The opinion
DAUGHTREY, Circuit Judge,
concurring.
Although I can agree with the majority opinion in large part, I am puzzled by the majority’s perceived need to reinterpret Wright Line, an effort that takes up much of Part III of the opinion. I fear that the result of this exegesis may be the creation of further confusion in an area of the law that already struggles beneath heavy and sometimes befuddling opinions.
The foundation of § 8(a)(1) and (3) “failure to hire” claims actually 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 ease 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 , 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. 845 .
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 , 76 L.Ed.2d 667 (1983), provides a clear and organized approach to cases in which an employer discriminates “in regard to hire or 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 support its requirements.
In its decision in this case, the Board once again reiterated the Wright Line test for reviewing alleged violations of the NLRA turning on employer motivation, as follows:
*976 First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a “motivating factor” in the employer’s action. The burden then shifts to the employer to demonstrate that the same action would have taken place notwithstanding the protected conduct. It is also well settled, however, that when a respondent’s stated motives for its actions are found to be false, the circumstances may warrant an inference that the true motive is an unlawful one that the respondent desires to conceal. The motive may be inferred from the total circumstances proved. Under certain circumstances, the Board will infer animus in the absence of direct evidence. That finding may be based on the board’s review of the record as a whole.
Here, as the administrative law judge and the Board found, the company clearly had knowledge that all 54 of the applicants in question were union-affiliated. The General Counsel was able to prove exactly which potential positions each of the applicants qualified for, based on Fluor Daniel’s own internal assignment. The administrative law judge found as a matter of fact that the union-affiliated applicants were all experienced and that at least half were as experienced at the positions in question as the applicants actually hired by Fluor Daniel. In my judgment, the majority’s conclusion that there is insufficient proof that there were actually jobs for which the union-affiliated applicants were qualified is simply not borne out by the record.
Fluor Daniel hired 172 employees for the spring outages, including some in every advertised job category. At least 82 of those 172 employees had never worked for Fluor Daniel in the past. Of those 82, 70 were hired on or after March 26, 1990 — i.e. the date when James Boyd, Fluor Daniel’s Human Resources Manager, received the 43 applications from voluntary union organizers.
Fluor Daniel hired 123 employees for the fall outages and offered positions in every job category. Of those employees, 69 had never worked for Fluor Daniel in the past. None of the 53 union-affiliated applicants- — i.e. the 42 whose applications were routed through the Kentucky Employment Service in Owens-boro in late March 1990 or the 11 whose applications were mailed to the company and received on May 18, 1990 — were offered employment during the fall outages.
The company was not deprived of an opportunity to rebut the General Counsel’s pri-ma facie case. Indeed, Fluor Daniel offered various reasons for its failure to hire a single one of the union-affiliated applicants, several of which are outlined in the majority opinion. None of them was accredited by the administrative law judge. If the company had a legitimate basis on which to argue that the applicants in question were not qualified for the positions available, or (as the majority speculates) that there were no positions available, that defense should have been raised in a timely manner at the hearing before the administrative law judge. In the absence of such proof, it seems apparent to me that there is substantial evidence to support the Board’s decision that the union-affiliated applicants were judged on the basis of their association with the union, which is discriminatory conduct prohibited by the Act.
Nevertheless, in its brief on petition to rehear, the Board seems to concede that the case ought to be remanded for further proof, “to decide in the first instance, whether, on consideration of the whole record — including such further evidence as it may be appropriate to take on the issues of job availability and comparative qualifications that were previously deferred to compliance proceedings— a case of unlawful discrimination in hiring was proved under the Board’s Wright Line standard.” I therefore concur in the result reached by the majority in remanding this case to the Board for further hearing.