Fresh Fruit and Vegetable Workers Local 1096 v. National Labor Relations Board
United States Court of Appeals for the Ninth Circuit
No. 06-72992; NLRB No. 32-CA-21181/21596

When Reinstatement Delay & Overtime denial not violative of NLRA

This case arose when negotiation between the employer and the employees for a new labor contract failed. The employer is Bud Antle, which processes and distributes lettuce and other vegetables in three refrigerated warehouses in California and Arizona, while the petitioner is the employees’ union.

Due to such failure to produce a new agreement, the employees began an economic strike in 1989. Bud Antle, in response, locked out its union employees and hired temporary replacements.

Fourteen years later, the Teamster Union attempted to unionize the replacement employees. The two unions and Bud Antle agreed for a representation election. It was also agreed upon that the company would offer reinstatement to the locked out employees, which offer would remain open for thirty days. When the representation election was held, “No Union” received the majority of the ballots cast.

Bud Antle sent out letters offering reinstatement to the 113 previously locked out employees. The company received only 24 responses while only 7 employees showed up and finally continued with the reinstatement. For the first month, returning employees underwent mandatory training and orientation. They were given limited overtime work assignments during the training period.

Because of this, the Union filed two complaints against Bud Antle for its:

1. failure to reinstate the locked out employees at an earlier date and


2. for limiting overtime work assignments for the returning employees during the four-week training period.

After hearing, the Administrative Law Judge (ALJ) determined that Bud Antle violated pertinent provisions of the National Labor Relations Act because it did not have a substantial and legitimate business justification for the delay in reinstating former locked out employees. Upon review by a three-member panel of the NLRB, however, the ALJ decision was reversed. The employees union appealed.

The United States Court of Appeals affirmed the decision of the NLRB.

On Delay in Reinstatement

The Court rejected the Union’s argument that the company’s failure to immediately reinstate locked out employees was “inherently destructive” of the employee’s statutory rights. The Union, in this case, failed to take into account the length of the lockout or the length of the delay itself.

The court said that “after a fourteen-year lockout, a delay of a few more weeks prior to reinstatement does not necessarily express anti-union animus beyond that expressed by the lockout itself.”

On Denial of Overtime

The Court concluded that in this respect, there was a substantial evidence to support Board’s conclusion that the overtime policy had only a minimal effect on the rights of the employees.

The Court reasoned that “it is reasonable for the Board to conclude that it was unlikely, in light of the length of the lockout, that the returning employees would perceive the retraining period and the limitations on overtime as punishment for exercising their labor rights. After fourteen years of being locked out of Bud Antle, the employees could logically view the retraining and overtime limitations as an ordinary part of their reinstatement and not as an attempt to severely discourage or punish union membership or striking.”