
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MACOMB BLOCK AND SUPPLY, INC., Respondent.
    No. 76-1882.
    United States Court of Appeals, Sixth Circuit.
    March 9, 1978.
    Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Vivian Miller, Washington, D. C., Bernard Gottfried, Director, Region 7, N. L. R. B., Detroit, Mich., for petitioner.
    Karl R. Bennett, O’Leary, Murphy, Fre-golle, Kargenian, Berg, Bennett, Reebel & Gorcyca, Southfield, Mich., for respondent.
    Before EDWARDS, LIVELY and MERRITT, Circuit Judges.
   ORDER

This matter is before the court on application of the Board for enforcement of its order finding that the respondent violated Section 8(a)(3) and (1) of the Labor Act by refusing to hire the former employees of an acquired business because those employees were represented by a union. Following a hearing an administrative law judge dismissed the complaint and the Board divided 2-1 in reversing the decision of the administrative law judge. The decision and order of the Board are reported at 223 N.L.R.B. No. 194 (1976).

Upon consideration of the entire record together with the briefs and oral arguments of counsel the court concludes that the Board failed to apply the controlling law as set forth in Howard Johnson Co., Inc. v. Detroit Local, etc., Union, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974), to the facts of this case.

The application for enforcement is denied.  