Merit Electric Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1999

328 N.L.R.B. 212 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212
Merit Electric Company, Inc. and International
Brotherhood of Electrical Workers, Local Union
728, AFL–CIO and International Brotherhood
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
April 30, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On January 9, 1998, Administrative Law Judge Robert
C. Batson issued the attached supplemental decision.
The General Counsel filed exceptions and a supporting
brief, the Respondent filed an answering brief, and the
General Counsel filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions as discussed below and to adopt the recom-
mended Order as modified and set forth in full below.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the National Labor Relations Act by
failing and refusing to hire Frank Roper because of his
union activities. We agree with the judge for the reasons
discussed below.
The Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), set forth the framework for analyzing dis-
crimination cases that turn on employer motivation. Un-
der Wright Line, the General Counsel must show that
antiunion animus was a motivating factor in the em-
ployer’s decision not to hire an employee. Once this is
established, the burden shifts to the employer to demon-
strate that it would have taken the same action even ab-
sent the protected activity. See, e.g., Fluor Daniel, Inc.,
304 NLRB 970 (1991). An employer cannot simply pre-
sent a legitimate reason for its actions, but must persuade
by a preponderance of the evidence that the same action
would have taken place even in the absence of the pro-
tected conduct. Furthermore, if an employer does not
assert any business reason, other than one found to be
pretextual by the judge, then the employer has not shown
that it would have failed to hire the employee for a law-
ful nondiscriminatory reason. See T&J Trucking Co.,
316 NLRB 771 (1995).

1 On November 7, 1997, the Board issued an Order Remanding Pro-
ceeding to Administrative Law Judge. Merit Electric Co., 325 NLRB
32. In that Order, at fn. 4, the Board specifically stated that it was not
passing on any issues raised by the parties’ exceptions other than the
issue of Tim Wooten’s credibility. Accordingly, the parties’ exceptions
to the judge’s February 19, 1997 bench decision and April 16, 1997
supplement remain pending before us.
Although the judge did not fully analyze the Respon-
dent’s refusal to hire Frank Roper strictly within the
framework of Wright Line, his findings are nonetheless
consistent with that decision. The General Counsel has
established that the Respondent knew about Roper’s pro-
tected activities. On his application for employment with
the Respondent, Roper plainly stated that he was em-
ployed as IBEW Local 308’s business manager for 17
years and that he was leaving his position in order “to
organize electric contractors.” The General Counsel ad-
ditionally has established that, immediately upon review-
ing Roper’s application containing the direct references
to his union activities, the Respondent’s vice president
and chief operating officer, Tim Wooten, decided not to
interview Roper and directed his secretary to tell Roper
“if we need[] any help in the future, we’[ll] be in touch.”2
Approximately 30 minutes later, after conferring with his
brothers James and Gregory,3 Tim Wooten decided not to
hire Roper. Finally, the Respondent’s admission that it
refused to hire 10 other applicants between June 27 and
November 14, 1994, because they were union activists is
persuasive evidence of the Respondent’s strong antiunion
animus.4 Accordingly, we find that the General Counsel
has made a very substantial showing that the Respon-
dent’s animus against Roper’s support for the Union was
a motivating factor in the Respondent’s decision not to
hire him.
Therefore, under Wright Line, the burden shifted to the
Respondent to demonstrate that it would not have hired
Roper even in the absence of his union activities. The
Respondent maintains that it refused to hire Roper for
valid business reasons and without regard to his union
activities. Specifically, Tim Wooten testified that he did
not hire Roper because Wooten believed that Roper (1)
had poor work habits, based on his having worked with
Roper approximately 18 years’ earlier, (2) would be dis-
satisfied with a 50-percent pay cut, and (3) would need
extensive retraining due to his 18-year absence from
hands-on work in the trade.
2 Roper and fellow union member Bill Caron submitted applications
in person at the Respondent’s office on August 26, 1994, and neither of
them was interviewed or hired. Earlier that same day, another union
member, Tim Lynch, submitted an application for employment with the
Respondent, was interviewed by Vice President James Wooten, but was
denied employment. As discussed in fn. 5, infra, the Respondent ad-
mits that it failed to hire Caron and Lynch (along with eight other ap-
plicants) because they were union activists.
3 Gregory Wooten is the Respondent’s president.
4 The Respondent admits that between June 27 and November 14,
1994, it hired at least 22 electricians/helpers and denied employment to
10 applicants during that same time period because they were union
activists. More specifically, the Respondent admits that on or before
August 26, 1994, the date of Roper’s application, it hired 14 electri-
cians/helpers while refusing to hire 9 applicants because of their union
activities. The Respondent also admits that after August 26, 1994, it
refused to hire two applicants because of their union activities, but
hired eight more electricians/helpers.
328 NLRB No. 29
MERIT ELECTRIC CO. 213
Like the judge, we reject the Respondent’s contention
that Tim Wooten relied on Roper’s poor work habits that
he observed 18 years earlier. Those observations were
too remote in time. Also, like the judge, we reject the
Respondent’s argument that Wooten decided against
hiring Roper because he lacked recent hands-on experi-
ence. Wooten admitted on cross-examination that basic
electrical systems were essentially the same as 20 years
ago and that a journeyman electrician could be retrained
in 2–3 minutes on most of the new materials.
The only reason remaining is Wooten’s claim that, if
hired, Roper would not be a satisfied employee. The
judge’s analysis of Wooten’s testimony on this point is
as follows:

As to Wooten’s opinion that Roper would not be
a satisfied employee because he was taking an al-
most 50-percent wage cut, I credit him in light of the
following facts. Roper had stated on his application
that his purpose for leaving as business agent for
Local 308 was to organize contractors in the area.
Wooten apparently did not ask Roper why he was
willing to reduce his salary from $40,000 to about
$23,000 annually. I believe it was apparent to
Wooten because Roper stated on his application that
he was going to organize contractors in the area.
Any conjecture concerning other reasons would be
mere speculation. However, under the Town and
Country doctrine, the union would be permitted to
supplement Roper’s salary. I find Roper’s averred
purpose for going into the field to organize contrac-
tors in the area was the motivating factor in
Wooten’s decision not to hire him.
. . . .
. . . All reasons advanced by Respondent were con-
cocted and “Post hoc” contrived to not hire Roper.

Admittedly, the judge’s reasoning is difficult to follow.
On the one hand, the judge stated that he “credit[ed]”
Wooten’s testimony, that in his opinion Roper would not
be a satisfied employee because of the reduction in his
pay. On the other hand, the judge concluded that the pay
cut contention, like the other two reasons asserted by the
Respondent, were “concocted,” “post hoc,” and “con-
trived.”
Considering the judge’s findings in their entirety, we
conclude that, although he credited Wooten’s testimony
that in his “opinion . . . Roper would not be a satisfied
employee because he was taking an almost 50-percent
wage cut,” the judge did not find that Wooten’s opinion
was a motivating factor in the Respondent’s decision not
to hire Roper. In other words, Wooten honestly believed
that Roper would not be satisfied with a reduction in his
pay, but that belief played no part at all in the decision
not to hire Roper. Rather, as the judge found, Roper’s
intent to organize electrical contractors “was the motivat-
ing factor in Wooten’s decision not to hire him.”
The record as a whole supports this construction of the
judge’s decision. Thus, as the judge properly recog-
nized, the record clearly shows that Roper stated on his
application that his purpose in leaving his present posi-
tion was “to organize electric contractors.” The record
also shows that Wooten reviewed Roper’s application.
He therefore knew that Roper was seeking a lower-
paying position with the Respondent in order to engage
in union activities. Immediately after reading Roper’s
application, Wooten decided not to interview him and
not to hire him. Both before and after the date of
Roper’s application (and even on the very same day), the
Respondent admittedly refused to hire a total of 10 other
employees because of their union activities. Given these
circumstances, the judge reasonably drew the inference
that it was “Roper’s averred purpose [of] going into the
field to organize contractors,” not any concern over his
taking a pay cut, that “was the motivating factor in
Wooten’s decision not to hire” Roper. Accordingly, for
all these reasons, we find that the Respondent has not
established that it would have refused to hire Roper even
absent his protected activities and, therefore, violated
Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(3) and (1) of the Act, we shall order the Respondent
to cease and desist therefrom and to take certain affirma-
tive actions designed to effectuate the policies of the
Act.5
Having found that the Respondent has discriminatorily
failed and refused to hire Frank Roper, we shall order it
to offer him employment in the position for which he
applied, without prejudice to his seniority or any other
rights or privileges to which he would have been entitled
in the absence of the Respondent’s hiring discrimination.
Additionally, we shall order the Respondent to make him
whole for any loss of earnings or other benefits he may
have suffered as a result of the Respondent’s discrimina-
tion from the date that he applied for employment until
the date that the Respondent makes a valid offer of em-
ployment. Such amounts shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
and shall be reduced by net interim earnings, with inter-
est computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987). This Order is subject
to resolution at the compliance proceeding of the issues
outlined in Dean General Contractors, 285 NLRB 573
(1987).6 Consistent with that decision, the Respondent

5 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997).
6 We do not rely on that portion of the judge’s bench decision (p.
260) which limits Roper’s remedy to a make-whole provision encom-
passing the time period “from the date of his application until the job,
for which he applied, was concluded.” Rather, the appropriate remedy
for the hiring discrimination found in this case is for Roper to be of-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214
may show that, under its customary procedures, Frank
Roper would not have been transferred to another jobsite
after the project on which the discrimination occurred
was completed, and that, therefore, no backpay obliga-
tion exists beyond the time when the Respondent fin-
ished that particular project.7
ORDER
The National Labor Relations Board orders that the
Respondent, Merit Electric Company, Inc., Largo, Flor-
ida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to employ or offer employment to any
qualified applicant, when a position is available, because
of that applicant’s union activities or because he or she is
or has been employed by a union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

fered employment and made whole subject to the considerations de-
scribed in Dean General Contractors, supra.
In addition, we do not rely on that portion of the judge’s bench deci-
sion (pp. 262–263) suggesting that the Respondent may pursue at com-
pliance its contention that Roper was not genuinely seeking employ-
ment because he was a “tester.” An element of a case of hiring dis-
crimination is a showing that “the applicant was a bona fide applicant.”
Ultrasystems Western Constructors, 316 NLRB 1243, 1244 (1995).
Here, the General Counsel established that Roper was qualified for the
position of electrician for which he applied. Therefore, the burden was
on the Respondent to show that Roper was not seeking employment in
a bona fide fashion. Id. Although counsel for the Respondent stated on
the record that he intended to present evidence on this issue, he ulti-
mately failed to do so. Accordingly, we conclude that the “bona fide
applicant” issue must be resolved against the Respondent in the instant
unfair labor practice proceeding and that the Respondent may not reliti-
gate the issue at the compliance stage. See Transport Service Co., 314
NLRB 458–459 (1994).
7 The General Counsel has excepted to the judge’s failure to order
the Respondent to send to the Board’s Regional Office a copy of the
records necessary to determine the backpay owed (the “backpay re-
cords”) and to include electronic copies of the backpay records, where
the records are already maintained in such form, within the scope of the
records preservation and production order. We find that electronic
copies of the relevant records, where such already exist, are encom-
passed within the Board’s traditional remedial language. See generally
Fed.R.Civ.P. 34 (definition of “document” includes data compilations).
See also Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985) (re-
questing party need not accept only data that exists in traditional forms,
but may discover the same information when stored in electronic form
in a computer); National Union Electric Corp. v. Matsushita Electric
Industrial Co., 494 F.Supp. 1257 (E.D. Pa. 1980) (same). Moreover,
the Respondent has not established that it would be prejudiced in any
way by a requirement that it produce electronic copies of these docu-
ments. Accordingly, and to clarify any ambiguity with respect to this
matter, we have modified the recommended Order to provide for the
production of electronic copies of the specified backpay records if they
are stored in electronic form.
With respect to the General Counsel’s proposed requirement that the
Respondent submit copies of the necessary backpay records at the
Board’s Regional Office, however, we find that this litigation does not
satisfactorily present the question of whether a respondent should be
ordered to provide copies of its records in this manner. We accordingly
decline to order the Respondent to do so in connection with this case.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Frank Roper employment in the job for which he applied
or, if that job no longer exists, in a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges to which he would have been
entitled if there had been no discrimination against him.
(b) Make Frank Roper whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful refusal to hire
Frank Roper, and within 3 days thereafter notify him in
writing that this has been done and that the discrimina-
tion will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Largo, Florida facility, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 26, 1994.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply
with this Order.

MEMBER HURTGEN, dissenting.
I do not agree that the Respondent’s decision not to
hire Frank Roper was unlawful.
8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MERIT ELECTRIC CO. 215
I agree that the General Counsel has established a
prima facie case that Roper’s union activity was a reason
for the Respondent’s decision not to hire him. However,
I conclude that the Respondent rebutted that prima facie
case. Alternatively, at the very least, the matter should
be remanded to the judge for clarification.
The Respondent’s agent, Tim Wooten, testified that he
did not hire Roper because, inter alia, he believed that
Roper would be a dissatisfied employee. Wooten ex-
plained that his belief was based on the fact that Roper
would be taking a 50-percent pay cut from his prior job
(as a union business agent). The judge specifically cred-
ited Wooten’s explanation. In light of this, the Respon-
dent met its Wright Line burden. That is, the Respondent
would have reached the same “nonhire” decision with
respect to any applicant (union or nonunion) who would
be taking a 50-percent pay cut.1
Concededly, the judge later said, ipse dixit, that “all
reasons advanced by Respondent were concocted and
‘post-hoc’ contrived to not hire Roper.” And, the judge
also said that the Respondent’s real motive was Roper’s
organizational intentions. In light of this seeming con-
tradiction (between these conclusions and the earlier
credibility resolution), my colleagues concede that “the
judge’s reasoning is difficult to follow.” However, my
colleagues are quick to supply the reasoning that the
judge, himself, failed to supply. In their view, the judge
simply found that Wooten held an honest belief that
Roper would be a dissatisfied employee. But, my col-
leagues reason, Wooten did not rely upon that belief
when he decided not to hire Roper.
This reasoning is counterintuitive. In essence, my col-
leagues find that: (1) Wooten believed that Roper would
be a dissatisfied employee because of the 50-percent
wage cut; (2) Wooten would have hired Roper irrespec-
tive of that belief. It is not clear to me why an employer
would hire an applicant, knowing in advance that the
employee will be dissatisfied from the start. Concededly,
there could be circumstances where an employer might
do this (e.g., if the employer were desperate). But, if this
was the judge’s view, he should have explained it. Most
assuredly, my colleagues should not ascribe to the judge
a view that he has not articulated.
Based on the above, I disagree with the proposition
that the Respondent’s view (that Roper would be a dis-
satisfied employee) played no role in the Respondent’s
decision not to hire him. Alternatively, at the very least,
I would remand this case to the judge for his findings on
this point. To repeat, as my colleagues concede, the
judge’s opinion is “difficult to follow.”

1 The judge noted that the Union “would be permitted to supplement
Roper’s salary.” However, there is no finding that it did so, or (more
importantly) that the Respondent was aware of any such supplement.
APPENDIX
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 refuse to employ or offer employment to
any qualified applicant, when a position is available, be-
cause of that applicant’s union activities or because he or
she is or has been employed by a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Frank Roper employment in the job for
which he applied or, if that job no longer exists, in a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges to which he
would have been entitled if he had been hired.
WE WILL make Frank Roper whole for any loss of earn-
ings and other benefits resulting from the discrimination
against him, less any interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our refusal
to hire Frank Roper, and WE WILL within 3 days thereaf-
ter notify him in writing that this has been done and that
the discrimination will not be used against him in any
way.
MERIT ELECTRIC COMPANY, INC.

Evelyn Korschgen, Esq., for the General Counsel.
William E. Sizemore, Esq., of Tampa, Florida, for the Respon-
dent.
William Dever, Esq., of Tampa, Florida, for the Charging Par-
ties.
SUPPLEMENTAL DECISION
ROBERT C. BATSON, Administrative Law Judge. This case
was heard by me at Tampa, Florida, on February 18, 1997. At
the conclusion of testimony and evidence I rendered a Bench
decision and on April 16, 1997, issued a Supplement to the
Bench decision. The only issue was whether Respondent had
refused to hire Frank Roper, because he was a business agent
for a Local IBEW for 17 years. During his interview with Re-
spondent’s vice president, Tom Wooten, Roper told him he was
going to organize electrical contractors. I found that Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 216
dent refused to hire Roper because of his union activity and
stated intent to organize contractors was the sole motivating
factor in Respondent’s refusal to hire Roper.
On November 7, 1997, a majority of a Board panel re-
manded the case to me to make specific findings regarding the
credibility of Tom Wooten’s testimony, specifically as to the
three reasons why he did not hire Roper. They are:

hWooten worked with Roper approximately 18 years
ago and believed that he had poor work habits.
hWooten believed that, if hired, Roper would not be a
satisfied employee because he would be taking a 50–
percent reduction in pay from his previous job.
hWooten believed that it would be necessary to re-
train Roper due to his lack of “on the job” experience over
the past 18 years.

Addressing Wooten’s testimony that after working with
Roper for 13 months, 17 years ago he believed that Roper had
poor work habits. Assuming, and even finding that Wooten
had an opinion of Roper’s work habits after observing him for 3
months, 18 years before and he felt the habits were poor, I find
such to be far to remote in time to be a determining factor in
Wooten’s refusal to hire Roper at this time. Furthermore,
Wooten made no reference to Roper about having worked with
him 18 years’ earlier and his opinion of his work habits. Ac-
cordingly, I find that Wooten’s opinion of Ropers work habits
18 years’ earlier had no bearing on Respondent’s refusal to hire
him.
As to Wooten’s opinion that Roper would not be a satisfied
employee because he was taking an almost 50–percent wage
cut, I credit him in light of the following facts. Roper had
stated on his application that his purpose for leaving as business
agent for Local 308 was to organize contractors in the area.
Wooten apparently did not ask Roper why he was willing to
reduce his salary from $40,000 to about $23,000 annually. I
believe it was apparent to Wooten because Roper stated on his
application that he was going to organize contractors in the
area. Any conjecture concerning other reasons would be mere
speculation. However, under the Town & Country doctrine the
Union would be permitted to supplement Roper’s salary. I find
Roper’s averred purpose for going into the field to organize
contractors in the area was the motivating factor in Wooten’s
decision not to hire him.
The Board directed that I make creditability findings as to
Wooten’s belief that it would necessary to retrain Roper due to
his lack of “on the job” experience over the past 18 years.
Wooten testified initially that this was one of the reasons he did
not hire Roper. In support of this contention Respondent at-
tempted to demonstrate that the materials and techniques in the
trade had changed dramatically and brought in six or eight ex-
amples in support of this contention.
Roper testified that during his tenure as business agent of the
Local 308 he subscribed to the trade magazines, including Elec-
trical Engineering Magazine, which described and demon-
strated all new products and techniques in the electrical indus-
try. More importantly, on cross-examination Wooten admitted
that a journeyman electrician could be retained in 2 or 3 min-
utes on most of the new materials, i.e., flexible as opposed to
metal conducts and the installation of the new fire alarm sys-
tems. Basically, he admitted that the basic electrical systems
were essentially the same as 20 years ago. The result of his
testimony was that it would take relatively little time to retrain
a journeyman electrician of 20 years although he had little if
any “on hand” experience for 17 years.
Accordingly, I find the General Counsel has established an
extremely strong prima facie case that the Respondent failed
and refused to hire Frank Roper because of his union affilia-
tions and stated purpose to organize contractor in the area.
The three reasons given by Respondent to meet the Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1988), test demonstrating that
it would not have hired Roper in the absence of his union ac-
tivities. All reasons advanced by Respondent were concocted
and “Post hoc” contrived to not hire Roper.
CONCLUSIONS OF LAW
(1) The Respondent, Merit Electric Company, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
(2) The International Brotherhood of Electrical Workers, Lo-
cal Union 728, and the International Brotherhood of Electrical
Workers, AFL–CIO, Local Union 915, AFL–CIO are labor
organization within the meaning of Section 2(5) of the Act.
(3) By refusing to employ or offer employment to Frank
Roper or any qualified applicant, when a position is available,
because of that applicants union activities or because he has
been employed by the Union, Respondent has violated Section
8(a)(3) and (1) of the Act.
[Recommended Order omitted from publication.]