The opinion
DAUGHTREY, Circuit Judge,
concurring in part and dissenting in part.
While the majority offers a thorough and scholarly opinion, I believe that its interpretation of the prima facie elements in a “refusal to hire” case exceeds the bounds of controlling precedent and statutory law. For this reason, I respectfully dissent from Section III of the majority opinion and concur in the remainder.
The foundation of § 8(a)(1) and (3) “failure to hire” claims lies not in Wright Line, 251 N.L.R.B. 1083 , 1980 WL 12312 , at *11 (1980), enforced by 662 F.2d 899, 904 (1st Cir.1981), cert. denied, 455 U.S. 989 , 102 S.Ct. 1612 , 71 L.Ed.2d 848 (1982), but in the early case history of the National Labor Relations Act. In 1941, the United States Supreme Court first applied § 8(a)(3) to hiring decisions, holding that an employer may not discriminate against an applicant because of that person’s union status. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185-87 , 61 S.Ct. 845, 848-49 , 85 L.Ed. 1271 (1941). Writing for the Court, Justice Frankfurter reasoned that allowing an employer to judge an applicant based on union membership would destroy the economic balance between labor and business and undermine the policy of the Act. “The effect of such discrimination is not confined to the actual denial of employment,” he explained, but “inevitably operates against the whole idea of the legitimacy of organization. In a word, it undermines the principle which, as we have seen, is recognized as basic to the attainment of industrial peace.” Id. at 185 , 61 S.Ct. at 848 .
While the environment of labor law and labor relations has changed, the fundamental standards of the NLRA have not faltered. The purpose behind § 8(a)(1) and (3), the same purpose described by Justice Frankfurter, remains intact. Wright Line , as endorsed by the' Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 402-03 , 103 S.Ct. 2469, 2474-75 , 76 L.Ed.2d 667 (1983), provides a clear and organized approach to cases in which an employer discriminates “in regard to hire or *841 tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization 8(a)(3), 29 U.S.C. § 158 (a)(3). The language of § 8(a)(1) and (3) is clear and the guidelines of Wright Line dutifully support its requirements.
Dissecting the various forms of § 8(a)(1) and (3) “failure to hire” violations only belittles the precedent upon which it rests. The majority limits its new prima facie elements to those cases in which an established employer seeks applicants for newly' created jobs. This standard would not apply to new employers who are the successors to a prior business or old employers rehiring applicants following a strike. The majority purposeful-, ly tailors its new prima facie case to situations in which it finds a need for extra employer protection. In doing so, however, I fear that it may be creating further confusion in an area of law that already struggles beneath heavy and often befuddling opinions. Wright Line offers an exceptionally clear standard that applies to all § 8(a)(3) claims, regardless of the factual twist.
In addition, these new prima facie elements do not solve any regularly occurring problem in § 8(a)(1) and (3) litigation. This court now requires the General Counsel to establish that an applicant is qualified for a job, as a prerequisite for any charge of anti-union discrimination. Under Wright Line , this had been an affirmative defense for the employer, based on the assumption that anti-union discrimination is inherently undesirable. By transforming this affirmative defense into an element of § 8(a)(3), we tip the balance heavily in favor of the employer. We tacitly say that anti-union discrimination is acceptable, that an employer need not explain its anti-union animus when it violates the law.
Under the precedent of Phelps Dodge and Wright Line , as well as the unambiguous language of § 8(a)(3), anti-union discrimination itself is the predecessor act that may lead to a violation of the law. We excuse the employer who would not have hired a pro-union employee in spite of anti-union feelings, giving that employer the benefit of its legal motive and also requiring that employer to show by a preponderance of the evidence that it deserves that benefit. Transportation Management Corp., 462 U.S. at 395 , 103 S.Ct. at 2471 . Shifting the burden to the General Counsel sanctions the discrimination that the statute clearly abhors. It forces the General Counsel to disprove the employer’s own defense, as well as prove the required elements of the statute itself.
Carrying this theme even further, the majority adds yet another element to the requirements of the Act. The General Counsel must prove that, after the employer rejected a union applicant, the position remained open and the employer continued to seek other applications. The majority sees this, as well as the previous element, as an appropriate application of Title VII ease law to the NLRA. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817, 1824 , 36 L.Ed.2d. 668 (1973). Aside from the vast social and legal differences between Title VII and the NLRA, this requirement further undermines the philosophy of the Act. The discrimination itself forms the basis of the violation, while the non-existence of the job is the business defense to that discrimination.
Ignoring the language of the Act, the majority argues that the non-existence of an open position negates any § 8(a)(1) and (3) claim and that “it is simply irrelevant that the employer entertained even vehement animus against organized labor.” The majority is particularly dismayed by the fact that the administrative law judge in this case deferred any evidence about open job positions until the compliance stage of the hearing. One faulty decision, however, should not lead to a brash revision of established precedent. I agree that evidence concerning the nonavailability of jobs may serve as a legitimate defense to § 8(a)(1) and (3) claims, but we should not rewrite the law entirely in order to remedy perceived error. Forcing the General Counsel to prove the existence of an open position and the continued acceptance of applications buries the real purpose of § 8(a)(3) beneath a mound of legal maneuvering.. If the non-existence of an open position is so evident, Wright Line adequately protects that employer with a safe affirmative defense.
*842 The majority finds the flexibility to create a new standard for § 8(a)(1) and (3) “failure to hire” claims in the shortage of case law for this particular area. Indeed, there are very few cases in which an established employer refuses to hire new applicants based on their pro-union affiliation, where the employer is not a successor to another business or rehiring workers following a strike. The lack of specific examples, however, does not mean that the law remains unmolded. There is no question that Wright Line , applies to “failure to hire” cases in general. See e.g., Monfort, Inc. v. NLRB, 965 F.2d 1538 , 1540 (10th Cir.1992); U.S. Marine Corp. v. NLRB, 944 F.2d 1305 , 1315 (7th Cir.1991) (en banc), cert. denied, 503 U.S. 936 , 112 S.Ct. 1474 , 117 L.Ed.2d 618 (1992); Pergament United Sales, Inc. v. NLRB, 920 F.2d 130 , 137 (2d Cir.1990); United Food & Commercial Workers Int’l Union v. NLRB, 768 F.2d 1463 , 1475 (D.C.Cir.1985). The District of Columbia Circuit has even held that Wright Line would apply to “failure to hire” cases like the specific one discussed here. Willmar Elec. Serv. v. NLRB, 968 F.2d 1327 , 1328 (D.C.Cir.1992), cert. denied, 507 U.S. 909 , 113 S.Ct. 1252 , 122 L.Ed.2d 651 (1993). Most convincing, however, is the fact that this circuit applied the Wright Line test to a “failure to hire” claim similar to this one, years before the Supreme Court endorsed it. NLRB v. Consolidated Freightways Corp. of Delaware, 651 F.2d 436, 437 (1981).
The majority attempts to circumvent this precedent by using cases like Ultrasystems Western Constructors, Inc. v. NLRB, 18 F.3d 251 (4th Cir.1994) and J.E. Merit Constructors, Inc., 302 N.L.R.B. 301 , 1991 WL 76408 (1991), to support its new prima facie elements. Neither case, however, comes close to the dramatic revisions proposed here. Ul-trasystems merely provides a different slant on the Wright Line requirements. It does not saddle the General Counsel with the onerous burden of proving employee qualification and job availability in addition to anti-union animus. 11 F.3d at 256. J.E. Merit, while also revising the Wright Line approach, is still faithful to precedent. It maintains .the statute’s legal balance and falls well short of the requirements that the majority in this case envisions. 302 N.L.R.B. 301 , 1991 WL 76408 , at *5.
In general, I believe that the majority’s revisions to the prima facie case for “failure to hire” claims may drain § 8(a)(3) of its protective strength. Considering the narrow application of this new approach, it will only confuse the litigants who once dealt with a clear and predictable Wright Line test. Considering the revolutionary shift it brings to § 8(a)(1) and (3) burdens of proof, it threatens to undermine the purpose of the Act. As a result, I fear that it could bring about an imbalance in the labor law that neither the drafters of the statute nor Justice Frankfurter would have tolerated. See Phelps Dodge Corp., 313 U.S. at 181-200 , 61 S.Ct. at 845-55 (Frankfurter, J., for the majority).