Tejas Electrical Services

National Labor Relations Board - Board Decisions

Oct 11, 2002

338 N.L.R.B. 416 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
Tejas Electrical Services, Inc. and International
Brotherhood of Electrical Workers, Local Union
No. 716. Case 16–CA–20937
October 11, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On November 21, 2001, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The General Counsel filed exceptions and a supporting
brief. The Charging Party Union filed a statement con-
curring in the General Counsel’s exceptions and support-
ing brief. The Respondent filed cross-exceptions, a sup-
porting brief, and a brief in reply to the General Coun-
sel’s exceptions.
The National Labor Relations Board has considered
the decision and record in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order.
The Respondent is a Houston, Texas electrical contrac-
tor. On February 12, 2001, four union members applied
for work with the Respondent.1 Two of the individuals,
Casey and Rath, concealed their union affiliation and
were hired after being interviewed by the Respondent’s
field superintendent, Keith Carter.
The other two applicants, Smith and Bornsheuer, iden-
tified themselves as union organizers on applications
submitted to the Respondent’s receptionist. Subse-
quently, David Robinson, who identified himself as the
Respondent’s “Director of Estimating,” approached
Smith and Bornsheuer in the reception area. Holding
their applications in his hand, Robinson told Smith and
Bornsheuer that their “applications made the field super-
intendent nervous so they sent [me] out to talk to [the
applicants].” Robinson added that he was “either a con-
tractor or worked for a union contractor in the Washing-
ton, D.C.-Virginia area,” that he worked with union elec-
tricians in the past and was satisfied with their work, “but
that the person he worked for did not care for unions.” It
is undisputed that at no time during their conversation
did Robinson mention anything about work opportunities
at the Respondent or discuss the applications filed by
Smith and Bornsheuer. They were not hired.
The judge dismissed the complaint. He found that the
General Counsel failed to establish the required element
of union animus as a factor in the decision not to hire
Smith and Bornsheuer. Although the judge found “some
suspicion” in the fact that the two covert union applicants
were hired instead of the two overt union members, he

1 All dates are in 2001.
reasoned that if coverts Rath and Casey were the first
ones who applied on February 12, “then this priority
demonstrates a nondiscriminatory reason” for their hir-
ing. Because he found the evidence unclear as to which
pair of applicants applied first, the judge rejected the
General Counsel’s argument that animus could be in-
ferred solely because two covert union applicants were
hired and two overt union applicants were not hired on
February 12.
The General Counsel argued that the Respondent’s un-
ion animus was also exhibited by Robinson’s remarks
that the Respondent “did not care for unions” and that the
applications of the overt union organizers made one of
the Respondent’s officials “nervous.” The judge rejected
this argument as well. As an initial matter, he found that
Robinson was not Respondent’s agent and, hence, his
statements were not attributable to Respondent. But
even assuming that Robinson was an agent, the judge
concluded that as a legal matter Robinson’s statements
do not establish animus.
Our dissenting colleague would find that the judge
erred in failing to find that (1) the overt union organizers
applied before their covert brethren, permitting an infer-
ence of animus from the timing and sequence of events,
(2) Robinson did act as the Respondent’s agent, and (3)
the statements made by him were legally sufficient to
warrant the inference of animus. She would remand this
case to the judge for further consideration of these and
related matters.2
We see no need for a remand in the circumstances of
this case. Even assuming, arguendo, that Smith and
Bornsheuer applied for jobs before Casey and Rath did,3
we find that there is an insufficient basis for inferring
union animus merely from the chronological order of
2 The Respondent argues in cross-exceptions that the judge violated
the Board’s Jencks rule by denying the Respondent’s requests for cop-
ies of affidavits given by the General Counsel’s witnesses in cases
other than the instant proceeding. See Sec. 102.118 of the Board’s
Rules and Regulations. We find that the judge erred by summarily
denying the Respondent’s requests for production of the disputed affi-
davits without making a determination, through in-camera inspection,
that the affidavits were not relevant to issues raised in this case. See
Caterpillar, Inc., 313 NLRB 626 (1994). However, any issue concern-
ing the relevance of these affidavits is moot, and the judge’s error was
nonprejudicial, in light of our dismissal of the complaint. Contrary to
the dissent, we see no need to remand this matter to the judge.
3 We do not agree with the dissent, however, that the judge ignored
Smith’s “uncontroverted” testimony that he telephoned Rath after he
was not hired and only then did Rath and Casey go to the jobsite to
apply for work. Although the judge did not specifically mention this
testimony about the telephone call, he expressly acknowledged that
“Smith testified that he and Bornsheuer arrived at the Respondent’s
offices before Rath and Casey.” The judge discounted Smith’s testi-
mony after balancing it against that of the other three February 12
applicants.
338 NLRB No. 39
TEJAS ELECTRICAL SERVICES 417
applications, in the absence of evidence that the Respon-
dent had a practice of hiring on a first-come, first-hired
basis. Moreover, there is no basis for finding that the job
credentials of Smith and Bornsheuer were so superior to
those of applicants hired after them that they should have
been hired absent a discriminatory motive.4 We also
agree with the judge that even assuming, without decid-
ing, that Robinson acted as an agent of the Respondent
when speaking to Smith and Bornsheuer, his statements
did not constitute sufficient evidence to meet the General
Counsel’s initial burden of proving that union animus
tainted the hiring process. We recognize, as our dissent-
ing colleague points out, that statements like this permit
the inference of union animus. But the Board is not re-
quired to make that inference,5 and we decline to do so
here.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER LIEBMAN, dissenting in part.
As discussed below, I would remand this case to the
judge for a reexamination of whether the General Coun-
sel established that the Respondent was motivated by
union animus in its decision not to consider or hire appli-
cants Jack Smith and Jack Bornsheuer.1
The complaint alleges a refusal to consider and/or hire
Smith and Bornsheuer, who identified themselves as un-
ion organizers on their applications. The judge, finding
that the General Counsel had not proved animus, dis-
missed the complaint in a bench decision.2 The General
Counsel excepts to the dismissal and the Respondent
excepts to the refusal of the judge to examine in camera
(and redact) the General Counsel’s witnesses’ affidavits
in other unrelated salting cases and to supply those
statements to the Respondent for purposes of cross-
examination.

4 The dissent further asserts that the hiring pattern of February 12
does not stand alone as evidence from which to infer union animus,
because there was also evidence of post-February 12 job openings filled
by other applicants which the Respondent failed to explain. The first
such opening filled after February 12 was on March 21. The next open-
ings occurred on June 25, July 10, and July 19. The General Counsel
does not argue in his exceptions brief that this job should have been
offered to Smith or Bornsheuer.
5 See NACCO Materials Handling Group, 331 NLRB 1245, 1245–
1246 (2000)
1 As discussed below, I agree with my colleagues that the judge
erred by summarily denying the Respondent’s request for certain affi-
davits given by the General Counsel’s witness. Given my disagreement
with the judge on several of his substantive findings, I would find,
unlike my colleagues, that the procedural error was prejudicial.
2 Following the conclusion of the General Counsel’s case, the Re-
spondent rested its case without presenting any testimony.
Briefly, the facts are as follows. Four applicants ap-
plied for work on February 12, 2001. Smith and Born-
sheuer identified themselves as union organizers on their
applications. They were not hired on that date. Gordon
Casey and Ray Rath did not reveal their union affiliation
to the Respondent and were hired that same day. Other
applicants were subsequently hired for additional open-
ings within the next several months.
When Smith and Bornsheuer arrived at the jobsite, the
receptionist gave them applications. Smith and Born-
sheuer filled out the forms and returned them to the re-
ceptionist. A while later alleged agent David E. Robin-
son appeared at the receptionist’s area holding the two
applications. Robinson gave Smith and Bornsheuer a
card identifying himself as director of estimating. Rob-
inson said that the applications “made the field superin-
tendent nervous so they sent him out to talk to [Smith
and Bornsheuer].” Robinson invited them to accompany
him to a back office. Robinson stated that he had no
trouble with union employees but the person he worked
for did not care for unions.
The judge recommended dismissing the complaint,
finding that the General Counsel had not met his burden
of showing that antiunion animus tainted the hiring proc-
ess. In my view, this dismissal is premised on several
errors that require a remand.
(1) The judge held that he could not infer animus from
the timing and sequence of events. Although he found it
suspicious that the two covert union applicants (Rath and
Casey) were hired instead of Smith and Bornsheuer (both
overt), he reasoned that if the covert applicants applied
first, and there were only two openings that day, then a
nondiscriminatory reason for their hiring would be estab-
lished. In his view, the evidence did not establish that
there were more than two openings that day and was un-
clear as to which pair arrived first. He found that even
though Smith and Bornsheuer testified that they arrived
at 10 and Casey testified that he arrived between 10 and
10:30, the evidence “does not rule out” the possibility
that Smith and Bornsheuer arrived after Rath and Casey.
There are two problems with this finding. First, it ig-
nores uncontroverted testimony that Smith called Rath
after he was not hired and only then did Rath and Casey
go to the jobsite and apply. Thus, contrary to the judge’s
finding, it is clear from the record that Smith and Born-
sheuer applied first. Therefore, the judge’s finding that
the hiring sequence could not support an inference of
animus may have been erroneous. Second, even if, as
the judge speculated, the only two openings that day
were filled first by Rath and Casey, that fact would not
preclude an inference of animus. The evidence is clear
that there were subsequent openings within a short period
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418
of time, which were filled by other applicants. No ex-
planation was given as to why Smith and Bornsheuer
were not considered or hired for those openings.
I would remand to the judge to consider more carefully
the evidence relating to the sequence of events and, in
light of that evidence, to reexamine his finding that ani-
mus did not taint the hiring process.3
(2) The judge refused to rely on the statements made
by alleged agent Robinson to establish animus because in
his view (a) the record fails to establish Robinson’s su-
pervisory or agency status, and (b) the statements them-
selves are insufficient to establish animus. I question
both of these findings.
(a) The judge found no apparent agency because no
one from management made any statement to Smith and
Bornsheuer that Robinson had authority to speak on its
behalf concerning the hiring process. According to the
judge, the only evidence to suggest delegation comes
from Robinson’s own words, and a putative agent’s own
words do not constitute a “manifestation by the princi-
pal.” The judge found that Robinson’s business card
does not constitute a manifestation of delegation by the
principal because such cards “can be created at home,”
and, in any event, a director of estimating “has little ap-
parent connection to the hiring process.” In the judge’s
view, Robinson’s appearance at the reception area with
the applications was an action by the alleged agent, not a
manifestation by the principal.4
In determining whether an individual is an agent of the
employer, the Board applies the common law principles
of agency as set forth in the Restatement (Second) of
Agency. Allegany Aggregates, 311 NLRB 1165 (1993);
Dentech Corp., 294 NLRB 924, 925–926 (1989). Under
the doctrine of apparent authority, agency status may be
established where the employer’s manifestations to a
third party supply a reasonable basis for the third party to
believe that the employer has authorized the alleged
agent to do the acts in question. Allegany Aggregates,
supra, 311 NLRB at 1165. Thus, either the employer
must intend to cause the third person to believe that the
alleged agent is authorized to act for him, or the em-
ployer should realize that its conduct is likely to create
such belief. Service Employees Local 87 (West Bay
Maintenance), 291 NLRB 82, 83 (1988); Restatement
(Second) of Agency, § 27, Comment a (1958). State-

3 The finding should also be reexamined in light of any new cross-
examination resulting from the affidavits of the General Counsel’s
witnesses, as discussed below.
4 My colleagues find it unnecessary to pass on Robinson’s agency
status because they find that the statements, even if made by an agent of
the Respondent, do not constitute evidence of animus. As discussed
below, I disagree with that finding.
ments of the putative agent do not constitute evidence of
agency status. MPG Transport, Ltd., 315 NLRB 489,
493 (1994), enfd. 91 F.3d 144 (6th Cir. 1996); Virginia
Mfg. Co., 310 NLRB 1261, 1266 (1993), enfd. 27 F.3d
565 (4th Cir. 1994); Restatement (Second) of Agency,
supra, § 284, Comment d.
I believe that Robinson’s appearance at the reception
area with the Smith and Bornsheuer applications, cou-
pled with the statement that he was sent by the field su-
perintendent, may be sufficient to establish apparent
agency even if those words were spoken by Robinson.
When the field superintendent gave Robinson the appli-
cations and sent him to deal with the applicants, he
should have realized that such conduct would be likely to
create a belief that Robinson was authorized to act for
him in the hiring process. Because he was carrying ap-
plications and relating words spoken by the field superin-
tendent, Robinson was not merely expressing his own
belief that he had the authority to deal with the appli-
cants, but rather he was showing Smith and Bornsheuer
that the principal specifically directed him to deal with
them concerning their applications.
This may constitute a sufficient manifestation by the
principal of the delegation of authority. I would not,
however, definitively make this finding at this time.
Rather, because I believe that a remand for reconsidera-
tion of the judge’s finding on the question of animus is
necessary, as discussed further below, I would allow the
judge to reexamine his finding on the agency issue as
well.
(b) Robinson told Smith and Bornsheuer that “the per-
son he worked for did not care for unions” and that their
applications made the field superintendent nervous. The
judge found that even if Robinson’s statements were at-
tributable to the Respondent, they would not establish
animus. In the judge’s view, “[a]n expression of distaste
does not, by itself, connote an intent to disobey.”
Contrary to my colleagues and the judge, I believe that
these statements, if made by an agent of the Respondent,
would tend to establish animus, in the context in which
they were made. Robinson appeared to be a key actor in
the hiring process, his statements were uttered in the
course of that process, and they permit the reasonable
inference that the union affiliation of the applicants was a
motivating factor in the Respondent’s unfavorable treat-
ment of their applications.5
5 The judge’s assertion that Robinson’s statements cannot be consid-
ered as evidence of animus because they do not contain an explicit
threat of reprisal or force or promise of benefit is inconsistent with
current Board law. See, e.g., Overnite Transportation, 335 NLRB 372,
375 fn. 15 (2001); Mediplex of Stamford, 334 NLRB 903, 903 (2001);
Affiliated Foods, 328 NLRB 1107 (1999); American Packaging Corp.,
TEJAS ELECTRICAL SERVICES 419
Thus, if Robinson’s statements were made by an agent
of the Respondent (see sec. (a) above), I would find, con-
trary to the judge, that the General Counsel has met his
burden of showing that union animus motivated the Re-
spondent’s decision not to consider or hire Smith and
Bornsheuer. I cannot, however, definitively make this
finding at this time because of the judge’s procedural
error discussed below, and would instead remand this
issue to the judge for reconsideration.
(3) I agree with my colleagues that the judge also
erred when he summarily denied the Respondent’s re-
quests for production of affidavits given by the General
Counsel’s witnesses during the investigation of other
unrelated cases in which the witnesses acted as union
salts.
I agree with my colleagues that the judge should have
determined, through in camera inspection, whether the
affidavits were relevant to the issues raised in the instant
case. See Section 102.118 of the Board’s Rules and
Regulations; Caterpillar, Inc., 313 NLRB 626 (1994).
The failure of the judge to do so may have resulted in the
impairment of the Respondent’s right of cross-
examination. My colleagues find this error non-
prejudicial because they dismiss the complaint on the
merits due to an insufficient showing of animus. How-
ever, because of my view that the judge’s no animus
finding may have been erroneous in several substantive
respects, I cannot join my colleagues in finding this error
nonprejudicial.
Although I would be inclined to find, contrary to the
judge, that the General Counsel has established the ele-
ment of antiunion animus, I cannot definitively make
such a finding at this time, without giving the Respon-
dent an opportunity to adequately cross-examine the
General Counsel’s witnesses. Accordingly, I would re-
mand this case to the judge with the following instruc-
tions:
(1) Examine in camera the affidavits given by the
General Counsel’s witnesses in other unrelated cases and
determine if they contain anything relevant to the issues
in this case. If so, the judge should redact the affidavits,
provide them to the Respondent, and reopen the record to
allow the Respondent to further cross-examine the Gen-
eral Counsel’s witnesses.
(2) Reexamine his no animus finding in light of any
new cross-examination, as well as any previous evidence

311 NLRB 482 fn. 1 (1993); Gencorp, 294 NLRB 717 fn. 1 (1989); and
Smith’s Transfer Corp., 162 NLRB 143, 161–164 (1966). See also
John W. Hancock Jr., Inc., 337 NLRB 1223 fns. 8 and 10 (2002) (ma-
jority disagreeing with this line of cases, but acknowledging that they
represent extant Board law; see fn. 2 of my dissent).

concerning the timing of the applications and subsequent
hiring that the judge apparently ignored.
(3) Reexamine his agency finding and its effect on his
no animus finding.
(4) Reexamine his finding that Robinson’s statements,
if Robinson were an agent of the Respondent, would not
be evidence of animus because they are protected by
Section 8(c).
(5) If the judge finds that a prima facie case has been
established, determine whether, in light of the Respon-
dent’s failure to present any testimony, the Respondent
has met its burden of showing that Smith and Bornsheuer
would not have been considered for hire or hired absent
their union affiliation.

Robert Levy, Esq., for the General Counsel.
Judith B. Sadler, Esq. and Charles Sykes, Esq. (Sadler &
Sykes), of Houston, Texas, for the Respondent.
Patrick M. Flynn, Esq., of Houston, Texas, for the Charging
Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on October 29, 2001, in Houston, Texas. After the parties
rested, I heard oral argument, and on October 30, 2001, issued a
bench decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision.1 The conclusions of law and order provisions are
set forth below.
Conclusions of Law
1. The Respondent, Tejas Electrical Services, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party, International Brotherhood of Electri-
cal Workers, Local Union No. 716, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent did not violate the Act by any manner al-
leged in the complaint.
On the findings of fact and conclusions of law, and on the
entire record in this case, I issue the following recommended2
ORDER
The complaint is dismissed.
1 The bench decision appears in uncorrected form at pp. 141 through
160 of the transcript. The final version, after correction of oral and
transcriptional errors, is attached as App. A to this certification.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, these findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420
APPENDIX A
This is a bench decision in the case of Tejas Electrical Ser-
vices, Inc., which I will call the “Respondent,” and Interna-
tional Brotherhood of Electrical Workers, Local Union No.
716, which I will call the “Charging Party” or the “Union.”
The case number is 16–CA–20937.
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. I find
that a preponderance of the evidence does not establish that
Respondent discriminated against two job applicants in the
manner described in the complaint, and recommend that the
complaint be dismissed.
Procedural History
This case began on February 21, 2001, when the Charging
Party filed its initial charge in this proceeding. On April 20,
2001, after investigation of the charge, the Regional Director
for Region 16 of the National Labor Relations Board issued a
complaint and notice of hearing, which I will call the “com-
plaint.” In issuing this complaint, the Regional Director acted
on behalf of the General Counsel of the Board, whom I will
refer to as the “General Counsel” or as the “Government.”
Admitted Allegations
Respondent filed a timely answer to the complaint. Based on
admissions in this answer, I find that the Government has
proven the allegations in complaint paragraphs 1, 2, 3, 4, and 5.
More specifically, I find that at all material times Respondent
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and Charging Party
has been a labor organization within the meaning of Section
2(5) of the Act.
Unfair Labor Practice Allegations
Complaint paragraphs 8 and 9 allege that since on or about
February 12, 2001, Respondent has refused to consider and/or
hire two job applicants, Jack Smith and Jack Bornsheuer, be-
cause they formed, joined, or assisted the Union and engaged in
concerted activities and to discourage employees from engag-
ing in these activities. Respondent denies these allegations.
The record establishes that on February 12, 2001, four per-
sons affiliated with the Union applied for work at the Respon-
dent’s office. Two of these individuals, Smith and Bornsheuer,
submitted applications which revealed their relationship with
the Union. The other two, Gordon Casey and Ray Rath, sub-
mitted applications which did not disclose their Union affilia-
tion.
Respondent hired Casey and Rath in February 2001. It hired
other applicants in the period March through July 2001. How-
ever, Bornsheuer never received a job offer from Respondent.
Smith did not receive such an offer until October 2001.
The FES Standard
To evaluate these allegations, I will follow the framework
established by the Board in FES, 331 NLRB 9 (2000). In that
case, the Board stated that to prove a discriminatory refusal-to-
hire, the General Counsel must first establish the following:

(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful conduct;
(2) that the applicants had experience or training rele-
vant to the announced or generally known requirements of
the positions for hire, or in the alternative, that the em-
ployer has not adhered uniformly to such requirements, or
that the requirements were themselves pretextual or were
applied as a pretext for discrimination; and
(3) that antiunion animus contributed to the decision
not to hire the applicants.

Once these elements are established, the burden will shift to
the respondent to show that it would not have hired the appli-
cants even in the absence of their union activity or affiliation.
If the Government meets its burden and the respondent fails to
show that it would have made the same hiring decisions even in
the absence of union activity or affiliation, then a violation of
Section 8(a)(3) has been established.
With respect to refusal-to-consider allegations, the Board
held in FES that the Government must show, as part of its case-
in-chief, that the employer excluded applicants from a hiring
process, and that antiunion animus contributed to the decision
not to consider the applicants for employment. See FES, 331
NLRB 9. Once these elements are established, the burden will
shift to the respondent to show that it would not have consid-
ered the applicants even in the absence of their union activity or
affiliation. See also Kanawha Stone Co., 334 NLRB 235
(2001).
The Refusal-to-Hire Allegations
The General Counsel has established the first FES element.
The record clearly establishes that Respondent was hiring em-
ployees on February 12, 2001. On that date, it hired at least
two workers, Rath and Casey. In the next 6 months, it hired at
least five other employees.
The Government also has established the second FES ele-
ment. Both Smith and Bornsheuer were fully qualified jour-
neyman electricians.
The General Counsel has not proven the third FES element,
that antiunion animus contributed to the decision not to hire the
applicants. To make such a showing, the Government relies on
two types of evidence. First it argues that such animus may be
inferred from the hiring pattern itself. Second, it contends that
a person named David Robinson possessed apparent authority
to act as Respondent’s agent and that Robinson made state-
ments which reflect animus in the hiring process.
In appropriate cases, an inference of animus may be drawn
from evidence which includes a hiring pattern suggesting dispa-
rate treatment. The Board specifically noted in FES, “In most
cases where 8(a)(3) violations are found, the conclusion is in-
ferred from all of the circumstances. We know of no case
which eschews this approach, and we would not abandon it.”
Here, the General Counsel has presented evidence which, in
some ways, resembles a scientific experiment: Four individuals
applied for employment. The two applicants who did not dis-
close their union affiliation were hired right away, but the two
applicants who did disclose their union affiliation did not re-
ceive such prompt offers of employment. If the two applicants
hired by Respondent are considered, in scientific terms, to be
“controls,” then results suggest a strong correlation between
disclosure of union affiliation and not being hired.
TEJAS ELECTRICAL SERVICES 421
The Respondent contends that this experiment is flawed. It
argues that Houston area electrical contractors knew that one of
the employees it did hire on February 12, 2001—Ray Rath—
was affiliated with the Union. However, the Respondent did
not present evidence to establish that its management was
aware of Rath’s union affiliation on the day he applied for
work.
The experiment may be imperfect in another way. The evi-
dence does not establish that Respondent had more than two
job openings to fill on February 12, 2001, or that it hired more
than two applicants. If the two individuals hired on February
12, 2001—Rath and Case—applied before Smith and Born-
sheuer, then this priority demonstrates a nondiscriminatory
reason for hiring them rather than the latter two applicants.
Smith testified that he and Bornsheuer arrived at the Re-
spondent’s offices before Rath and Casey, but this testimony
must be examined carefully because it is not based upon first-
hand observations. Smith did not testify that he was waiting at
Respondent’s offices and saw Rath or Casey walk in. Indeed,
the record does not indicate that either Smith or Bornsheuer
saw Rath or Casey that day at Respondent’s offices.
Rather, Smith bases his conclusion—that he and Bornsheuer
arrived at the offices before Rath and Case—on conversations
he had later with those two applicants. But when Rath and
Casey testified, they did not provide information which would
support the conclusion Smith drew. Either they told Smith
something different from their testimony, or else Smith drew an
unwarranted conclusion from what they said to him.
Both Smith and Bornsheuer testified that they arrived at Re-
spondent’s offices about 10 a.m. on February 12, 2001. Casey
testified that he arrived sometime between 10 and 10:30 a.m.
on that date. That testimony is consistent with Smith’s claim
that he and Bornsheuer arrived first, but it does not rule out the
opposite possibility.
Additionally, it seems possible that one or more of the wit-
nesses may have been mistaken about the time of arrival. If all
of them arrived at the stated times, it would appear rather likely
for Smith and Bornsheuer to have seen Casey at some point.
But they did not. In these circumstances, I am not convinced
that the witnesses recalled their times of arrival with sufficient
certainty to establish which of them arrived first.
Rath’s testimony is even less certain. Although his applica-
tion is dated February 12, 2001, Rath expressed some uncer-
tainty regarding the date he visited Respondent’s offices. He
testified that it was in “early February.”
In sum, the fact that Respondent offered employment to the
two applicants who did not identify themselves with the Union,
but did not offer employment to the two applicants who did
disclose their union affiliation, certainly creates some suspi-
cion. It is indeed a factor to be considered. However, I do not
believe that this factor, standing alone, is sufficient to prove, by
a preponderance of the evidence, that animus entered into the
hiring process.
In reaching the conclusion that this evidence—which might
be called statistical evidence— is insufficient by itself to estab-
lish animus, I am mindful of the Board’s recent decision in
Aztech Electric Co., 335 NLRB 260 (2001). In that case, the
Board found unlawful an employer’s rule that it would not hire
job applicants whose prior wage rates were 30 percent or more
above the wage rates offered by the hiring employer. Citing
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967), the Board
found this rule was inherently destructive of employee rights.
The Board analogized its theory to a “disparate impact” the-
ory under Title VII of the Civil Rights Act of 1964. Under a
“disparate impact” theory, policies which are fair on their face
may be deemed unlawful if they discriminate in operation.
It might be possible to extend the “disparate impact” princi-
ple to a situation such as presented in the present case, where
statistical evidence showed that an employer did not hire two
overt union adherents but did hire others, including two appli-
cants who did not reveal their affiliation with the union. But in
this case, unlike Aztech Electric, supra, the evidence does not
show that the Respondent was following any particular rule or
practice in its hiring which might account for such an outcome.
Absent evidence of a particular rule or practice which reasona-
bly would have a disparate impact on union adherents, I do not
believe it would be appropriate to apply a Great Dane Trailers
rationale here.
Moreover, I do not feel comfortable relying solely upon the
statistical evidence as a basis upon which to infer animus. In
Fluor Daniel, Inc., 333 NLRB 427 (2001), the Board relied in
part on statistical data to find that an employer’s hiring prefer-
ences, policies, and procedures discriminated against applicants
affiliated with the union and thereby violated the Act. How-
ever, the Board also stated, “We believe that the evidence, quite
apart from the statistical data, supports the violations. The
statistical data show the predictable consequences of that dis-
crimination.”
The statistical evidence in the present case certainly might
bolster other evidence of unlawful intent, but considered by
itself, I do not believe the statistical evidence here constitutes a
preponderance of the evidence sufficient to carry the Govern-
ment’s burden of proof.
The Government also relies upon statements which two wit-
nesses attribute to David E. Robinson. The complaint alleges
that Robinson is Respondent’s supervisor and agent. Respon-
dent denies this allegation. Therefore, before I may consider
whether the statements in question are evidence that Respon-
dent harbored animus, I first must determine whether these
statements may be imputed to Respondent.
The General Counsel bears the burden of proving that Rob-
inson is Respondent’s supervisor and/or agent. The record fails
to establish that Robinson was a supervisor. It also fails to
establish that Respondent imbued Robinson with actual author-
ity to serve as its agent. However, the Government further
contends that Robinson had apparent authority to act as Re-
spondent’s agent.
Before examining whether or not Robinson was Respon-
dent’s agent, I will summarize his encounter with Smith and
Bornsheuer on February 12, 2001. Robinson did not testify at
the hearing. Smith and Bornsheuer gave similar accounts of
their encounter with Robinson.
When Smith and Bornsheuer arrived at Respondent’s offices
on that date, they told the receptionist they wanted to apply for
work, and the receptionist gave them job application forms to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 422
complete. After doing so, they returned the forms to the recep-
tionist.
A little later, Robinson appeared in the receptionist’s area.
According to Smith, when Robinson came to the receptionist’s
area, he was holding the applications which Smith and Born-
sheuer had given to the receptionist.
Robinson gave Smith a card which identified Robinson as
“Director Of Estimating” for Tejas Electrical Services, Inc.
According to Smith, Robinson “said that the application made
the field superintendent nervous so they sent him out to talk to
us.”
Although Bornsheuer’s testimony does not attribute such a
statement to Robinson, it does not expressly contradict Smith’s
version. As already noted, Robinson did not testify. Based on
my observations of the witnesses, and the absence of any evi-
dence to call into question Smith’s testimony on this point, I
credit his testimony.
Robinson invited Smith and Bornsheuer to accompany him
to a back office. According to Smith, Robinson “explained that
he was either a contractor or worked for a union contractor in
the Washington D.C.—Virginia area. He was explaining how
he enjoyed working for ‘em because of how the benefit pack-
ages were structured he didn’t have to worry it, the availability
of the manpower, the quality of the work that they did.”
Bornsheuer’s testimony differs from Smith’s in one signifi-
cant way. Bornsheuer attributed to Robinson a statement sug-
gesting that Robinson’s superiors might have negative feelings
towards unions. Bornsheuer testified: “We discussed the fact
that Mr. Robinson had been working with a contractor in Wash-
ington, D.C., he was familiar with the union electricians, he felt
they were, there was never any problem with their work, he
was very satisfied with union work, he had no trouble with
union employees but the person he worked for did not care for
unions.”
Unlike Bornsheuer, Smith did not attribute to Robinson a
statement that the person he worked for did not care for unions.
Again, based upon my observations of the witnesses and the
absence of evidence which contradicts Bornsheuer on this
point, I credit Bornsheuer’s testimony.
Both Bornsheuer and Smith agree upon another significant
fact. At no time during this conversation with Robinson did
they discuss their applications for employment with Respon-
dent. For example, counsel for the General Counsel asked
Smith the following:

Q In listening to you, sir, I haven’t heard anything men-
tioned regarding the fact that you had filed an application
and were seeking employment. Was that something dis-
cussed between yourself and Mr. Robinson with Mr.
Bornsheuer present.

A There was no discussion about work or employment at
Tejas.

The General Counsel asked Bornsheuer a similar question
and got a similar answer:

Q Did Mr. Robinson talk to you about that subject at all?
A No he did not.

In essence, Smith and Bornsheuer talked to Robinson about
the benefits of being a union employer. Smith went to his car
and returned with a copy of the working agreement between
unionized electrical contractors and the Union. Smith also told
Robinson about an “intermediate journeyman program” that
would help Respondent to be competitive.
In examining this testimony, I note that Respondent is an
employer in the construction industry. Thus, under Section 8(f)
of the Act, it would be lawful for union representatives to dis-
cuss with the Respondent the possibility of entering into a pre-
hire agreement with the Union. In that context, Smith’s “sales
pitch” to Robinson, that the Respondent should become a union
employer, appears quite plausible.
After that discussion, the meeting ended. As already noted,
the subject of the job applications did not arise.
The Government contends that Respondent had imbued Rob-
inson with the apparent authority to act as its agent.
In Shen Automotive Dealership Group, 321 NLRB 586
(1996), the Board adopted in relevant part the administrative
law judge’s decision, which quoted as follows from Service
Employees Local 87 (West Bay Maintenance), 291 NLRB 82
(1988):

Apparent authority is created through a manifestation by
the principal to a third party that supplies a reasonable ba-
sis for the latter to believe that the principal has authorized
the alleged agent to do the act in question. NLRB v.
Donkin’s Inn, 532 F.2d 138, 141 (9th Cir. 1976); Alliance
Rubber Co., 286 NLRB 645, 646 fn. 4 (1987). Thus, ei-
ther the principal must intend to cause the third person to
believe that the agent is authorized to act for him, or the
principal should realize that this conduct is likely to create
such belief. Restatement 2d, Agency § 27 (1958, Com-
ment). Two conditions, therefore, must be created: (1)
there must be some manifestation by the principal to a
third party, and (2) the third party must believe that the ex-
tent of the authority granted to the agent encompasses the
contemplated activity.

To confer apparent authority on Robinson to act as its agent,
Respondent must have made some manifestation to a third
party. Before deciding whether the record here establishes such
a manifestation, it is helpful to clarify what does and does not
constitute this kind of manifestation.
In some circumstances, statements by members of manage-
ment can create the reasonable impression that management has
authorized a particular person to speak on its behalf. However,
the General Counsel does not contend that any person in Re-
spondent’s management made any statement that Robinson had
authority to speak on its behalf concerning the hiring process.
Actions by a management official also may establish that a
person has apparent authority to act as management’s agent. In
GM Electrics, 323 NLRB 125 (1997), the respondent’s owner
was frequently out of the office and relied on his secretary to
speak with job applicants and tell them about the respondent’s
hiring needs. The Board found this secretary to have apparent
authority to act as the respondent’s agent.
On the other hand, in Custom Top Soil, Inc., 327 NLRB 121
(1998), the bookkeeper had no regular role in the hiring process
TEJAS ELECTRICAL SERVICES 423
and clearly indicated that she had no knowledge of manage-
ment’s hiring practices. Reversing the judge, the Board found
that this bookkeeper had no apparent authority to act as Re-
spondent’s agent.
In the present case, the evidence fails to establish that man-
agement relied on Robinson to interview job applicants or tell
them about Respondent’s hiring practices. The only evidence
to suggest that management had delegated this responsibility to
Robinson comes from Robinson’s own words. Specifically,
Smith testified that Robinson “said that the application made
the field superintendent nervous so they sent him out to talk to
us.”
However, the putative agent’s own words do not constitute a
“manifestation by the principal.” (Emphasis added.) A person
cannot make himself an apparent agent simply by claiming that
status, any more than a person can make himself a deputy sher-
iff simply by pinning a tin star on his shirt. Before the acts of
the self–proclaimed deputy may be attributed to the sheriff, the
sheriff must have taken some action or made some statement
which reasonably would lead others to believe the individual
was acting with the sheriff’s permission. Similarly, before the
self-proclaimed agent’s words may be attributed to the princi-
pal, the principal, and not the self-proclaimed agent, must have
said or done something to lead others to believe that the agent
was speaking on the principal’s behalf.
Robinson’s own words do not constitute a “manifestation by
the principal” so I must look elsewhere for such a manifesta-
tion. It is not clear that Robinson’s business card constitutes
any statement by the principal concerning Robinson’s author-
ity. Computers, laser printers and perforated card stock have
made the printing of business cards easy and inexpensive. I
would hesitate to assume that a particular business card had
been authorized by management when they can be created at
home so readily.
However, even assuming for the sake of argument that Rob-
inson’s business card represents a statement by management
concerning Robinson’s authority, the statement does not create
the impression that Robinson was engaged in the hiring process
or that Respondent had authorized Robinson to speak about it
with job applicants. The business card identifies Robinson as
the “Director of Estimating.” An estimator commonly calcu-
lates how much a contractor should bid on a project, or offer to
charge for it. That function has little apparent connection to the
hiring process.
Arguably, Respondent’s appearance in the reception area,
while holding the job applications, might constitute some indi-
cation that management had authorized him to deal with appli-
cants concerning matters related to hiring. But again, these
actions originate with Robinson, not with higher management.
They hardly constitute a manifestation by the principal.
It may be argued that management would be unlikely to let
an unauthorized person wander its halls, pick up job applica-
tions and talk to applicants about them. Thus, it might be rea-
son to infer, from Robinson’s presence in the offices, that he
had authority to be there and to perform the function he was
performing. As stated in Kosher Plaza Supermarket, 313
NLRB 74, 85 (1983), “an employer can be responsible for the
conduct of an employee, as an agent, where under all the cir-
cumstances the employees would reasonably believe that the
individual was reflecting company policy and acting on behalf
of management.”
Even if we assume that Robinson had authority to be on the
Respondent’s premises and to do what he was doing, we still
have to look at what he was doing. There is no evidence that
Robinson spoke with any job seekers about their applications or
about the hiring process. To the contrary, both Smith and
Bornsheuer testified that Robinson did not discuss their job
applications. I cannot infer from Robinson’s actions any au-
thority to do something which he did not do. The General
Counsel bears the burden of proving that Robinson acted with
apparent authority from management. The evidence fails to
carry this burden. Therefore, I will not attribute Robinson’s
statements to the Respondent.
Although I do not attribute Robinson’s statements to Re-
spondent, even if I did so, the statements would not establish
that animus tainted the hiring process. According to Smith,
Robinson “said that the application made the field superinten-
dent nervous so they sent him out to talk to us.” A statement
that an application made a superintendent “nervous” falls short
of establishing that animus would taint the hiring process.
Bornsheuer testified that Robinson told them “he had no
trouble with union employees but the person he worked for did
not care for unions.” A statement that an employer does not
care for unions does not signify that the employer will dis-
criminate against them in violation of the law. Indeed, a person
may not care for many things the law requires, such as paying
taxes, but distaste does not equal disobedience. Likewise, an
expression of distaste does not, by itself, connote an intent to
disobey.
Section 8(c) of the Act states that “The expressing of any
views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any
of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.”
I conclude that the statement that Robinson’s boss “does not
care for unions” is a statement of opinion, and that it contains
no threat of reprisal or force or promise of benefit. Similarly, a
statement that a particular application made a superintendent
“nervous” constitutes a statement of opinion which contains no
threat of reprisal or force or promise of benefit.
In sum, even if Robinson were considered to be manage-
ment’s agent, his statements do not establish that animus
tainted the hiring process.
For all these reasons, I find that the Government has not
proven that Respondent failed to hire Smith and Bornsheuer in
violation of Section 8(a)(3) and (1), and therefore recommend
that these allegations be dismissed.
The Refusal-to-Consider Allegations
Complaint paragraphs 8 and 9 also allege that since on or
about February 12, 2001, Respondent has refused to consider
Smith and Bornsheuer for employment because they formed,
joined, or assisted the Union and engaged in concerted activi-
ties and to discourage others from engaging in these activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 424
As already noted, the Board held in FES that for refusal–to–
consider allegations, the Government must show, as part of its
case–in–chief, that the employer excluded applicants from a
hiring process, and that antiunion animus contributed to the
decision not to consider the applicants for employment. See
FES, 331 NLRB 9, 15 (2000). Once these elements are estab-
lished, the burden will shift to the Respondent to show that it
would not have considered the applicants even in the absence
of their union activity or affiliation.
The evidence here does not establish that Respondent ex-
cluded Smith or Bornsheuer from the hiring process. To the
contrary, it is uncontradicted that Respondent accepted the job
applications filed by these individuals. The record fails to es-
tablish that Respondent excluded these applicants from the pool
under consideration.
For reasons already discussed, the record also fails to estab-
lish that antiunion animus tainted the selection process. In
these circumstances I find that the Government has not proven
the necessary elements. Therefore, I recommend that the Board
dismiss these allegations.
CONCLUSION
For the reasons discussed, I find that a preponderance of the
evidence does not establish the unfair labor practice allegations
raised by the complaint. Therefore, I recommend that the
Board dismiss the complaint in its entirety.
When the transcript of this proceeding has been prepared, I
will issue a certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the find-
ings of fact, conclusions of law, and Order. When that certifi-
cation is served upon the parties, the time period for filing an
appeal will begin to run.
The hearing is closed.
141
P R O C E E D I N G S
THE COURT: This is a bench decision in a case of Tejas
Electrical Services, Inc., which I will call the Respondent, and
International Brotherhood of Electrical Workers Local Union
No. 716, which I will call the Charging Party or the Union.
The case number is 16–CA–20937. This decision is issued
pursuant to section 102.35A10 in section 102.45 in the Boards
Rules and Regulations.
I find that a preponderance of the evidence does not estab-
lish that Respondent discriminated against two job applicants in
the manner described in the complaint and recommend that the
complaint be dismissed.
Procedural history: This case began on February 21, 2001,
when the Charging Party filed its initial charge in this proceed-
ing. In April 2001, after investigation of the charge, the re-
gional director of Region 16 of the National Labor Relations
Board issued a complaint and notice of hearing, which I will
call the complaint. In issuing this complaint, the [R]egional
[D]irector acted on behalf of the General Counsel of the Board,
whom I will refer to as the General Counsel or as the Govern-
ment.
Admitted allegations: Respondent filed a timely answer to
the complaint. Based upon admissions in this answer, I find
that the Government has proven the allegations in
142
complaint paragraphs 1, 2, 3, 4, and 5. More specifically, I find
that at all material times Respondent has been an employer
engaged in commerce within the meaning of [S]ection 226 and
7 of the [A]ct, and Charging Party has been a labor organiza-
tion within the meaning of [S]ection 25 of the [A]ct.
Unfair labor practice allegations: Complaint paragraphs 8
and 9 allege that since on or about February 12, 2001, Respon-
dent has refused to consider and/or hire two job applicants, Jack
Smith and Jack Bornsheuer, because they formed, joined, or
assisted the Union and engaged in concerted activities and to
discourage employees from engaging in these activities. Re-
spondent denies these allegations.
The record establishes that on February 12, 2001, four per-
sons affiliated with the Union applied for work at the Respon-
dent’s office. Two of these individuals, Smith and Bornsheuer,
submitted applications which revealed their relationship with
the Union. The other two, Gordon Casey and Ray Rath, sub-
mitted applications which did not disclose their union affilia-
tion. Respondent hired Casey and Rath in February 2001. It
hired other applicants in the period March through July 2001.
However, Bornsheuer never received a job offer from Respon-
dent. Smith did not receive such an offer until October 2001.
The FES standard: To evaluate these allegations, I will fol-
low the framework established by the [B]oard and FES, a
143
[D]ivision of [Thermo P]ower, 331 NLRB [9 (2000)]. In that
case, the [B]oard stated that to prove a refusal-to-hire the Gen-
eral Counsel must first establish the following. One, that the
Respondent was hiring or had concrete plans to hire at the time
of the alleged unlawful conduct. Two, that the applicants had
experience or training relevant to the announced or generally
known requirements of the positions for hire or the alternative
that they employer has not adhered uniformally [sic] to such
requirements by that the requirements were themselves pretex-
tual or were applied as a pretext for discrimination. And three,
that anti-union animus contributed to the decision not to hire
the applicants.
Once these elements were established the [B]oard will then
shift to the Respondent to show that it would not have hired the
applicants even in absence of their union activity or affiliation.
If the Government meets its burden and the Respondent fails to
show that it would have made the same hiring decisions even in
the absence of union activity or affiliation, then a violation of
[S}ection 883 has been established.
With respect to refusal to consider allegations, the [B]oard
held in FES that the Government must show, as part of its case
and chief, that the employer excluded applicants from a hiring
process and that anti-union animus contributed to the decision
not to consider the applicants for employment. See
144
FES, a [D]ivision of [Thermo P]ower, 331 NLRB [9 (2000)].
Once these elements are established the burden will shift to the
TEJAS ELECTRICAL SERVICES 425
Respondent to show that it would not have considered appli-
cants even in the absence of their union activity or affiliation.
See also Konawa Stone Company, Inc. 334 NLRB [119], June
6th, 2001.
The refusal-to-hire allegations: The General Counsel has es-
tablished the first FES element. The record clearly establishes
that Respondent was hiring employees on February 12, 2001.
On that date [it] had hired at least two workers, Rath and Ca-
sey. The next six months it hired at least five other employees.
The Government also has established the second FES element.
Both Casey and––both Smith and Bornsheuer were fully quali-
fied journeyman electricians. The General Counsel has not
proven the third FES element, that anti-union animus contrib-
uted to the decision not to hire the applicants. To make such a
showing, the Government relies on two types of evidence.
First, it argues that such animus may be inferred from the hiring
pattern itself. Second, it contends that a person named David
Robinson possessed apparent authority to act as Respondent’s
agent and that Respondent made statements which reflect ani-
mus––and that Robinson made statements which reflect animus
in the hiring process.
In appropriate cases, an inference of animus may be drawn
from evidence which includes a hiring pattern suggesting
145
disparate treatment. The board significantly noted in FES
quote, “In most cases where 883 violations are found, the con-
clusion is inferred from all of the circumstances. We know of
no case which––this approach and we would not abandon it,”
end quote.
Here the General Counsel has presented evidence which, in
some ways, resembles a scientific experiment. Four individuals
applied for employment. The two applicants who did not dis-
close their union affiliation were hired right away, but the two
applicants who did disclose their union affiliation did not re-
ceive such prompt offers of employment. If the two applicants
hired by Respondent are considered, in scientific terms, to be
controls then results suggest a strong correlation between dis-
closure of union affiliation and not. The Respondent contends
that this experiment is flawed. It argues that Houston area of––
contractors knew that one of the employees that did hire on
February 12, 2001, Ray Rath, was affiliated with the Union.
However, the Respondent did not present evidence that this
management was aware of Rath’s union affiliation on the day
he applied for work.
The experience may in [sic] imperfect in another way. The
evidence does not establish that Respondent had more than two
openings to fill on February 12th, 2001, or that it hired more
than two applicants. If the two individuals hired on February
146
12th, 2001, Rath and Casey, applied before Smith and Born-
sheuer then this priority demonstration non-discriminatory
reason for hiring them rather than the latter two applicants.
Smith testified that he and Bornsheuer arrived at the Re-
spondent’s offices before Rath and Casey, but this testimony
must be examined carefully because it is not based upon first
hand observations. Smith did not testify that he was waiting at
Respondent’s offices and saw Rath or Casey walk in. Indeed
the record does not indicate that either Smith or Bornsheuer
saw Rath or Casey that day at Respondent’s offices. Rather
Smith bases his conclusion that he and Bornsheuer arrived at
the offices before Rath and Casey on conversations he had later
with those two applicants. But when Rath and Casey testified,
they did not provide information which would support the con-
clusion Smith drew. Either they told Smith something different
from their testimony or else Smith drew an unwarranted con-
clusion from what they said to him.
Both Smith and Bornsheuer testified that they arrived at Re-
spondent’s offices about ten a.m. on February 12, 2001. Casey
testified that he arrived some time between ten and 10:30 a.m.
on that date. That testimony is consistent with Smith’s claim
that he and Bornsheuer arrived first but it not rule out the oppo-
site possibility.
Additionally, it seems possible that one of more of the wit-
nesses may have been mistaken about the time of arrival.
147
If all of them arrived at the stated times it would appear
rather likely for Smith and Bornsheuer to have seen Casey at
some point, but they did not. In these circumstances, I am not
convinced that the witnesses recall their times of arrival with
sufficient certainty to establish which of them arrived first.
Rath’s testimony is even less certain. Although his applica-
tion is dated February 12, 2001, Rath expressed some uncer-
tainty regarding the date he visited Respondent’s offices. He
testified that it was in, quote, “early February,” end quote.
In sum, the fact that Respondent offered employment to the
two applicants who did not identify themselves with the Union
but did not offer employment to the two applicants who did
disclose their union affiliation certainly creates some suspicion.
It is, indeed, a factor to be considered. However, I do not be-
lieve that this factor, standing alone, is sufficient to prove by a
preponderance of the evidence that animus entered into the
hiring process. In reaching this conclusion that this evidence,
which might be called statistical evidence, is insufficient by
itself to establish. I am mindful of the [B]oard’s recent deci-
sion in WDDW Commercial Systems and Investments, Inc., dba
Aztec Electric Company Contractors Labor Pools, Inc., 335
NLRB [260], August 25, 2001. In that case, the [B]oard found
unlawful an
148
employer’s rule that it would not hire job applicants whose
prior wage rates were thirty percent or more above the wage
rates offered by the hiring employer. Citing NLRB v. Great
Dane [Trailers], 388 U.S. 26 (1967), the [B]oard found this
rule was inherently destructive of employee rights. The
[B]oard analogized his theory to a disparate impact theory un-
der Title of the Civil Rights Act of 1964. Under a disparate
impact theory, policies which are fair on their face may be
deemed unlawful if they discriminate in operation.
It might be possible to extend the disparate impact principle
to a situation such as presented in the present case where statis-
tical evidence show that an employer did not hire two overt
union adherents but did hire others including two applicants
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 426
who did not reveal their affiliation with the Union. But in this
case, unlike WDDW, the evidence does not show that the Re-
spondent was following any particular rule or practice in this
hiring which might account for such an outcome. Evidence––
and some evidence that a particular rule or practice, which rea-
sonably would have a disparate impact on union adherents, I do
not believe it would be appropriate to apply a Great Dane
[Trailers] rationale here.
Moreover, I do not feel comfortable relying solely upon the
statistical evidence as a basis upon which to infer animus. In––
Inc., 333 NLRB [427] February 27, 2001, the [B]oard relied in
part on statistical data to find that an
149
employer’s hiring preferences, policies, and procedures dis-
criminated against applicants affiliated with the Union and,
thereby, violated the act. However, the [B]oard also stated,
quote, “we believe that the evidence, quite apart from the statis-
tical data, supports the violations. The statistical data shows––
the statistical data show the predictable consequences of that
discrimination,” end quote.
The statistical evidence in the present case certainly might
bolster other evidence of unlawful intent, but considered by
itself I do not believe the statistical evidence here constitutes a
preponderance of the evidence sufficient to carry the Govern-
ment’s burden of proof.
The Government also relies upon statements which two wit-
nesses contribute to David E. Robinson. The complaints al-
leges that Robinson is Respondent’s supervisor and agent.
Respondent denies this allegation. Therefore, before I may
consider whether the statements in question are evidence that
Respondent harbored animus I first must determine whether
these statements may be imputed to Respondent. The General
Counsel bears the burden of proving that Respondent––that
Robinson is Respondent’s supervisor and/or agent. The record
fails to establish that Respondent was a supervisor. It also fails
to establish that Respondent imbued Robinson with actual au-
thority to serve as his agent. However, the Government further
contends that Robinson had apparent authority to act
150
as Respondent’s agent.
Before examining whether or not Robinson was Respon-
dent’s agent, I will summarize his encounter with Smith and
Bornsheuer on February 12, 2001. Robinson did not testify at
the hearing. Smith and Bornsheuer gave similar accounts to
their encounter with Robinson. When Smith and Bornsheuer
arrived at Respondent’s offices on that date, they told the recep-
tionist they wanted to apply for work and the receptionist gave
them job application forms to complete. After doing so they
returned the forms to the receptionist. A little later, Robinson
appeared in the receptionist area. According to Smith, when
Robinson came to the receptionist area he was holding applica-
tions which Smith and Bornsheuer had given to the reception-
ist. Robinson gave Smith a card which identified Robinson as,
quote, “director of estimating,” end quote, for Tejas Electrical
Services, Inc. According to Smith, Robinson, quote, “said that
the application made the field superintendent nervous so they
sent him out to talk to us,” end quote.
Although Bornsheuer’s testimony does not attribute such a
statement to Robinson, it does not expressly contradict Smith’s
version. As already noted, Robinson did not testify. Based on
my observations of the witnesses and the absence of any evi-
dence to call on to question Smith’s testimony on this point, I
credit his testimony.
151
Robinson invited Smith and Bornsheuer to accompany him
to a back office. According to Smith, Robinson, quote, “Ex-
plained that he was either a contractor or worked for a union
contractor in the Washington, D.C., Virginia area. He was
explaining how he enjoyed working for them because of how
the benefit packages were structured. He didn’t have to worry.
The availability of the man power, the quality of the work that
they did,” end quote.
Bornsheuer’s testimony differs from Smith’s in one signifi-
cant way. Bornsheuer attributed to Robinson a statement sug-
gesting that Robinson’s supervisors might have negative feel-
ings towards unions. Bornsheuer testified that, quote, “We
discussed the fact that Mr. Robinson had been working with a
contractor in Washington, D.C. He was familiar with the Un-
ion electricians. He felt they were––there was never any prob-
lem with their work. He was very satisfied with union work.
He had no trouble with union employees but the person he
worked for did not care for unions,” end quote. Unlike Born-
sheuer, Smith did not attribute to Robinson a statement that the
person he worked for did not care for unions. Again, based
upon my observations of the witnesses and the absence of evi-
dence which contradicts Bornsheuer on this point, I credit
Bornsheuer’s testimony.
Both Bornsheuer and Smith agree upon another significant
fact. At no time during this conversation with
152
Robinson did they discuss their applications for employment
with Respondent. For example, counsel for the General Coun-
sel asks Smith the following. Question: In listening to you, sir,
I haven’t heard anything mentioned regarding the fact that you
had filed an application and were seeking employment. Was
that something discussed between yourself and Mr. Robinson
with Mr. Bornsheuer present? Answer: There was no discus-
sion about work or employment at Tejas. The General Counsel
asked Bornsheuer a similar question and got a similar answer.
Question: Did Mr. Robinson talk to you about that subject at
all? Answer: No. He did not.
In essence, Smith and Bornsheuer talked to Robinson about
the benefits of being a union employer. Smith went to his car
and returned with a copy of the working agreement between
unionized electrical contractors and the Union. Smith also told
Robinson about an, quote “intermediate journeyman program,”
end quote, that would help Respondent to be competitive. In
examining this testimony, I note that Respondent as an em-
ployer in the construction industry. Thus, under [S]ection 8F of
the Act, it would be lawful for union representatives to discuss
with the Respondent the possibility of entering into a pre-hire
TEJAS ELECTRICAL SERVICES 427
agreement with the Union. In that context, Smith’s sales pitch
to Robinson that the Respondent should become a union em-
ployer appears quite possible.
After that discussion, the meeting ended. As already
153
noted, the subject of the job applications did not arise. The
Government contends that Respondent had imbued Robinson
with the apparent authority to act as its agent. In Shin Automo-
tive Dealership Group, 321 NLRB 586, 1996, the [B]oard
adopted in relevant part the administrative law judge’s decision,
which quoted as follows from service employees Local 87,
Lessbay Maintenance, 291 NLRB 82, 1988. Apparent author-
ity is created through a manifestation by the principal through a
third party that supplies a reasonable basis for the latter to be-
lieve that the principal has authorized the alleged agent to do
the act in question. NLRB v. Dawkins Inn, 532 F.2d 138, 141,
(9th Circuit 1976). Alliance Rubber Company, 286 NLRB 645,
646 fn. 4, 1987. Thus, either the principal must intend to cause
the third person to believe that the agent is authorized to act for
him or the principal should realize that this conduct is likely to
create such belief. Restatement Second Agency, section 27,
1958 comment. Two conditions, therefore, must be created.
One, there must be some manifestation by the principal to a
third party. And two, the third party must believe that the extent
of the authority granted to the agent encompasses the contem-
plated activity, end quote. To confer apparent authority on
Robinson to act as its agent, Respondent must have made some
manifestation to a third party. Before deciding whether the
record here establishes such a manifestation it is helpful to
154
clarify what does and does not constitute this kind of manifes-
tation.
In some circumstances, statements by members of manage-
ment can create the reasonable impression that management has
authorized a particular person to speak on its behalf. However,
the General Counsel does not contend that any person in
Respondent’s management made any statement that
Respondent had authority to speak on its behalf concerning the
hiring process. Actions by a management official also may
establish that a person has apparent authority to act as
management’s agent. In GM Electric’s, 323 NLRB 125, 1997,
the Respondent’s owner was frequently out of the office and
relied on a secretary to speak with job applicants and tell them
about the Respondent’s hiring needs. The [B]oard found this
secretary to have apparent authority to act as the Respondent’s
agent.
On the other hand, in Custom Top Soil, Inc., 327 NLRB 121,
1998, the bookkeeper had no regular role in the hiring process
and clearly indicated that she had no knowledge of manage-
ment’s hiring practices. Reversing the judge, the [B]oard found
that this bookkeeper had no apparent authority to act as Re-
spondent’s agent. In the present case, the evidence fails to
establish that management relied on Robinson to interview job
applicants or tell them about Respondent’s hiring practices.
The only evidence to suggest that management had
155
delegated this responsibility to Robinson comes from Robin-
son’s own words. Specifically, Smith testified that Robinson,
quote, “Said that the application made the field superintendent
nervous so they sent him out to talk to us,” end quote.
However, the putative agents own words do not constitute a
manifestation by the principal. A person cannot make himself
an apparent agent simply by claiming that status any more than
a person can make himself deputy sheriff simply by pinning a
tin star on his shirt. Before the acts of the self-proclaimed dep-
uty may be attributed to the sheriff, the sheriff must have taken
some action or made some statement which reasonably would
lead others to believe the individual was acting with the sher-
iff’s permission. Similarly, before the self-proclaimed agent’s
words may be attributed to the principal, the principal and not
the self-proclaimed agent, must have said or done something to
lead others to believe that the agent was speaking on the princi-
pal’s behalf.
Respondent’s––Robinson’s only words do not constitute a,
quote, “manifestation by the principal,” end quote, so I must
look elsewhere for such a manifestation. It is not clear that
Robinson’s business card constitutes any statement by the prin-
cipal concerning Robinson’s authority. Computers, laser print-
ers, and perforated card stock have made the printing of busi-
ness cards easy and inexpensive. I would hesitate to
156
assume that a particular business card had been authorized by
management when they can be created at home so readily.
However, even assuming for the sake of argument that Rob-
inson’s business card represents a statement by management
concerning Robinson’s authority, the statement does not create
the impression that Robinson was engaged in the hiring process
or that Respondent had authorized Robinson to speak about it
with job applicants. The business card identifies Robinson as
the quote, “director of estimating,” end quote. An estimator
commonly calculates how much a contractor should bid on a
project or offer to charge for it. That function has little appar-
ent connection to the hiring process. Arguably, Respondent’s
appearance in the reception area while holding the job applica-
tions might constitute some indication that management had
authorized him to deal with applicants concerning matters re-
lated to hiring. But again, these actions originate with Robin-
son not with higher management. They hardly constitute a
manifestation by the principal.
It may be argued that management would be unlikely to let
an unauthorized person to wander its halls, pick up job applica-
tions, and talk to applicants about them. Thus, it might be rea-
sonable to infer from Robinson’s presence in the offices that he
was––that he had authority to be there and to perform the func-
tion he was performing. As stated in––[Kosher Plaza] Super-
market, 313 NLRB 74, 85, 1983, quote, “An employer can be
157
responsible for the conduct of an employee as an agent. For
under all the circumstances the employees would reasonably
believe that the individual was reflecting company policy and
acting on behalf of management,” end quote.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428
Even if we assume that Robinson had the authority to be on
the Respondent’s premises and to do what he was doing, we
still have to look at what he was doing. There is no evidence
that Robinson spoke with any job seekers about their applica-
tions or about the hiring process. To the contrary, both Smith
and Bornsheuer testified that Robinson did not discuss their job
applications. I cannot infer from Robinson’s actions any au-
thority to do something which he did not do. The General
Counsel bears the burden of proving that Robinson acted with
apparent authority for management. The evidence fails to carry
this burden. Therefore, I will not attribute Robinson’s state-
ments to the Respondent.
Although I do not attribute Robinson’s statements to Re-
spondent, even if I did so the statements would not establish
that animus tainted the hiring process. According to Smith,
Robinson, quote, “Said that the application made the field su-
perintendent nervous so they sent him out to talk to us,” end
quote. A statement that an application made a superintendent
nervous falls short of establishing that animus would taint the
hiring process. Bornsheuer testified that Robinson told them,
quote, “he had no trouble with union
158
employees but the person he worked for did not care for un-
ions”, end quote. A statement that an employer does not care
for unions does not signify that the employer will discriminate
against them in violation of the law. Indeed, a person may not
care for many things the law requires, such as paying taxes, but
this case does not equal disobedience. Likewise, an expression
of distaste does not, by itself, connote an intent to disobey.
Section 8C of the Acts states that, quote, “The expressing of
any views, argument, or opinion or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any
of the provisions of this Act. If such expression contains no
threat of reprisal or force or promise of benefit,” end quote. I
conclude that the statement that Robinson’s boss, quote, “does
not care for unions”, end quote, is a statement of opinion and
that it contains no threat of reprisal or force or promise of bene-
fit. Similarly, a statement that a particular application made a
superintendent nervous constitutes a statement of opinion
which contains no threat of reprisal or force or promise of bene-
fit.
In sum, even if Robinson would be considered to be man-
agement’s agent, these statements do not establish that animus
tainted the hiring process. For all those reasons, I
159
find that the government has not proven that Respondent failed
to hire Smith and Bornsheuer in violation of Section 8831 and,
therefore, recommend that these allegations be dismissed.
The refusal to consider allegations: Complaint paragraphs 8
and 9 also allege that since on or about February 12th, 2001,
Respondent has refused to consider Smith and Bornsheuer for
employment because they formed, joined, or assisted the Union
and engaged in concerted activities and to discourage others
from engaging in these activities. As already noted, the
[B]oard held an FES that for refusal to consider allegations, the
Government must show as part of its case and chief that the
employer excluded applicants from a hiring process and that
anti-union animus contributed to the decision not to consider
the applicants for employment. See FES, a [D]ivision of
[Thermo P]ower, 221 NLRB [129 (1975)]. Once these ele-
ments are established, the burden will shift to the Respondent to
show that it would not have considered the applicants even in
the absence of their union activity or affiliation.
The evidence here does not establish that Respondent ex-
cluded Smith or Bornsheuer from the hiring process. To the
contrary, it is uncontradicted that Respondent accepted the job
applications filed by these individuals. The record fails to es-
tablish that Respondent excluded these applicants from the pool
under consideration. For reasons already discussed,
160
the record also fails to establish that anti-union animus tainted
the selection process. In these circumstances, I’ve find that the
Government has not proven the necessary elements. Therefore,
I recommend that the Board dismiss these allegations.
Conclusion: For the reasons discussed, I find that a prepon-
derance of the evidence does not establish the unfair labor prac-
tice allegations raised by the complaint. Therefore, recommend
that the Board dismiss the complaint in its entirety. When the
transcript of this proceeding has been prepared, I will issue a
certification which attaches as an appendix the portion of the
transcript reporting this bench decision. This certification also
will include provisions relating to a findings of fact, conclu-
sions, and order. When that certification is served upon the
parties the time period for filing an appeal will begin to run.
The hearing is closed. Off the record. (Whereupon, the pro-
ceedings were concluded at 9:31 a.m., October 30, 2001.)
161
CERTIFICATE
This is to certify that the attached proceedings before the Na-
tional Labor Relations Board, Ft. Worth Region, Region 16,

Case Name: Tejas Electrical Services, Inc.
Case No.: 16–CA–20937
Location: Houston, Texas
Date Held: October 30, 2001

was held according to the record, and that this is the original,
complete, and true and accurate transcript that has been com-
pared to the reporting or recording, accomplished at the hear-
ing, that the exhibit files have been checked for completeness
and no exhibits received in evidence or in the rejected exhibit
files are missing, unless otherwise stated.
________________ ______________________________
DATE CONTRACTOR