Circuit Judge, with whom SENTELLE, Circuit Judge, and RANDOLPH, Circuit Judge, join, concurring in part and dissenting in part:
No clear winner emerges from the court’s decision. Diamond Walnut (Diamond) prevails on its petition for review with respect to two employees, the National Labor Relations Board (Board) prevails on its cross-petition for enforcement with respect to one employee and the intervenor unions, Cannery Workers, Processors, Warehousemen & Helpers Local 601 of the International Brotherhood of Teamsters, AFL-CIO and the International Brotherhood of Teamsters, AFL-CIO (Unions), will probably get a third bite at the representation election apple. The loser, *1280however, is clear — the employer who, in future, must determine where to place returning strikers in order to comply with the National Labor Relations Act (Act). The majority opinion, with its placement of Miller, Munoz and Kussair into three distinct doctrinal boxes,1 provides lots of words but scant utility.
I.
Too little attention has been paid in this case to the General Counsel’s burden in establishing a prima facie case of discrimination.2 The majority concludes perfunctorily that Diamond’s placement of Miller and Munoz constitutes discrimination within the meaning of the Act on the basis of two factors: (1) Miller and Munoz did not receive the highest paying jobs for which they were qualified3 and (2) Diamond admits that it considered Miller’s and Munoz’s union activities in placing them. Maj. Op. at 1263.
The majority’s conclusion, however, conflicts with the court’s unanimous conclusion that the General Counsel failed to establish a prima facie case of discrimination with respect to Kussair because the two factors the majority uses to establish discrimination apply equally to Kussair.4 The loader position Kussair claimed he should have been given paid more than the position in which he was placed and, as Diamond concedes, in placing Kussair it considered his union activity. Pet’r Opening Br. at 20. Thus the combination of known (and considered) union activity and a lower paying job cannot be sufficient to establish prima fctcie discrimination here be*1281cause, as we all agree, Diamond did not discriminate against Kussair.
The inconsistency between the majority’s treatment of Kussair on the one hand and Miller and Munoz on the other results from its incomplete statement of the law on what constitutes a prima facie case. The majority opinion states that under Fleetwood the General Counsel could establish a prima facie case here if “the employer’s decision as to how to treat the three returning strikers was attributable to their protected activity.” Maj. Op. at 1263. That, however, is only part of the story. The Fleetwood framework for evaluating discrimination in the context of striker reinstatement is drawn directly from the Supreme Court’s general explication of section 8(a)(3) discrimination in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 545-46, 19 L.Ed.2d 614 (1967) (citing Great Dane). Under Great Dane the fact that an employer considers protected activity in its treatment of employees is not sufficient to constitute unlawful discrimination under the Act. Rather, employer conduct constitutes unlawful discrimination under section 8(a)(3) only if there is “discrimination and a resulting discouragement of union membership.” Great Dane, 388 U.S. at 32, 87 S.Ct. at 1796 (emphasis added) (citing American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965)).5 Furthermore, whether an employer’s action discourages union membership is a necessary element of the General Counsel’s prima facie case. See id. at 34, 87 S.Ct. at 1797-98 (burden shifts to employer “once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent”) (emphasis in original).6
On this record the General Counsel failed to establish that Diamond’s placement of Miller and Munoz could have adversely affected employee rights to any extent. The Board failed even to reach the issue and its order should not be enforced on that ground alone. See JA 17 (concluding a prima facie case had been established solely on the basis of the General Counsel’s contention that Miller, Munoz and Kussair were placed “because of their union status and/or because of certain protected union activity they engaged in while on strike”). Similarly, the majority never addresses the question whether Diamond’s actions could have discouraged union membership or participation in the strike.7 See NLRB v. Erie Resistor Corp., 373 U.S. 221, 233, 83 S.Ct. 1139, 1148, 10 L.Ed.2d 308 (1963) (Discouragement of union membership “includes discouraging participation in concerted activities ... such as a legitimate strike.” (citation omitted)). In many cases whether union members have received different treatment and whether there is a resulting discouragement of union membership collapse. In this case the majority relies on the fact that Diamond considered union activity in placing Miller and Munoz in positions that paid less than other positions for which they were qualified. The distance between being *1282paid less because of protected activity and being discouraged from that protected activity may be short. Nonetheless, neither the General Counsel nor the Board nor the majority opinion even tries to make the journey.8
In determining whether Diamond’s placement of the returning strikers could have discouraged protected activity, we must examine more than the differing wages as the majority has done.9 Comparing the positions offered to Miller and Munoz to the positions they claim they should have been given, I fail to see how it can reasonably be thought that Diamond’s placement of them could have discouraged protected activity. Miller and Munoz (and Kussair) crossed the picket line as union agents for the declared purposes of campaigning and monitoring Diamond’s preelection activity. Also, their Union, through William Freitas, the Union official who accompanied the delegation of returning strikers, instructed Diamond that any communications between Diamond and Miller, Munoz and Kussair had to go through the Union rather than directly with the returning strikers. In short, Miller and Munoz returned to campaign — not simply to earn a living. Accordingly, an important, if not the most important, feature of their respective positions was proximity to replacement workers. Diamond contends that “because the striking workers were coming back in part at least to campaign, ... we tried to put them in departments where a lot of people worked and that they had access to being with those people and ... weren’t isolated.” JA 122 (testimony of Daniel O’Connell, Diamond’s vice-president of operations). Accordingly, Diamond placed Miller in the largest department of the plant, containing about 75-80 people, JA 131-32, and Munoz in the second largest department, containing about 50 people, JA 270.
By contrast, the jobs that Miller and Munoz claim Diamond should have placed them in provided less contact with replacement workers. The forklift position Munoz claims she should have received would have meant that “in most cases” she would have been “on [her] own.” JA 143 (testimony of Daniel O’Connell). Likewise, the quality assurance position that Miller says she should have been placed in required “quite a bit of unsupervised, unobserved freedom.” JA 135 (testimony of Daniel O’Connell).10 In light of both the strikers’ dual purposes in returning and their dual capacities as employees and union agents, the General Counsel failed to *1283establish discrimination that could discourage union membership by Diamond’s placement of Miller and Munoz in positions that were plainly advantageous to them (and to their union). And to the extent this may be a close call, we do not owe deference to the Board because there is nothing to defer to— the Board failed even to discern the issue of discouragement.
But there is little need to speculate about the relative desirability of the positions in which Miller and Munoz were placed and those which they now claim they should have been given. We need only look at Miller’s and Munoz’s own actions. Miller and Munoz never requested particular jobs nor asked for transfers once Diamond had placed them. While an employee bears no burden to apply for a certain position or to request a transfer (and concedes no rights under the Act by failing to do so), when he fails to do so, his inaction may at least suggest that the position he has been given is not in fact less desirable.
More important, the Union never objected to the placement of the workers until after the election. When there is no timely objection to the employer’s action, the majority’s finding of discrimination solely on the basis of one term of employment — here a small differential in wages — places an intolerable burden on employers. Its approach allows a union that has lost an election (or, as here, two elections) to comb the record after the fact to find an available job with some preferential term that a returning striker was not given — despite the employer’s lack of notice of the preference — and then claim discrimination. For example, had Miller and Munoz been placed in the quality assurance and forklift positions, they then most likely would have claimed discrimination from being isolated from the replacement workers. Indeed, the Board has found on several occasions that transferring an employee to an isolated spot constitutes discrimination under the Act. See, e.g., Inductive Components, Inc., 271 N.L.R.B. 1448, 1469, 1984 WL 36761 (1984); Tappan Co., 228 N.L.R.B. 1389, 1390-91, 1397, 1977 WL 8540 (1977), enforced on other issue, NLRB v. Tappan Co., 607 F.2d 764 (6th Cir.1979); Fabric Mart Draperies, Inc., 182 N.L.R.B. 390, 395-96 (1970). In sum, the majority’s willingness to find a prima facie ease solely on the placement of a returning striker in a position that does not compare favorably in a single aspect with another available position leaves even the best-intentioned employer with little or no guidance on how to assign returning strikers without running afoul of the Act. I conclude that the General Counsel failed to establish a prima facie case with respect to Miller, Munoz and Kussair.
II.
Even if the General Counsel did establish a prima facie case with respect to Miller and Munoz, Diamond had a legitimate and substantial business justification for placing both workers where it did and therefore did not violate the Act under Fleetwood. Diamond feared that the returning strikers could engage in product tampering or sabotage or otherwise disrupt its operation. Miller and Munoz had already participated in a well-publicized cross-country tour urging a national Diamond boycott, a campaign dramatically disparaging Diamond’s product. Strikers on the tour distributed leaflets charging that Diamond had hired unqualified replacement workers who allowed contaminated and inedible walnuts — with mold, dirt, oil, worms and debris — to be marketed.11 Besides its fear that Miller and Munoz might try to *1284make the charges ring true (e.g., by adulterating Diamond’s product), Diamond knew Miller’s and Munoz’s track record of attempting to damage Diamond economically. Consequently Diamond was concerned that once inside the plant the activists could wreak economic havoc by delaying production or otherwise disrupting its operation during peak season.
In concluding that Diamond had a legitimate and substantial business justification for putting Miller in the packing position, the majority rejects the assertion that an employer can have a justification based on sabotage only if there have been specific threats from the returning strikers themselves.12 Rather, the majority accepts that Miller’s participation in protected activity that disparaged Diamond’s product justified discriminatory placement because “[bjoth the risk Diamond faced in its placement of Miller was qualitatively different than a normal risk of sabotage, and the deterrence to Miller’s possible misbehavior was peculiarly inadequate.” Maj. Op. at 1269.
The problem with the majority’s handling of Miller is that it is inconsistent with the majority’s conclusion that Diamond lacked a legitimate and substantial business justification regarding Munoz. Diamond’s concern that Munoz might cause damage while driving the forklift forms only part of Diamond’s asserted business justification for placing Munoz where it did. Just as with Miller, Diamond was concerned that Munoz, as a forklift operator, could engage in sabotage by adulterating Diamond’s product. Pet’r Opening Br. at 39 (forklift driver “could easily ... mix a harmful substance in with the walnuts”).13 As for the likelihood that Munoz would commit the sabotage, there was no greater disincentive for Munoz than for Miller. As a forklift driver Munoz would have had access to the finished product without any supervisors present. Although the majority opinion concludes that the possibility of Munoz’s adulterating the product was an “ancillary concern,” Maj. Op. at 1264 n.4, the record does not support that characterization. Indeed, when asked whether forklift operators have access to the finished product, Diamond’s vice-president of operations responded:
In many, many cases they do. Depending upon the area that they work in, much of their access is to the finished product. They’re expected to put it away or retrieve it for shipment or move it from one department to another. Finished product can be in a box. It could also be in a metal or wooden bin in which its [sic] finished processing and ready to go into a container. And that’s just as even — that’s perhaps even more susceptible to any type of contamination or some type of foul play.
JA 143-44 (emphasis added).14 It appears, then, that the only distinction between Miller *1285and Munoz is that Miller could have engaged in sabotage through nonfeasance by allowing an inferior product to pass by her while Munoz would have had to act affirmatively by, for example, placing an impurity in the product. This is too fine a point to put between conduct that violates the Act and conduct that does not.15 First, what constitutes misfeasance as opposed to nonfeasance is difficult to define. If a quality control worker has a duty to remove impurities and deliberately fails to do so, is the failure nonfeasance or misfeasance? Second, the distinction would require employers, the Board and reviewing courts to assess the relative risks of a returning striker who simply ignores product impurities and one who affirmatively adulterates the product. Such inquiries are likely to send all involved down the road of groundless speculation.
The majority opinion draws distinctions among Miller, Munoz and Kussair (resulting in treatment under three different legal rationales) that are not supported by the record. I believe that the General Counsel failed to make a prima facie case of discrimination with respect to any one of the three. In the alternative, I would find that Diamond had a legitimate and substantial business justification for its placement of Miller and Munoz and did not discriminate against Kussair. Accordingly, I concur in the majority’s result regarding Miller and Kussair and I dissent from its holding as to Munoz.
. The majority finds a prima facie case of discrimination but a legitimate and substantial business justification as to Miller, a prima facie case but no legitimate and substantial business justification as to Munoz and reinstates the panel judgment as to Kussair.
. Notwithstanding the majority’s and Judge Wald’s protestations, the issue of the General Counsel's prima facie case is properly before the court. First, Diamond argued in its brief to the Board that the General Counsel had not established a prima facie case. See Employer’s Opposition to Counsel for the General Counsel and Counsel for the Charging Party's Exceptions to the Decision of the Administrative Law Judge at 6-19 (No. 32-CA-13479) (arguing that Diamond's placement of workers was non-discriminatory because, regardless of union activity, workers were not entitled to have their seniority or qualifications from their previous permanent positions considered in their placement in seasonal jobs). Diamond's initial brief to the panel described the issue presented simply as "whether the NLRB properly found that Diamond ... violated section 8(a)(3) and 8(a)(1) of the Act” and thus encompassed the question whether the General Counsel had established a prima facie case. Moreover, the majority is simply wrong in its statement that Diamond "does not dispute that its action discriminated against Munoz and Miller within the meaning of the Act.” Maj. Op. at 1263. What Diamond does not dispute is that it considered Miller’s and Munoz's protected activity in placing them. As discussed in more detail infra, that acknowledgment is insufficient to establish a prima facie case unless Diamond’s actions also had an adverse effect on protected activity. Whether Diamond’s placement of the returning strikers in fact had an adverse effect is vigorously disputed by Diamond. Diamond argues that "the adverse effect of placing the ... strikers in two of the largest departments in the plant, if any, was comparatively slight.” Pet’r Opening Br. at 25 (emphasis added). Diamond then detailed why the adverse effect if any of the placement of the returning strikers would be comparatively slight:
The jobs to which [the returning strikers] were assigned were not inferior or substandard ones. They were right in the mainstream of the plant, in the two biggest departments. More replacement workers held the very same positions given to the strikers than any other positions in the plant. These were not humiliating or difficult jobs in which the strikers were placed; they were the most common and easy jobs in the plant.
Id.
. The majority characterizes the jobs Miller and Munoz received as "objectively” less desirable than the jobs they claim they should have been given. Maj. Op. at 1263. I take this characterization to be based solely on the wage differential between the respective jobs inasmuch as the majority mentions no other factors supporting its assessment of “objective" desirability.
. The majority intimates that it does not conclude anything with respect to Kussair but rather simply reinstates the panel judgment. Maj. Op. at 1263 n.2. But the majority’s statement that the panel’s disposition of Kussair is not before the en banc court — based on the fact that the Board did not seek rehearing on Kussair — is incorrect because the intervenor Unions sought rehearing en banc on the panel's entire decision, including its decision as to Kussair. See Intervenors' Pet. for Reh’g and Suggestion for Reh’g En Banc at 2. We granted the suggestions of both the Board and the Unions, 88 F.3d 1064 (D.C.Cir.1996); accordingly, the panel’s disposition of Kussair is before the en banc court.
. Similarly, the statute itself forbids only discrimination that “discouragefs] membership in any labor organization.” 29 U.S.C. § 158(a)(3) (emphasis added). Although not relevant here, the statute also prohibits discrimination that encourages union activity. Id.
. There is also an animus aspect to the discouragement of union membership. Even if employer conduct could discourage union membership, the conduct is not unlawful under the Act unless the employer acted with the purpose of discouraging union membership. Employer animus, however, does not form a part of the General Counsel's prima facie case. See Great Dane, 388 U.S. at 33-34, 87 S.Ct. at 1797-98. Instead, the General Counsel need only produce evidence of animus if the employer's conduct is not "inherently destructive” of employee rights and only after the employer has come forward with evidence of a legitimate and substantial business justification to rebut the General Counsel's prima facie case. Id.
.Although unstated, this may be the factor upon which the majority distinguishes Kussair from Miller and Munoz. In other words, because Kussair was given a less onerous job and Diamond agreed to transfer him upon request, it would be difficult to conclude that Diamond's placement of Kussair could have adversely affected employee rights. I think this is precisely the rationale that should be used to explain the lack of a prima facie case with respect to Kussair. As explained infra, the same "missing link” defeats the General Counsel's prima facie case regarding Miller and Munoz.
. Fleetwood, (a failure to rehire case) is itself a good example of a case where the questions of differential treatment and discouragement of protected activity collapse. Fleetwood declares simply, "If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to discourage employees from exercising their rights...." 389 U.S. at 378, 88 S.Ct. at 546. There was, without doubt, discouragement on the Fleetwood facts. This case, however, is not a failure to rehire case and for that reason, among others, the question of discouragement is more difficult.
. It would be proper to focus exclusively on wages when, for example, an employer placed returning strikers in positions and paid them less than it was paying replacement workers for the same positions. That would constitute discrimination under the Act and would also result in discouragement of protected activity. The question in this case, however, is different. The alleged discrimination is not only the payment of a lower wage but also the discriminatory placement of a returning striker in one position rather than another. To determine whether that placement is discriminatory it is necessary to compare the position the returning striker received with the position the returning striker claims he should have received. Even when we look at wages in this case, the differentials may not have been enough to discourage protected activity. The record is ambiguous regarding how much Munoz would have earned in the forklift position, stating that it would have been between $2.50 and $5.00 more per hour. As for Miller the job she claims she should have received paid 32 cents more per hour. Assuming a forty hour work week, during the two weeks Miller returned to work she grossed approximately $25 less than she would have in the quality assurance position.
.Although O'Connell’s testimony that Miller would have been "unobserved” if in the quality assurance position and Munoz would have been "on her own” in the forklift position was given in the context of Diamond’s fears of sabotage, the testimony is nonetheless relevant in this context as well. If Miller and Munoz had been unobserved by other workers in the positions they claim they should have been given, they would have been unable to lobby replacement workers and monitor Diamond’s actions in the preelection period as well as they could in the two largest departments in the plant where Diamond placed them.
. In addition, Diamond’s customers and, it appears, the United States Department of Health and Human Services received a letter including the following (false) message:
Many of the workers that have actually replaced us, the striker’s [sic] of Diamond Walnut, are people whom [sic] have police records as being drag addicts, drag dealers, alcoholics and even prostitutes. Through blood testing of workers who have broken the picket line, many of them having bad records, it would be found that there is a significant amount of positive results like the detection of the AIDS virus, Sifillis [sic], Gonorrea [sic], Hepatitis and other contagious diseases with high risk of contamination to the public.
JA 401-02 (emphasis added). Notwithstanding the highlighted language as well as the signature line which read "The Original and United Workers of Diamond Walnut,” the Union disavowed responsibility for the letter and the ALJ gave it no weight.
.Judge Wald characterizes this result as a "remarkable innovation in labor management law” that "establishes a dangerous precedent that will be readily embraced by employers and will critically erode employees’ statutory rights under the NLRA,” Wald Op. at 1270. Judge Wald’s prediction, and her suggestion that employers henceforth may be able to avoid rehiring all returning strikers in every labor dispute, id. at 1276, plainly exaggerates the potential effect on employee rights because it fails to fit the employer’s business justification into the Fleetwood framework. A finding that an employer has a legitimate and substantial business justification does not end the inquiry under Fleetwood. Even if an employer has such a justification, a violation of the Act can still be established through "specific evidence of a subjective intent to discriminate or to encourage or discourage union membership.” NLRB v. Erie Resistor Corp., 373 U.S. 221, 227, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308 (1963). Moreover, proof of antiunion motivation may be made by way of circumstantial evidence. See Avecor, Inc. v. NLRB, 931 F.2d 924 (D.C.Cir.1991). Although neither the General Counsel nor the Unions were able point to a shred of evidence (direct or circumstantial) of animus here, not every strike case will be so barren. Finally, for employer conduct that is "inherently destructive” of employee rights, the majority’s holding is of little import. For that class of cases, the Board can infer antiunion motivation irrespective of a legitimate and substantial business justification. See Great Dane, 388 U.S. at 34, 87 S.Ct. at 1797-98.
. Diamond raised the identical concern before the Board, see Employer’s Br. in Support of Limited Exceptions to the Decision of the Administrative Law Judge at 34 (No. 32-CA-13467), and before the panel. See Pet’r Opening Br. to the Panel at 36.
. The majority’s suggestion that I have attached more importance to this matter than is warranted in light of Diamond’s failure to "emphasize” this point, Maj. Op. at 1265 n.5, is troubling. *1285Apparently, it is not enough, to unequivocally make an argument, as Diamond has done here, see Pet’r Opening Br. at 39, but now the party must also "emphasize" each argument. The likely effect of the majority’s standard on the verbosity of future briefs to this court is not difficult to discern.
. Munoz's “nonfeasance” could also have caused different, but substantial, economic damage to Diamond. The strikers returned during Diamond’s peak season and a lackadaisical forklift driver could have prevented Diamond from meeting tight shipping deadlines. JA 245-46.