dissenting in part and concurring in part:
It is undisputed that except for their strike-related activities, returning strikers *495Munoz and Miller would automatically have been considered for the positions of forklift operator and quality control assistant. The record, moreover, amply supports the NLRB’s decision that Diamond Walnut (“Diamond”) denied these two employees the opportunity to work in preferred jobs without legitimate and substantial business justification. Thus, I would affirm the Board’s finding of a National Labor Relations Act (“NLRA” or “Act”) violation with respect to these two strikers. In regard to Kussair, however, I agree that there is no evidence to suggest that Diamond would have placed him in a loader position, even absent his strike participation and therefore concur with the panel’s decision to reverse the Board’s decision with respect to him.
I. The Legal Standard
The majority in my view is diverted from the straightforward legal standard governing this case by its near-obsession with the fact that Munoz and Miller did not have a statutory right to reinstatement, per se. The fact is that once they expressed their interest in returning to work, they did have a right to nondiseriminatory treatment with respect to any jobs for which they were qualified. As the majority concedes in one easy-to-miss sentence of text and one footnote, Majority opinion (“Maj. op.”), at 489, 493 n. 10, strikers who have unconditionally offered to return to work must be treated “the same as they would have been [treated] had they not withheld their services.” Rose Printing Co. & Graphics Comm. Workers Union, 304 N.L.R.B. 1076, 1078, 1991 WL 197152 (1991). Under Rose, workers are “entitled to return to [their prestrike] jobs or substantial equivalents if such positions become vacant, and they are entitled to nondiseriminatory treatment in their applications for other jobs.” Id. (emphasis added). If an employer does not treat returning strikers the same as they would have been treated in the absence of the strike, the employer must prove that it acted based on legitimate and substantial business justifications. NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378, 88 S.Ct. 543, 545-46, 19 L.Ed.2d 614 (1967); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1797-98, 18 L.Ed.2d 1027 (1967). Only if the employer successfully meets its burden of proving a Fleetwood “business justification” defense (which the Board reasonably concluded Diamond had failed to do in this case) does it become relevant whether the employer’s actions were “inherently destructive” of employee rights, in which case the employer has violated the Act regardless of whether or not it acted based on antiunion motivation, Great Dane, 388 U.S. at 34, 87 S.Ct. at 1797-98, or if its actions were only “comparatively slight,” in which ease a violation will be found only if the employer acted out of antiunion motivation. Id.
Diamond admits outright to treating Munoz and Miller differently than it would have if the employees had not participated in the strike. Thus, the critical question in this ease is whether Diamond proved that it acted based on legitimate and substantial business justifications. If, and only if, the Board erred on this point, does it become relevant whether the employer’s actions were “comparatively slight” or “inherently destructive.”
At numerous points in the opinion, the majority underscores the absence of any absolute right to reinstatement, and goes on to infer from that absence that Diamond has somehow bestowed a favor on Munoz and Miller by allowing them to return to work at all. For example, the majority writes:
We first emphasize what this case does not present. This is not a failure-to-reinstate case.... Rather, the ease involves an employer’s accommodation of striking union activists, who, at the union’s direction and with the union lawyer’s guidance, sought to return to work temporarily....
Maj. op., at 490 (emphasis added), 493 (“Diamond quickly reinstated the Union activists, who had no statutory right to reinstatement at the time.”1). This approach is basically misguided. This case is about employees *496attempting to exercise a right they maintain when reinstatement to their prior jobs is unavailable — -the right to nondiscriminatory consideration for other positions for which they are qualified. In this case, Diamond has admitted that it discriminated against certain returning strikers (those who maintained their affiliation with the Union) in considering their applications for new positions. The majority errs fundamentally when it gratuitously awards Diamond bonus points for giving these workers jobs at all. In fact, Diamond was legally bound to treat them like any other employees — no better, no worse.
The majority also makes much of the fact that the returning strikers in this case were motivated by their interest in lobbying for the Union’s cause at the jobsite, rather than with promoting the general welfare of the employer. Maj. op. at 487-488, 490. Even if true, the employees’ motivations for returning to work in no way license the employer to discriminate against them on the basis of their strike participation, as long as they submit unconditional offers to return to work. See, e.g., NLRB v. Town & Country Electric, Inc., — U.S. -, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (Union “salts” — organizers who apply for jobs with the intent to organize at the jobsite — are “employees” under the Act). In this case, Diamond admits that it adopted a “special” scheme for placing those returning workers who had announced their intent to advocate for the Union inside the plant. Diamond concededly refused to place the returning organizers in any position it thought might offer them the opportunity to sabotage the company’s product or property, or which might expose the strikers to potential violence at the hands of replacement workers. By refusing to consider the workers for the full range of positions for which they were qualified, Diamond plainly “discriminated” against them within the meaning of Rose Printing Co. The next question, then, which the Board reasonably answered in the negative, is whether Diamond successfully proved a Fleetwood defense by showing that its discriminatory actions were based on a legitimate and substantial business justification?
II. Legitimate and Substantial Business Justifications
Based on Rose, the Board expressly determined in this case that Diamond did not prove an adequate business justification, and therefore violated § 8(a) when it refused to consider the returning strikers for certain higher-paid jobs for which they were qualified and for which the employer would have considered them, but for their Union activity. Diamond Walnut, 316 N.L.R.B. at 39. If substantial evidence in the record supports this conclusion, we cannot “displace the Board’s choice between turo fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). The majority, however, finds that Diamond’s articulated concerns by themselves do indeed constitute legitimate and substantial business justifications, and therefore excuse the employer’s conceded discrimination. In doing so, I believe the majority misinterprets existing law and ignores the impact of analogous contrary decisions involving differential treatment based on disloyalty or misconduct concerns.
A. The Fear of Violence
The majority unqualifiedly accepts Diamond’s asserted fear of violence by replacement workers against the returning strikers as a justification for deviating from regular placement procedures — even accepting the fact that the actual violence had long-since ceased. Maj. op. at 493. The Administrative Law Judge (“ALJ”) found: (1) that most of the violence associated with the strike had occurred in the early months of the dispute, Diamond Walnut, 316 N.L.R.B. at 46 n. 12; and (2) that there was no evidence to suggest that the returning workers had made any threats against replacement workers or that the Union had threatened to sabotage equipment or products, id. at 46. In light of these findings, the ALJ reasonably concluded — and the Board reasonably affirmed — that the employer had not sufficiently justified its special *497treatment of the workers based on their Union involvement.
Reversing the Board, the court today explains that the “replacement workers continued to harbor resentment” toward the strikers. Maj. op. at 493. But animosity between replacement workers and returning strikers is certainly not unusual in the workplace; if comments like those cited by the majority (for example, “[G]ee, what happened if they fell down in the rest room or in the locker room,” Maj. op. at 491) are enough to justify an employer’s discriminatory treatment, the NLRA’s guarantee against strike-related retaliation will indeed ring hollow.
B. The Fear of Sabotage
The majority’s second justification for Diamond’s actions — the company’s stated fear of sabotage — is equally gossamer. In Willmar Electric Service, Inc. v. NLRB, 968 F.2d 1327, 1331 (D.C.Cir.1992), we identified, but left for another day, the question of when an employee’s ties to a union establish such a risk of disloyalty as to justify the (nonunion) employer’s rejection or dismissal of the worker on that ground. The majority reaches out for that question today, deciding, in this case at least, that an employer can discriminate against a worker based on mere fears of sabotage conspiracies for which there is no evidentiary support whatsoever apart from the worker’s endorsement of an ongoing strike.
The dispositive fact on this issue, in my view, is the employer’s complete failure to produce a shred of evidence of intent to sabotage on the part of Munoz, Miller, or Kussair. The majority glosses over this critical fact by citing, as support for Diamond’s fears of sabotage, the text of a vitriolic letter for which the Union had disavowed any responsibility and which not a smidgen of evidence suggests was penned by one of the returning workers (and to which, for that reason, the ALJ reasonably assigned no weight in this matter). Maj. op. at 491 n. 8.
So, not only is the record in this case utterly devoid of any evidence identifying these individuals as a physical threat to the company, but to the contrary, the record reveals that they received good pre-strike reviews; that they had never been accused of writing or distributing the single letter Diamond challenges as unprotected activity; and that they are not alleged to have threatened the employer or to have themselves been threatened by replacement workers. To support its theory of disloyalty, the majority can point only to Miller’s and Munoz’s admitted participation in a cross-country bus tour to disseminate negative information about the employer’s labor policies and to encourage a boycott of Diamond walnuts — both protected activities, as the ALJ specifically found. Diamond Walnut, 316 N.L.R.B. at 47 (“I conclude that the statements made by strikers or the Union representing them in the instant case are linked to the labor dispute in question. Furthermore, the fact that they may be biased or contain hyperbole does not render them unprotected.”).
A review of prior cases addressing employee disloyalty reveals that the majority has gone far beyond existing legal benchmarks for employers’ discriminatory treatment of workers suspected of insurrection. Their opinion contains a strong implication that a returning worker must somehow disavow her support for an ongoing strike in order to be considered for employment on equal footing with other employees. See Maj. op. at 490 (distinguishing this case from one in which an employee either “[seeks reinstatement] after the strike is over or withdraws his support of the strike and crosses the picket line in order to earn a living”). That is not the law. There is Supreme Court precedent that an employer can justify the decision to dismiss a union employee on disloyalty grounds only where the employee is personally responsible for disloyal activity. In NLRB v. Local Union No. 1229, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953) (Jefferson Standard), the Court wrote: “In such cases, it often has been necessary to identify individual employees ... and to recognize that their discharges were for causes which were separable from the concerted activities of others whose acts might come within the protection of § 7.” Id. at 474, 74 S.Ct. at 177-78 (emphasis added). Even though Diamond argues that it could reasonably assume *498that the Union was responsible for the one tasteless letter to customers (since the letter claims to be from the “original and united worker’s [sic],” Joint Appendix (“J.A.”) 376), it does not even allege personal involvement on the part of these three employees.2
The Supreme Court very recently issued another decision rejecting an employer’s attempt to infer disloyalty merely from its employee’s union activity. In NLRB v. Town & Country Electric, Inc., — U.S. -, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (“T & C”), the employer argued that the NLRA did not offer full protection to applicants who intended to conduct on-site organizing for a union. The employer there, like Diamond here, worried that these organizers “might try to harm the company ... perhaps disparaging the company to others, perhaps even sabotaging the firm or its products.” Id. at -, 116 S.Ct. at 456.
In rejecting the employer’s contention that applicants who are also union organizers are not to be allowed the same protection as other “employees” within the meaning of the Act, Justice Breyer, writing for a unanimous Court, pointed out several “serious problems” with the employer’s argument. Each of these “problems” is present in Diamond’s case to at least as great a degree as in Town & Country. First, the Court noted that “nothing in this record suggests that such acts of disloyalty were present, in kind or degree, to the point where the company might lose control over the worker’s normal workplace tasks.” Id. In.the Diamond case, not only is there no evidence of any acts of disloyalty on the part of the returning workers, but the employer’s Director of Human Resources expressly admitted that whether or not the individual workers had personally engaged in strike misconduct played no part in the determination of job placements. Testimony of Vince Brown, J.A. 214-15.3 Of course, if these workers did not engage in any misconduct, then Diamond’s treatment of them amounts to a penalty merely for engaging in protected activity. But an employer cannot lawfully punish its workers in this way; “After all, the employer has no legal right to require that, as part of his or her service to the company, a worker refrain from engaging in protected activity.” T & C, — U.S. at-, 116 S.Ct. at 456.
Second, the Court found that “the argument proves too much,” because the dangers of disparagement and sabotage are not limited to union organizers. Id. “[I]f an overly zealous union organizer might hurt the company through unlawful acts, so might an unpaid zealot (who may know less about the law), or a dissatisfied worker (who may lack an outlet for his grievances).” Id. Likewise, in the case before us, there is no reason to believe that these returning strikers are more likely to sabotage the company than other returning strikers who had disassociated themselves with the strike and who admittedly received different treatment. In fact, logic would suggest that a striker returning with the express intent of wooing replacement workers to support the Union would go out of her way to minimize the possibility of reflecting poorly on the Union. It is beyond my ken why a worker who has never been accused of engaging in acts of disloyalty or sabotage would suddenly choose to drive a forklift into a company building at the very time she is trying to make a good impression on the replacement workers.4
*499Finally, the unanimous Town & Country court noted that the law offered the employer alternative remedies to respond to its concerns. For example, “[a] company faced with unlawful (or possibly unlawful) activity can discipline or dismiss the worker, file a complaint with the Board, or notify law enforcement authorities.” Id. at -, 116 S.Ct. at 457. This observation seems particularly relevant in Diamond’s situation, where one of the company’s “legitimate and substantial justifications” is its concern that replacement workers will attack the returning strikers. Diamond could minimize this concern in any number of ways without punishing the potential “victim” of the violence: the employer could institute stringent guidelines prohibiting violent behavior, could dismiss rowdy replacement workers, or could call the police if it suspected actual foul play. To the extent that the majority holds that fear of retaliatory violence alone constitutes a Fleet-wood defense, it portends employer discrimination against returning workers at the end of a strike as well as during it. Thus, the court today adjusts an employee’s rights under the NLRA depending on his or her popularity among nonstrikers. Such a view is clearly contrary to the Act’s purposes of “protecting the right of employees to organize for mutual aid without employer interference, and encouraging and protecting the collective-bargaining process.” Id. at -, 116 S.Ct. at 454 (citations omitted).
Of course, striking employees who engage in serious misconduct while on strike lose the protections of the Act and are not entitled to reinstatement. See Medite v. NLRB, 72 F.3d 780, 790 (10th Cir.1995). However, “an employer’s determination not to reinstate a striker must be based on evidence that the striker personally engaged in strike misconduct.” Id. (citing Midwest Solvents, Inc. v. NLRB, 696 F.2d 763, 765 (10th Cir.1982)); see also NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1477 (7th Cir.1992) (“To lawfully deny an employee reinstatement at the conclusion of the strike on this ground, an employer must produce evidence connecting the discharged employees to specific strike misconduct.”). No such evidence exists with respect to Munoz, Miller, and Kussair, and the majority has neglected to explain why a justification that would clearly fail to excuse a refusal to reinstate workers, Maj. op. at 493 n. 10, does not also fail to justify a refusal to treat workers nondiscriminatorily.
1. Alfonsina Munoz
Munoz worked as a year-round lift truck operator before the strike, and the parties agree that Diamond had a vacant position as a seasonal lift truck operator available at the time she crossed the picket line. Diamond admits that Union-related considerations— specifically, the fear of her union sympathies inciting violence or leading her to engage in sabotage — prevented the employer from placing her in the seasonal forklift position and resulted in her assignment instead as a “cracker” in the growers’ inspection department. As a cracker, it was her job to crack open 17,000 grams of walnuts per day at a pay rate of $5/hour. The parties stipulated that she was qualified to work as a lift truck operator, and that she would have made from $7.50 to $10 per hour at that job. Nevertheless, Diamond refused to consider her for the more lucrative position, for fear that her presence in that job would incite others to violence or would allow her to cause damage with her lift truck.
For the reasons already articulated, I do not believe Diamond’s unsubstantiated fear of violence constitutes a legitimate and substantial business consideration. Similarly, I believe that the Board correctly rejected Diamond’s sabotage fears as a Fleetwood defense. Without evidence, the notion that Munoz would act out a sabotage plan simply because of her Union sympathies is not adequate to allow discriminatory treatment.
“As for Munoz,” the majority notes, “although she was qualified to fill a vacancy as a lift truck driver, Diamond legitimately decided not to put her behind the wheel of the 11,000-pound vehicle. Not only did the lift truck driver move about the plant unsupervised, the truck itself, with an inattentive operator, could cause damage inside the plant.” Maj. op. at 492. Notably, neither *500the majority nor Diamond points to any evidence that Munoz had ever made a threat against the company, or had ever engaged in sabotage activities. The only evidence Diamond cites is Munoz’s undenied involvement in the strike and boycott campaign, which included distribution of leaflets critical of the employer. See J.A. 272, 309, 313. Clearly, a striking employee’s expression of disagreement with the employer’s labor policies is not enough to justify the employer’s decision to discriminate against that worker when she returns to the job. In fact, preventing an employer from engaging in just this sort of retaliation is what the NLRA is all about. Thus, without something more, I cannot buy into the majority’s assumption that a striker who handed out union-sponsored handbills, but who now wants inside the plant in order to campaign for an election, presents a danger of going on a rampage with an 11,000-pound vehicle.
2. Willa Miller
Miller worked as a year-round quality control supervisor before the strike, but was appointed to a position as a packer when she returned to Diamond. As a packer, Miller spent her days stuffing one-pound bags of walnuts into large boxes. The parties stipulated that there were positions available as quality control assistants, that she was qualified for them, and that she would have made thirty-two cents more per hour in one of those placements. Diamond explains Miller’s assignment as a packer primarily in terms of the company’s sabotage considerations, and secondarily based on the fear of violence against her. See Brief for Petitioners at 31-33.
As for the sabotage concerns, the employer is on only slightly firmer ground with respect to Miller than with respect to Munoz. In an analysis that applies to Munoz as well as Miller, the court notes that both women fully supported the Union’s boycott campaign, and from this concludes that, “Diamond knew of Munoz’s and Miller’s track record of attempting to damage Diamond economically.” Maj. op. at 492. Because of her desire to harm the employer economically, the majority apparently infers that Miller might abuse a quality control position to “sabotage” Diamond’s product, by turning a blind eye when rotten nuts passed her way. Although this sort of “passive” sabotage is somewhat more fathomable than the “active” version required for Munoz’s hypothetical forklift frenzy, Diamond has still failed to introduce any evidence suggesting that Miller in particular might have any tendency to engage in this conduct. What Diamond actually knew about these workers was not that they intended to harm Diamond, but simply that they supported the strike and had engaged in protected strike activity.
Thus the Board reasonably determined that an employer’s mere speculation that Union sympathies might lead a previously commendable worker to commit sabotage does not meet the Fleetwood standard. And “unless the NLRB has clearly ... misperceived the facts, we will not second-guess its judgment.” Randall v. NLRB, 687 F.2d 1240, 1245 (8th Cir.1982).
3. Mohammed Kussair
Mohammed Kussair worked as an air separator operator before the strike. The parties stipulated that there were no permanent or seasonal jobs available in this position when Kussair returned to work. Diamond placed him instead as a cracker in the growers’ department, where he had never worked before. The parties also stipulated that there were loader positions available at the time Kussair returned to work, and that he would have made $1 more per hour at that job. Kussair’s supervisor, whose testimony the ALJ specifically credited, testified that Kus-sair at some point asked to be transferred to a loader job and was offered a position, which he declined, as a loader in another department. On October 6, when Kussair again asked to transfer to a loader position, his supervisor told him that he could do so on the 8th of the month. Before he could take advantage of the transfer, however, he resigned from Diamond and rejoined the strike.
The ALJ also specifically credited the employer’s witness, who testified that Diamond had not placed returning workers in the loader positions because those jobs, which many *501workers considered particularly onerous, required the employee to lift heavy boxes and bags all day. Even though the employer cannot lawfully consider Kussair’s Union activity as a justification for denying him a position, the particular facts in Kussair’s case do not justify the Board’s determination that Diamond discriminated against Kussair. Kussair did not initially ask to be a loader; he was not a loader at the time he went on strike; he was told he could transfer into a loader spot and he refused; and the employer could not have known that he would have preferred a strenuous job over a tedious one. Since there was no discriminatory treatment to begin with, the fact that the ALJ rejected the employer’s Fleetwood defense is irrelevant; there has been no NLRA violation.
In the growers’ department, Kussair had trouble meeting his 17,000 grams/day quota, and received oral reprimands three times during his first two weeks. After the third reprimand, he hollered at his supervisor and was given a written reprimand. The Board ordered that the written reprimand be removed from his files, because it “was the product of the unlawful job assignment.” J.A. 18. Since the evidence does not support the conclusion that the assignment was unlawful, the order regarding the reprimand must be reversed as well.
III. Conclusion
Contrary to established legal precedent, the majority today approves penalties leveled at returning workers based on mere speculation that the workers — whom the employer admits had good records with the company and about whom the employer had no individualized concerns — will sabotage the company’s product or themselves become the victims of co-worker violence. Unlike the majority, I believe that the Board correctly applied the law to the facts when it decided that Diamond had violated the NLRA. The record amply supports the Board’s conclusion that these workers did not pose a serious threat to the purity of Diamond brand walnuts or to the safety of either themselves or their fellow employees. We should therefore deny Diamond’s petition for review of the Board’s order.
. Of course, Diamond did not actually reinstate the workers, since it did not place them in the same or substantially comparable jobs as those they performed before the strike. But this case is not about reinstatement. This case is about Diamond’s admitted discrimination against returning strikers in considering their applications for new positions.
.Furthermore, even if Diamond believed in good faith that the specific employees wrote the offending letter, it would not be justified in discriminating against the strikers if in fact the employer was mistaken. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 172-73, 13 L.Ed.2d 1 (1964). In Bumup, the Court explained that such a good faith exception could discourage legitimate union activity: "Union activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith.” Id. at 23, 85 S.Ct. at 173. Cf. Coca-Cola Bottling Co., 186 N.L.R.B. 1050 (1970).
. Vince Brown, Diamond's Director of Human Resources, gave the following testimony:
Q: So, I take it, that wasn't a factor in your determination as to what positions these individuals should be placed in; is that fair to say?
A: Whether or not they were involved in strike misconduct?
Q: Yes.
A: I don't think that was a factor, no.
. I also see no reason to assume that the replacement workers are more likely to act out against *499Munoz, Miller, or Kussair than against the Union activists picketing in front of the company gates.