September 9, 1999,
Respondent refused to offer a seasonal nonbid job to
one employee
This allegation essentially asserts that Respondent failed to
offer 1999 seasonal work to Maria Estrada. It is true that
Estrada was one of two employees who appeared on a list
which Lucio Reyes sent to Art Reyes on September 7, 1999,
saying that they wanted to return to work. The transmission
was accompanied by Estrada’s completed Diamond form dated
that day, indicating a willingness consider seasonal work.
The General Counsel offered no evidence whatsoever con-
cerning Estrada’s status as employee in September 1991. There
is no evidence that she was employee in 1991 or previously,
much less an employee who joined the strike in September. In
fact there is no evidence that this individual has ever been em-
ployed by Respondent.
The General Counsel has failed to meet its burden of proof
with respect to this individual. It has not shown Estrada to be
an individual entitled to any reinstatement right under the Act.
This allegation must be dismissed for failure of proof.
6. Paragraph 9(e)(iii); alleging that since August 9, 1999
Respondent failed to offer seasonal nonbid jobs to six
unreinstated (seasonal) strikers
In most respects I am unable to see any difference between
paragraph 9(b) and paragraph 9(e)(iii). Both assert that since
August 9, 1999 Respondent did not recall certain individuals
for seasonal work. In paragraph 9(b) employees Pina and
Tobin are conceded to be seasonal employees. In paragraph
9(e)(iii) those two reappear, together with four others. Yet, the
General Counsel makes no argument about Pina and Tobin in
the section of its brief devoted to paragraph 9(e)(iii).
Marissa Maria Martinez. Alphabetically, the first of the six
employees is Marissa Maria Martinez. There are no records
showing what job, if any, Martinez had at the time of the strike
in 1991. Her name did appear on an August 9, 1999 list of
employees for whom the Union sought unconditional rein-
statement. On that list the Union asserts that her previous job
was growers inspection. There is no specific classification of
growers inspection, although there is a department by that
name. As in many departments, the workers there are officially
classified as production worker.
Martinez did not testify and there is no evidence that she was
employed in 1991 at the time of the strike. Bolanos, who of-
fered payroll records for many other employees, could find no
record for her. That suggests that if she was a previous em-
ployee, her employment preceded the computerized payroll
system put in place in July 1991. Had she been on the payroll
after July, her name would have appeared in the company pay-
roll records. She may have been a 1990 seasonal, but there is
no evidence that she had returned the postcard for 1991 or that
she had been called for the 1991 season. There is no showing
that her submission of the Diamond form activated her name on
the HP system. That suggests that she was not in the HP sys-
tem, intimating that she had not returned the 1991 season post-
card at the very least.
For that reason, I must include that the General Counsel has
failed to meet its burden of proof that Martinez was a striker
entitled to reinstatement under the Act. The allegation insofar
as it concerns her will be dismissed.
Elpidia Pina. This individual has previously been found to
be ineligible for reinstatement under the Act. See the discus-
sion under b. above.
Horacio Ramirez. Ramirez’ situation is somewhat different.
As with some others, the evidence demonstrating that he was
employed by Respondent at the time of the 1991 strike is virtu-
ally nonexistent. And, like many others, he eventually filed
two requests to return. The Union did so on his behalf on Au-
gust 9, 1999. Five weeks later he filed a Diamond form on
September 15, 1999, saying that he was willing to consider
seasonal work.
Yet, the General Counsel has not shown when, if ever, he
had been employed around the time of the strike. Furthermore,
although he appears to be a forklift driver by trade, there is no
evidence showing him to have been a forklift driver with Re-
spondent on either a regular or seasonal basis, except for the
Union’s assertion to that effect in its August 9, 1999 request for
reinstatement. Moreover, there is no showing that his submis-
sion of the Diamond form activated his name on the HP system.
That suggests that he was not in the HP system, implying that
he had not returned the 1991 season postcard at the very least.
Curiously, a year before these 1999 requests, on August 7,
1998, Ramirez applied for employment by Respondent as a fork-
lift driver. He had attended a job fair given by Respondent and
had been induced to apply for work. During the course of his
interviews, he never mentioned that he was an individual who had
previously worked for Respondent and who had gone on strike in
1991. His application form as received in evidence (R.Exh. 46)
shows employment with only two firms, both on a seasonal basis.
It does not refer to employment with Respondent. A few days
later Ramirez was called to an orientation session where he filled
out another form in which he stated that he understood he was
being hired as a strike replacement employee. The form has been
in use since the strike began, both for regulars and seasonals. He
was given a tentative offer of employment and then took and
passed a drug test. Shortly thereafter Respondent, per his agree-
ment, scheduled him for some forklift training. He did not appear
for the training session, did not seek to reschedule, and ultimately
was considered to be a voluntary quit. Had he followed through,
he would have been a seasonal. Whether he would have been
assigned a forklift is problematical, given the fact that seasonal
forklift driving is a seasonal bid job for which he would not have
been immediately eligible. If he knew that, it might explain why
he did not continue to pursue the job application.
Although both parties make much of Ramirez’s 1998 failed
application, I do not think it is necessary to discuss it with great
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
detail. The principal issue here is whether the General Counsel
has demonstrated that Ramirez was an employee in September
1991 when the strike began. I must conclude that adequate
proof has not been offered. Ramirez did not testify and there
are no records proving his employment in 1991. Again, it is
possible that he had not been called for 1991 seasonal work
before the strike began or that he was a 1990 seasonal who had
not returned his postcard for 1991 seasonal work. Those possi-
bilities have not been explored and the record is bare of any
evidence one way or the other.
I do think it is accurate to say that Ramirez’s failure to men-
tion that he was a striker, when he made his 1998 application,
suggests that he was not employed by Respondent at the time of
the strike. That is not entirely persuasive, because he may have
intentionally concealed that status in order to become em-
ployed. Yet, if that were true it is unlikely that he would have
signed the statement acknowledging that he was a striker re-
placement. Loyalty would not have permitted him to do so.
On balance, it is clear to me that the General Counsel has failed
to prove Ramirez was a striker.
Alfredo Rodriguez. Although this discussion concerning Al-
fredo Rodriguez is primarily aimed at paragraph 9(e)(iii), 1999
seasonal opportunities, the facts also encompass paragraph
11(c), concerning 1998 seasonal work.13
The General Counsel has not shown any evidence regarding
what job, if any, Alfredo Rodriguez held at the time of the
strike. The company records, according to Bolanos, do not
disclose any employment in 1991. Indeed, it is not certain
whether Rodriguez worked the 1990 season. The General
Counsel does assert that Rodriguez was a seasonal employee.
It is true that on September 15 1999, Alfredo Rodriguez filed
two offers to return to work, a union offer and a Diamond form
in which he said he would consider seasonal work. Again, we
have at least two possibilities: One, that he had worked the
1990 season, had returned the postcard but had not been called
to work before the strike began or, two, that he failed to return
the postcard for the 1991 season. He was not called to testify
and we do not have the benefit of his recollection. There is no
showing that his submission of the Diamond form activated his
name on the HP system. That suggests that he was not in the
HP system, perhaps indicating that he had not returned the 1991
season postcard.
Based on this limited evidence, I must conclude that the
General Counsel has failed to meet the burden of proof re-
quired. There simply is no credible evidence that Alfredo Rod-
riguez was employed at the time of the strike in 1991. These
two allegations will be dismissed.14

13 The original discriminatee in paragraph 11(c) was Thelma Pompa.
In footnote 28 of her brief, the General Counsel moved to strike
Pompa’s name from this allegation. The motion is hereby granted.
During the hearing the General Counsel sought to add Juana Silva, but
the motion was denied. In her amendment of January 18, 2001, she
successfully added Alfredo Rodriguez.
14 On September 20, 2000, Respondent, in response to a warning
given to it by the Regional Office offered Alfredo Rodriguez seasonal
employment for the 2000 season. There is no further evidence concern-
ing what happened after Rodriguez received the offer. This letter, to
some extent, was part of an effort to settle the dispute. The General
Maria Romero. The General Counsel has presented no evi-
dence concerning what job Maria Romero held, if any, at the
time of the strike. There are three separate documents in the
record dealing with her offer to return to work. The first oc-
curred on August 9, 1999, a union offer in which she was listed
by the Union as having held a “cello” job on days, apparently
meaning that she operated a cello packaging machine. A second
union offer, 2 weeks later on September 22, says that she is a
swing-shift sorter. The third, a Diamond form also dated Sep-
tember 22 indicates that she would consider seasonal work. She
did not give any testimony and we do not have the benefit of her
recollection concerning her job, if any, at the time of the strike.
Bolanos has no record of her employment. Moreover, there is no
evidence that the filing of the Diamond form activated her in the
HP system. That suggests that she was not in the HP system,
perhaps indicating that she had not returned the 1991 season
postcard, assuming that she was a seasonal employee in 1990. It
may also mean that she was not a 1990 seasonal.
The General Counsel notes some testimony given by
Bolanos to the effect that she may have disqualified herself
from consideration in the union requests by listing both jobs
and shifts. He did explain that the Company cannot honor such
requests and often disqualifies applicants who make such re-
quests. From that, the General Counsel argues that Respon-
dent’s approach to her was unreasonable. However, I note that
no conditions were attached to the Diamond form and in the
ordinary course of things, according to Bolanos, she should
have been activated in the HP system upon its receipt. That did
not occur.
Unfortunately, the General Counsel made no effort during its
case-in-chief to establish what job, if any, this individual held
at the time of the strike. The absence of payroll or other re-
cords suggests to me that she was not employed in 1991 at the
time of the strike. Accordingly, I cannot conclude that she was
a striker entitled to consideration for reinstatement under the
Act. This allegation will be dismissed.
Mariano Tobin. This individual has previously been deter-
mined not to have been a striker. See section b. above.
7. Paragraph 9(e)(iv); alleging that since August 13, 1999,
Respondent failed to offer seasonal nonbid jobs to two15
unreinstated (regular) strikers
In this paragraph the General Counsel seeks to demonstrate
that Respondent had an obligation to offer seasonal employ-
ment to regular employees who had previously offered to return

Counsel’s argument that it, like similar letters written about that time,
constitutes an admission against interest is rejected. They were the
product of Regional Office exhortation, not anything else.
15 In the January 18, 2001 amendment, counsel for the General
Counsel included the name of Juana Silva. Silva had earlier been
struck from paragraph 11 of the complaint on January 9, and again on
January 10, 2001 (dealing with a 1998 incident). Her name reappeared
in essentially the same theory in the January 18 motion, but now con-
cerning itself with 1999. That motion to amend was denied on Febru-
ary 15, 2001, as no material fact had changed other than the passage of
time. That left only one person covered by paragraph 9(e)(iv), Maria L.
Martinez Vallejo. In her posthearing brief, counsel for the General
Counsel now moves to add the name of Meldera Gideon. I rule on that
motion infra.
DIAMOND WALNUT GROWERS, INC. 1147
to work, even though they had not made their desires known to
Respondent. This theory presents a challenge to the legal prin-
ciple set forth in Rose Printing that an employer need not offer
a returning striker a job for which he or she is qualified, but
only the same or a substantially equivalent job. Here there is
no question, as set forth in the introductory portion of this deci-
sion, that seasonal jobs (even if the tasks are the same) are not
the same or equivalent. To repeat, seasonal employees do not
enjoy seniority, fringe benefits, bidding rights, year-round em-
ployment, or the substantially better income attached to regular
employee status. A regular employee who has been on strike
and who seeks employment beyond his or her Laidlaw job is
entitled only to nondiscriminatory treatment. That does not
mean that he or she is entitled to consideration for jobs they are
not actively seeking, even if they are known to be capable of
performing it. Despite the General Counsel’s remonstration on
the record to the contrary, this paragraph seeks to change that
principle.
Maria L. Martinez Vallejo. The parties agree that Maria
Vallejo was a regular employee when the strike began Septem-
ber 1991. For the purpose of this analysis, her actual job is of
no concern. On August 13, 1999, the Union filed an offer to
return for five employees, including Vallejo. On September 3,
1999, Vallejo filed a Diamond form in which she left blank the
selection of whether she would consider seasonal work if of-
fered.
It will be recalled that the Diamond form is in two parts.
The top portion deals with clarifying any ambiguity which
might be found in offers to return. I repeat that there are many
instances in this record where the Union failed to use clear
language. That was the case here. The second portion is Re-
spondent’s inquiry concerning an employee’s willingness to
accept seasonal work. That portion is clearly optional. An
employee could choose, by circling the appropriate words,
whether or not he or she would accept seasonal work. Obvi-
ously, a declination would advise the employer that the return-
ing worker was willing to wait for his or her Laidlaw opening
without regard for interim employment with Respondent. Simi-
larly, an employee who said he or she was willing to consider
seasonal work was saying he or she was willing to perform
such work while awaiting the Laidlaw job. Vallejo, however,
left things unclear. Her intention concerning seasonal work,
whatever it was, was not transmitted to Respondent. It simply
could not tell from the face of the document whether the em-
ployee wanted seasonal work or not. It knew, however, that the
choices were clear: “Do” or “Do Not.”
Since a signature alone could be determined to be a proper
response insofar as the Laidlaw opening is concerned, (i.e.,
making the offer to return unconditional), it was reasonable for
Respondent to view an answer such as Vallejo’s as aimed only
at the first portion, not aimed at seasonal work at all. That be-
ing the case, Respondent could legitimately conclude that
Vallejo had no interest in seasonal work. If she had such an
interest, she would have said so. Clearly she could also notify
Respondent at any subsequent time if she changed her mind.
Despite Respondent’s commonsense analysis, the General
Counsel asserts “The mere submission of a signed Diamond
form was sufficient to put Respondent on notice that the regular
returning striker wished to be considered for seasonal work.” It
contends that this was the very purpose of the Diamond form.
Facially, that is only one of its purposes. The argument ignores
entirely the first purpose, to clarify any offer to return which
might not include the word “unconditional.”
I therefore find the General Counsel’s argument to be unper-
suasive. It does not take into account significant facts and it
aims to overturn Rose Printing to the extent that it would im-
pose further duties on an employer which are inconsistent with
the principles announced in that case.
Meldera Gideon. Meldera Gideon presents some procedural
concerns. She was first listed as a discriminatee in paragraph
9(a) as a striking regular employee who had made an uncondi-
tional offer to return in October 1998 (an apparent pleading
error), but who had not filed a Diamond form. There the Gen-
eral Counsel listed four separate subtheories regarding how the
Act was violated. Testimony demonstrated that none of the
theories was supported by the evidence and the General Coun-
sel, by brief has moved to withdraw that allegation. The mo-
tion is hereby granted.
Gideon was also included in paragraphs 12 and 13(a). Those
paragraphs, which must be read together, alleged that Gideon
had made an unconditional offer to return on September 28,
1999 and that Respondent had failed to place her on a preferen-
tial recall list. Again, the evidence did not support the allega-
tion and the General Counsel, by brief, has moved to withdraw
paragraph 13, inferentially withdrawing paragraph 12 as well.
The effect of that motion is to withdraw the claim that 18
named employees, including Gideon, had been discriminated
against by a failure to put their names on the preferential recall
list.16 The motion is granted as well.
However, also by motion cloaked within the text portion of
her brief, the General Counsel seeks to add Gideon’s name to
paragraph 9(e)(iv). Because responsive briefs were permitted,
Respondent was able to oppose the motion in its reply brief. As
might be expected, Respondent complains that the motion is
untimely, without adequate notice and that it is a continuance of
the previously demonstrated inability to settle upon a theory of
violation. It also argues that it is inconsistent with the with-
drawal of paragraph 9(a) of the complaint. I disagree that the
theories in those two paragraphs are inconsistent, but do ob-
serve that the motion to amend is untimely, coming by brief
months after the end of the General Counsel’s case-in-chief.
The General Counsel submits that the motion should be
granted, contending that Gideon’s situation has been fully liti-
gated, citing Permagent United Sales, 296 NLRB 333, 334
(1989), enfd. 920 F.2d 130 (2d Cir. 1990), and Gallup, Inc.,
334 NLRB 366 (2001).
While I have no quarrel with the Board’s decisions in the
above cases, I question whether the Gideon situation was fully
litigated. She did not testify, leaving only Bolanos to grapple
with her documentation. Furthermore, Respondent was misdi-

16 Those individuals are Minnie Chavez, Maria Da Salla, Bienvenida
Farinas, Hector Medina, Alfonsina Munoz, Anita Perez, Dale Sandoval,
Vera Wofford, Estela Galvan, Olivia Martinez, Maria Martinez Vallejo,
Gregorio Correa, Ralph Hernandez, Regina Herbert, Raul Michel,
Ramlal Singh, Art Torres, and Gideon.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
rected by the complaint to defend allegations that Gideon had
been denied Laidlaw rights as a regular employee, relating to
being placed on the preferential recall list and the like. At this
stage, Respondent is now forced to deal with an alternate the-
ory, relating to her Diamond form willingness to accept sea-
sonal work and the ambiguities placed on it by what might be
her handwriting. Frankly, I am loath to accept this state of
things as a fully litigated matter. See Electrical Workers IBEW
Local 1186 (Pacific Electrical), 264 NLRB 712 fn. 3 (1982),
enfd. mem. 113 LRRM 3816 (9th Cir. 1983); Castaways Hotel,
284 NLRB 612 (1987); Collateral Control Corp., 288 NLRB
308 (1988); Aztec Bus Lines, 289 NLRB 1021, 1026 (1988).
Certainly the motion was unforeseeable in the sense that no
separate motion was filed before the briefs were due, and came
well after I had specifically given the General Counsel multiple
opportunities to amend the complaint. All in all, it is an unim-
pressive motion. It will be denied.
Despite that ruling, I observe on the merits, that the Gideon
allegation cannot be sustained. Her union offer to return to
work of September 28, 1999, was not unconditional, but she
met the unconditional offer requirement by simultaneously
submitting a signed Diamond form. Those are her only offers
in evidence. At that point she was placed on the Excel spread-
sheet. However, with respect to Respondent’s inquiry concern-
ing her willingness to be considered for seasonal work, she did
not circle either the “I Do” or the “I Do Not” choices. Instead
she wrote the word “forklift”17 in the blank space above the
operable line, following it with the handwritten words “regular”
and “days.”
Respondent could not interpret that failure to choose one of
the two choices as being anything other than a nondecision
concerning seasonal work. That certainly was not an accep-
tance of the offer to be considered for seasonal employment.
Since all seasonals are obliged to affirmatively advise Respon-
dent that they are willing to work during the next harvest, it was
not unreasonable for Respondent to view this form as evidenc-
ing no willingness to work during that time. Furthermore, if
one were to conclude that she did want seasonal work, she
seems to have been asking for work for which she was not eli-
gible. Seasonal forklift work, as previously noted, is a seasonal
bid job available only to incumbent regular employees. She
was not an incumbent. Furthermore, she asked for day shift
work, which cannot be guaranteed to seasonals. For a seasonal
applicant, this was a disqualifying condition.
The General Counsel’s argument that Gideon, simply by fil-
ing the Diamond form, was seeking seasonal work, just doesn’t
fit the facts. Respondent reasonably looked at that form and
determined that it only had applicability to Gideon’s regular job
as a Laidlaw returnee. The choices relating to seasonal work
had been left blank and could not reasonably be interpreted to
mean that the employees sought seasonal work. Her handwrit-

17 Gideon’s actual Laidlaw job is not entirely clear. She appears to
have worked shortly before the strike in two capacities: forklift driver
and production worker. It is not necessary here to determine to what
job she would return. The evidence shows that no regular job covering
those duties has come open since she unconditionally offered to return
on September 28, 1999.
ten references most likely referred, not to any seasonal condi-
tion, but to her regular Laidlaw job. She may simply have been
trying to be helpful. In any event, Respondent fairly interpreted
her Diamond form as not expressing an interest in seasonal
work. The allegation was without merit.
8. Paragraph 9(e)(v); alleging that since September 22, 1999,
and through the 1999 season Rrespondent failed to offer nonbid
seasonal work to two striking regular employees who had sub-
mitted diamond forms asserting that they would consider
seasonal work
In this paragraph, the General Counsel alleges that two regu-
lar employees, Rachel Pacheco (Peralta) and Ramlal Singh had
unconditionally offered to return on September 22, 1999, but
were denied seasonal work even though they filed Diamond
forms saying that they would consider seasonal work if offered.
Both of these individuals put conditions on their acceptance of
seasonal employment.
Rachel Pacheco (Peralta). Pacheco was a regular employee
employed as a production worker at the time of the strike, join-
ing the strike when it began on September 4, 1991. On Sep-
tember 22, 1999, the Union sent a letter to Respondent listing
seven employees, including Pacheco, saying that they wanted
to return to work. Pacheco was correctly identified as a pro-
duction worker. Simultaneously, the Union included signed
Diamond forms for all seven. Pacheco circled the “I Do” op-
tion signifying her willingness to be considered for seasonal
work.18 On October 29, 1999 one of Respondent’s callers tele-
phoned her for seasonal employment. She declined saying she
only wanted department 05 work (sorting) or the job of tube-off
operator (a bid job). The caller entered that information on the
HP system and thereafter no further calls were made to her.
Bolanos explained that when Pacheco put limits on the na-
ture of the work she would do, Respondent considered her as
disqualifying herself from seasonal work. He explained (tran-
scription errors uncorrected):

. . . they are disqualified when they show that they only want
to work in one department, one shift. And we’re dealing with
a lot of people, and it is difficult for us to say, okay, you
know, this person only wants to work in this department.
This other person only wants to work in this department. It’s
—we can’t do it. It’s—it’s plantwide. If an employee gets
disqualified for any job, they’re scheduled accordingly by
seniority, by shift preference, etcetera.
They’re—you just can’t say I only want to work in this
department of and that’s it. It’s not a practice—it’s not a
practice from us—from our—from our standpoint. It
hasn’t been done since I’ve been here, ‘96. It’s just—it’s
not done. It’s not doable.
Q. And has that practice been followed with respect to
all employees who specify limitations as to the department
in which they will work?
A. Yes, she is no different than anybody else.

18 She also added a phrase the stating that she also wanted regular
work. Her addition of this extra language is insignificant here.
DIAMOND WALNUT GROWERS, INC. 1149
In this circumstance, I fail to see what Respondent did which
violates the Act. The General Counsel has asserted that Re-
spondent failed to offer her seasonal work, but it did so. She
chose to decline it. She also chose to ask for specific types of
work, one of which was a bid job (it is unclear whether she
asked for a regular bid job or seasonal bid job). If it was a
regular bid, no Laidlaw opening had yet occurred and if it was a
seasonal bid, only incumbents in regular jobs were entitled to
bid for it. In any event, no bid had been posted. That job did
not exist, yet that was one of two jobs she said she was willing
to do. She also asked for a department 05 job, sorting. It will
be recalled that there are only four nonbid seasonal jobs which
can be offered: loader, general labor, production worker and
case packer. It is not clear what job the caller offered her, but
whatever it was it was not to her liking.
The General Counsel asserts that even if that were true, the
caller should have called later for another seasonal job. I fail to
see the point. First, Respondent had no legal obligation to call
her at all, since these jobs were not Laidlaw slots. Respondent
was free, therefore, to apply its normal policies to seasonal job
seekers. Here the caller noted that she had declined an offered
job and had said she wanted something else. Under Respon-
dent’s policies, applied to all such applicants, she had disquali-
fied herself from seasonal employment. Such treatment is sim-
ply not discriminatory under Section 8(a)(3).
One further point. This call occurred in late October, at a
time when the season was beginning to wind down. While the
General Counsel points to Respondent’s concession that at all
times there were seasonal openings, it may be going too far to
say that there were seasonal sorting jobs available at that late
stage of the season.
This allegation will be dismissed.
Ramlal Singh. At the time of the strike Singh was a regular
janitor. His name was included on the Union’s list of seven
transmitted to the Union on September 22, 1999, together with
Pacheco. The Union also transmitted the Diamond form which
he had signed that day. On that form he, too, circled the “I Do”
option signifying his willingness to consider seasonal work.
Next to that option he wrote “sanitation or sorting & want to be
reg. work” [sic].
Bolanos testified that Singh was placed on the Excel spread-
sheet,19 but he is not certain what treatment he was given con-
cerning seasonal work. Nor does he know how the additional
writing affected Singh’s being activated for the HP system call
sheets. There does not appear to be any record that Singh was
ever called.
Once again, Singh had no Laidlaw right to seasonal em-
ployment. He was only entitled to nondiscriminatory treat-
ment. Here there is no showing what happened, only the ab-
sence of any call. Had the limits he placed on his Diamond
form resulted in his being removed from consideration for sea-
sonal work? We do know that his simultaneous colleague,

19 Bolanos did testify that Singh was not considered to be an active
striker because of a 1994 unemployment proceeding. However,
Bolanos also testified that his 1999 offer to return to work had resulted
in his being placed on the Excel spreadsheet, the preferential recall
system.
Pacheco, was not called until late October. It seems likely that
had his name been activated in the HP system, his name would
not have been called until the same time as Pacheco, late Octo-
ber. We know that his preference for a sorting job probably
could not be met because of the same considerations affecting
Pacheco’s situation—too late in the season. We also know
from some documentary evidence (some bid postings GC Exhs.
75 and 76) that seasonal janitor jobs were also seasonal bid
jobs. These could only be occupied by incumbents in regular
jobs. Nonincumbents, such as Singh, were not eligible to bid.
Therefore, if one reads Singh’s Diamond form, one could easily
conclude that he was limiting himself to either a seasonal bid
job for which he was not eligible, or to a seasonal sorting job
which did not seem to be available at that time of year. It is
difficult to say with that factual background that the Company’s
failure to call him for seasonal work was somehow discrimina-
tory. Certainly there is no evidence that Respondent took his
status as a striker into account. At worst, all it did was to mis-
interpret what he had written on his Diamond form concerning
his interest in seasonal work.
This kind of evidence is simply insufficient to warrant any
conclusion concerning why Singh did not obtain work during
the 1999 season.20 This allegation must be regarded as un-
proven and will be dismissed.
9. Linda Acevedo
Linda Acevedo is a veteran employee who was originally
hired by Respondent in the early 1970s. She has worked in a
wide variety of jobs. Prior to the strike, Respondent, based on
collective bargaining, had permitted its regular employees to
hold three bid jobs. That meant that an employee could be, but
not necessarily was, shifted among three different jobs, depend-
ing on company needs. That system changed in 1998 with the
1998 implementation. After that, regular employees could only
hold one bid job. There is no contention that this change was
unlawful.
In any event payroll records show, on the day of the strike,
and for about 18 days before it began, Acevedo was serving as
a forklift driver. She held at least one other bid position at that
time, packaging machine operator, and had performed that job
for least 9 days in July 1991. She gave some testimony to the
effect that she was also an ESM21 operator and/or an ESM at-
tendant sometime earlier; yet there is no showing that she held
any ESM bid job at the time of the strike. She regards ESM
operator and ESM attendant as the same job. I find below that
she is mistaken. However, it is undisputed that the ESM opera-
tor job as it existed in 1991 was much simpler than it is today.
It has become computerized and much more complex, consoli-
dating five or six functions previously performed by other indi-
viduals.
Acevedo agrees that her principal job as the strike began in
September 1991 was as a forklift driver. There is no debate
that her primary Laidlaw job is regular forklift operator.
20 If Singh had been separated from Respondent in 1994, mistakenly
or not, it may be that his name could not be activated in the HP system.
Yet evidence concerning that happenstance is nonexistent.
21 A type of sorting machine.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
The General Counsel has included Acevedo in six separate
paragraphs of the complaint. Three of them concern seasonal
bid jobs (two forklift postings and one ESM operator posting)
and the three others concern bids for regular positions (one
ESM operator slot, under two alternate theories, and one ship-
ping dock clerk bid). Before discussing the theories, it is ap-
propriate to review the facts concerning Acevedo’s effort to
become reinstated.
On September 1, 1998, she and the Union’s Lucio Reyes
sent a jointly signed letter to Respondent in which it may be
inferred that she unconditionally sought reinstatement. On
September 16, 1998, Respondent received Acevedo’s signed
Diamond form in which she said that she wanted to be consid-
ered for seasonal work. She testified that about 2 weeks later
she received a telephone call from one of Respondent’s sched-
ulers, who offered Acevedo seasonal work as a case packer.
Somewhat offended, Acevedo declined saying that if Respon-
dent would not offer her previous bid jobs, she would stay on
strike until they opened. I think it is fair to infer that she did
not understand that Respondent was simply offering her some
interim employment while she awaited her Laidlaw opening.
As a result, Respondent did not call her again until sometime in
May, 2000, when it offered to permit her as a regular employee
the opportunity to train on the ESM operator job in its current
configuration.
In the meantime, Respondent posted several jobs, some sea-
sonal and some regular. The three seasonal job bids were: fork-
lift, October 2, 1998 and August 25, 1999; ESM operator, No-
vember 24, 1999. The four regular job bids were: shipping
dock clerk, April 16, 1999; ESM operator, late October 1998,
June 25, 1999 and November 20, 1999.
It is undisputed that Respondent did not notify Acevedo of
any of these bids. The postings all occurred during the time
Yvette Battles was reviewing the bids and passing information
on them to Lucio Reyes. Even so, the Union did not inform
Acevedo about them. Nor did she make an attempt to look for
postings at the plant, believing she would be unable to pass by
the guarded gates.
Although there is no debate that Acevedo’s primary Laidlaw
job was as a forklift driver, on May 12, 2000, she was offered
the regular job of ESM operator. This was not a job she had
actually held before, although it was a bid job and a good one.
According to both Art Reyes and Hector Bolanos, in checking
the company records concerning her qualifications they could
only find that at one point she had served as an ESM attendant
at a time when the older machines were in use. Nonetheless,
Art Reyes offered her a regular ESM operator job and she
agreed to take it, knowing that it was as a trainee.
Bolanos explained further:

Q. And can you explain why this document was sent
to Ms. Azevedo? (sic)
A. The reason why this document was sent to Linda
Azevedo was the NLRB [Regional Office] alleged that we
had not brought this employee back to work, and to stop
any potential back pay for this employee. We felt that we
didn’t need to, you know, offer her the ESM Operator po-
sition, but we went ahead and offered it to her.
Q. And why was it you offered that particular position
to her?
A. That was what the NLRB alleged that we didn’t
bring her back to. So we offered the ESM Operator.
That’s the job that they alleged we should bring her back
into.
Q. And was—did the company have any records that
she was qualified to work in that position?
A. We have no records.
Q. And so why was it you put her in the job?
A. Two reasons. One, to stop potential liability or
back pay on this employee, and [Two,] that’s what the
NLRB alleged that, you know, we needed to offer this
employee the ESM Processing Operator position. We had
no record she was ever qualified as an ESM Operator.

Acevedo testified that the job was quite different him from
the one which she had had before. It required both training and
study. Her testimony gives flavor to her experience:

Q. Did you have any trouble performing that position?
A. It was kind of difficult, because the whole process
was changed. There was a lot more work, different —It
was like we were doing six jobs instead of one.
Q. But you were able to learn it.
A. I was able to learn it because I tried to psych my-
self. I’d go home with notes. We went into the computer,
and what I did, took notes and went into my computer and
I got them into little cards to kind of help me out with my
job performance . . . I went home and studied . . . I
brought [in] those little cards that they have and I glued
them together, and it was hard. It was very hard and diffi-
cult, but with God’s help I made it.

At the time she testified in January 2001, she appears to have
become both competent and confident in the job. As noted
above, I am fairly certain that she had not actually been an
ESM operator before, but only an ESM attendant. Yet, she
obviously had had significant exposure to that type of work,
even if many of the tasks had become consolidated. Apparently
Respondent recognized that when it made its offer even though
a significant argument could be made that the old ESM atten-
dant job, basically a helper, and the current ESM operator job
are not substantially equivalent, at least to the unsophisticated
eye. In Acevedo’s case, however, she believed them, at least
initially, to be the same. Whether she believes that now, having
been forced to master the new tasks, is a moot point. The job
was offered to her as if it were substantially similar to a bid job
which she had once held, she accepted that premise and is cur-
rently succeeding in performing it.
The question which the complaint allegations raise is
whether she was entitled to any of the seasonal bids which
arose during 1998 and 1999 and whether she was entitled either
to a regular job opening such as the earlier ESM operator open-
ings or the shipping dock clerk job. All of these allegations are
encompassed in paragraphs 9(e)(vii) and (viii), 11(d), (f, alt. 1),
(f, alt. 2) and (h).
Her entitlement to seasonal bid positions has been discussed
above. Clearly, the simple fact that these were seasonal jobs
meant that they were not substantially equivalent even though
DIAMOND WALNUT GROWERS, INC. 1151
she might have been capable of performing the tasks. During
her time at the plant she had become exposed to many of the
jobs, apparently successfully. Still, by virtue of their being
seasonal, they were not substantially equivalent and Respon-
dent had no Laidlaw obligation to offer them. Similarly, be-
cause they were seasonal bid jobs, nonincumbent regular em-
ployees such as strikers, were not entitled to bid on them, at
least until the bids went unfilled by a current regular employee.
There has been no showing by the General Counsel that they
went unfilled. Thus, even had she known about them, and had
signed the bid sheet, it is highly unlikely that she would have
been eligible for the seasonal bid jobs.22 These portions of the
complaint, encompassed by paragraphs 9(e)(vii), (viii), and
11(d) will be dismissed.
That leaves for consideration whether Respondent should
have offered her the regular ESM job earlier (or allow her the
opportunity to bid on it by notifying her of the posting) or the
regular shipping dock clerk job on April 16, 1999.
I think the evidence is clear that the ESM operator job is not
substantially equivalent to Acevedo’s primary Laidlaw job as a
forklift driver, or even as a packaging machine operator. It
would appear that she had never performed anything like the
ESM operator job around the time the strike began in Septem-
ber 1991. Furthermore, it seems clear that Respondent offered
her the ESM operator job in May 2000, because Regional office
personnel, rightly or wrongly, had concluded, for reasons not
shown here, that Acevedo should have been reinstated to that
job. Observing that she had had at least some exposure to the
ESM process, during her time as an attendant, and further im-
pelled by the Regional Office, Respondent decided to offer her
the job to satisfy Regional Office concerns, to cut back poten-
tial liability and to see if she could fill a slot that was difficult
to fill. Art Reyes knew she was a capable employee and held
the potential to succeed.
That decision in May 2000, however, does not change the
fact that the ESM operator job was not substantially equivalent
to any job which she had held immediately prior to the strike,
whether it was the forklift job or the packaging machine job.
Accordingly, I find that Respondent was under no obligation to
offer her the ESM operator jobs coming open in late October
1998, June 25, 1999, or November 20, 1999. Those claims are
encompassed by paragraph 11(f) (alt. 1) of the complaint and
will be dismissed.
The more difficult question is whether Respondent had an af-
firmative duty to notify Acevedo that regular job bids had been
posted for which, had she known of them, she might have been
able to qualify. After all, Respondent was obligated to treat her
in a nondiscriminatory fashion. Specifically, paragraphs 11(f)
(alt 2) and 11(h) make that type of claim. The former covers
the ESM operator bids discussed above, while the latter asserts
that she should have been notified of the regular shipping dock
clerk bid.
Indeed, one of the skills required for the shipping dock clerk
was to operate properly a forklift. That was a skill which she

22 Had she accepted seasonal work in 1998, she might have parlayed
that to a seasonal forklift job. Fellow returning striker and forklift
operator Willie Smith was called for such a job on October 12.
clearly could do, and which closely tracked her Laidlaw job.
Shipping dock clerk did have other requirements, and may not
have been substantially equivalent, given the fact that it also
required knowledge of the pack code structure and such indi-
viduals worked solely in the warehouse. This was a higher
level job, both in responsibility and in pay scale. While forklift
operators who worked there might acquire knowledge of the
pack code structure, forklift operators who worked elsewhere
would not. Indeed, when this particular posting was made, it
went to an individual who had previously served in that capac-
ity on a seasonal bid basis. This job also seems to have re-
quired some computer skills, as the shipping dock clerk made
entries affecting inventory control. Clearly, while there was
some overlap with the forklift driver job, it required additional
knowledge and skills. They were close, but not substantially
equivalent. Certainly, Laidlaw does not obligate an employer
to promote a returning striker to a better job.
In any event, substantial equivalency is not an issue in these
two complaint paragraphs. The real issue is whether Respon-
dent should have notified Acevedo about these openings. First,
Respondent had no knowledge that Acevedo was even inter-
ested in those jobs, or any other job beyond her Laidlaw job of
forklift operator. She had actually told the scheduler in August
or September 1998, that she would stay on strike until her bid
jobs opened, meaning certainly her forklift job and probably
her packaging machine job. Having said that, the question is
whether Respondent had any obligation to notify her about any
other opening. I must conclude that it did not. She wanted
Respondent to take her at her word. It did so, and now she
cannot be heard to complain about it.
It is therefore unnecessary to further inquire about any duty
which may have been imposed under Pirelli Cable, supra, or
Medite of New Mexico, supra. She had essentially told them
that postings did not matter. Accordingly, these allegations,
insofar as they concern Acevedo, will be dismissed.
10. Willie Smith
Willie Smith was hired in 1985, first as a forklift driver who
worked during the harvest season, eventually becoming a year-
round forklift driver. He worked in that capacity for 4–5 years,
and was later persuaded to become an ESM operator in the
belief that it offered more job security. He was an ESM opera-
tor at the time of the strike in September 1991, but probably
still held a bid as a forklift operator. He hadn’t been gone from
the forklift job for very long. He stayed on strike, not offering
to return until 1998.
On October 8, 1998, he filed both a union offer and a Dia-
mond form indicating his willingness to perform seasonal work.
As a qualified forklift driver, he was called back to work in that
capacity 4 days later on October 12. While there, he observed
that an ESM operator job was posted. He did not observe that
it was for seasonal work but signed the sheet anyway. It did
say that the job had a 2-week training period and that a test
would be required. The closing date was October 20; he was
laid off as a seasonal forklift driver on October 24. He was not
called for the training.
Almost simultaneously with his departure, the regular ESM
operator job was posted with a closing date of November 2. He
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
had left and did not see it. About 8 months later, Respondent
posted another regular ESM operator job, on June 25, 1999.
On September 7, 1999, he again filed a union offer to return
accompanied by a Diamond form, again advising that he would
be willing to consider seasonal work. He was called to work as
a forklift driver on October 14, 1999 and worked through Octo-
ber 22, until he was once again laid off. On November 20,
1999, another regular ESM operator job was posted. He was
unaware of that posting as well.
These postings all occurred during the time that Yvette Bat-
tles was advising the union about posted bids. Apparently no
one advised Smith about them.
The General Counsel asserts that Smith was entitled to be of-
fered any or all of these ESM operator postings. Although I do
not agree that he was entitled to the ESM seasonal job posted in
October 1998, he was entitled to the regular one which was
posted in late October and closed on November 2, 1998 [GC
Exh. 58(v)]. I find he should have been offered this job as a
preferential.
Respondent asserts that the ESM job as posted in 1998 and
thereafter was a different job than the one he had held at the
time of the strike in 1991. I have earlier touched upon that
issue in the discussion above concerning Acevedo. Nonethe-
less, I am persuaded that the jobs were close enough that Smith
should have been given the opportunity to train on the newly
constituted job. He had held the job before in its simpler mode,
and there was no reason to think that he should not have been
given the opportunity to train for it as modified. I believe this
job to have been substantially the same as his old job both as a
matter of company policy and as a matter of law. 23
The General Counsel also seeks, by a footnote in her brief, to
amend paragraph 9(e)(viii) to include Smith with Acevedo and
Gomez as being entitled to the November 24, 1999, seasonal
bid of ESM operator. The motion is denied as moot, as he
should already have been back to work as a regular ESM opera-
tor in October 1998.
11. Amanda Gomez (Sigman)
We have already discussed Amanda Gomez in a limited way.
She was one of the individuals covered by paragraph 9(c) al-
legedly discriminated against because of a defective telephone
number affecting 1998 seasonal work. As noted, she was a
packaging machine operator trainee at the time the strike began,
learning a new job, having previously been a regular laborer.
Her first offer to return was a Diamond form dated August 28,
1998. Her Laidlaw job was certainly the laborer job, and quite
probably the packaging machine job,24 even though she was

23 In March 2000, Respondent did call Smith as an ESM operator
trainee. He, like Acevedo, had difficulty learning the new job. He
eventually signed off the new job, preferring forklift work. He said it
was like performing six jobs instead of one. His 2000 experience,
however, does not affect whether or not he should have been offered
the job earlier. He may well have encountered the same difficulties in
1998, but that is post hoc, ergo propter hoc logic, which does not affect
his right to succeed or fail in 1998. At most, it may have an impact on
the backpay calculation.
24 No regular laborer or packaging machine operator job has come
open since her August 28, 1998 offer to return.
only a trainee when the strike began. Her training status would
have simply continued had a regular packaging machine opera-
tor job opened up.
Her name appears in four other allegations, two of which in-
volve seasonal bid jobs. These were a seasonal ESM operator
job in November 1999 and seasonal packaging machine opera-
tor jobs in August 1999 and January 2000. The seasonal bid
jobs are easily disposed of on the basis that they are not sub-
stantially equivalent to regular jobs. Those differences have
been noted previously and will not be repeated here.
With respect to the two other jobs listed in the complaint,
they were the same regular ESM operator jobs considered
above in the Willie Smith discussion. There are two specific
alternatives proposed here, first that at least one of the three
jobs should have been offered to Gomez and second, if she was
not entitled to the jobs themselves, she should have been of-
fered the opportunity to bid on them. There is one factual mat-
ter which should be noted. Although her Laidlaw job was a
laborer, at some point in the late 1980s, she had held the ESM
operator job as it was then constituted. In 1989 she chose to
sign off that bid job.
Respondent’s sign-off procedure warrants some short discus-
sion. “Signing off” is a process whereby an employee who
holds a bid job may resign the job without losing his or her
employment. An employee under the prestrike system could
hold up to three bid jobs and under the poststrike system could
hold one. If those jobs were not to the employee’s liking or if
circumstances required the employee to favor something else,
he or she was permitted to “sign off” that job. The principal
consequence was that employee was unable to re-bid that job
for a period of 2 years. The fact that the employee had experi-
ence performing it gave him no edge over anyone else if he
decided to re-bid the job 2 years later. Under that scenario,
Respondent, when dealing with returning strikers, decided that
as a matter of policy a signed-off job could not be substantially
equivalent, since it was the announced intention of such an
individual not to perform that work. That was applied even if
employee was known to be capable of performing the job or if
it was one of the bid jobs held by the strikers shortly before the
strike began. These instances are rare, however, and affect very
few employees. Indeed it only partially affects Gomez here,
since she had signed off the ESM operator job 2 years before
the strike began. Respondent accepted her decision that she did
not want to do ESM operator work. Moreover, as we have seen
with Acevedo and Smith, the ESM operator job in its new con-
figuration is not the same as the old ESM operator job. With
that background, Respondent was well within its rights not to
offer a regular ESM job to Gomez.
The General Counsel argues, as it did with Acevedo, that al-
ternatively Respondent should have made an effort to notify
Gomez of the existence of the regular ESM operator job bids in
late October 1998, June 25, 1999, and November 20, 1999.
First, there is no evidence that Gomez had ever expressed any
interest in ESM work after signing off in 1989. Second, these
occurred during the period that Yvette Battles was collecting
information about bids and giving it to the Union. And, as I
have noted, the Union did nothing with it, at least insofar as
notifying its membership about those bids. Nor did it ask the
DIAMOND WALNUT GROWERS, INC. 1153
Company for copies, knowing that the bids were being posted in
a place somewhat difficult for nonactive employees to access.
In the circumstances, I do not find that Respondent’s adher-
ence to its policy of posting the bids for regular jobs on its bul-
letin board the same fashion that it had been doing for many
years, even before the strike, had a discriminatory impact on
Gomez. Accordingly, paragraphs 9(e)(xi) and 11(d) alt. 2 will
be dismissed insofar as Gomez is concerned.
12. Paragraph 9(e)(ix); Regina Herbert
Regina Herbert was regular forklift operator at the time of
the strike. On Sept. 22, 1999, she filed a union offer to return
which did not contain unconditional language. That was fol-
lowed almost immediately by a Diamond form, circling the
portion advising that she was willing to accept seasonal work.
She also added to the end of that line “and regular work only
forklift driver.” It is clear from her phraseology that she was
reiterating her interest in regular work and that she was a fork-
lift driver. On October 3, 1999, a scheduler called her, appar-
ently as a seasonal, to drive a forklift on the swing shift. She
declined saying that she wanted to work days only.
The General Counsel points to a seasonal lift truck operator
bid which was posted in late August, 2000, asserting that Her-
bert should have been offered that job outright. I concur.
Respondent’s principal response is that since Herbert was a
regular employee, it did not have to offer her a seasonal job
since regular and seasonal jobs are not substantially equivalent.
While I agree in the abstract, the facts here warrant a different
conclusion. Respondent had already offered her a seasonal
forklift job in 1999. She had declined it because she wanted
different shift. However, in August 2000 Respondent again had
seasonal lift truck operator openings on all shifts, according to
the bid sheet. It obviously could have offered her forklift driv-
ing on a shift without resorting to bids. She had earlier advised
that she was willing to accept seasonal work as a lift truck
driver. Respondent had no reason not to consider her for the
August 2000 opening, yet failed to do so, despite the fact that
her shift preference could have been accommodated. As a re-
turning striker, Herbert’s preference for a seasonal forklift job
had been honored in 1999; there was certainly no reason not to
offer her the same accommodation 2000. Moreover, her earlier
expressed preference for days may well have evaporated during
the year. I find this failure to have violated Section 8(a)(3).
13. Paragraph 9(e)(x)
(a) Socorro Garcia
At the time of the strike Socorro Garcia was employed as a
regular janitor. She filed a union offer to return in September
1998, but did not file a 1998 Diamond form. On August 9,
1999 the Union filed a list of three employees, which she was
one, who wanted to return to work. This was not an uncondi-
tional offer. Yet on September 8, 1999, she did file a Diamond
form, but did not specify whether she would consider seasonal
work.
Although the General Counsel has not sought to file a mo-
tion to amend, she has argued in her brief that Garcia’s failure
to specify whether she would consider seasonal work on the
Diamond form should be disregarded and that Garcia should
have been considered for seasonal work anyway. It asserts,
without factual support, that even if Garcia did not want sea-
sonal work in 1998, she did in 1999 when she filed a Diamond
form which in the General Counsel’s view evidenced Garcia’s
change of mind. I am unable to accept that argument. The
instructions on the form were clear. Furthermore, that form
contains unconditional offer to return language which is not
found in the Union’s transmission. It is certainly not clear that
Garcia’s use of the Diamond form was intended to notify Re-
spondent that she wanted seasonal work. If she had, it is more
likely that she would have circled the “I Do” language as in-
structed.
To the extent that the General Counsel is subsilentio seeking
to amend the complaint in some fashion, that approach is re-
jected. Respondent was certainly not on notice that such an
argument would be made concerning Garcia. Moreover, the
evidence is nonexistent.
Turning to paragraph 9(e)(x), I note that it is directed toward
seasonal janitor bid positions, one on September 16, 1999, and
another on March 2, 2000. As with the other allegations con-
cerning a nonincumbent regular employee’s right to a seasonal
bid, this allegation will be rejected as well. A regular incum-
bent is entitled to bid on a seasonal bid job, whereas nonincum-
bents are not. Therefore, there was no Laidlaw opening for
Garcia on that basis. Furthermore, it was only a seasonal job
and was not substantially equivalent to her regular job, for rea-
sons discussed in detail above.
(b) Ramlal Singh
In its brief, the General Counsel renews a motion made dur-
ing Respondent’s case-in-chief, seeking to add the name of
Ramlal Singh to this paragraph of the complaint. Singh has
already been discussed above in connection with paragraph
9(e)(v) [seasonal work] and determined not to have any Laid-
law right to seasonal work. That conclusion covers seasonal
bids as well. I had earlier denied the motion to amend on the
record as being untimely and essentially part of the General
Counsel’s inability to settle on a theory which Respondent
could defend. I continue to believe that the General Counsel’s
approach makes it very difficult not only to administer a hear-
ing, but for a respondent to know what it is defending. Accord-
ingly, I reaffirm my denial of the motion. Even so, the prof-
fered facts would render the allegations nonmeritorious.
Paragraph 9(e)(x) will be dismissed.
14. John Gonzalez
John Gonzalez is found in paragraph 11(g) which alleges that
on January 14, 1999 Respondent failed to notify him of a bid
opening for packaging mechanic. The allegation is notable
because it does not contend that Gonzalez was actually entitled
to a packaging mechanic slot. Instead, it asserts that Respon-
dent had an affirmative duty to notify him that the bid was up
so he could bid on it if he chose.
Gonzalez was a maintenance mechanic A at the time of the
strike and had been employed with Respondent since 1980.
When the strike began there was no job entitled packaging
mechanic. That job was created with the 1998 implemented
proposal. Prior to that time, there had been five levels of me-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
chanic, mechanic C, mechanic B, mechanic A, master me-
chanic and maintenance supervisor. In 1998 they eliminated
levels C and B, renaming mechanic A as maintenance me-
chanic. They inserted packaging mechanic between the re-
named maintenance mechanic25 and maintenance supervisor,
while eliminating master mechanic.
While Gonzalez had frequently performed mechanical work
on packaging machines throughout his career, he was princi-
pally assigned to work on devices connected to the bleach
plant. He was not considered to be qualified to perform pack-
aging mechanic work on a bid basis. In order to do that, he
needed to pass a proficiency test given to all packaging me-
chanic bidders. Packaging mechanic was not his Laidlaw job,
nor was it substantially equivalent to the mechanic A job to
which he had preferential recall rights.
On September 16, 1998, Gonzalez filed both a union offer to
return and a Diamond form. However, he left the seasonal
work option blank. The General Counsel seems to assert that
he should been called for seasonal work, but that contention, if
actually being made, is rejected. Had he wanted seasonal work,
he would have said so. He probably did not wish to perform
that work because he was fully employed as a full-time mainte-
nance mechanic at the Lipton Cannery food processing plant,
also located in Stockton, and had been so employed since 1992.
He was a plant mechanic, not a laborer.
On January 14, 1999, the bid for packaging mechanic was
posted. At that time Gonzalez had not yet been recalled. In
September 1999 he was recalled as a maintenance mechanic,
apparently on a seasonal basis although that may not have been
clear to him. In October, he signed a bid sheet for a packaging
mechanic job and a few days later spoke to a human resources
official to find out if he had to take a test for the position. He
was told he would and arrangements were made for the test.
About that time he was laid off for the season. The test was
scheduled shortly thereafter, but he never took it. He was upset
because of the layoff, called in sick, never rescheduled, and
finally admitted that he was not anxious to take the test. At that
time he was still working for the Lipton Cannery on a full-time
basis.26
The General Counsel observes that the January 14, 1999 bid
was filled by three maintenance mechanics who were working
in the plant. She argues that Respondent should have advised
Gonzalez so that he could have bid in the same fashion as the
three incumbents. The fact is, however, that Gonzalez was
never entitled to the packaging mechanic job in the first place.
He was only entitled to nondiscriminatory treatment in any
effort he made to seek a job other than as a maintenance me-
chanic (mechanic A). He never told Respondent that he was
interested in any other job; indeed he remained a full-time em-

25 Still commonly called mechanic A.
26 In April 2000, Gonzalez and Respondent’s human resources de-
partment had a series of communications which resulted in Gonzalez’s
removal from the preferential rehire list. The General Counsel has not
challenged that decision. Respondent’s decision seems to have resulted
from a querulous series of inconsistent responses from Gonzalez when
it offered him a regular maintenance mechanic job. His responses at
the very least raise the question of whether he ever intended to come
back, since he had held a comparable job at Lipton since 1992.
ployee at Lipton. If he was seeking to be employed in another
capacity, at the very least one would expect that he would have
made his desire known to Respondent. Again, this all occurred
during the time Yvette Battles was keeping the Union informed
of posted bids. Yet the Union did nothing with the bid informa-
tion, not even advising strikers who wished to return about the
postings. The General Counsel has not cited any caselaw
which obligates a respondent to seek out strikers who might be
interested in jobs other than their Laidlaw job, specifically
promotions, except to say that they are entitled to be treated in a
nondiscriminatory fashion. I fail to see how Respondent did
not meet that obligation. This allegation will be dismissed. In
that situation I fail to see how Respondent’s posting of a higher
level job than his Laidlaw job affected him. He wasn’t quali-
fied for it from the outset.
15. Alfonsina (Margaret) Munoz; Paragraph 11(h) of the
Complaint27
Alfonsina Munoz, when the strike began, was a forklift op-
erator. She had been involved in some earlier litigation as a
result of her returning to work for a short time prior to a second
decertification election in 1993. In 1996, because of some
unemployment issues with another employer, Respondent char-
acterized her as a voluntary quit and notified her of the change
in her status as of May 22, 1996. This resulted in some corre-
spondence between Respondent and the Union. As of Decem-
ber 1997, Respondent had not changed its view that she had
terminated her employment. Those circumstances are not the
subject of any unfair labor practice charge here.
On April 16, 1999, Respondent posted a regular shipping
dock clerk bid, the same one discussed above with respect to
Acevedo and Smith. Following its usual practice, Respondent
simply posted the bid on the breezeway bulletin board.
Six months earlier, in September 1998, Munoz had filed a
union application to return, but no Diamond form. In Septem-
ber 1999 she filed another union application to return, followed
by two Diamond forms on September 3 and 28. On Septem-
ber 21, 1999, despite whatever status she may have held as a
result of being considered a voluntary quit, Munoz was recalled
as a forklift driver (through an agreement with the Union not
fully disclosed here). She has worked continuously as a forklift
operator from that time through at least the end of October,
2000, according to the payroll sheet received in evidence.
Paragraph 11(h) alleges that Respondent should have noti-
fied her of the April 16, 1999 bid for the shipping dock clerk
job. First, it is clear that the forklift operator job and the ship-
ping dock clerk position are not substantially equivalent. See
the discussion above concerning Acevedo. If they had been,
Respondent would have been obligated to have offered the job
to her (or Acevedo or Smith), not simply have notified her that
a bid had been posted. Thus, once again the General Counsel is
seeking to impose an affirmative duty on an employer to de-
termine what jobs a returning striker might wish to choose if his
27 Paragraph 11(h) listed three other alleged discriminatees in addi-
tion to Munoz, Linda Acevedo, Willie Smith, and Steve Bosche.
Acevedo and Smith’s 11(h) circumstances have been dealt with above.
Counsel for the General Counsel, in footnote 34 of her brief, has moved
to withdraw Bosche from the allegation. The motion is granted.
DIAMOND WALNUT GROWERS, INC. 1155
or her Laidlaw job has not yet come open. Certainly that is a
near-impossible task if the employee has not even advised the
employer that he or she wishes to be considered for some job
other than their Laidlaw job. Again, nothing requires the em-
ployer to promote a returning striker.
Moreover, as I have noted before, this posting took place
during the period when Yvette Battles was collecting informa-
tion about each bid and passing it on to the Union. The Union
made no effort to obtain copies of the bid itself nor did it pass
on to employees whatever information Battles had supplied.
Respond was only obligated to treat Munoz in a nondiscrimina-
tory matter; I fail to see how it did not do so here since it
treated her the same as it would anyone else who wanted to
know about bid postings.
In addition, it is not clear on this record that Respondent had
any obligation to Munoz after 1996. If she was carried as a
voluntary quit at that time and her status remained unchanged
despite the Union’s protestation, at best she would have been an
unlawfully discharged striker whose rights as such would have
dissolved with the passage of the 6-month statute of limitations
period established by Section 10(b) of the Act. Postal Service
Marina Center, 271 NLRB 397, 400 (1984); Carter-Glogau
Laboratories, 280 NLRB 447 (1986); Alaska Pulp Corp., 300
NLRB 232 (1990) (Sisson). Her status was certainly not reac-
tivated in September 1999 so as to retroactively affect her
status in April 1999. In that circumstance, Respondent had no
obligation to her whatsoever in April. This allegation will be
dismissed.
16. Paragraph 11(i); Estrella Curiel
Estrella Curiel had been hired in 1978. When the strike be-
gan she was the sanitation key operator, more commonly called
a sanitation supervisor or sanitation lead. On September 1,
1998 she filed a union offer to return, followed shortly thereaf-
ter on September 9, 1998 by a Diamond form in which she
indicated interest in performing seasonal work. She was called
twice that season to come in as a case packer, but turned down
each because of her wrist. In the 1999 season she was called
again as a case packer, but turned it down for the same reason.
On two of those three occasions she advised the scheduler that
she preferred to return to her position as a sanitation lead. That
job does not seem to have been available at that time, whether
as a seasonal bid job or as a regular job.28
On November 19, 1999 Respondent posted an “interest list”
for the seasonal job of sanitation lead.29 Because she was not in
the plant she was unaware of the request and did not sign up.
On May 12, 2000, Respondent offered her a regular sanitation
lead person job and she accepted. That was her Laidlaw job.
The General Counsel asserts that she should have been of-
fered the November 19, 1999 seasonal sanitation lead job.

28 On September 8, 1999, Respondent posted a bid for seasonal jani-
tor. The job was not filled. Because it was seasonal and because of its
low rate of pay, it was not was not equivalent to the sanitation lead job
she had held. I find Respondent had no obligation to notify Curiel
about this job, either through posting or by direct call.
29 Unlike job bids, interest lists are for lead jobs. Although posted in
the same fashion as the job bids, they are filled on a leadership basis.
Seniority is not a consideration.
Once again, I am obliged to find that the seasonal jobs, even if
the skills of the same, are not substantially equivalent to the
counterpart regular job. This issue has been discussed in detail
above and will not be repeated here. The allegation will be
dismissed.
17. Paragraph 13(b); alleging that on October 22, 1999, Re-
spondent failed to notify two employees of bids for packaging
mechanic jobs
Gregorio Correa. The General Counsel’s evidence concern-
ing Gregorio Correa is not well supported in the record. The
General Counsel contends that at the time of the strike he was a
mechanic A. Correa did not testify, but this assertion is sup-
ported by the testimony of Union Secretary-Treasurer Lucio
Reyes. As a master mechanic in 1991, Lucio Reyes had
worked with Correa 10 years earlier and was familiar with his
work. Although no company records have been supplied,
Bolanos has acknowledged that Correa was a regular employee
at the time of the strike. I think it is reasonable to conclude that
Correa was a mechanic A, based upon Lucio Reyes’s testi-
mony.
On September 8, 1999, Correa filed a union request to return
which did not contain unconditional language. On September
22, 1999, he filed a second union request, this time accompa-
nied by a signed Diamond form in which he said he would
accept seasonal work, although he appears to have confused the
issues by writing the word “regular” next to the word “sea-
sonal.” The record is not clear concerning what steps, if any,
Respondent took concerning activating him on the HP system
or placing him on the Excel spreadsheet.
In late October 1999, Respondent posted a bid for packaging
mechanic. Again, this was at a time when Yvette Battles was
keeping Lucio Reyes informed about bid postings, and the Un-
ion did not take steps to advise its returning strikers about them.
It has therefore not tested whether Respondent would have
denied Correa the opportunity to bid had he sought to enter and
sign the sheet. Moreover, there is no evidence that Correa had
ever advised Respondent that he was interested in work other
than his Laidlaw job.
It is not clear that Correa was a reasonable candidate for this
job, or had much likelihood of getting it even if he had known
of it and signed the bid sheet. Therefore, I am not certain what
to make of the allegation. Is the General Counsel contending
that Correa is simply entitled to an opportunity to bid, some-
thing available to nonmechanics as well? Or is it contending
that as a maintenance mechanic he had a greater likelihood of
being selected and therefore should have been given some kind
of greater opportunity than anyone else? Or, is it contending
that since he was a maintenance mechanic Respondent had an
affirmative duty to notify him of this bid? From the language
of the complaint I assume it is the last.
As with other allegations of this nature, I do not find that Re-
spondent had any duty except to treat applicants for non-
Laidlaw jobs in a nondiscriminatory manner. Here there is no
showing that Respondent did anything discriminatory or that it
was part of a scheme to avoid hiring strikers. It simply fol-
lowed its customary practice of posting bids in the breezeway.
Surely if an individual wanted to be apprised of bids, or if the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156
Union wanted to be certain all returning strikers had the oppor-
tunity to at least see the bids, appropriate steps would have
been taken to get that information, either by asking for copies
of the bids or by seeking to arrange some other means of get-
ting access to it. This allegation will be dismissed.
Art Torres. At the time the strike began, Art Torres was a
lead maintenance mechanic (supervisory mechanic) who had
significant experience repairing and maintaining packaging
machines. On September 28, 1999, he filed a union offer to
return which did not contain unconditional language, together
with a Diamond form which did. He added that he would con-
sider seasonal work, but also wanted to be considered for regu-
lar work, specifically a maintenance mechanic slot on days.
Bolanos acknowledges that it does not know if Torres’s re-
quests activated him in the HP system for seasonal work, but he
knows that Torres was placed on the Excel spreadsheet.
In this allegation, the General Counsel asserts that Torres
should have been notified of the October 22, 1999 packaging
mechanic job bid. Here, however, it seems to me that the case
has been made that the bid never should have been posted in
the first place. Instead, Torres should have been offered the
job, subject only to the testing requirement or his insistence
upon waiting for a lead mechanic opening. That was certainly
Respondent’s policy as announced in the Diamond form.30
Neither occurred; instead Respondent posted the bid.
Torres had been a lead mechanic at the time the strike began
and had significant experience working with the packaging
machines and supervising others who did so as well. It appears
to me that he was fully qualified for this job. In essence, he had
held that job at the time of the strike. Packaging machine main-
tenance was the lower half of his Laidlaw job. It is true that he
also had some lead duties concerning other mechanics, but
there is no doubt that he performed packaging mechanic duties
on a regular basis. Since the packaging mechanic job did not
exist at the time the strike, I find that it is substantially equiva-
lent to the job which he did hold. He should have been offered
the job outright.
In this instance, because matter has been fully litigated, I
conclude that Respondent’s failure to offer the packaging me-
chanic job to Torres constituted a failure to meet the Laidlaw
duty of offering a returning strikers the right to his job when it
became open. It became open when it decided in October,
1999 that such a slot was available. Torres met all of the re-
quirements, yet Respondent failed to recognize it. This failure
is a violation of Section 8(a)(3) and (1). A remedial order will
be entered.
THE REMEDY
As Respondent has been found to have engaged in certain
unfair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Specifically, it
shall be ordered to rescind and cease giving effect to House
Rule 25 or any other rule which requires management permis-

30 On August 7, 2000, Respondent acting at the suggestion of the
Board’s Regional Office offered Torres a maintenance mechanic slot
and he accepted. This was not his Laidlaw job.
sion before an employee can distribute any printed or written
material within the plant. In addition, it will be ordered to offer
immediate reinstatement to the following employees (unless the
employment period has ended) and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis (except where the backpay period is two quarters or less)
from the date shown to the date of a proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987):

Name Approximate Date
Backpay Begins
Job to which em-
ployee should be
reinstated
Rosa Elena Juarez Entire 1999 season Seasonal work
Willie Smith Late October 1998 Regular ESM op-
erator
Regina Herbert Late August 2000 Seasonal lift truck
operator
Art Torres October 22, 1999 Regular packaging
machine mechanic

Furthermore, Respondent shall be directed to post a notice to
employees advising them of their rights and describing the
steps it will take to remedy the unfair labor practices which
have been found.
Based upon the foregoing findings of fact, legal analysis, and
the record as a whole I hereby make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
industry affecting commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. Cannery Workers, Processors, Warehousemen & Helpers
Local 601, International Brotherhood of Teamsters, AFL–CIO
is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent violated Section 8(a)(1) of the Act by main-
taining a rule which requires employees to seek management
permission before distributing any written or printed material.
4. Respondent violated Section 8(a)(3) and (1) when, on the
dates shown above, it failed to reinstate striking employees
Rosa Elena Juarez, Willie Smith, Regina Herbert and Art Tor-
res.
5. The General Counsel has failed to prove any other allega-
tion of the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended31
ORDER
Respondent, Diamond Walnut Growers, Inc., Stockton, Cali-
fornia, its officers, agents, and representatives, shall
1. Cease and desist from

31 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DIAMOND WALNUT GROWERS, INC. 1157
(a) Maintaining or giving effect to any rule which requires
employees to seek management permission before distributing
any written or printed material.
(b) Failing to recall strikers who have unconditionally re-
quested reinstatement where their prestrike job or a substan-
tially equivalent job has become available or where it has been
established that a seasonal bid job has not been filled by an
incumbent regular employee and where a former striker has
expressed a willingness to accept it.
(c) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Willie
Smith and Art Torres full reinstatement to their proper jobs or,
if those jobs no longer exist, to a substantially equivalent posi-
tion, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Rosa Elena Juarez, Willie Smith, Regina Herbert
and Art Torres whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the Remedy section of the decision.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
of its agents, all payroll records, social security payment re-
cords, timecards, personnel records 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.
(e) Within 14 days after service by the Region, post at its
manufacturing plant in Stockton, California copies of the at-
tached notice marked “Appendix.”32 Copies of the notice, on
forms provided by the Regional Director for Region 32 after
being signed by Respondent’s authorized representative, shall
be posted (in both English and Spanish) by Respondent imme-
diately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, it shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by it at any time since October 25, 1998.
Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on
a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the remainder of com-
plaint be dismissed.

32 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.”