Merit Electric Co.

National Labor Relations Board - Board Decisions

Nov 7, 1997

325 N.L.R.B. 32 (N.L.R.B. 1997)

32
325 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At the time Roper applied for work with the Respondent in Au-
gust 1994, he was the business manager for International Brother-
hood of Electrical Workers, Local 308, AFL–CIO. He had been em-
ployed in that capacity since July 1977.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
3 If the judge had evaluated the Respondent’s explanations for its
action and concluded that the reasons advanced were pretextual, then
we would agree with our dissenting colleague that there would be
no need for a remand. The problem here, however, is that the judge
did not find that the reasons asserted by the Respondent were mere
pretexts. In the absence of a finding of pretext and in the absence
of a finding concerning the credibility of Wooten’s testimony, we
can only speculate what the judge’s Wright Line analysis would be.
Accordingly, a remand to the judge is clearly warranted.
Our dissenting colleague does not dispute that the judge failed to
make a clear credibility resolution concerning Wooten’s testimony.
Further, the dissent concedes, as it must, that the judge’s decision
contains no discussion whatsoever of one of the three reasons prof-
fered by the Respondent (Roper’s poor work habits). Nevertheless,
the dissent claims that the judge ‘‘has made all the necessary find-
ings,’’ citing the judge’s repeated statement that ‘‘the motivating fac-
tor’’ in the failure to hire Roper was his union activity. We disagree.
Whether union activity was or was not ‘‘the motivating factor’’ in
an employment decision is a conclusion one reaches after analyzing
a respondent’s Wright Line defense; use of ‘‘the motivating factor’’
phrase is not an appropriate substitute for reasoned analysis. Careful
examination of the judge’s decision fails to reveal how he arrived
at the conclusion that union activity was ‘‘the motivating factor’’ in
the failure to hire Roper. Therefore, contrary to the dissent’s asser-
tion, this case is not ‘‘ripe for review.’’
Merit Electric Company, Inc. and International
Brotherhood of Electrical Workers, Local
Union 728, AFL–CIO and International Broth-
erhood of Electrical Workers, Local Union 915,
AFL–CIO. Cases 12–CA–16363, 12–CA–16532,
12–CA–16638, 12–CA–16707, 12–CA–16720,
12–CA–16739, and 12–CA–16796
November 7, 1997
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On February 19, 1997, Administrative Law Judge
Robert C. Batson delivered a bench decision in this
proceeding, and on April 16, 1997, he issued his sup-
plement to bench decision. The General Counsel and
the Respondent each filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has considered
the bench decision, the supplement, and the record in
light of the exceptions and briefs and has decided to
remand this proceeding to the judge for further consid-
eration as set forth below.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by failing and refusing
to hire Frank Roper because of his union activities.1 In
its exceptions, the Respondent contends, inter alia, that
at the hearing its vice president, Tim Wooten, pre-
sented legitimate business reasons for failing to hire
Roper, but the judge made no finding regarding the
credibility of Wooten’s testimony. Specifically, the Re-
spondent contends, and the record shows, that Wooten
testified to three reasons why he did not hire Roper:
• Wooten worked with Roper approximately 18
years ago and believed that he had poor work
habits.
• Wooten believed that, if hired, Roper would
not be a satisfied employee because he would be
taking a 50-percent reduction in pay from his pre-
vious job.
• Wooten believed that it would be necessary
to retrain Roper due to his lack of ‘‘on the job’’
experience over the past 18 years.
Thus, the Respondent argues that on the basis of
Wooten’s testimony it satisfied its burden under
Wright Line2 of demonstrating that it would not have
hired Roper even in the absence of his union activities.
In his brief in support of his exceptions, the General
Counsel appears to acknowledge that the judge failed
to make a credibility finding concerning Wooten’s tes-
timony because the General Counsel argues to the
Board that Wooten’s testimony ‘‘should be discred-
ited.’’ Similarly, the General Counsel recognizes that
the judge failed ‘‘to [make] a finding . . . regarding
the Respondent’s affirmative defense,’’ and the Gen-
eral Counsel ‘‘urges the Board to find, based on the
record before it, that Respondent failed to establish
that it would not have hired Roper in the absence of
his union activity.’’
We agree with both the Respondent and the General
Counsel that the judge failed to make a clear credibil-
ity resolution concerning Wooten’s testimony and that
such a resolution is necessary for a proper evaluation
of the Respondent’s Wright Line defense. We do not
agree with the parties, however, that it would be ap-
propriate for the Board itself to make such a credibility
finding. See Standard Dry Wall Products, 91 NLRB
544, 545 (1950) (The Board attaches ‘‘great weight’’
to a judge’s credibility findings because the judge, not
the Board, ‘‘has had the advantage of observing the
witnesses while they testified.’’), enfd. 188 F.2d 362
(3d Cir. 1951). Accordingly, we shall remand the case
to the judge for the purpose of making an explicit find-
ing concerning the credibility of Wooten’s testimony
about the reasons why he refused to hire Roper. In
light of that credibility resolution, the judge shall also
determine, consistent with the entire record, whether
the Respondent satisfied its Wright Line burden of
demonstrating that it would not have hired Roper even
in the absence of his union activities.3
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33MERIT ELECTRIC CO.
4 In remanding this case, we are not passing on any of the other
issues raised by the parties’ exceptions at this time.
ORDER
It is ordered that this proceeding is remanded to Ad-
ministrative Law Judge Robert C. Batson for the pur-
poses described above.4
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision set-
ting forth credibility resolutions, findings of fact, con-
clusions of law, and a recommended Order, as appro-
priate on remand. Copies of the supplemental decision
shall be served on all parties, after which the provi-
sions of Section 102.46 of the Board’s Rules and Reg-
ulations shall be applicable.
CHAIRMAN GOULD, dissenting.
Contrary to my colleagues, I find it unnecessary to
remand the issue of whether the Respondent violated
Section 8(a)(3) and (1) by failing and refusing to hire
Frank Roper because of his union activities. The ma-
jority finds that the administrative law judge ‘‘failed to
make a clear credibility resolution’’ with respect to the
testimony of the Respondent’s vice president, Tim
Wooten, and that such a resolution is necessary to a
proper evaluation of the Respondent’s Wright Line de-
fense. I disagree.
Where an employer has failed to assert any legiti-
mate reason for its action other than one found to be
pretextual by the judge, then the employer has failed
to establish that it would not have taken the same ac-
tion in the absence of the protected activity. Further,
as the Ninth Circuit observed,
[A]ctual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be
available that is not self-serving. In such cases,
the self-serving declaration is not conclusive; the
trier of fact may infer motive from the total cir-
cumstances. . . . If [the trier of fact] finds that
the stated motive for a discharge is false, he cer-
tainly can infer that there is another motive. More
than that, he can infer that the motive is one that
employer desires to conceal—an unlawful mo-
tive—at least where . . . the surrounding facts
tend to reinforce that inference. Shattuck Denn
Mining Corp. (Iron King Branch) v. NLRB, 362
F.2d 466, 470 (1966).
In the instant case, the judge rejected the Respondent’s
proffered reasons for Roper’s discharge and inferred an
unlawful motive.
In his bench decision, the judge noted Wooten’s tes-
timony as to his reasons for not hiring Roper: (1) that
he had worked with Roper 18 years ago and that
Roper had poor work habits then; (2) that it would be
necessary to retrain Roper because he had not worked
in the field for 18 years; and (3) that Roper would
have to take a 50-percent reduction in pay to take the
job. However, the judge rejected Wooten’s stated rea-
sons and, relying on the Respondent’s knowledge that
Roper was the Union’s business agent and that Roper’s
application stated that his reason for leaving his posi-
tion as union business agent was ‘‘to organize contrac-
tors in the area,’’ the judge found that the General
Counsel had established that the motivating factor in
the Respondent’s refusal to hire Roper was his union
activity. The judge specifically rejected Wooten’s con-
tentions with regard to the need to retrain Roper and
the disparity of pay. As to the former, the judge cites
Wooten’s admission that an individual who was a jour-
neyman electrician 18 years ago could ‘‘pick up’’ the
techniques again quickly. As to the latter, the judge
found that it was not ‘‘the motivating factor in the Re-
spondent’s refusal to hire Mr. Roper.’’ Although the
judge did not specifically reject Wooten’s reference to
Roper’s poor work habits, he implicitly did so when
he found that ‘‘the’’ motivating factor in the failure to
hire was Roper’s union activity.
Although the judge did not explicitly analyze the
failure to hire with reference to Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), his findings
are consistent with that decision and, unlike my col-
leagues, I find it unnecessary to insist that the judge
recast his findings and conclusions to achieve formalis-
tic consistency with Wright Line. It is well settled that,
where an administrative law judge has evaluated an
employer’s explanation for its action and concluded
that the reasons advanced by the employer were
pretextual, that determination constitutes a finding that
the reasons advanced by the employer for its action ei-
ther did not exist or were not in fact relied on thereby
leaving intact the inference of wrongful motive estab-
lished by the General Counsel. Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982). In the instant case, as discussed above, the
judge considered and rejected as pretextual all of the
Respondent’s proffered reasons for its refusal to hire
Roper and further found that Roper’s union activity
was the motivating factor in its action. Under the
judge’s analysis, no legitimate explanation remains to
establish that the Respondent would have taken the
same action even in the absence of that union activity
and the inquiry is logically at its end since the Re-
spondent has not met its burden.
The judge has made all the necessary findings and
the case is ripe for review. Therefore, I dissent from
the remand and would proceed to a determination of
whether the judge’s decision should be adopted.
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34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Evelyn Korschgen, Esq., for the General Counsel.
William E. Sizemore, Esq., of Tampa, Florida, for the Re-
spondent.
William Dever, Esq., of Tampa, Florida, for the Charging
Parties.
SUPPLEMENT TO BENCH DECISION
ROBERT C. BATSON, Administrative Law Judge. This mat-
ter was heard by me at Tampa, Florida, on February 18,
1997. At the close of evidence and argument, I delivered a
bench decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations and found that Respondent
had engaged in certain unfair labor practices.
I certify the accuracy of the portion of the transcript, as
corrected, pages 255 to 263 containing my decision, and I at-
tach a copy of that portion of the transcript, as corrected, as
‘‘Appendix A.’’ The decision is further supplemented to in-
clude the following recommended Order and proposed No-
tice to Employees. A copy of the Notice to Employees is at-
tached hereto as ‘‘Appendix B.’’
On the finding of facts and conclusions of law set forth
in the bench decision delivered at the close of evidence and
argument and on the entire record, I issue the following rec-
ommended1
ORDER
The Respondent, Merit Electric Company, Inc., Largo,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to employ or offer employment to any quali-
fied applicant, when a position is available, because of that
applicant’s union activities or because he is or has been em-
ployed by the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Frank Roper whole for any loss of pay or bene-
fits he may have suffered by reasons of the discrimination
against him in the manner described in this bench decision.
(b) Within 14 days of this Order offer Frank Roper em-
ployment to the position for which he applied or to a sub-
stantially equivalent one without prejudice to his seniority or
other rights and privileges he may have enjoyed.
(c) Remove from his personnel file any references to his
unlawful refusal to hire and notify him that it has done so,
and that it will not be used against him in any way.
(d) Preserve and on request make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days, post at the Respondent’s Largo, Flor-
ida site copies of the attached notice marked ‘‘Appendix
B.’’2 Copies of the notice, on forms provided by the Re-
gional Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that Respondent has taken to comply.
APPENDIX A
255
frankly, the contrast between Mr. Roper and these other
cases are simply day and night.
They were day and night before the settlement. They’re
day and night now, and I do not believe that you can infer
animus as to Mr. Roper from those. You can’t because the
facts are too different.
I ask you to please consider each case on its own merits.
Let’s say, your Honor, I know as well as you do that all of
those eleven people and had turned down Mr. Roper, we’d
still be here.
Those firings don’t add anything to this case. We would
still be here. But we would be here because his facts are dif-
ferent than anyone else’s.
They made a logical decision. They followed good busi-
ness practices. They were credible in their testimony in front
of you. And for that reason, they deserve to be exonerated.
Thank you, your Honor.
JUDGE BATSON: Thank you.
Counselors, now any Bench Decison, I don’t know wheth-
er or not any of you have had one, but you will have from
now—when I get the transcript in approximately ten to fif-
teen days, my decision will be at the back of the transcript.
It will be extracted and attached to the certification of the
record.
From the time my decision—that decision issues
256
incorporating the Bench Decision, your time for filing excep-
tions begins to run.
MR. SIZEMORE: That’s a separate transmittal?
JUDGE BATSON: That will be a separate transmittal, yes,
very similar to this.
MR. SIZEMORE: All right. But it wouldn’t be from the
Court Reporter, it’s going to be from your office?
JUDGE BATSON: No, it won’t be from the Court Reporter.
Well, you will get a copy of the transcript.
MR. SIZEMORE: Right.
JUDGE BATSON: And I’ll get a copy of the transcript. That
portion of the transcript containing my Bench Decision will
appear in the record, but I will have to certify that record.
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35MERIT ELECTRIC CO.
And in the event there are some minor errors, I will issue
a correction of the transcript as to those errors, but your time
for filing—similar to this.
But as for your time for filing exception, it begins to run
from the date my decision issues. Not today, it does not
begin to run today.
Counselors, I’m going to issue a Bench Decision pursuant
to Section 102.35(a)(10) of the Board’s rules and regulations
in this case, because there is a single issue and not a great
deal of factual conflict or dispute.
The Regional Director for Region 12, on April 28, 1995,
issued an order consolidating cases, consolidating complaint
and notice of hearing, alleging inter alia that Respondent re-
fused to hire eleven applicants for employment because of
their union activities.
As a result of a stipulation of facts, the General Counsel,
the Charging Party and the Respondent, entered into an
agreement dated February 18, 1997, which disposes of ten of
the eleven alleged discriminatees in the Complaint.
It also stipulates that Respondent hired during a relevant
period of time, between June 27 and November 14, at least
twenty two electricians.
Now, Mr. Frank Roper is the only one involved in this
case that has not been disposed of, and I believe he was the
subject of the charge in 12–CA–16638.
Now, Respondent by its amended answer admits that the
charges were filed and served, as alleged in the Complaint.
Also, his answer, as amended at the hearing, admits that
the Board has jurisdiction over this matter, and that the Re-
spondent is an Employer within the meaning of 2(2), (6) and
(7) of the Act. Accordingly, the case is properly before the
Board.
Now, the General Counsel has established that during the
period of time, the relevant period being, say, August, 1994,
the Respondent ran quite a number of advertisements in
local, daily newspapers for electricians.
On August 26, 1994, Mr. Frank Roper, who was business
agent for Local 308, filed an application with Respondent.
Mr.
258
Roper is a journeyman electrician and had been business
agent for some seventeen years, and admittedly had not had
any hands on electrical work.
However, he testified that he did get trade magazines. I
believe the Electrical Engineering Magazine, which covers
all new products and all new techniques in the electrical in-
dustry.
The Respondent says that there are three reasons why he
did not hire Mr. Frank Roper. One of them is that Mr. Tim
Wooten had worked with Mr. Roper for about three months
some eighteen years earlier, and felt that he had poor work
habits or bad work habits.
I believe Mr. Tim Wooten testified to that on the stand.
That was one of the factors.
And another being that he had been out of the trade for
approximately seventeen years, and thus, initially, Mr.
Wooten tended to make it appear that it would take an exten-
sive period of time for Mr. Ropper to learn the new materials
and new techniques in the electrical business.
However, under examination from Mr. Dever, Mr. Tim
Wooten readily admitted as to the several items Mr. Dever
asked him about, that a man who was a journeyman seven-
teen years ago, could be taught or retrained in some of them,
in just a matter of couple of minutes of a journeyman show-
ing him what to do.
And I believe Mr. Dever, in his examination of Mr. Tim
Wooten, questioned him concerning just about every one of
the
259
items, and there were six or eight of them that you brought
in yesterday, demonstrating that had changed from what it
was seventeen years ago.
However, Mr. Wooten conceded that as to most of them,
it would not be a problem. A matter of two or three minute’s
instruction or an hour, perhaps.
And a man who had not been in the field, but was a jour-
neyman eighteen years ago, could pick up the techniques
again.
And it was also pointed out, although there are new types
of equipment, such as flexible conduit as opposed to the
metal conduits. I mean that’s one thing that I recall. Install-
ing fire alarms, different material in them is another.
Accordingly, the General Counsel has established by a
preponderance of the evidence that the motivating factor in
Respondent’s not hiring Mr. Roper, was that, first of all, the
Respondent, through its owners, knew that Mr. Roper was
business agent for Local 308.
And secondly, Mr. Roper put on his application that his
reason for leaving as business agent of 308 was to organize
contractors in the area. And as counsel for the Respondent
pointed out, he did use the plural there.
So I find that the General Counsel has sustained her bur-
den of proof that the motivating factor in Respondent’s refus-
ing to hire Mr. Roper was his Union activity.
Accordingly, the Respondent shall be ordered to reimburse
Mr. Roper for all earnings or loss or earnings and other ben-
efits he may have sustained, by reason of the Respondent’s
discrimination against him, from the date of his application
until the job, for which he applied, was concluded.
Now, in the settlement agreement or the joint stipulation
of facts, the Respondent and the Charging Party and the
General Counsel agreed that the introduction of any evidence
regarding the likelihood of Frank Roper’s transfer or reas-
signment at the direction of Respondent to other projects
subsequent to the completion of the Brandon Town Center
project, as well as the likelihood of Frank Roper being re-
hired by Respondent to work at other projects subsequent to
the completion of the Brandon Town Center project, will not
be litigated or introduced in the instant unfair labor practice
hearing.
But rather, will be reserved for introduction at compliance.
And that concludes my Bench Decision, counselors, and
thank you very much.
That concludes the decision, Ms. Reporter.
Are there any questions now, counselors?
MR. SIZEMORE: Yes, sir, your Honor.
You didn’t make any comment on the third proffered rea-
son and that was that he was leaving a $40,000 a year job
and seeking a $24,000 a year job.
JUDGE BATSON: Very well.
Continue with the decision, Madam Reporter.
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36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Another factor that Respondent just pointed out, is that
Mr. Roper was making $40,000 a year as a business agent
for Local 308.
Respondent contends, in effect, that it doesn’t make sense
for him to leave a $40,000 a year job to take a job paying
$12 an hour, which would almost reduce his salary in half.
I do not think that is the factor that Respondent consid-
ered. Well, they may have considered it, but I do not think
that it was the motivating factor in the Respondent’s refusal
to hire Mr. Roper.
MR. SIZEMORE: In addition to that, your Honor, you made
no findings at all about whether there were any similarly sit-
uated candidates—
JUDGE BATSON: I don’t think it—now, that concludes the
decision, Madam Reporter.
I don’t think it necessary that I consider it. You can take
that up on appeal.
MR. SIZEMORE: Well, of course I will.
JUDGE BATSON: Yeah.
MR. SIZEMORE: And I was hopeful that you would make
some findings so that I would at least know what you were
thinking about.
JUDGE BATSON: Very well. I will insert as a footnote to
262
the decision that there were—I’m sorry, what was your state-
ment?
MR. SIZEMORE: I’m sorry?
JUDGE BATSON: What was your statement, that I made no
finding on? Similarly situated individuals?
MR. SIZEMORE: That’s correct, your Honor.
JUDGE BATSON: I find that there are no similarly situated
individuals, that is, had been out of the trade for as long as
seventeen or eighteen years, other that Mr. Roper.
MR. SIZEMORE: Are you going to credit or not credit Mr.
Tim Wooten on the refusals to hire the two former business-
men, Mr. Frazier and Mr. Summercamp?
JUDGE BATSON: I don’t believe that’s necessary in this de-
cision, Mr. Sizemore. You may take that up with your excep-
tions.
MR. SIZEMORE: Thank you, your Honor.
JUDGE BATSON: Thank you, counselors.
Is there anything further now from the General Counsel?
MS. KORSCHGEN: Nothing.
JUDGE BATSON: From the Respondent?
MR. SIZEMORE: The only other point, your Honor, and I
apologize for belaboring it, but I only get one shot at it.
JUDGE BATSON: No, it’s—that’s right.
MR. SIZEMORE: One of the arguments that I advanced to
you at the opening was the equivalent of Mr. Roper being
a tester,
263
not being sincere in his effort to secure employment.
Do you mean for your finding to disallow me from litigat-
ing that at the back pay stage?
JUDGE BATSON: Well, that can go to compliance, as well
as whether or not he would have been transferred.
MR. SIZEMORE: All right. So I’m not forbidden from liti-
gating that at the back pay?
JUDGE BATSON: I would think not.
MR. SIZEMORE: Okay. Thank you, your Honor.
JUDGE BATSON: And you can take that up on exceptions
also, you know.
MR. SIZEMORE: No, I don’t—I just need to make sure
that—
JUDGE BATSON: All right.
MR. SIZEMORE: —Ms. Korschgen won’t say that you re-
solved that.
JUDGE BATSON: All right, counselors. If there is nothing
further, I want to thank all counsel and representatives for
their courtesies and the professional manner in which they
litigated and tried the case.
MS. KORSCHGEN: Thank you, your Honor.
JUDGE BATSON: The hearing is now closed, subject to
issuance of my decision after receipt of the transcript.
(Whereupon, at 11:15 o’clock a.m., the hearing in the
above-entitled matter, was concluded.)
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten our employees that other employ-
ees will be fired for engaging in protected concerted activi-
ties for mutual aid and protection.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Frank Roper immediate and full employ-
ment to position applied for or, if that position is no longer
available, to a substantially equivalent one without prejudice
to his seniority or any other rights and privileges he may
have enjoyed. WE WILL make him whole for any loss of
earnings or other benefits resulting from our refusal to hire,
less any net interim earnings, plus interest.
MERIT ELECTRIC COMPANY, INC.
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