dissenting.
The National Labor Relations Board (“NLRB” or “Board”) seeks enforcement of its Decision and Order that found American Olean Tile Company (“Company”) in violation of section 8(a)(1) and (3) of the National Labor Relations Act (“Act”), 29 U.S.C. § 158(a)(1) & (3) (1982), for granting poststrike preferential reinstatement rights to twelve permanently replaced employees who abandoned an economic strike or made individual offers to return to work. I conclude, contrary to the majority, that the Board properly held that the right to reinstatement continues until the returning strikers have been offered their former or substantially equivalent positions. I further conclude that the Board reasonably determined that the preferences granted in this case were “inherently destructive” of the rights of full-term strikers. Accordingly, I dissent.
I.
The majority’s refusal to enforce the Board’s Decision and Order is due primarily to its disagreement with the Board’s determination of the scope of the returning strikers’ right to reinstatement. The relative rights to reinstatement as between the twelve abandoning strikers and the full-term strikers are crucial to resolving the issue before us because to find a violation of section 8(a)(3) of the Act, the Board must first find, inter alia, that the employer discriminated between its employees. See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 32, 87 S.Ct. 1792, 1796, 18 L.Ed.2d 1027 (1967); 29 U.S.C. § 158(a)(3) (1982). The Board, adopting the AU’s decision, held that returning strikers are not fully reinstated until the strikers are returned to their former positions or substantially equivalent ones. As applied to the instant case, neither the twelve nor the full-term strikers had yet been returned to substantially equivalent positions, so when substantially equivalent jobs opened at Cloverport, the two groups had an equal right to reinstatement there. The Board concluded, therefore, that the Company necessarily discriminated against the full-term strikers by preferentially reinstating the twelve abandoning strikers to Cloverport.
*1503The majority, however, holds that the twelve abandoning strikers were fully reinstated when they were recalled to less than substantially equivalent positions at Lewis-port. The premise underlying this holding is that the returning strikers’ have the right to be reinstated only to positions for which they are qualified, regardless of whether the jobs are substantially equivalent to their prestrike positions. Once returning strikers are “reinstated” to such positions, the majority assumes that the employer is free to transfer the reinstated strikers between positions.1 Thus, under the majority’s view, the Company did not discriminate against the full-term strikers by transferring the twelve to substantially equivalent positions at Cloverport; the full-term strikers, who were not yet reinstated, did not have an equal right to the Clover-port positions. Under this theory, if any discrimination occurred, it must have been when the twelve were initially recalled to Lewisport, an issue not now before the court.2
In my view, the majority’s holding misconstrues the law of reinstatement rights to the detriment of workers who choose to engage in a lawful strike. First, I note that the only authority cited by the majority supports neither its holding that returning strikers are fully reinstated upon accepting positions for which they are qualified, but which are not substantially equivalent positions, nor the corollary that returning strikers who refuse such offers lose their right to reinstatement. In NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967), the Supreme Court addressed the rights of returning economic strikers who had been permanently replaced during the strike, and held that “[i]f and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement.” Id. at 381, 88 S.Ct. at 547 (emphasis added). The majority, however, cites Fleetwood Trailer for the proposition that “[t]he law requires reinstatement when a vacancy occurs for which an offeror is qualified, whether in his previous position or a substantially equivalent one, or not.” Maj. Op. at 1501 (emphasis added). The majority thus transforms an “entitlement to an offer” into a “requirement” that the employee accept such an offer. In my view, this extension of Fleetwood Trailer is unwarranted. Fleetwood Trailer never suggested that it was exhaustively delineating the rights of returning strikers. Rather, the Court was only announcing the minimum duty that an employer owes to permanently replaced strikers upon termination of an economic strike. See also Laidlaw Corp. v. NLRB, 414 F.2d 99, 103-06 (7th Cir.1969) (right to reinstatement continues until permanent replacement departs from striker’s prestrike position), enforcing, 171 N.L.R.B. 1366 (1968), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970).
Moreover, the “entitlement to an offer” which the Court announced in Fleetwood Trailer was clearly intended to protect those employees who exercised their statutory right to strike. See Fleetwood Trailer, 389 U.S. at 378-81; Laidlaw, 414 F.2d at 102-05; 29 U.S.C. § 157 (1982); see also MCC Pacific Valves, 244 N.L.R.B. 931, 934 (1979) (characterizing Fleetwood Trailer and Laidlaw as “legal precedent which protects the rights of unreinstated strikers”), enforced in part, 665 F.2d 1053 (9th Cir.1981). In my opinion, the majority’s transformation of this “entitlement” into a “re*1504quirement” departs significantly from the employee-protection rationale underlying the cited cases and the Act. See 29 U.S.C. §§ 141(b), 151 (1982). Under the majority’s rule, if returning strikers refuse reinstatement to positions less than substantially equivalent to their prestrike jobs, no matter how undesirable, they forever lose their right to reinstatement. By so limiting the employees’ rights, the majority grants the employer a powerful weapon that can be used to punish returning strikers for engaging in concerted activities. This potential for abuse is too great to be reconciled with the purposes of the Act.
The “potential” for abuse, however, is not merely the product of conjecture and imagination. The NLRB has decided a series of cases in which employers have attempted to retaliate against strikers by offering them jobs that were less than substantially equivalent to their former positions. See, e.g., Harvey Eng’g & Mfg. Corp., 270 N.L.R.B. 1290, 1292 (1984) (employer violates section 8(a)(1) and (3) by removing returning striker from preferential hiring list due to striker’s refusal of position that was not substantially equivalent to prestrike job); MCC Pacific Valves, 244 N.L.R.B. at 936 (“Respondent violated section 8(a)(1) and (3) of the Act when it terminated unreinstated strikers ... because [they] declined to accept reinstatement job offers which were not substantially equivalent to their [prestrike jobs.]”); Providence Medical Center, 243 N.L.R.B. 714, 743-44 (1979) (same); Alcan Cable West, 214 N.L.R.B. 236, 249-50 (1974) (same). In each of these cases, the Board exercised its “special function of applying the general provisions of the Act to the complexities of industrial life,” NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963), and determined that returning strikers’ reinstatement rights must include the right to be returned to their former or substantially equivalent positions. After observing employer retaliation in action, the Board reasonably concluded that the threat to the employees’ right to strike was too great to permit an employer to demand that returning strikers accept particular jobs, unless the jobs are substantially equivalent to their prestrike positions.
I believe that the majority’s reversal of the Board’s rule is inconsistent with our limited review. Although a reviewing court might disagree with the Board’s conclusion, “ ‘we are not free to substitute our judgment for that of the Board simply because we would have made a different decision. ...’” NLRB v. Local 1131, 777 F.2d 1131, 1136 (6th Cir.1985) (quoting NLRB v. Pipefitters Union Local No. 120, 719 F.2d 178, 181 (6th Cir.1983)). “ ‘The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’ ” Erie Resistor, 373 U.S. at 236, 83 S.Ct. at 1150 (quoting NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957)). The only justification the majority offers for reaching a conclusion contrary to the Board’s interpretation is its suggestion that allowing the returning strikers to refuse reinstatement to less than substantially equivalent employment will have some unarticulated, disastrous results, such as “upset[ting] the balance of interests sought to be served by court-created rules relating to reinstatement.” Maj. Op. at 1501. I do not believe, however, that this analysis adequately supports a departure from the Board’s reasonable application of the Act, which was developed in a series of cases in which the Board had a unique opportunity to balance the harm to employee rights with the employers’ asserted justifications. Accordingly, I find that the ALJ, following Board precedent, properly held that all of the returning strikers retained the right to reinstatement to their former positions or substantially equivalent ones and, therefore, that the twelve abandoning strikers were not fully reinstated when they accepted interim positions at Lewisport. Consequently, as discussed above, the Company’s preference of the twelve must be con*1505sidered “discrimination” against the full-term strikers.
II.
The question remaining is whether the Board reasonably concluded that this discrimination was “inherently destructive” of the full-term strikers’ rights. As just discussed, permanently replaced returning strikers have the continuing right to be reinstated to their former positions or substantially equivalent ones, which includes the subsidiary right to be offered any positions for which they are qualified that open upon the departure of permanent replacements. See Fleetwood Trailer, 389 U.S. at 381, 88 S.Ct. at 547; NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938); Laidlaw, 414 F.2d at 103-05; MCC Pacific Valves, 244 N.L.R.B. at 933-34, 936. When more than one returning striker is qualified to fill a job, however, the employer must determine a method of recall and may resort to “any one of a number of methods” to do so. Mackay, 304 U.S. at 347, 58 S.Ct. at 911; see Lone Star Indus., 279 N.L.R.B. No. 78, 1985-86 NLRB Dec. (CCH) ¶ 17,980, at 30,889 (1986); Bio-Science Laboratories, 209 N.L.R.B. 796, 797 (1974).
Although the employer thus enjoys great freedom in devising a recall procedure, a plan will nonetheless violate section 8(a)(1) and (3) of the Act if it is adopted with the purpose of discriminating against those most active in the union. See Mackay, 304 U.S. at 347; 29 U.S.C. § 158(a)(1) & (3) (1982). In general, to find a violation of section 8(a)(1) and (3),3 the Board must initially find “a discrimination and a resulting discouragement of union membership” or other concerted activities protected under section 7 of the Act, 29 U.S.C. § 157 (1982).4 Great Dane, 388 U.S. at 32, 87 S.Ct. at 796. If the employer is then able to satisfy its burden of showing “legitimate and substantial business justifications” for the challenged practice, id. at 34, 87 S.Ct. at 1798, a violation will be made out only if the Board finds that the employer was motivated by antiunion animus. Id. at 33-34, 87 S.Ct. at 1797; see NLRB v. Brown, 380 U.S. 278, 286, 85 S.Ct. 980, 985, 13 L.Ed.2d 839 (1965); cf. Mackay, 304 U.S. at 347, 58 S.Ct. at 911.
A finding of the employer’s subjective antiunion motivation is unnecessary, however, if the Board can reasonably conclude that the employer’s conduct is “inherently destructive” of employee rights protected by the Act. See Great Dane, 388 U.S. at 33-34, 87 S.Ct. at 1797; Brown, 380 U.S. at 287, 85 S.Ct. at 986; Erie Resistor, 373 U.S. at 227-29, 231, 83 S.Ct. at 1144-45, 1147. To come within the doctrine, an employer must distinguish between its employees on a basis that is in derogation of their rights to engage in concerted activities, and must confer benefits upon one class of employees, who are recognizable only by reference to the impermissible distinction, such that the effect on employee rights may not be termed “comparatively slight.” See Great Dane, 388 U.S. at 32-34, 87 S.Ct. at 1796-97; Erie Resistor, 373 U.S. at 228-32, 83 S.Ct. at 1145-47. Only then may the employer’s conduct be deemed so egregious that it bears its own indicia of antiunion motivation. See Erie Resistor, 373 U.S. at 231, 83 S.Ct. at 1147. Finally, if conduct may reasonably be la-belled “inherently destructive,” the Board may disregard the employer’s asserted *1506business justification and conclude that the inevitable harm to employee rights requires the finding that the Act has been violated. See Great Dane, 388 U.S. at 33-34, 87 S.Ct. at 1797; Erie Resistor, 373 U.S. at 228-29, 236-37, 83 S.Ct. at 1145, 1149-50.
Applying these principles, I believe that the Board reasonably concluded that the nature of the poststrike chronological recall plan was such that it revealed “its own indicia of intent,” Erie Resistor, 373 U.S. at 231, 83 S.Ct. at 1147, and therefore deserved the “inherently destructive” label. As discussed above in Part I, the chronological plan was blatant discrimination against employees who exercised their statutory right to strike until the end. Cf. Great Dane, 388 U.S. at 32, 87 S.Ct. at 1797. The Board reasonably found that the Company distinguished between its employees on a basis that was inextricably intertwined with, and in derogation of, the full-term strikers’ right to strike. The majority’s contrary conclusion, that the plan “made no distinction between those who offered during the strike and those who did so after it ended,” Maj. Op. at 1502, exalts form over substance. Since the final group to apply for reinstatement would inevitably be the full-term strikers, the Board was free to conclude that the plan preferred one group of employees over the other solely because they deserted the Union ranks.
Because the plan thus discriminated between employees based on their allegiance to the strike and the Union, it “surely may have [had] a discouraging effect on either present or future concerted activity.” Great Dane, 388 U.S. at 32, 87 S.Ct. at 1797. Indeed, in this case the discouraging effects were more than hypothetical. Five of the twelve employees whose reinstatements are at issue here actually made their individual offers to return to work after the Union membership had voted to terminate the strike and the Union had communicated its offer to return to work on behalf of all of its members.5 A more vivid example of the discouragement of union membership and concerted activities is difficult to imagine.
Furthermore, the Board reasonably concluded that benefits granted to those employees who abandoned the strike were so valuable that the resulting harm to employee rights could not be considered “comparatively slight.” Great Dane, 388 U.S. at 34, 87 S.Ct. at 1798. The place that permanently replaced economic strikers occupy on a reinstatement list is of the utmost concern to the strikers. A grant of preferential reinstatement rights means that the benefitted employees will be returned to work at an earlier date, begin receiving paychecks again, and accrue greater seniority rights. To condition such a valuable preference solely on the employees’ decision to desert the Union is conduct that can only serve to induce such desertion, as the behavior of the five who made their offers after the Union’s suggests, and is thus in conflict with the Act’s goal of protecting concerted activity.
Under these circumstances, the Board’s determination — that use of the chronological recall list after termination of the strike was “inherently destructive” of the rights of full-term strikers — was supported by substantial evidence, 29 U.S.C. § 160(e) (1982). See George Banta Co. v. NLRB, 686 F.2d 10, 18-19 (D.C.Cir.1982) (enforcing NLRB decision which found similar reinstatement plan “inherently destructive”). The Company’s blatantly discriminatory conduct, and the profound effects that it would inevitably have, justified the Board’s conclusion that poststrike utilization of the chronological list violated the Act, without regard to the Company’s subjective intent.6
*1507Moreover, in my opinion the majority unjustifiably criticizes this conclusion by suggesting that it makes unlawful after the strike a practice that was lawful during the strike. Contrary to the majority’s statement that “the procedure was admittedly lawful during the strike,” Maj. Op. 1501, the Union and General Counsel have conceded only that the actual recalls from the chronological list during the strike were lawful, a point which has never been in dispute. The Union and General Counsel have not conceded, however, the legality of the Company’s oral promises to abandoning strikers that they would be granted post-strike preferential reinstatement to Clover-port. Indeed, the finding that the post-strike preferential reinstatements were inherently destructive necessarily implies that the original promises were also violative of the Act.7
Finally, I must also reject the majority’s contention that the reinstatement plan was lawful because it was “applied consistently.” Consistent application will not save a plan that is inherently destructive of employees’ rights to engage in concerted activities.
For the foregoing reasons, I would enforce the Board’s Decision and Order.8
. Dicta in at least one NLRB decision lends some support to the conclusion that fully reinstated strikers may be preferred to unreinstated strikers.
We recognize that not every job opening is one that an unreinstated striker, though qualified, is entitled to fill. There may be circumstances, for example, in which the rights of unreinstated strikers may conflict with the rights of those strikers who have been reinstated____ MCC Pacific Valves, 244 N.L.R.B. 931, 934 n. 15 (1979) (emphasis in original), enforced in part, 665 F.2d 1053 (9th Cir.1981). As will be discussed below, however, in the Board’s view, full reinstatement does not occur until the strikers return to their former or substantially equivalent positions.
. The initial recalls to Lewisport occurred outside the six month statute of limitations period applicable to unfair labor practice charges. See 29 U.S.C. § 160(b) (1982).
. Section 8 of the Act states in pertinent part:
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. ...
29 U.S.C. § 158(a)(1) & (3) (1982).
. Section 7 of the Act states in pertinent part:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activites for the purpose of collective bargaining or other mutual aid or protection____
29 U.S.C. § 157 (1982).
. The AU explicitly found that the five employees made their individual offers to return after the Union’s. Since the Union’s offer was made at approximately 1 a.m., and the five employees made their offers between approximately 8 and 9:30 a.m. the same morning, I must conclude that the ALJ’s finding is supported by substantial evidence. See 29 U.S.C. § 160(e) (1982).
. I would also affirm the Board’s conclusion that the Company’s "inherently destructive" conduct was not privileged by the Company’s asserted business justifications. See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967); NLRB v. Erie Resistor Corp., 373 U.S. 221, 228-29, 236-37, 83 S.Ct. 1139, 1145, 1149-50, 10 L.Ed.2d 308 (1963).
. The Company argues that this action was barred by the six-month statute of limitations, 29 U.S.C. § 160(b), because the promises occurred outside the limitations period, and the actual transfers were merely in execution of those promises. To succeed in this defense, the Company had the burden of proving that the Union had clear and unequivocal notice, either actual or constructive, of the Company’s promises to the twelve, and that such notice occurred outside the limitations period. See Strick Corp., 241 N.L.R.B. 210 n. 1 (1979); see also Adkins v. International Union of Elec., Radio & Mach. Workers, 769 F.2d 330, 335 (6th Cir. 1985). The Board held, however, that the Company failed in its burden of proof, and I conclude that this holding is supported by substantial evidence. See 29 U.S.C. § 160(e) (1982). Although the Union was undoubtedly aware that some preference plan was instituted, the Company’s proof failed to show clear and unequivocal notice, either actual or constructive, of its intention to preferentially transfer abandoning strikers to Cloverport. Only after the Board handed down its decision did the Company move to reopen the record to introduce affidavit testimony of strikers that would tend to prove such notice, but the Board properly concluded that the affidavit testimony was not newly discovered or previously unavailable evidence that would warrant reopening the record. Under these circumstances, the Board correctly held that the Union was not put on notice of the impending transfers until the first transfer occurred, which was indisputably within the limitations period.
. I reject the Company's argument that the Board’s decision mandates that the Company recall its strikers according to seniority. The Act, of course, imposes no such requirement absent a binding agreement or past practice. Lone Star Indus., 279 N.L.R.B. No. 78, 1985-86 NLRB Dec. (CCH) ¶ 17,980, at 30,889 (1986). In the instant case, however, the Board specifically determined that immediately after the strike the Company chose to reinstate full-term strikers according to their pre-strike seniority. Having properly determined that the preference granted to the abandoning strikers was in violation of the Act, the Board merely ordered the Company to treat the twelve on the same basis as it treated the full-term strikers. Thus, because the Company chose to reinstate full-term strikers according to seniority, the remedy adopted the same criterion. The Board did not require the original seniority-based recall list, nor does its present order impose a future requirement of such recalls. The Board’s decision, therefore, imposes no affirmative duty on the Company that is inconsistent with the Act.