Centex Independent Electrical Contractors Assn.

National Labor Relations Board - Board Decisions

Aug 15, 2005

344 N.L.R.B. 1393 (N.L.R.B. 2005)

CENTEX INDEPENDENT ELECTRICAL CONTRACTORS ASSN.
344 NLRB No. 160
1393
Centex Independent Electrical Contractors Associa-
tion, Inc. and Mills Electric, Inc. and Interna-
tional Brotherhood of Electrical Workers Local
Union No. 520 a/w International Brotherhood of
Electrical Workers, AFL–CIO. Case 16–CA–
19900
August 15, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On December 19, 2001, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs. Respondents filed answering
briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs, and has decided to affirm the administrative law
judge’s rulings, findings,1 and recommendations only to
the extent consistent with this Decision and to adopt the
judge’s recommended Order.
As a threshold matter, the judge found that the General
Counsel failed to meet his burden of proving that Re-
spondent Centex satisfied the Board’s discretionary stan-
dards for exercise of jurisdiction as alleged in the com-
plaint. On this basis, the judge dismissed all allegations
in the complaint against Respondent Centex. In addition,
the judge made alternative findings as to the remaining
allegations against Centex and determined that they were
without merit.
The judge correctly noted that in its answer to the
complaint, Centex denied General Counsel’s allegation
that it met the Board’s jurisdictional standards. On the
first day of the hearing, however, Centex amended its
answer and stipulated that Centex met the jurisdictional
standards as alleged in the complaint. The judge inad-
vertently overlooked this stipulation in his decision. We
therefore find that the Board has jurisdiction over Re-
spondent Centex, and reverse the administrative law
judge’s finding to the contrary.2

1 The General Counsel and Charging Party have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings. In doing so,
Chairman Battista and Member Liebman do not rely on all of the
judge’s nondemeanor based credibility findings.
2 Member Schaumber notes that neither the General Counsel nor the
Charging Party raised the jurisdictional issue or Centex’s stipulation
regarding jurisdiction during closing arguments.
We affirm the judge’s remaining rulings, findings, and
recommendations.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
dismisses the complaint.
Tamara J. Gant, Esq., for the General Counsel.
Frank Carrabba, Esq. and Jennifer Cooper, Esq., of Houston,
Texas, for the Respondent CenTex Independent Electrical
Contractors Association, Inc.
Robert D. Kilgore, Esq. and Denise Rios, Esq. (Cox & Smith),
of San Antonio, Texas, for Respondent Mills Electric, Inc.
David Van Os, Esq., for the Charging Party.
DECISION
KELTNER W. LOCKE, Administrative Law Judge. The General
Counsel of the National Labor Relations Board (the Board) has
alleged that an association of electrical contractors and an elec-
trical contractor violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). I find that the General Counsel
has failed to establish that the association meets the Board’s
standards for assertion of jurisdiction. Further, I find that the
electrical contractor did not violate the Act as alleged. There-
fore, I recommend that the Board dismiss the complaint in its
entirety.
I. PROCEDURAL HISTORY
This case began on May 27, 1999, when International Broth-
erhood of Electrical Workers Local Union No. 520, affiliated
with International Brotherhood of Electrical Workers, AFL–
CIO (the Charging Party or the Union) filed the initial charge in
Case 16–CA–19990. The Union amended this charge on Octo-
ber 20, 1999.
After an investigation, the Regional Director for Region 16
of the Board issued a complaint and notice of hearing on No-
vember 30, 1999. The Regional Director thereafter amended
the complaint. In taking these actions, the Regional Director
acted on behalf of the General Counsel of the National Labor
Relations Board (the General Counsel or the Government).
The Respondents, CenTex Independent Electrical Contrac-
tors Association, Inc. (IEC or CenTex) and Mills Electric, Inc.
(Mills) filed timely answers to the complaint.
On November 13, 2001, a hearing opened before me in Aus-
tin, Texas. The parties presented evidence on November 13, 14,
15, and 16, 2001. On November 20, 2001, counsel for all par-
ties presented oral argument.
II. CREDIBILITY OF THE WITNESSES
This decision will address the allegations against CenTex
and then will consider the allegations against Mills. Issues con-
cerning which testimony should be credited are relevant to both

3 In adopting the judge’s dismissal of allegations that Respondent
Mills’ hiring policies violated Sec. 8(a)(3) and (1) of the Act, we note
that, in the absence of exceptions to the judge’s recommendation, we
do not pass on the judge’s discussion of “inherently destructive” and
“disparate impact” theories.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1394
Respondents. Therefore, the credibility of the witnesses will be
discussed first.
Based on my observations of the witnesses, I conclude that
Charles (Randy) Jennings, the executive director of CenTex,
consistently gave reliable testimony. Where it conflicts with
that of other witnesses, I credit Jennings.
Also based on my observations of the witnesses, I conclude
that Jerry Roudebush, the vice president of Mills, testified
truthfully and reliably. I credit his testimony.
I have less confidence in the testimony of other witnesses
and do not credit such testimony to the extent it conflicts with
that given by Jennings and Roudebush. Although I base these
credibility determinations largely on the demeanor of the wit-
nesses, there are additional reasons to doubt the testimony of-
fered by certain of these witnesses.
Witness Charles Jewell testified that in September 1998 he
went to the CenTex office and spoke with Jennings about the
possibility of employment. Jennings asked Jewell for refer-
ences. Jewell told Jennings that he had worked for a contractor
known as Burger Electric, but that statement was a lie. Jewell
further misled Jennings by providing the name of a man who
supposedly could attest to Jewell’s work at Burger Electric. In
truth, this man could not vouch for Jewell’s work at Burger
Electric because Jewell had never worked there.
In addition to this admitted untruthfulness, there are other
reasons to doubt Jewell’s testimony. On cross-examination,
Jewell admitted that he took a tape recorder with him to the
IEC offices. He had failed to mention this fact on direct exami-
nation.
Also on cross-examination, Jewell at first denied that he had
any reason to go to the IEC office except to get work. Later, he
admitted that he had gone there for another reason, to see how
the IEC might react to a job applicant with union ties.
Considering all these factors, in addition to my observations
of the witnesses, I conclude that Jewell’s testimony is not reli-
able, and I do not credit it.
For several reasons, I do not credit the testimony of Richard
Zerr. The job application he completed at the IEC offices asked
him to list the names of past employers. Zerr admitted that he
left out the names of certain contractors for whom he had
worked. Although this act of omission may not call into ques-
tion Zerr’s truthfulness in the same way as an outright lie, it
does raise the possibility that Zerr lacked candor by omitting
facts from his testimony.
On direct examination, Zerr said that he had asked Jennings
about a sign which announced that the IEC was only accepting
applications from apprentices, and that in response to Zerr’s
question, Jennings said, “[D]on’t worry about it.” On cross-
examination, however, Zerr admitted that the affidavit he gave
during the investigation did not quote Jennings as making this
statement.
Zerr did the most damage to his credibility when asked to
explain his decision to go to the IEC to apply for work. Zerr
initially said that he had gone there to “test a hypothesis” but
then gave a confusing explanation when asked to describe the
hypothesis. His shifting explanation concerning the supposed
hypothesis raises doubts about the fidelity of his testimony to
the facts.
For all these reasons, I conclude that Zerr’s testimony was
not reliable. I do not credit it.
In addition to my observations of the witnesses, there were
additional reasons to doubt the testimony given by Ralph Mer-
riweather, who had made a visit to the IEC offices. When asked
on cross-examination why he did not return to the IEC offices
later, Merriweather made a reference to someone “kicking his
butt,” suggesting that his first visit to the IEC offices had been
unpleasant. However, earlier in his testimony, Merriweather
had described how cordial Jennings had been to him during the
first visit.
At one point in his testimony, concerning the presence of an-
other person when Merriweather visited the IEC offices, Mer-
riweather appeared to be evasive. I do not have confidence in
Merriweather’s testimony, and do not credit it.
Michael Murphy, an organizer on the Union’s staff, testified
on behalf of the General Counsel. On direct examination, Mur-
phy described a conversation he and two other union represen-
tatives had with the IEC’s executive director, Randy Jennings,
on February 9, 1999. Murphy testified that one of the union
representatives, Ralph Merriweather, told Jennings that he
would like to offer the IEC the 200 people on the Union’s out-
of-work list. Murphy testified that Jennings replied that “he was
more interested in those 200 electricians than he was interested
in hiring Ralph and I, as we were staff organizers.” (Emphasis
added.)
On cross-examination, Murphy admitted that when he de-
scribed this conversation in his pretrial affidavit, he did not
attribute to Jennings the words “as we were staff organizers.”
Instead, his pretrial affidavit quoted Jennings as saying “that he
was more interested in those 200 electricians than in Ralph or
me, and that there was plenty of work available.” (Emphasis
added.)
Clearly, some differences between a witness’s pretrial affi-
davit and his testimony at hearing are to be expected. Witnesses
often do not recall exact words, and some paraphrasing is fully
consistent with credible testimony. However, Murphy did not
merely paraphrase what Jennings said, as reported in the pre-
trial affidavit, but instead added language which constituted
evidence of unlawful motivation.
If Jennings really had made a statement which indicated
unlawful motivation, it is highly likely that Murphy would have
reported it in his pretrial affidavit. Murphy works for the
Charging Party and gave the affidavit during the investigation
of the charge. He would not have left out of the affidavit words
which established animus if Jennings really had said those
words.
The disparity between Murphy’s pretrial affidavit and his
testimony causes me to doubt his testimony. To the extent it
conflicts with that of Jennings, I do not credit it.
The Charging Party asserts that some of the witnesses made
tape recordings of their conversations with Jennings, and that
these tape recordings support the testimony of these witnesses.
However, the Charging Party only sought to introduce one such
tape recording during the hearing, and this tape was of such
poor quality that I found it had no probative value.
Although tape recordings are admissible, notwithstanding
that one party to the conversation was unaware of the taping,
CENTEX INDEPENDENT ELECTRICAL CONTRACTORS ASSN. 1395
the recording still must be sufficiently clear that voices on the
tape may be identified unequivocally. Additionally, a tape re-
cording must be intelligible enough to give some assurance that
there are no gaps which would suggest incompleteness or later
alternation.
The tape recording offered as an exhibit did not satisfy these
standards and was not admitted into evidence. There is no tape
recording in the record and therefore the Charging Party’s ar-
gument—that tape recordings corroborate the testimony of
certain witnesses—must be rejected.
III. ALLEGATIONS PERTAINING TO RESPONDENT IEC
A. Summary of Disputed Allegations
Portions of complaint paragraphs 2, 3, and 4 plead facts to
support the conclusion alleged in complaint paragraph 5(a), that
at all material times the IEC has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Respondent’s answer denies many of these allegations
and also denies the legal conclusion.
Complaint paragraph 8 alleges that at all material times the
IEC has been an agent of Mills “for the purpose of acceptance
and referral of employment applications to Respondent Mills.”
Both the IEC and Mills deny this allegation.
Complaint paragraph 9 alleges that since about April 21,
1999, Respondent IEC has maintained a discriminatory referral
system. Respondent denies this allegation.
Complaint paragraph 14 alleges that three individuals named
earlier in the complaint, Michael Murphy, Gordon Byram, and
Ralph Merriweather, appeared at the IEC office about April 21,
1999, and asked to complete employment applications to re-
place their recent-expired applications. Complaint paragraph 15
alleges that on about April 21, 1999, the IEC refused to allow
these individuals to complete new applications. Complaint
paragraph 16 alleges that the IEC engaged in this conduct to
discourage employees from forming, joining or assisting the
Union and engaging in concerted activities. Respondent IEC
denies these allegations.
Respondent also denies that it had violated the Act in the
manner alleged in the complaint. The General Counsel bears
the burden of proving these allegations.
B. The Board’s Jurisdiction
Section 102.15 of the Board’s Rules requires that a com-
plaint contain “a clear and concise statement of the facts upon
which assertion of jurisdiction by the Board is predicated.” In
accordance with this requirement, the complaint includes the
following allegations pertaining to the assertion of jurisdiction
over the IEC.
Complaint paragraph 2(a) alleges that at all material times,
“Respondent I.E.C., a Texas corporation with an office and
place of business located at Houston, Texas, has been engaged
in business as a trade association and has provided services to
local electrical contractors, including its member Respondent
Mills, which services include referral of job applicants, appren-
ticeship training program and continuing education courses.” In
its answer, the IEC admits it was a trade association but denies
the remaining allegations in this complaint paragraph.
Complaint paragraph 3(a) alleges that “[d]uring the past 12
months Respondent I.E.C., in conducting its business opera-
tions described above in paragraph 2, subparagraph (a), has
derived gross revenues in excess of $150,000.” The IEC denies
this allegation.
Complaint paragraph 4 alleges that “[d]uring the period
January 1, 1999, to December 31, 1999, Respondent I.E.C. is
projected to earn gross revenues in excess of $200,000.” The
IEC denies this allegation.
Complaint paragraph 5 alleges that the IEC had been, at all
material times, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The IEC de-
nies this allegation.
The denials in Respondent’s answer place in controversy the
issue of whether it meets the Board’s standards for the assertion
of jurisdiction over it. The General Counsel bears the burden of
proving the facts alleged to support the conclusion that the
Board should assert jurisdiction.
The amended complaint pleads that the assertion of jurisdic-
tion is predicated on two alleged facts: First, that during the 12-
month period preceding the amended complaint, which is dated
April 26, 2000, the I.E.C. derived from its business operations
gross revenues exceeding $150,000; and second, that during the
period January 1 to December 31, 1999, the IEC “is projected
to earn gross revenues in excess of $200,000.” The record does
not contain evidence sufficient to establish either of these alle-
gations, and I find that for these allegations, the General Coun-
sel has not met the government’s burden of proof.
In oral argument, the General Counsel did not contend that
evidence established that the IEC had derived gross revenues of
$150,000 during the 12 months preceding the complaint or that
the IEC had derived gross revenues exceeding $200,000 during
the period January 1 to December 31, 1999. Instead, the Gen-
eral Counsel argued that the Board could assert jurisdiction
over the IEC on a basis not appearing in the complaint. The
General Counsel stated:
Section 2(2) of the Act provides that “the term em-
ployer includes any person acting as an agent of an em-
ployer, directly or indirectly.”
Since CenTex IEC is an agent of its contractor mem-
bers, it follows from the statutory language that CenTex
IEC is an employer within the meaning of the Act. Also
the Board has asserted jurisdiction over a trade associa-
tion, as an employer, where its employer members met the
appropriate jurisdictional standards. AGC of California,
242 NLRB 891 (1979) case.
Since it is admitted that Respondent Mills herein meets
the Board’s jurisdictional standards, the Board may appro-
priately assert jurisdiction over CenTex IEC.
The General Counsel’s argument that jurisdiction may be as-
serted over the IEC because the IEC “is an agent of its contrac-
tor members” rests on incorrect factual and legal propositions.
At the outset, it may be noted that the complaint did not allege
that the IEC was “an agent of its contractor members.” Rather,
complaint paragraph 2(a) only alleged that the IEC “has pro-
vided services to local electrical contractors, including its
member Respondent Mills, which services include referral of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1396
job applicants, apprenticeship training program and continuing
education courses.”
There is a significant difference between alleging that a per-
son provided services to someone else and alleging that the
person is an agent of someone else. In most instances, the per-
son providing services is not an agent of the person receiving
services and the receiver of such services cannot be held liable
for the acts of the provider. Complaint language alleging a pro-
vider-receiver relationship is not sufficient to allege a principal-
agent relationship.
The complaint does allege that the IEC is an agent of one
particular contractor, Mills. Specifically, complaint paragraph 8
alleges that at all material times, the IEC was “an agent of Re-
spondent Mills for the purpose of acceptance and referral of
employment applications to Respondent Mills.” Both IEC and
Mills have denied this allegation.
At best, the language of complaint paragraph 8 alleges a lim-
ited and circumscribed agency relationship, one limited to “the
purpose of acceptance and referral of employment applica-
tions.” Arguably, such an allegation might describe a special
agent, rather than a general agent. It does not, I conclude, allege
an agency relationship sufficient to assert jurisdiction over the
IEC solely because Mills falls within the Board’s jurisdiction.
More fundamentally, for reasons to be discussed later in this
decision, I conclude that the credited evidence fails to prove
any kind of agency relationship between Mills and the IEC.
Therefore, the General Counsel may not establish jurisdiction
on the basis that the IEC was acting as an agent of an employer
which met the Board’s jurisdictional standards.
Additionally, the General Counsel argues that “the Board has
asserted jurisdiction over a trade association, as an employer,
where its employer members met the appropriate jurisdictional
standards.” It is true that the Board asserts jurisdiction over an
association, based upon the commerce conducted by one or
more of its members, when those members have delegated to
the association authority to represent them in multiemployer
collective bargaining with a union. A publication prepared by
the Office of the General Counsel describes these circum-
stances:
All members of a multiemployer group who participate in, or
are bound by, multiemployer bargaining negotiations are con-
sidered as a single employer for jurisdictional purposes. Insu-
lation Contractors of Southern California, 110 NLRB 638
(1955). Jurisdiction is asserted if the standards are satisfied by
any member of the association (Laundry Owners Assn. of
Greater Cincinnati, 123 NLRB 543 (1959)), or on proof of a
qualifying total of business of association members collec-
tively without regard to that of the individual member (Fed-
eral Stores, 91 NLRB 647 (1950); Checker Cab Co., 141
NLRB 583 (1963); Transportation Promotions, 173 NLRB
828 (1969)).
An Outline of Law and Procedure in Representation Cases,
Section 1–208. The case cited by General Counsel in oral ar-
gument, AGC of California, 242 NLRB 891 (1979), is consis-
tent with this principle. The respondent in that case was a con-
tractor association which served as the collective-bargaining
representative for certain of its members.
That case is distinguishable from the present one because the
IEC is not Mills’ collective-bargaining representative. In fact,
the record does not establish that the IEC is the collective-
bargaining representative of any of its members.
Even if a particular employer meets the Board’s jurisdic-
tional standards, if it has not assigned its bargaining rights to a
multiemployer association, its status as an employer engaged in
commerce cannot provide the basis for assertion of jurisdiction
over another employer in the association. See Electrical Work-
ers Local 48 (Kingston Constructors), 332 NLRB 1492, 1497
at fn. 32 (2000). By the same logic, an employer which itself
meets the Board’s jurisdiction standards cannot provide a basis
for assertion of jurisdiction over an association to which it be-
longs unless the employer has assigned its bargaining rights to
the association.
The present record does not establish that Mills assigned its
bargaining rights to the IEC. Mills is a nonunionized employer
and does not bargain with a labor organization. Therefore, the
fact that Mills meets the Board’s jurisdictional standards does
not provide a basis for assertion of jurisdiction over the IEC.
Issues concerning Board jurisdiction can be divided into two
categories. The first pertains to whether or not the statute has
conferred jurisdiction on the Board. The definition of “em-
ployer” in Section 2(2) of the Act excludes certain entities,
including, among others, Federal Reserve banks, states, politi-
cal subdivisions of States, and persons subject to the Railway
Labor Act. If a respondent asserts that it is a political subdivi-
sion of a State, for example, the respondent has raised a ques-
tion concerning the Board’s statutory jurisdiction.
The second category pertains to issues regarding the Board’s
“discretionary” jurisdiction. To use its resources most effec-
tively, the Board has chosen to promulgate standards relating to
an employer’s participation in or effects on interstate com-
merce. The Board declines to assert jurisdiction over employers
which do not meet its applicable standard.
The distinction between statutory and discretionary jurisdic-
tion may affect a respondent’s duty to raise the jurisdictional
issue early in the proceeding. If the Board lacks statutory juris-
diction over a particular respondent, the respondent’s failure to
raise the issue does not waive it. A respondent is not Congress,
and a respondent’s waiver cannot confer on the Board jurisdic-
tion which Congress has never given to it.
On the other hand, an employer within the Board’s statutory
jurisdiction needs to let the Board know if it falls outside the
discretionary standards. In the present case, I find that the IEC
has raised the issue of discretionary jurisdiction in a timely
fashion by denying, in its answer to the complaint, both the
alleged facts on which jurisdiction was predicated and the legal
conclusion to be drawn from those facts. Additionally, the IEC
raised the jurisdiction issue again in oral argument. Clearly, the
jurisdiction issue has not been waived.
Finally, it may be noted that the evidence indicates that the
IEC would, in fact, meet the definition of “employer” in Sec-
tion 2(2) of the Act and therefore would come within the
Board’s statutory jurisdiction. For example, it operates an ap-
prenticeship program approved by the United States Depart-
ment of Labor.
CENTEX INDEPENDENT ELECTRICAL CONTRACTORS ASSN. 1397
Additionally, Section 2(2) defines “employer” to include any
person acting as an agent for an employer either directly or
indirectly. Even though the credited evidence does not establish
that the IEC hired employees for its members or even recom-
mended candidates to its members, an agent of an employer
does not have to possess labor relations authority to meet the
statutory definition in Section 2(2). See, e.g., Associated Build-
ers & Contractor, Inc., 331 NLRB 132 (2000). I conclude that
the IEC meets the 2(2) definition and therefore falls within the
Board’s statutory jurisdiction, but that conclusion does not alter
my separate conclusion that the evidence does not establish that
the IEC satisfies the Board’s discretionary jurisdiction stan-
dards.
Because the Government has failed to meet its burden of
proving that the IEC satisfies the Board’s discretionary stan-
dards for exercise of jurisdiction, I recommend that all com-
plaint allegations against the IEC be dismissed.
Moreover, because the General Counsel has not proven that
the IEC falls within the Board’s discretionary standards for
exercise of its jurisdiction, it is not necessary to address the
other complaint allegations against this respondent. However, I
will summarize briefly the findings I would have made had the
evidence established jurisdiction.
C. Complaint Paragraph 9
Complaint paragraph 9 alleged that Respondent had main-
tained a discriminatory referral system. The credited evidence
does not prove this allegation.
The record establishes that the IEC maintained a referral sys-
tem only to the extent that it provided application forms to elec-
tricians requesting them, accepted applications completed by
job seekers, kept them on file, and provided them to its mem-
bers on request. Specifically, when a member notified the IEC
that it wanted to hire someone, it would inform the IEC of what
type of employee, e.g., journeyman or apprentice, it wished to
hire, and the IEC would send the member applications submit-
ted by job seekers matching the desired qualifications.
The credited evidence establishes that neither the IEC nor its
executive director screened the applications in any way except
to make sure that the applicant’s qualifications were consistent
with those described by its member. The record does not estab-
lish that either the IEC or its executive director made recom-
mendations to members regarding which applicants should be
hired or rejected. The record also fails to establish that either
the IEC or its executive director ever took a substantive role in
any member’s process of considering a job applicant, or ever
communicated with an applicant, on behalf of a member, to
offer that applicant employment.
Further, based on the credited evidence, I find that neither
the IEC nor its executive director made statements that job
seekers should not apply directly to the IEC’s member contrac-
tors. Likewise, I find that neither the IEC nor its executive di-
rector made statements that if a job seeker applied directly to an
IEC member, the member would tell the applicant to file an
application instead with the IEC.
The credible evidence establishes only that the IEC per-
formed the ministerial act of accepting applications from job
seekers and forwarding them to its members on request. The
evidence fails to establish that the IEC or its executive director
exercised any discretion in evaluating the qualifications of any
candidate. Therefore, I do not conclude that Mills or any other
member of the association made the IEC its agent for the pur-
pose of hiring applicants or screening them and recommending
them for hire.
The General Counsel further contends that even if the evi-
dence does not establish an actual agency relation, it demon-
strates that the IEC had apparent authority to act as an agent for
its members. The General Counsel’s arguments about agency
status will be discussed further in the section of this decision
dealing with the allegations against Mills. At this point, it suf-
fices to note that the General Counsel’s arguments are unper-
suasive.
The credited evidence also establishes convincingly that the
IEC never served as an exclusive referral source for its mem-
bers and that the IEC never held itself out to be an exclusive
referral source. The Union’s own records establish the contrary.
These records include a number of newspaper help-wanted
advertisements showing that various IEC member-contractors
announced directly to the public that the advertising contractor
was seeking job applicants. In each of these advertisements, the
contractor did not instruct the applicant to go to the IEC but
instead listed the contractor’s own telephone number.
Additionally, I find that no credible evidence establishes that
the IEC or its executive director either harbored or acted on
antiunion animus when operating the IEC’s referral service.
Moreover, the record contains no credible evidence that either
the IEC or its executive director ever sought, in any way, to
dissuade a member from hiring an applicant. Therefore, were I
to reach the merits of these allegations, I would conclude that
the government has failed to prove the violation alleged in
complaint paragraph 9.
D. Complaint Paragraphs 15 and 16
Complaint paragraph 15 alleges that about April 21, 1999,
the IEC refused to allow three named individuals to complete
new employment applications. Complaint paragraph 16 alleges
that the IEC took this action to discourage employees from
forming, joining or assisting the Union and engaging in con-
certed activities.
The credited evidence establishes that on about February 26,
1999, Michael Murphy, Gordon Byram, and Ralph Merri-
weather went to the IEC, identified themselves as union offi-
cials, also stated that they were journeyman electricians, and
asked to submit employment applications. The IEC allowed
them to file applications which, like applications filed by other
job seekers, were valid for 30 days.
The credited evidence further establishes that about April 21,
1999, these three individuals returned to the IEC. They did not
call the IEC in advance to obtain an appointment but just ap-
peared there.
At that time, the IEC’s executive director was occupied with
matters relating to the IEC’s apprenticeship program and did
not wish to take time away from these duties to meet with peo-
ple seeking employment as journeymen. In fact, the IEC office
displayed a sign indicating that it was only taking applications
for apprentices. The IEC had displayed a similar sign during the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1398
same general period the previous year. No credible evidence
establishes that the IEC’s decision to display this sign was mo-
tivated, either totally or partially, by antiunion animus.
When Murphy, Byram, and Merriweather appeared unex-
pectedly at the IEC office on about April 21, 1999, the IEC’s
executive director, Jennings, refused to take their applications.
They did not make any further request to file applications.
The credited evidence does not establish that animus moti-
vated or tainted Jennings’ decision not to take applications from
the three individuals when they came to the IEC on about April
21, 1999. To the contrary, Jennings articulated legitimate rea-
sons, unrelated to union activity, for his decision not to take
their applications at that time, and I credit his testimony.
As discussed above, I have concluded that the General
Counsel has not established that the IEC is an employer within
the Board’s discretionary jurisdiction. However, were I to reach
the merits of these allegations, I would conclude that credited
evidence does not establish that the IEC violated the Act as
alleged in complaint paragraphs 15 and 16.
IV. ALLEGATIONS PERTAINING TO RESPONDENT MILLS
A. “Discriminatory Hiring Practice” Allegations
Complaint paragraph 11 alleges that since about April 21,
1999, Mills has maintained a discriminatory hiring practice.
Complaint paragraph 19 alleges that this practice violates Sec-
tion 8(a)(1) and (3) of the Act. At hearing, the General Counsel
made clear that these allegations refer to the hiring policy de-
scribed below.
In hiring workers, Mills follows a written policy which ap-
pears somewhat elaborate but really boils down to this: Mills
considers job candidates it knows before it considers candidates
it doesn’t know. The better Mills knows a job candidate, the
earlier the candidate receives consideration.
The actual written policy has six categories. If Mills can fill
a position with a candidate from category 1, then it does not
consider candidates in categories 2 through 6. If it cannot fill
the position with a candidate from category 1, but can fill it
with a candidate from category 2, then it does not consider
candidates in categories 3 through 6. In other words, job candi-
dates in a particular category do not receive consideration until
Mills has considered candidates in all categories with lower
numbers and the position remains unfilled. The categories
(which appear on GCExh. 58, “Hiring Priority Policy”) are as
follows:
1. Current employers [sic] of the company. (Out of town or
state assignments).
2. Past employees with proven safety, attendance, and work
records.
3. Applicants recommended by current Supervisors.
4. Applicants recommended by current employees.
5. Borrowed employees from area electrical contractors who
have a surplus of personnel.
6. Unknown applicants as accepted under employment appli-
cation policy.
There is absolutely no credible evidence that antiunion ani-
mus played any part in the adoption or retention of this policy.
To the contrary, I find that Respondent was motivated solely by
legitimate business considerations in adopting this policy.
B. The “Inherently Destructive” Theory
Notwithstanding the lack of evidence of unlawful intent, the
General Counsel argues that the Government does not have to
provide such extrinsic evidence of animus to establish a viola-
tion. Specifically, the General Counsel contended during oral
argument that “the hiring scheme is ‘inherently destructive’ of
employee rights, such that a finding of antiunion animus moti-
vating the hiring scheme is unnecessary.” The General Counsel
bases this argument on the doctrine developed by the Supreme
Court in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967);
Labor Board v. Erie Resistor Corp., 373 U.S. 221 (1963); and
other cases.
In Great Dane Trailers, supra, an employer announced that it
would pay the vacation benefits due under the last collective-
bargaining agreement only to those employees who had re-
ported to work by a specified date. At that time, the employees
were on strike, so the employer’s policy denied the accrued
vacation benefits to employees who exercised their statutory
right to remain on strike. The Supreme Court affirmed the
Board’s finding of a violation. It stated:
The act of paying accrued benefits to one group of employees
while announcing the extinction of the same benefits for an-
other group of employees who are distinguishable only by
their participation in protected concerted activity surely may
have a discouraging effect on either present or future con-
certed activity. [NLRB v. Great Dane Trailers, 388 U.S. at
32.]
In applying the Great Dane Trailers theory to the facts of a
particular case, it is important to keep in mind that the Supreme
Court does not place the label “inherently destructive” on just
any conduct which might have a negative impact on employee
rights. The Court reserves this description for an act so congru-
ent with an unlawful purpose that the act itself reveals the ani-
mus behind it.
For example, when an employer imposed greater discipline
on union leaders than on rank-and-file employees for engaging
in an unprotected work stoppage, this targeting of union offi-
cials itself disclosed the unlawful motivation. The Supreme
Court therefore found the action inherently destructive of em-
ployee rights. Metropolitan Edison Co. v. NLRB, 460 U.S. 693
(1983).
Similarly, the Court held that when an employer punished
strikers by changing their relative seniority—thus, making them
more vulnerable to layoff than nonstrikers—this action was
inherently destructive of employee rights. Labor Board v. Erie
Resistor Corp., supra. Again, the targeting of this action—
singling out employees who engaged in protected activity for
adverse treatment—betrayed the unlawful motivation and no
separate evidence of animus was necessary to find a violation.
On the other hand, the Supreme Court declined to find that
an employer engaged in “inherently destructive” conduct dur-
ing a labor dispute when the company hired temporary re-
placements after locking out the regular employees. Although
this action negatively affected employees represented by the
CENTEX INDEPENDENT ELECTRICAL CONTRACTORS ASSN. 1399
union, the act itself did not disclose an indisputable antiunion
motivation. The Court found that legitimate business reasons
could have motivated the action. Since the employer’s true
motivation could not be determined simply from the conduct
itself, other evidence of animus was necessary to establish a
violation. Labor Board v. Brown, 380 U.S. 278 (1965).
The Court carefully distinguished the conduct it found “in-
herently destructive” in Labor Board v. Erie Resistor Corp.,
supra, from the conduct it did not find “inherently destructive”
in Labor Board v. Brown, supra. In the former case, Erie Resis-
tor’s act of granting the nonstrikers greater seniority than the
strikers reasonably could be interpreted in just one way, and
that one way led to the conclusion that the company was target-
ing employees who engaged in protected activity because of
that protected activity. “The only reasonable inference that
could be drawn,” the Court observed, “was that [the conduct]
was directed against the striking employees because of their
union membership.” Labor Board v. Brown, 380 U.S. at 287.
In the present case, nondiscriminatory reasons exist which
reasonably could have motivated Mills to promulgate its hiring
policy. Where lawful motives as well as unlawful motives may
be inferred from the conduct itself, the issue of motivation can-
not be resolved without looking at other parts of the record to
find evidence of animus. As noted above, the present record
contains no such extrinsic evidence of animus.
The Mills policy does not single out for adverse treatment
any group of employees who had engaged in protected activity,
and therefore affords no basis for drawing an inference of
unlawful intent. Indeed, the only clear inference that may be
drawn from the Mills hiring policy—which gives preference to
candidates the employer knows over candidates the employer
doesn’t know—is that it follows a universal trend in human
nature: People prefer the familiar to the unfamiliar.
For example, parents feel more comfortable if their son or
daughter marries someone they know and trust rather than a
stranger, even though the stranger may prove to be every bit as
trustworthy. Because this preference for the familiar is a uni-
versal human trait, it reveals nothing specific concerning how
particular parents feel about other matters, such as the suitor’s
race, religion, or union sympathies.
Similarly, the Mills hiring policy reveals nothing specific
about how the employer feels about matters such as union sym-
pathies. Therefore, I cannot conclude that this policy meets the
Supreme Court’s definition of conduct which is “inherently
destructive” of employee rights.
Additionally, the record contains credible evidence of non-
discriminatory reasons for the policy. In the light of common
sense, these reasons appear very plausible. An employer obvi-
ously would wish to hire an employee known to be a good
worker rather than gamble on someone whose work habits were
unknown. I credit this explanation.
If the Mills hiring policy has any effect at all on employee
rights, that effect is comparatively slight. Therefore, to prove a
violation the Government must produce evidence of antiunion
motivation separate from the policy itself. As already noted, the
present record contains no credible evidence of such animus. I
conclude that the General Counsel has not established a viola-
tion.
Board precedent supports this conclusion. In Kanawha Stone
Co., 334 NLRB 235 (2001), the employer had a hiring policy
which allowed a job applicant to be considered only if the ap-
plicant fell into one of the following categories: (1) employees
on temporary lay off; (2) former employees; or (3) referrals
from existing employees. Thus, the Kanawha Stone policy
excluded outside applicants even more than the Mills policy at
issue here.
Moreover, unlike the record in the present case, the record in
Kanawha Stone did contain independent evidence of animus.
Nonetheless, the Board found that this employer’s hiring crite-
ria constituted a legitimate reason for failing to consider a job
applicant. The Board rejected the General Counsel’s argument
that such a hiring policy was inherently destructive of employ-
ees. The Board stated:
[T]he judge found, and we agree, that the record does not
support such a conclusion. The record establishes that, apply-
ing its hiring policy and criteria, the Respondent hired 36
people between March and August 1998. Seven of those em-
ployees were affiliated with a union. Even though few of
those employees showed any interest in union organizing ac-
tivity, this alone is not sufficient to support a finding of an in-
herently destructive hiring policy.
Kanawha Stone Co., supra, citing Belfance Electric, 319 NLRB
945, 946 (1995). Moreover, the Board implicitly accepted the
legitimacy of the hiring criteria as a justification for failing to
consider certain job applicants:
[E]ven assuming that the General Counsel . . . met his thresh-
old burden under FES [331 NLRB No. 20 [9]], we find that
his case-in-chief was rebutted by the Respondent’s showing
that it lawfully would not have considered the applicants,
even absent their union activity, because none of the appli-
cants met any of the Respondent’s three hiring criteria. [Ka-
nawha Stone Co., supra.]
If the Kanawha Stone hiring criteria were legitimate—and
therefore not inherently destructive of employee rights—in a
case containing independent evidence of employer animus, then
most certainly in the present case, containing no such evidence
of animus, the Mills hiring policy passes muster. I conclude
that the “inherently destructive conduct” theory articulated in
Great Dane Trailers and related cases, provides no justification
for the allegations in complaint paragraph 11.
C. A Possible Hybrid Theory
Although the classic Great Dane Trailers theory would not
justify finding a violation, it is possible that the Board has be-
gun formulating a hybrid theory drawing strength both from the
Great Dane Trailers principle and from the separate “disparate
impact” theory familiar in cases under Title VII of the Civil
Rights Act of 1964. A recent Board decision suggests—but
does not state definitively—that the Board is developing new
law in this direction.
Specifically, the Board’s decision in Aztech Electric Co., 335
NLRB 260 (2001), appears to depart from the Board’s reason-
ing in Kanawha Stone and another recent hiring-policy deci-
sion, Merit Contracting, Inc., 333 NLRB 562 (2001). The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1400
Board’s Aztech decision is the most recent of these three opin-
ions, but does not expressly overrule the others.
In the present case, therefore, this question arises: Should the
Mills hiring policy be judged by the Board’s holding in Aztech
or does the Board’s reasoning in Kanawha Stone control?
These two precedents represent a fork in the road, and only one
of the two paths may be chosen.
In Aztech, supra, the Board examined an employer’s hiring
policy which excluded from consideration any job applicant
whose previous wage rate deviated from that employer’s wage
rate by 30 percent or more. Just as in the present case involving
the Mills hiring policy, Aztech had adopted its policy for rea-
sons unrelated to activities protected by Section 7 and the re-
cord contained no evidence of antiunion motivation. Nonethe-
less, the Board found the policy violative under an “inherently
destructive” theory. The Board stated that Aztech was a case of
first impression:
Prior Board cases involving allegations that wage comparabil-
ity hiring rules are unlawful have focused on whether there
was specific evidence of an intent to discriminate in the
promulgation or application of a rule. Here, however, we ad-
dress for the first time an allegation that a rule is unlawful,
even in the absence of evidence of antiunion motivation, be-
cause it is inherently destructive of Section 7 rights. [Footnote
omitted.]
In Aztech, the Board concluded that the respondent’s hiring
policy—disqualifying applicants who had earned significantly
higher wages in their previous jobs—constituted a “blanket
denial of job opportunities for those who have had union repre-
sentation on recent jobs, and in many cases have themselves
become union members.” The Board stated:
It is undisputed that the implementation of the 30-percent rule
had the effect of excluding from eligibility for hire virtually
all West Coast electrician applicants who had worked for any
significant period of the preceding year on a construction pro-
ject where their wages were determined by a union-negotiated
contract. . . .
Aztech Electric Co., 335 NLRB at 261. Therefore, the Board
found the Aztech hiring policy violative, even without extrinsic
evidence of animus, because the Board found the rule inher-
ently destructive of employee rights.
Less than 5 months before it issued the Aztech opinion, the
Board treated a similar issue differently in Merit Contracting,
Inc., supra. In that case, the Board examined an employer’s
policy which excluded a job candidate from further considera-
tion if the job seeker’s application listed prior wages exceeding
the amount which this employer wished to pay. On its face,
such a rule would appear more likely to disqualify union mem-
bers than Aztech’s rule, which only excluded applicants with
prior wages 30 percent or more higher that the rates the em-
ployer paid.
It would be reasonable to assume that if the employer’s pol-
icy in Aztech inherently destroyed employee rights, then the
hiring policy in Merit Contracting would be inherently destruc-
tive as well. However, in Merit Contracting the Board stated as
follows:
In his decision, the judge found that the Respondent scruti-
nized the applications it received for indications of “union
wages” in prior employment and excluded an entire applicant
class based on this practice. He concluded that this exclusion-
ary conduct was “inherently destructive of important em-
ployee rights” and that union animus was implicit therein. . . .
It is apparent that the judge’s reference to “union wages” rep-
resented any wages listed in an application, whether requested
or previously paid, which were higher than the Respondent
wished to pay. However, the Board has held that such a pol-
icy can be a legitimate justification for a refusal to hire, in the
absence of evidence that it has been implemented in the face
of a union organizing campaign or applied disparately to
avoid hiring union applicants. See Wireways, Inc., 309 NLRB
245, 246 (1992).
Merit Contracting, Inc., 333 NLRB at 563 (emphasis added and
footnotes omitted). The Board directed the judge to consider
this matter further on remand.
In its subsequent Aztech decision, the Board did not overrule
Merit Contracting or even mention that case. Therefore, it is
difficult to reconcile these two opinions.
Possibly, the different result in Aztech might be explained if
Aztech represents the starting point for the evolution of a new
legal theory which does not rely solely on the classic “inher-
ently destructive” theory of Great Dane Trailers, supra. Indeed,
in Aztech, the Board does refer to a separate line of Supreme
Court cases which arguably may constitute another distinct
foundation for the Board’s conclusions. These precedents con-
cern Title VII of the Civil Rights Act of 1964 rather than the
National Labor Relations Act.
In these Title VII cases, the Court found employer policies to
be unlawful not because they were “inherently destructive” of
employee rights, as in Great Dane Trailers, but because they
had a “disparate impact” on a protected group. In Aztech, the
Board mentioned and perhaps invoked this “disparate impact”
theory as well as the traditional “inherently destructive” theory
to support its finding of a violation. Specifically, the Board
stated in Aztech that:
The Board’s inherently destructive theory is analogous to the
disparate impact theory long applied in cases prosecuted un-
der Title VII of the Civil Rights Act of 1964. Under that the-
ory, facially neutral employment policies that are “fair in
form,” i.e., they apply equally to blacks and whites or to
women and men, nonetheless may be deemed unlawful if
they are “discriminatory in operation.” Griggs v. Duke Power
Co., 401 U.S. 424, 431 (1971); see, e.g., Dothard v.
Rawlinson, 433 U.S. 321 (1977) (disparate impact on women
of uniformly applied height and weight restrictions estab-
lished a prima facie case of discrimination). [Aztech Electric
Co., 335 NLRB at 263.]
Another portion of the Aztech decision bolsters the conclu-
sion that the Board was relying, in part, on a “disparate impact”
theory to justify finding the hiring policy violative. Under the
traditional Great Dane Trailers “inherently destructive” theory,
the rule or policy reveals its unlawful motivation because it is
targeted exclusively at employees engaged in some sort of pro-
CENTEX INDEPENDENT ELECTRICAL CONTRACTORS ASSN. 1401
tected activity such as going on strike or holding union office.
A passage in Aztech suggests that the Board does not consider
such targeting to be necessary:
[E]ven conduct that does not divide the workforce based on
participation in protected activities may be unlawful if it is in-
herently destructive of employee rights under the Act. See
Lone Star Industries, 279 NLRB 550, 552–553 (1986) (a fa-
cially neutral policy may be unlawful under Great Dane
where, in practice, it has “the predictable and actual effect” of
penalizing union supporters), enfd. mem. in pertinent part sub
nom. Teamsters Locals 822 and 592 v. NLRB, 813 F.2d 472
(D.C. Cir. 1987); see also Greyhound Lines, 319 NLRB 554,
572 fn. 15 (1995). [Aztech Electric Co., 335 NLRB 262–263.]
Thus, Board law appears to be moving towards the view that
the adverse effect of a policy is an important consideration in
itself, regardless of how easy it is to infer unlawful intention
from that effect. To the extent that the Board is moving in such
a direction, it represents a shift towards a “disparate impact”
analysis.
If the Board is, in fact, adopting the “disparate impact” prin-
ciple as a basis for deciding the lawfulness of an employer’s
hiring policy, then this theory needs to be considered and ap-
plied in the present case. It is appropriate to begin with a com-
parison of the “disparate impact” and “inherently destructive”
theories.
D. “Disparate Impact” and “Inherently Destructive”
Theories Compared
The Supreme Court has stated that disparate impact claims
“involve employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly
on one group than another and cannot be justified by business
necessity. . . . Proof of discriminatory motive, we have held, is
not required under a disparate-impact theory.” Teamsters v.
U.S., 431 U.S. 324, 335 at fn. 15 (1977) (citations omitted).
On the surface, eliminating the need to prove motivation
may appear to be a similarity between the “disparate impact”
and “inherently destructive” theories. In fact, the absence of the
element of unlawful motivation distinguishes the “disparate
impact” theory from the “inherently destructive” rationale.
As already discussed, the Great Dane Trailers “inherently
destructive” rationale does not eliminate the need to prove mo-
tivation, but only permits such proof to take the form of an
inference from the conduct itself. By comparison, the Supreme
Court did not say that proof of unlawful motivation could be
inferred under a “disparate impact” theory. Rather it held that
proof of discriminatory motive “is not required.” Teamsters v.
U.S., 431 U.S. at 335 fn. 15.
In cases applying the “inherently destructive” theory to em-
ployer policies, the Supreme Court has taken pains to stress that
this theory does not eliminate the need to prove animus but
only allows the government to establish it by inference. As the
Supreme Court emphasized in Labor Board v. Brown, supra, to
constitute a violation of Section 8(a)(3), “both discrimination
and a resulting discouragement of union membership are neces-
sary, but the added element of unlawful intent is also required.
. . . The discriminatory act is not by itself unlawful unless in-
tended to prejudice the employees’ position because of their
membership in the union; some element of antiunion animus is
necessary.” Labor Board v. Brown, 380 U.S. at 286 (citations
omitted).
The Court further emphasized the necessity of proving moti-
vation by stating that if any doubt still persisted, “we laid it to
rest in Radio Officers’ Union v. Labor Board [347 U.S. 17
(1954)], where we reviewed the legislative history of the provi-
sion and concluded that Congress clearly intended the em-
ployer’s purpose in discriminating to be controlling.” Labor
Board v. Brown, 380 U.S. at 287 (citations omitted).
In Board cases, a shift in emphasis from an “inherently de-
structive” theory to a “disparate impact” theory conceivably
could change the amount of emphasis placed on the necessity
of proving animus or the kind of evidence sufficient to warrant
drawing an inference of animus. It is therefore appropriate to
examine the facts of the present case as they would appear un-
der a “disparate impact” theory. Before doing so, however, an
unsettled question should be noted: At this point, it is not clear
that the Act authorizes the use of a “disparate impact” theory.
In other contexts, the Supreme Court has been somewhat
cautious about cross-pollinating other labor laws with Title
VII’s “disparate impact” principle. For example, in Hazen Pa-
per Co. v. Biggins, 507 U.S. 604 (1993), it expressly declined
to consider whether the Age Discrimination in Employment
Act of 1997 allowed proof of a violation through “disparate
impact” analysis. Recently, the Supreme Court granted a peti-
tion for certiorari in a case presenting this question, Adams v.
Florida Power Corp., 255 F.2d 1322 (11th Cir. 2001), to re-
solve a split among the circuits. See Daily Labor Report, De-
cember 4, 2001, at AA-1.
At present, no Supreme Court decision has addressed
whether the Act authorizes a “disparate impact” theory. The
analysis below will assume that it is appropriate to apply such
principles in this case.
E. The Present Case Analyzed Under a “Disparate
Impact” Theory
In examining the facts of this case under a “disparate im-
pact” theory, a threshold question needs to be addressed: What
evidence must the General Counsel present initially to bring the
case within such a “disparate impact” framework and make
analysis under a “disparate impact” theory appropriate? The
Supreme Court discussed this standard in Dothard v.
Rawlinson, 433 U.S. 321 (1977), a case cited by the Board in
its Aztech decision.
In Dothard v. Rawlinson, supra, the plaintiffs presented evi-
dence showing that an employer’s height requirement would
operate to exclude 33.29 percent of the women in the United
States between the ages of 18–79, while excluding only 1.28
percent of men between the same ages. Considering this and
similar evidence sufficient to meet the plaintiffs’ initial burden,
the Supreme Court stated:
The plaintiffs in a case such as this are not required to exhaust
every possible source of evidence, if the evidence actually
presented on its face conspicuously demonstrates a job re-
quirement’s grossly discriminatory impact. [Dothard v.
Rawlinson, 433 U.S. at 331 (emphasis added).]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1402
Considering that the Board cited this Supreme Court deci-
sion in Aztech, it is appropriate to assume that if the Board is, in
fact, adopting a “disparate impact” theory, Dothard v.
Rawlinson accurately describes the burden which the Board
would impose on the General Counsel.
The General Counsel is the plaintiff in Board proceedings so,
in prosecuting a case under the “disparate impact” theory, the
General Counsel would bear a burden analogous to that of a
plaintiff in a “disparate impact” Title VII case. Therefore, the
General Counsel must initially present evidence which, in the
Supreme Court’s words, “conspicuously demonstrates a job
requirement’s grossly disparate impact.” Unless and until the
General Counsel presents such evidence, the burden of pro-
ceeding does not shift to the Respondent.
In the present case, the General Counsel argued that the
Mills hiring policy has a greater negative impact on persons
who exercised their Section 7 rights than on persons who did
not. However, arguing the point is not enough. The General
Counsel must present evidence which “conspicuously demon-
strates” the policy’s grossly disparate impact. The record lacks
such evidence so I must conclude that the government has not
carried its burden of proof.
Stated another way, under a “disparate impact” theory, the
General Counsel would bear the burden of presenting evidence
to make conspicuous a cause-and-effect relationship between
the policy in question and a grossly disparate impact on job
candidates associated with the Union. Merely arguing that such
a cause-and-effect relationship exists would not be sufficient.
Even the most impeccable argument is no substitute for the
necessary evidence.
In the present case, the General Counsel’s argument is not
impeccable. There are at least two problems with the govern-
ment’s reasoning. First, the General Counsel’s argument rests
on the questionable assumption that job candidates in the
groups adversely affected by the hiring policy are more likely
to be union adherents than job candidates in other groups. Sec-
ond, the General Counsel’s argument rests on the assumption
that a policy which can be applied unlawfully will be applied
unlawfully. Such an assumption improperly shifts the burden of
proof to the Respondent to show that it will act in a lawful
manner.
The first problem concerns the Government’s argument that
giving earlier consideration to a former employee than to a job
candidate who is a stranger has a disparate impact on candi-
dates who belong to the Union or favor unionization. This
premise is based on still another premise, namely, that because
Mills’ employees are not represented by a union, Mills’ current
and former employees are less likely to desire membership in a
labor organization.
This argument assumes that a person’s sentiments for or
against unionization are as difficult to change as sex or skin
color, characteristics that place an individual in a class pro-
tected by the “disparate impact” theory under Title VII. How-
ever, the Act does not assume that a person’s opinion about
unions is immutable in the same way that sex and skin color are
unchanging. To the contrary, the Act recognizes an employee’s
right to change his or her views at any time. Section 7 equally
protects both the right to engage in union activity and the right
to refrain from union activity but it does not force any em-
ployee to choose one of these options and stick with it forever.
The Board’s own practices recognize that employees do not
hold immutable opinions concerning unionization but instead
make conscious decisions based upon the information available
to them. Thus, before employees vote for or against a union in a
secret ballot election, the Board orders the employer to provide
the union with the names and addresses of the employees who
will vote, “to ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statutory
right to vote.” See, e.g., Brinks Inc., 331 NLRB 46 (2000),
citing Excelsior Underwear, 156 NLRB 1236 (1966), and
NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969).
Employees would have no need for such information if their
views on unions were predetermined and linked irrevocably to
the unionized or nonunionized status of their employer. To
assume such a link between the status of the employer and the
union sympathies of the employee ignores more than 60 years
of Board experience conducting elections in which, many
times, employees chose a union notwithstanding their em-
ployer’s adamant opposition.
Moreover, subpart C of the Board’s Rules provides a proce-
dure for employees to vote to decertify an incumbent union.
Such a procedure implicitly recognizes that employees’ views
about a union can change. Even if their employer is unionized,
the employees still have the freedom to choose not to be repre-
sented.
In sum, there is no logical basis to assume that an employee
will be opposed to unions merely because the employee has
worked or is working for a nonunionized employer. If that as-
sumption were correct, then a union could never win an elec-
tion in an unorganized shop, which is patently contrary to the
Board’s long experience conducting elections.
To show that the Mills hiring policy has a disparate impact
on prounion employees, the General Counsel must do more
than rely on the dubious assumption just discussed. Instead, the
government must present evidence demonstrating, for example,
that job candidates in the groups considered first—employees
and former employees—have a lower concentration of pro-
union workers than job candidates in the groups considered
later. The General Counsel has not presented such evidence.
Under the Mills hiring policy, job candidates recommended
by a supervisor receive consideration earlier than candidates in
three other categories, including candidates who apply in an-
swer to help-wanted advertising or who come in off the street.
The General Counsel contends that one of Mills’ supervisors
would be unlikely to recommend a candidate known to be pro-
union.
The General Counsel’s argument requires the assumption of
a fact not in evidence, namely, that a supervisor will take the
facially neutral policy and apply it in a discriminatory way.
However, the General Counsel is not entitled to the benefit of
such an assumption. The Board does not assume that a person
will break the law merely because he has an opportunity to do
so.
To the contrary, every unfair labor practice hearing begins
with the presumption that the respondent has obeyed the law,
CENTEX INDEPENDENT ELECTRICAL CONTRACTORS ASSN. 1403
and the General Counsel bears the burden of proving violative
conduct by a preponderance of the evidence. All supervisors
who hire employees have, by definition, authority to exercise
independent judgment. See 29 U.S.C. §152(11). Anyone having
such discretion necessarily has the opportunity to discriminate
unlawfully, but such discrimination must be proven by evi-
dence after the fact, and not merely assumed in advance to be
inevitable.
In this case, the General Counsel has not alleged that Mills in
a repeated violator of the labor laws with a propensity to com-
mit unfair labor practices, and the evidence certainly would not
establish such an allegation. Absent evidence to the contrary, I
will presume that Mills and its supervisors exercise their hiring
authority in a lawful manner.
This discussion has addressed logical problems with the
General Counsel’s argument, but it should be emphasized that
argument alone will not satisfy the Government’s burden of
proof. Rather, under a “disparate impact” theory, the Govern-
ment must present evidence which “conspicuously demon-
strates a job requirement’s grossly disparate impact.” Dothard
v. Rawlinson, 433 U.S. at 331. The Government has not pre-
sented such evidence.
In sum, were I to apply a “disparate impact” theory, I would
conclude that the government has not presented credible evi-
dence sufficient to shift the burden of proceeding to Mills to
demonstrate legitimate business reasons for the hiring policy.
Even if the General Counsel had presented such evidence, I
would find that the policy was lawful because of Mills’ legiti-
mate and substantial business reasons for promulgating it.
F. The “Employee Sharing” Argument
In oral argument, the General Counsel asserted that Mills
had violated the Act in another way, by “borrowing” employees
during Mills’ busy periods from contractors who did not need
those employees at the time. The General Counsel called this
practice “sharing employees” and argued as follows:
In addition to its hiring preference policy, Mills used sharing
of employees to avoid the possibility of hiring union appli-
cants. Mr. Roudebush testified that Mills borrowed from vari-
ous contractors, but did not claim or offer evidence that a sin-
gle one of the loaning contractors was a union contractor. This
system of borrowing employees was 100 percent effective in
avoiding the hiring of union members.
It is not clear that the complaint covers this allegation. Com-
plaint paragraph 11 alleges only that since about April 21,
1999, “Respondent Mills has maintained a discriminatory hir-
ing practice.” It certainly may be disputed that this language
covers the practice of “borrowing” employees from other con-
tractors.
Additionally, it is not clear that this issue was fully litigated
at the hearing. However, I need not consider these procedural
issues because the General Counsel’s argument is meritless on
its face.
For one thing, the argument improperly places the burden on
the respondent to prove that it is innocent. The General Counsel
bears the burden of proving that a respondent is guilty, and also
bears the initial burden of proceeding. Until the General Coun-
sel presents probative evidence passing a certain threshold, the
Respondent need not present any evidence to justify its con-
duct.
Therefore, the General Counsel’s statement that Respon-
dent’s vice president “did not claim or offer evidence that a
single one of the loaning contractors was a union contractor”
fails to recognize that the Respondent had no duty to show that
it borrowed employees from a unionized contractor.
More fundamentally, the Respondent had no duty at all to
borrow employees from a unionized contractor. The Act does
not impose on an employer any affirmative duty to seek out
employees who are members of or associated with a union. To
the extent that the Act imposes a duty on an employer with an
unrepresented work force, it is a duty of neutrality, a duty to
treat all employees and job applicants similarly regardless of
whether they support or oppose a union. Indeed, Section 8(a)(2)
of the Act makes it an unfair labor practice for an employer to
“contribute financial or other support” to a labor organization.
The evidence here fails to show that Mills harbored anti-
union animus or was motivated by animus in any way. Accord-
ingly, the General Counsel has not demonstrated that Mills
committed any unfair labor practice when it borrowed employ-
ees from other contractors.
G. Additional Legal Analysis
For reasons discussed above, I have concluded that the Mills
hiring policy did not violate the Act under either an “inherently
destructive” or a “disparate impact” theory. Further, the record
does not establish that Mills committed an unfair labor practice
under any other theory.
The Board’s decision in Zurn/N.E.P.C.O., 329 NLRB 484
(1999), is instructive. That case involved an employer’s hiring
policy which closely resembled the Mills hiring policy here.
In Zurn/N.E.P.C.O., supra, the General Counsel did not al-
lege that the hiring policy was unlawful under an “inherently
destructive” theory, and the Board did not consider such a the-
ory. Rather, the General Counsel relied upon other evidence of
animus to establish the element of intent. However, the Board
rejected the General Counsel’s argument, stating, “[W]e agree
that the evidence presented is insufficient to support the Gen-
eral Counsel’s theory that the policy as applied at the Florida
jobsites unlawfully discriminated on the basis of union activi-
ties.” Zurn/N.E.P.C.O., supra.
The present record lacks any evidence of animus, making the
case against the Mills hiring policy even weaker than the case
against the hiring policy in Zurn/N.E.P.C.O. I conclude that the
General Counsel has not proven that the Mills hiring policy
violated the Act under any theory.
H. “Refusal-to-Consider” Allegations
Complaint paragraph 17 alleges that since about April 21,
1999, “Respondent Mills, through Jerry Roudebush, refused to
consider for employment and/or hire Gordon Byram, Ralph
Merriweather and Michael Murphy.” Complaint paragraph 18
alleges that Mills engaged in this conduct to discourage em-
ployees from forming, joining or assisting the Union and en-
gaging in concerted activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1404
Uncontradicted evidence establishes that Byram, Merri-
weather, and Murphy never applied for work at Mills. The
General Counsel seeks to overcome this fact—that the three
alleged discriminatees never contacted Mills about employment
or submitted job applications there—by asserting that the IEC
was then acting as Mills’ agent for hiring purposes. Complaint
paragraph 8 specifically alleges that the IEC was “an agent of
Respondent Mills for the purpose of acceptance and referral of
employment applications to Respondent Mills.” Moreover, in
oral argument, the General Counsel contended that Mills was
“liable for allowing the IEC as its hiring agent to act as such
agent in a discriminatory pattern, by denying the right to union
members to complete applications.”
The credited evidence fails to establish that Mills ever au-
thorized the IEC to act as its agent for hiring purposes. The
General Counsel further argues that the record need not estab-
lish an actual agency relationship because liability may be im-
puted to Mills based on an apparent agency relationship. In oral
argument, the General Counsel correctly summarized the doc-
trine of apparent authority as follows:
Apparent authority is created through a manifestation
by the principal to a third party that supplies a reasonable
basis for the latter to believe that the principal has author-
ized the alleged agent to do the acts in question.
The Board has adopted this standard. See, e.g., Dick Gore Real
Estate, 312 NLRB 999 at fn. 1 (1993).
The evidence in this case, however, discloses no instance in
which Mills made any statement or other manifestation to cre-
ate the appearance that the IEC was acting as its agent. Indeed,
the General Counsel’s oral argument did not cite any evidence
indicating that a principal made such a manifestation. Instead,
the General Counsel’s oral argument referred to statements
attributed to the IEC’s executive director:
In this case, the IEC Executive Director Jennings pre-
sented the IEC, as the exclusive referral agent of each of
the contractor members. Clearly, it appeared from
Jennings’ statement that the IEC was acting for and on be-
half of each of its members as the exclusive referral agent.
Therefore, the discriminatory referral system main-
tained by the IEC is imputed to each contractor member
regardless of its actual exclusivity.
The credited evidence does not establish that Jennings made
any statements presenting the IEC as an exclusive referral
agent, but even if he had, those statements would not create an
apparent agency relationship. Neither Jennings nor the IEC was
a principal in the alleged agency relationship. To the contrary,
the government contends that the IEC and its executive director
were the agents of the member employers.
Under the doctrine of apparent agency, only the statements
of a principal can create the appearance that someone is acting
with the principal’s authority; the statements of a putative agent
do not suffice. Were the law otherwise, anyone claiming to
represent the city of New York could sell the Brooklyn Bridge
and the city, bound by the act of this apparent agent, would be
obliged to convey title. Obviously, that is not the law.
The General Counsel also invokes the doctrines of ratifica-
tion and failure to repudiate. In oral argument, the General
Counsel suggested that Respondent Mills, a member of the
IEC, had failed to repudiate statements attributed to Jennings
which created the appearance that the IEC was Mills’ exclusive
agent.
There are two problems with this argument. First, the cred-
ited evidence establishes that Jennings did not make the pur-
ported statements on which the General Counsel’s theory relies.
Second, the record fails to establish that Mills received any
indication that Jennings had made such statements. A duty to
repudiate cannot arise until and unless the putative principal has
notice that someone has made a statement requiring repudia-
tion.
The General Counsel seeks to overcome the second problem
by contending that Mills did not need to have actual notice of a
statement before being obliged to disavow it. In oral argument,
the General Counsel stated:
A failure to repudiate can be based upon a construc-
tive, as well as actual knowledge of the agent’s conduct
which leads third parties to believe that the agency has
been authorized.
Certainly, there is here a failure by Mills to repudiate
Jennings’ statements suggesting that...all member contrac-
tors had . . . authorized the IEC to refer applicants to them.
Mills hired a number of applicants immediately after
referral by the IEC, and it’s disingenuous to suggest that
each such referral was unauthorized. These referrals were
sought . . . testimony [of Mills’ managers] reflect that
there were times when they asked specifically that these
referrals be made.
Mills asking the IEC to act as its referral agent, acted
on these faxed applications by hiring the applicants, and
never repudiated IEC’s conduct and their representations
to applicants.
This argument must be rejected. Even assuming for the sake
of analysis that Jennings stated to someone that the IEC was its
members’ exclusive source of employees, Mills would not have
constructive notice of this statement merely by receiving the
applications it had requested. Neither the fact that Mills asked
the IEC to send it applications submitted by job seekers, nor the
fact that Mills received such applications from the IEC, would
give Mills any hint of what Jennings told the job seekers when
they turned in the applications.
For example, even supposing that Jennings told job seekers
that Mills paid electricians 200 dollars an hour, the fact that
Mills had received applications from the IEC would give Mills
no cause to believe—or even suspect—that Jennings had made
the statement in question. Mills certainly would have no duty to
repudiate until it had received significantly more specific notice
that such a statement had been made.
Similarly, the record discloses no reason why Mills should
believe or even suspect that the IEC would hold itself out as
Mills’ exclusive referral agent. When it needed employees,
Mills sometimes placed help-wanted ads and did not rely on the
IEC as the sole source for names of possible employees. The
CENTEX INDEPENDENT ELECTRICAL CONTRACTORS ASSN. 1405
record doesn’t establish that Mills ever told Jennings that Mills
wanted the IEC to act as an exclusive referral agent. Mills cer-
tainly would have no reason to believe that the IEC had held
itself out to be Mills’ exclusive agent when Mills had not asked
the IEC to take this role.
The credited evidence does not establish that Jennings ever
told a job seeker that his application would be sent to Mills or
to any other particular employer. The job seeker reasonably
could believe only that his application would be made available
to whatever association member had a need to hire employees
during the 30-day period the application remained viable. In
these circumstances, the credited evidence does not support a
conclusion that Mills ever made the IEC its agent for the pur-
pose of hiring employees or screening and recommending ap-
plicants for hire.
Because the IEC was not Mills’ agent, when the three al-
leged discriminatees sought to file employment applications
with the IEC, that action cannot be deemed an attempt to file
job applications with Mills. Moreover, the record clearly estab-
lishes that the three alleged discriminatees never asked any
representative of Mills about employment.
An employer cannot be found guilty of refusing to consider
or hire an individual who never asked the employer for work.
Therefore, I conclude that the General Counsel has failed to
prove the allegations set forth in complaint paragraphs 17 and
18.
CONCLUSIONS OF LAW
1. CenTex Independent Electrical Contractors Association is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, but does not meet the Board’s
discretionary standards for the assertion of jurisdiction.
2. Mills Electric, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. International Brotherhood of Electrical Workers Local
Union No. 520, affiliated with International Brotherhood of
Electrical Workers, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
4. CenTex Independent Electrical Contractors Association
did not violate the Act in any manner alleged in the complaint.
5. Mills Electric, Inc., did not violate the Act in any manner
alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The complaint is dismissed.

1 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.