with whom Chief Judge HARRY T. EDWARDS and Circuit Judge ROGERS and Circuit Judge TATEL join, concurring in part and dissenting in part:
In line with my dissent in the earlier panel opinion, I agree with the en banc majority that the Board reasonably determined that Diamond Walnut failed to provide a legitimate and substantial justification, as required under the Fleetwood analysis, for assigning Alfonsina Munoz to a seasonal cracking and inspecting position in the grower’s inspection department rather than a seasonal forklift operator position. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378-80, 88 S.Ct. 543, 545-47, 19 L.Ed.2d 614 (1967). I continue to agree as well that the General Counsel failed to establish a prima facie case of discrimination by Diamond against Mohammed Kussair.1 But I also believe, as I did with respect to the panel’s similar decision, that the majority is fundamentally wrong in concluding that Diamond was justified in assigning Willa Miller to a seasonal case packer position instead of a seasonal quality control assistant position. This latter conclusion contradicts both the majority’s own recognition that Board determinations of labor policy must be upheld if reasonable and the majority’s discussion of the reason why Munoz’s assignment violated the anti-discrimination provisions of the Act. Even more disturbing is the majority’s toleration of employer discrimination based solely on an employee’s participation in protected product disparagement during and as a strategic part of a labor dispute. This remarkable innovation in labor-management law establishes a dangerous precedent that will be readily embraced by employers and will critically erode employees’ statutory rights under the NLRA
I. Proper Deference to the NLRB
I begin with a restatement of a fundamental principle of labor law, a principle that *1271should have made an affirmance of the NLRB’s decision here without doubt. The Supreme Court has repeatedly instructed lower courts that “the NLRB has the primary responsibility for developing and applying national labor policy.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786, 110 S.Ct. 1542, 1549, 108 L.Ed.2d 801 (1990). Congress has assigned the Board, not the courts, the task of “applying the general provisions of the Act to the complexities of industrial life ... and of appraising carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases from its special understanding of the actualities of industrial relations.” NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963) (internal citations, quotations, and additions omitted). Courts are supposed to accord “considerable deference,” Curtin Matheson, 494 U.S. at 786-87, 110 S.Ct. at 1549, to Board policy determinations and rules interpreting the NLRA; they are to be upheld if reasonable, even if the court prefers an alternative policy, and the Board’s application of the rules in any specific instance is to stand so long as it is supported by substantial evidence. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42, 107 S.Ct. 2225, 2235, 96 L.Ed.2d 22 (1987); NLRB v. Transportation Management Corp., 462 U.S. 393, 402-03, 103 S.Ct. 2469, 2474-76, 76 L.Ed.2d 667 (1983); Gilbert v. NLRB, 56 F.3d 1438, 1444 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 210 (1996). The majority itself identifies this basic principle of labor law in its discussion of Munoz, but appears to lose sight of it altogether a few paragraphs later when it turns to Miller.
The need to defer to the Board is particularly acute when the question is whether an employer was justified in discriminating against employees on the basis of the employees’ protected activities. “[P]rotected activity acquires a precarious status” if an employer can discriminate against employees simply for engaging in it. NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 173, 13 L.Ed.2d 1 (1964). Determining whether an employer’s discrimination was justified thus involves weighing employer prerogatives against employee rights, and the Board’s expertise is critical to ensuring that ‘“the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its' policy’ ” is achieved. Fleetwood, 389 U.S. at 378, 88 S.Ct. at 546 (quoting NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967)). Thus, courts have repeatedly underscored that where the Board has “draw[n a] line between the[] conflicting rights [of employees and employers,] ... its determination, unless illogical or arbitrary, ought not to be disturbed.” Allied Indus. Workers, Local Union No. 289 v. NLRB, 476 F.2d 868, 880 (D.C.Cir.1973) (quoting NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir.1965)); see also Columbia Portland Cement Co. v. NLRB, 915 F.2d 253, 256 (6th Cir.1990); NLRB v. Chelsea Labs., Inc., 825 F.2d 680, 683 (2d Cir.1987).2
There seems to me no question but that the Board’s conclusion that Diamond’s discriminatory treatment of Miller was unjusti*1272fied was neither arbitrary nor illogical. The Board’s conclusion rested on a perfectly reasonable determination of labor policy under the Act, namely that an employer must have some credible evidence linking an employee to potential product tampering before the employer can discriminate against her because it fears she will undertake such misconduct. The solitary fact that the employee supports a union that has engaged in protected product disparagement as part of its strike strategy is not enough to justify discriminating against the employee in the terms of her employment. The Board’s determination here was based on a long-adhered-to rule, upheld by several courts, requiring an employer to have specific evidence of past or imminent misconduct by a particular employee before it may discriminate against that employee. See, e.g., Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 790 (10th Cir.1995) (‘“an employer’s determination not to reinstate a striker must be based on evidence that the striker personally engaged in strike misconduct’ ”) (quoting Midwest Solvents, Inc. v. NLRB, 696 F.2d 763, 765 (10th Cir.1982)); NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1477 (7th Cir.1992) (“To lawfully deny an employee reinstatement at the conclusion of a strike [because of strike misconduct], an employer must produce evidence connecting the discharged employees to specific strike misconduct.”); see also General Tel. Co., 251 N.L.R.B. 737, 739, 1980 WL 12269 (1980), enf'd, 672 F.2d 895 (D.C.Cir.1981). Here, the Board’s finding that there was no evidence whatsoever to connect Miller to any threat of product tampering was supported by substantial evidence; Dan O’Connell, Diamond’s vice-president for operations, testified that Diamond had no reason to believe that Miller or any of the returning strikers had ever threatened to damage Diamond’s product, see Tr. at 442, nor was there was evidence specifically connecting Miller to the other forms of misconduct — violence and sabotage — that Diamond identified as being concerns. Joint Appendix (“J.A.”) at 17-18.
The majority contends that this specific evidence rule is not relevant here, because if there were specific evidence of misconduct on the part of the returning strikers, they would have lost the protections of the NLRA and the Fleetwood analysis would no longer apply. Maj. op. at 1265-1266. With all respect, I think the majority is wrong. The specific evidence rule is in reality an application of the Fleetwood analysis. The rule represents the Board’s belief that an employer does not have a “legitimate and substantial business justification” for discriminating against an employee because of employee misconduct when the basis for the employer’s belief that the employee engaged in misconduct is not specific acts or threats by the employee but only the fact that she engaged in protected activity. See Midwest Solvents, Inc., 696 F.2d at 765 (noting that “strike misconduct ... may constitute a ‘legitimate and substantial business justification’ for refusing to reinstate a [striking] employee,” but only if the “employer’s determination not to reinstate ... [was] based on evidence that the striker personally engaged in strike misconduct”); see also Associated Grocers of New England v. NLRB, 562 F.2d 1333, 1335 (1st Cir.1977) (citing Fleetwood and noting “[i]t is well established that serious misconduct during a strike justifies a refusal to reinstate after the strike is over”).3 Nor should it be determinative that the misconduct at issue is future as opposed to past misconduct. The same basic question, namely are the employer’s fears of misconduct justified, arises where an employer discriminates against an employee because it thinks the employee will engage in misconduct in the future as when it discriminates because it thinks the employee has done so in the past. Some specific evidence connecting the employee to the misconduct is needed before this question can be answered in the affirmative in either ease. As the Board noted repeatedly in its opinion, here “there [wa]s no evidence” connecting any of the returning strikers to the types of misconduct that Diamond feared. J.A at 17-18 (emphasis added).
*1273Paradoxically, the majority accepts the Board’s insistence that Diamond must provide some evidence of threats by the returning strikers or replacement workers in affirming the Board’s decision that Diamond’s discriminatory treatment of Munoz was not justified. Maj. op. at 1266. But it then fails absolutely to tell us how the Board went so wrong in requiring that Diamond also provide specific evidence of potential misconduct with regard to Miller. According to the majority, the Board’s error was its failure to “realize” that not all protected employee activity is created equal, and that product disparagement is so qualitatively different from other protected activity that it justifies a discriminatory response where violence would not. Id. at 1267-1268. Thus, the majority seems to say, the Board ought to have made an exception to its usual rule requiring specific evidence before an employer is justified in discriminating against an employee out of fear of misconduct because the discrimination against Miller was based on a fear of product tampering. An employer is entitled to discriminate against employees who support a union that has engaged in product disparagement so as to keep them out of positions where they might be able to harm the employer’s product.
It is obvious, however, that whether or not to carve out such an exception from the specific evidence rule for employer fears of product tampering is quintessentially a question of labor policy and should be resolved by the Board on the basis of its widespread knowledge of industry and its experience with a legion of strike situations, not by this court on the basis of a cold record involving one particular incident. The Board has clearly decided not to make any such exception, and its decision is eminently reasonable. The majority’s product tampering exception rests on dubious and undocumented assumptions regarding the dangerousness of product tampering as opposed to other forms of misconduct and on a distortion of the record regarding the opportunities for product tampering that quality control assistants possess. Worse, the exception will force the Board into extraordinarily difficult line-drawing endeavors in future cases and has the potential to significantly undercut the ability of employees to appeal to the public for support during labor disputes.
II. Drawing the Line: Product Tampering and the Exaggerated Dangers of Quality Control
The core justification that the majority gives for its new product tampering exception is that the economic risk to the employer posed by product tampering is far greater than the risk associated with other forms of misconduct (presumably even violence inside the plant), and therefore an employer is justified in acting to limit this risk on the basis of less evidence or no evidence that the returning employee may present a risk in this regard. Based on the record here, the majority’s assumption regarding the impact of an isolated or even a few random incidents of product tampering is greatly exaggerated. According to the majority, even a “moment’s lapse” in Miller’s vigilance against damaged walnuts could cause Diamond “severe harm,” Maj. op. at 1269, and “[o]ne well-publicized worm might eviscerate the company’s market share.” Id. at 1268. But as David Pedro, Diamond’s quality control manager, testified, some walnuts, like any “natural or agricultural commodity,” inevitably have “defects” such as mold, rancidity, and worms, and Diamond’s final product is no exception from that unfortunate phenomena. Tr. at 499. The goal of the quality control department is not so much to ensure that Diamond’s packaged product contains no defective walnuts at all, but rather to keep Diamond’s walnuts within the levels for defective walnuts established by the USDA. See Tr. at 499, 516.4 *1274Thus, the majority’s dire predictions about one wormy walnut or even several wormy walnuts bringing down the company’s sales are largely unfounded.5
Nor can the majority dredge up any evidence or theory indicating that product tampering is more harmful per se than other misconduct so as to justify a harsher rule. Diamond officials testified, for example, that sabotage of expensive processing equipment for any significant period of time during the peak season could cost Diamond hundreds of thousands of dollars in repairs and lost product. Tr. at 403-06. In its brief, the Board cites the substantial costs that could result if an employee sabotaged a company’s computer system. Yet the majority nowhere explains why employers automatically get more leave to discriminate against workers in the case of product tampering and especially in the case of agricultural or food or drug products designed for human consumption. What about the manufacturers of cars that people ride in or toys that children play with or even employers whose business survival depends on the use of expensive equipment? Why should food product manufacturers be the only ones eligible for heightened protection against tampering?
But even were we to accept the majority’s ad hoc value judgment that the economic consequences of agricultural product tampering are uniquely severe, it is still not at all clear where to draw the line as to what jobs must be labeled off limits to any employee who has not renounced her allegiance to a union that engaged in protected product disparagement during a labor conflict. Should it be the employer’s call, or the Board’s, or the courts’? The majority avoids confronting this problem by claiming that as a quality control assistant Miller would be uniquely well positioned to harm Diamond’s product, because she had only to turn a blind eye to moldy and wormy walnuts rolling down the line and Diamond’s reputation and market share would plummet. Unfortunately for the majority, this claim is based on a highly selective and inaccurate reading of the record.
To begin with, the record demonstrates that quality control assistants perform a variety of functions and are not the only employees involved in ensuring that damaged and defective walnuts are caught, suggesting that their opportunities for passively harming the product are far more limited than the majority believes.6 Some quality control assistants, *1275for example, weigh boxes and bags of nuts and make sure the nuts are appropriately packaged. These functions do not involve, primarily, checking the quality of nuts. See Tr. at 509-10; see also Tr. at 414, 459, 472. And even those quality control assistants who are involved in monitoring product quality do not bear responsibility for actually pulling damaged or defective nuts. Rather, they provide information on the level of damaged and defective nuts in a particular crop to the production employees who look for and pull the defective nuts. See Tr. at 470, 490-92, 499-500. In addition, there are inspectors from the Dried Fruit Association at Diamond’s plant who inspect Diamond’s product after the quality control assistants to ensure that the nuts conform to USDA quality levels. See Tr. at 492-93, 508.7
A review of the record also makes clear that Diamond was if anything more concerned that Miller would engage in active product tampering as that she would do so passively, by allowing defective walnuts to roll past, and further that many other employees would have a similar opportunity to affirmatively damage Diamond’s finished product. Diamond officials emphasized that as a quality control assistant Miller would work without close supervision and that therefore she would have an opportunity to insert foreign objects into packages of walnuts. For example, Dan O’Connell testified that quality control assistants move around the plant extensively “with virtually no supervision,” Tr. at 400, and that the areas where the finished product was stored were often deserted, so that employees in those areas “could do virtually anything they wanted to to the product” without detection. Tr. at 413; see also Tr. at 410. According to O’Connell, Diamond officials “did not feel that it would be prudent to give someone who might have the thought of doing something to the product ... the opportunity to do it by putting them in an unsupervised, unobserved position.” Tr. at 412. And Vin*1276cent Brown, Diamond’s human resources director, provided a graphic description of the type of product tampering Diamond feared the returning strikers would do if they were given quality control positions: “[i]f I’m in charge of testing quality and I take a used condom or a used syringe and I put it in a bag of walnuts and ship it off to the Netherlands, now ... I have an international incident.” Tr. at 621; see also Tr. at 471. But the record makes clear that there were other positions, such as that of forklift operator, that were similarly unsupervised. See Tr. at 400, 413. If the risk of product tampering associated with the quality control position stems in part from the fact that the lack of supervision provides greater opportunities to actively damage Diamond’s finished product, then there is no basis on which to distinguish between quality control assistants and these other similarly unsupervised employees.8
An examination of the record outside of the majority’s distorting lens thus makes clear that quality control assistants do not have a particularly unique opportunity to tamper with Diamond’s walnuts, and recognition of this fact demonstrates the over-expansive scope of the majority’s product tampering exception. While some jobs may be better suited for launching product sabotage than others, it will not be uncommon for employees in many different positions in a processing plant to gain opportunities for product tampering. Here, for example, the record suggests that not just the quality control assistants but also any of the far more numerous employees involved in processing the walnuts could let defective and damaged walnuts flow through into the final packaged product, and virtually all employees had an opportunity to tamper with the finished product during breaks or if their jobs involved moving around the facility. As a result, the majority’s product tampering exception could potentially cover every employee in a plant.
Finally, it also is not apparent why employer discrimination based on unsupported product tampering fears should be justified only where a union has previously engaged in protected product disparagement. The suggestion in the majority opinion is that when the union has already made claims of deteriorating product quality, employees who support the union will be tempted to make the union’s claims a reality. But, whether or not a union has engaged in prior disparagement, it would still be able to exploit any product impurities to its advantage. As a result, if discrimination based on generalized fears of product tampering is justified because of the *1277uniquely severe economic impact that product tampering can have, employers can make out a good case for refusing to hire any employees who do not renounce their allegiance to the union whenever a labor conflict is ongoing.
The impossibility of cabining the majority’s newly-hatched exception to the Board’s traditional rule that employers must have specific evidence linking an employee to potential misconduct before discriminating provides a powerful reason why the Board was justified in refusing to adopt it in the first instance. Section 7 of the NLRA provides employees with the right “to self-organize, to form, join, or assist labor organizations, ... and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157 (1994). The majority’s exception would go far to erode or even eliminate these important section 7 rights during an ongoing labor dispute, since its logic leads insistently toward allowing employers during a strike to discriminate against employees who continue to support the union based on unproven and generalized fears of employee misconduct that are derived solely from employee participation in supposedly protected union activities. At a minimum, the majority’s rule will force the Board to draw difficult fine-line distinctions between risks serious enough to merit employer action based on generalized fears and not so serious risks. The Board can hardly be faulted for seeking to avoid such an unenviable task. Cf. Eastex, Inc. v. NLRB, 437 U.S. 556, 574, 98 S.Ct. 2505, 2516, 57 L.Ed.2d 428 (1978) (“It is apparent that the complexity of the Board’s rules and the difficulty of the Board’s task might be compounded greatly if it were required to distinguish not only between literature that is within and without the protection of § 7, but also among subeategories of literature within that protection.”).
The majority insists that it is not overstepping the “proper — and properly limited— role,” Maj. op. at 1269 (citation omitted), of an appellate court in requiring the Board to allow an employer to discriminate against an employee because of generalized fears of product tampering; instead, according to the majority, it is merely forcing the Board to “take into account ... the risk that the employer seeks to avoid” and making the Board do its “job.” Id. at 1269. What the majority refuses to acknowledge is that the Board did do its job here. Without question, given the potential for undercutting employees’ rights and the difficulties in administration that the majority’s product tampering exception represents, the Board’s decision not to adopt such an exception was eminently reasonable. Were this court to truly adhere to its limited role in reviewing an agency decision the Board’s determination would be affirmed. Unfortunately, however, the majority finds restraint easier to proclaim than to practice.
III. Product Disparagement and Appeals to the Public
The Board’s refusal to allow employers to discriminate against employees on the basis of generalized fears of product tampering was also reasonable because it accords with the Board’s current approach to product disparagement and with the Board’s recognition of the importance of employee appeals for public support during a dispute. Initially, the Board viewed any “[statements made by employees to the public which deliberately cast discredit upon their employer’s product or service” as unprotected, regardless of whether the statements were made in connection with a labor dispute and regardless of whether the statements were true. Patterson-Sargent Co., 115 N.L.R.B. 1629-30 (1956); see also Coca-Cola Bottling Works, 186 N.L.R.B. 1050, 1054 (1970), enf'd in part, 466 F.2d 380 (D.C.Cir.1972); Jefferson Standard Broad. Co., 94 N.L.R.B. 1507, 1511-12 (1951), enf'd sub nom. NLRB v. Local Union No. 1229, Int’l Bhd. of Elec. Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953) (Jefferson Standard). But over the last few decades the Board changed its approach and its current position is that in some circumstances employee criticism of an employer’s product or service is protected activity under the NLRA. Specifically, the Board now views protected activity as encompassing criticism that clearly relates to an ongoing labor dispute, is not malicious in tone, and is not deliberately or recklessly untrue. See, e.g., Cincinnati Suburban Press, Inc., 289 *1278N.L.R.B. 966, 967, 1988 WL 214126 (1988); Emarco, Inc., 284 N.L.R.B. 832, 834, 1987 WL 89746 (1987); Cordura Pubs., Inc., 280 N.L.R.B. 230, 231-32, 1986 WL 53893 (1986); Richboro Community Mental Health Council, Inc., 242 N.L.R.B. 1267, 1267-68, 1979 WL 9209 (1979); see also American Arbitration Ass’n, Inc., 233 N.L.R.B. 71, 74-75, 1977 WL 9257 (1977) (ridiculing content and tone of questionnaire distributed by employee rendered it unprotected under the Act); see generally Sierra Publ. Co. v. NLRB, 889 F.2d 210, 216-18 (9th Cir.1989) (detailing the shift in the Board’s approach).9
This change in the Board’s approach to product disparagement is not, as the majority suggests, Maj. op. at 1267 n.8, suspect in light of the Supreme Court’s decision in Jefferson Standard. The Court ruled in Jefferson Standard that a television station did not act unlawfully when it fired nine technicians who had circulated a handbill that was sharply critical of the station’s programming. In holding that the NLRA did not require the employer to tolerate such “disloyalty,” the Court emphasized that the technicians’ criticism of the station’s programming “omitted all reference” to the “labor controversy” then existing between the technicians and the station. Jefferson Standard, 346 U.S. at 472, 476, 74 S.Ct. at 176, 178-79. Thus, in treating criticism of an employer’s product that is related to an ongoing labor dispute as protected the Board has adhered to the specific holding of the Jefferson Standard opinion, and the Board’s approach has been upheld by numerous courts. See, e.g., Sierra Publ. Co., 889 F.2d at 217-19; Misericordia Hosp. Med. Ctr. v. NLRB, 623 F.2d 808, 814-15 (2d Cir.1980); Community Hosp. of Roanoke Valley, Inc. v. NLRB, 538 F.2d 607, 610 (4th Cir.1976); see also Cynthia L. Estlund, What Do Workers Want? Employee Interests, Public Interests, and Freedom of Expression Under the National Labor Relations Act, 140 U. Pa. L.Rev. 921, 935 (1992).
More to the point, the Board’s current approach is based on its awareness of the vital role of public support in winning labor disputes, an awareness shared by the Supreme Court. See Eastex, Inc., 437 U.S. at 565, 98 S.Ct. at 2512 (“We also find no warrant for petitioner’s view that employees lose their protection under the ‘mutual aid or protection’ clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.”). Given capital mobility and the threat of permanent replacements, labor battles are increasingly fought not on the picket line but in the arena of public opinion, through boycotts, corporate campaigns and other appeals. See Melinda J. Branscomb, Labor, Loyalty, and the Corporate Campaign, 73 B.U. L.Rev. 291, 293-96 (1993); James G. Pope, Labor-Community Coalitions and Boycotts: The Old Labor Law, the New Unionism, and the Living Constitution, 69 Tex. L.Rev. 889, 902-10 (1991). The success of these appeals turns on the ability of employees to ally their cause with the public interest, and in furtherance of that goal employees often seek to demonstrate how their interests and those of the public coincide by arguing that labor disputes or poor working conditions are harming the employer’s product. Thus, for example, workers have sought to gain public support by claiming that extended negotiations on a new contract were putting a newspaper’s continued survival into jeopardy and sending the paper “speeding downhill,” Sierra Publ. Co., 889 F.2d at 214, or that staff shortages and bad facilities were undercutting patient care at a hospital. Misericordia Hosp. Med. Ctr., 623 F.2d at 810-11. And so here, the union circulated leaflets claiming that Diamond’s use of replacement workers had resulted in low quality walnuts, not out of a general disloyalty or dislike of Diamond but rather in an attempt to bring consumers onto its side so as to end the strike and return the regular employees to their old jobs.
A limited and legitimate use of product disparagement therefore may often be a crit*1279ical tool in labor’s arsenal. The Board has emphasized this point in its decisions holding some forms of product disparagement to be protected, commenting that “were we to hold that employees must limit their requests for third-party assistance to the strict confines of the specific arguments raised with their employer, we would, in many cases, be depriving employees of what may be their most cogent argument for obtaining the third party’s aid.” Allied Aviation Serv. Co., 248 N.L.R.B. at 231 n. 10; see also Sierra Publ. Co., 889 F.2d at 217 (“[i]f unions are not permitted to address matters that are of direct interest to third parties in addition to complaining about their own working conditions, it is unlikely that workers’ undisputed right to make third party appeals in pursuit of better working conditions would be anything but an empty provision.”); Emarco, Inc., 284 N.L.R.B. at 834 (“employee speech is often an essential means of achieving group goals and to deny protection to this type of activity would nullify the rights guaranteed by section 7 of the Act”). In addition, product quality may be a central concern of employees, either because they fear that a low quality product will lead their employer to go out of business and cost them their jobs, or because they identify with their work and genuinely care that the product with which they have identified their working lives be a worthy one. See Estlund, supra, at 949-60.
The majority’s castigation of any kind of product disparagement, true or untrue, strike-related or not, to a second-class status in the scheme of protected activity and to a top rung on the hierarchy of employer justifications for discrimination may significantly restrict the ability of employees to utilize public appeals in contemporary labor struggles or to voice their concerns about product quality. The majority maintains that “it is not up to us, sua sponte, to decide th[e] issue” of whether the union’s leaflets attacking the quality of Diamond’s walnuts during the strike were protected. Maj. op. at 1267-1268. But the majority’s holding is crystal clear: at a bare minimum, it says that an employer can refuse to place returning employees who still support the union in positions where they could affect product quality if the union has engaged in product disparagement during an ongoing labor dispute. Hence, a union is on notice that it exposes supportive employees to potential discrimination if it decides to resort to product disparagement of any kind. Few unions may be willing to take this risk.
The majority’s decision that Diamond’s discrimination against Miller was justified is internally inconsistent, contradicted by the record, and at odds with governing law. Most importantly, it represents a totally unwarranted interference with the Board’s ability to establish labor policy. Whether dire predictions regarding its potential impact prove accurate only time will tell. It may be that the holding will be viewed as an anomaly, the D.C. Circuit’s inexplicable “wormy walnut rule.” I fear, however, that will not be so; employers will readily seize the opportunity to exploit the new hole in the NLRA’s protective shield against arbitrary employer discrimination and the Board’s efforts to balance employee and employer rights will be impeded by this unfortunate decision, as will employees’ attempts to exercise their statutory rights during bitter and lengthy strikes. For all these reasons, I would uphold the Board’s determination that Diamond’s discriminatory treatment of Miller was not justified by any legitimate or substantial reason and I respectfully dissent from the majority’s decision to the contrary.
. Judge Henderson contends that the General Counsel failed to establish a prima facie case of discrimination against any of the returning strikers because the different treatment that they received was not sufficient to "discourage membership in any labor organization.” Dissenting opinion ("Dis. op.”) at 1279-1283. I believe that Judge Henderson’s contentions on this score are incorrect and represent an inappropriate refusal to defer to the Board's expertise regarding when employer conduct may discourage union membership. As the Supreme Court has cautioned, identifying discouragement is a “subtle thing[] requiring a high degree of introspective perception.” Radio Officers Union v. NLRB, 347 U.S. 17, 51, 74 S.Ct. 323, 341, 98 L.Ed. 455 (1954) (internal quotations omitted). I also think that appellate judges should be wary of discounting the importance of what may appear to us to be small wage differentials, see Dis. op. at 1282 n.9; the record in this case, for example, establishes that as a case packer Miller earned only $5.50 an hour, and an increase in 32 cents an hour might well have been very significant to her, particularly given that she had been out on strike for two years. Transcript ("Tr.”) at 775-76. However, as I agree with Judge Silberman that Diamond waived this argument by failing to raise it before the Board or in its briefs on appeal, I do not discuss this point in further detail.
. By some mysterious process of induction, the majority concludes that my position is that "an employer is never (or at least 'hardly ever') entitled to treat returning strikers 'discriminatorily' (even with a substantial business justification) based on protected activity.” Majority opinion ("Maj. op.”) at 1265. As the preceding passage makes clear, this is not my position; my position is instead that it is especially critical that courts defer to reasonable Board determinations of when discrimination based on protected activity is and is not justified. It is worth noting, however, that the situations in which employer discrimination based on protected activity has been deemed justified are relatively few, the most frequent example being that of an employer' who does not reinstate employees to their former positions after an economic strike because the positions have been filled by permanent replacements. See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938); see generally The Developing Labor Law 199-249 (Patrick Hardin, et al. eds., 3d ed.1992) (providing an overview of instances when employer discrimination has been held to be justified and when it has not). This suggests to me that the Board and other courts agree that employer claims of justified discrimination against employees solely because of protected activities should be viewed with some caution, given the threat to employee rights that such discrimination represents.
. The connection between the Fleetwood analysis and the specific evidence rule is also visible in Board decisions. See, e.g., General Chemical Corp., 290 N.L.R.B. 76, 82, 1988 WL 213875 (1988); Owen Joist Corp., 248 N.L.R.B. 589, 592, 1980 WL 11268 (1980).
. As the majority accuses me of distorting the transcript in my reading of Mr. Pedro's remarks, Maj. op. at 1268-1269, I quote them here verbatim. After describing a union flyer that showed pictures of Diamond walnuts with the "statements ... mold, insect damage, dead worm in shell, [and] rancid" directly underneath, the following colloquy took place between Ms. Green, Diamond's counsel, and Mr. Pedro:
Ms. Green: Do the walnuts that come from Diamond Walnut’s production line have those types of defects after they leave the quality assurance assistant's department?
Mr. Pedro: Okay. There is a tolerance for those defects. And those defects do occur. It’s *1274in a natural or agricultural commodity. Any agriculture commodity has specifications or levels for those defects. We do have levels of those types of defects.
Ms. Green: Okay. So basically, is it the quality assurance assistant’s job to make sure that those levels of defects remain low when they come out of the process?
Mr. Pedro: Their job is to monitor those levels and report those levels and to record the data. The production people' are responsible for grading that product and then eliminating those defects from the product.
Tr. at 499 (emphasis added). Later, on cross-examination Mr. Absalom, the union’s counsel, referring to the flyer again, had this exchange with Mr. Pedro:
Mr. Absalom: I gather from your testimony that it is true that walnuts sometimes leave the plant with some of these defects in them, correct?
Mr. Pedro: Correct.
Mr. Absalom: And it's true that walnuts leave the plant with insect damage and rancidity for example?
Mr. Pedro: Yes, that’s correct.
Mr. Absalom: And what you're principally concerned with in the quality control department is determining whether the level of those defects in the samples that are taken exceed the threshold levels permitted by the USDA, is that correct?
Mr. Pedro: Yes, that they don’t exceed those.
Tr. at 516 (emphasis added).
. The discovery of some kind of foreign matter in a package of walnuts would be far more dangerous to Diamond’s reputation and sales. But, as discussed below, the majority must downplay the risk of this sort of aggressive product tampering in order to conclude that Diamond was justified in discriminating against Miller but not against Munoz.
. The majority argues that in emphasizing the varied jobs performed by quality control assistants and the role that other employees and outside. inspectors play in ensuring the quality of Diamond’s final product, I am improperly making a factual finding that differs from the Board’s. Maj. op. at 1268 n.12. On the impropriety of appellate factfinding and appellate contortions of the administrative record, the majority and I are in full agreement, but ironically it is the majority who is violating this important principle here. As an initial matter, I disagree that the Board itself made any finding that the quality control assistants are the last to inspect the wal*1275nuts; the language quoted by the majority is quite clearly the Board's recapitulation of the argument Diamond made in its defense, not an independent finding of fact. See J.A. at 17 ("Respondent states that when it received the Union's letter [wherein several strikers offered to return to work], it decided against placing Miller in the sensitive position of quality control assistant where the final visual inspection of walnuts is made prior to leaving the plant.”). I also fail to see how anyone can read the Board's decision, holding that Diamond's fears of product tampering did not justify its discrimination against the returning strikers, as being anything but a rejection of Diamond's factual inferences. Maj. op. at 1267-1268. More to the point, it is the majority, not the Board, that emphasizes the opportunities for product tampering attendant on the quality control assistant position. Indeed, the Board appears to have considered any such opportunities to be either insignificant or irrelevant, since it makes no reference to them at all in rejecting Diamond's defense. See J.A. at 18.
The majority also takes me to task for referring to portions of the transcript of the AU hearing that are not contained in the joint appendix. Maj. op. at 1268 n.12. But as governing statutes, appellate rules and our local circuit procedures make clear, "[a]ll parts of the record retained by the agency shall be part of the record on review for all purposes.” Fed. R.App. P. 17(b); see also 28 U.S.C. § 2112(b) (same); Fed. R.App. P. 16(a) ("order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, evidence and proceedings before the agency shall constitute the record on review in proceedings to review or enforce the order of an agency”); D.C. Circuit Handbook of Practice and Internal Procedures, IX.B.l., at 80 (“Failure to include relevant parts of the record in the appendix does not preclude the court from relying on that material.”). An examination of the full record would also appear appropriate in light of the Supreme Court's instruction in Universal Camera v. NLRB that courts must uphold the Board’s findings if they are supported by substantial evidence on "the record as a whole.” 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).
. The record also demonstrates that the majority’s assessment of the risk Miller posed is very much one-sided, and ignores the risk of product harm that resulted from Diamond’s decision not to put Miller in the quality control assistant position. Miller had served as a quality control supervisor for seven or eight years prior to the strike. Tr. at 139. David Pedro testified not only that Miller was well-qualified to identify damaged or defective walnuts, but also that an experienced quality control worker would be better able to spot such walnuts than a new trainee. Tr. at 512-15. If Diamond gave the open quality control position to a new applicant for employment who did not have Miller's union ties but also did not have Miller's experienced eye, it may have increased the risk that defective nuts would not be spotted during processing. This may well illustrate the wisdom of letting the Board draw the inferences from a site-specific record of the labor situation in a particular plant, not the court.
. Indeed, the majority’s acceptance of Diamond’s discrimination against Miller cannot be reconciled with its rejection of Diamond’s discrimination against Munoz. Both Miller and Munoz were strongly supportive of the union during the strike. Tr. at 163, 220-21. Both participated in a cross-country bus tour publicizing the union’s boycott of Diamond walnuts, during which the union disseminated leaflets claiming that walnuts packaged by the replacement workers were contaminated. Tr. at 162-63, 220-21. Munoz’s ties to the union’s product disparagement campaign were, if anything, clearer than Miller’s, since Munoz acknowledged passing out the leaflets on occasion and Miller did not. Compare Tr. at 221 with Tr. at 159-61. And, as noted above, Diamond officials testified that forklift operators were not closely supervised' and were required to travel to remote areas of the plant. Tr. at 400, 413. Yet the majority maintains that Diamond was justified in refusing to put Miller in a quality control position, but not in refusing to put Munoz in a forklift operator position.
Nor, as the majority implies, is its inconsistent treatment of Munoz and Miller justified by Diamond's failure to adequately identify product tampering as a concern in its treatment of Munoz. It is clear from the testimony of Diamond officials that Diamond was concerned that forklift operators would have opportunity to tamper with the finished product, see Tr. at 400, 413, 420-21, and Diamond claimed that its fears of product tampering justified its refusal to put Muhoz in the forklift operator position in its filings with the Board and in both its panel and en banc briefs here. See Employer's Limited Exceptions to the Decision of the Administrative Law Judge at 34 & n.26 (noting that forklift operators, who are not closely supervised had an opportunity to “mix a harmful substance in with the walnuts" and commenting that this concern was "not a farfetched supposition, given the nature of the boycott campaign in which Munoz was actively involved”); Pet. Br. (panel) at 36 (same); Pet. Br. (en banc) at 39 (same). Furthermore, the Board mentioned product tampering as a concern of Diamond’s in regard to Munoz. J.A. at 18 ("As the [ALJ] found, the strikers’ conduct [in distributing leaflets disparaging Diamond’s product] constituted protected Section 7 activity and there is no evidence that such protection was lost because of threats made by Miller and Munoz to damage or sabotage the Respondent’s equipment or products.") (emphasis added).
. In some cases, the Board has distinguished between acceptable criticism of an employer’s product or service and "product disparagement.” See, e.g., Allied Aviation Serv. Co., 248 N.L.R.B. 229, 231, 1980 WL 11228 (1980). But this is a distinction more in nomenclature than in substance, since clearly the critical statements upheld by the Board would be perceived by an ordinary person as "disparaging” the employer’s product.