Electrical Workers Ibew Local 211 (Atlantic Division Neca)

ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) International Brotherhood of Electrical Workers, Local 211 (Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Association) and Robert S. Camp- bell. Case 4-CB-4309 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 23 March 1984 Administrative Law Judge Mary Ellen R. Benard issued the attached decision. The General Counsel, the Charging Party, and the Respondent have filed exceptions and supporting briefs. Also, the General Counsel and the Charging Party each has submitted a brief in response to the Respondent's exceptions, and the Respondent filed an answering brief to the General Counsel's and the Charging Party's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings," and conclusions only to the extent consistent with this Decision and Order. In the present case, the judge was presented with an amended complaint that raised two principal issues. First, the complaint alleged that since about 3 December 1981 the Respondent had unlawfully denied Robert Campbell and James Walker the op- portunity to take its journeyman wireman's ex- amination and thus had denied them the ability to improve their opportunities for employment from the Respondent's exclusive hiring hall. Based on evidence showing that both Campbell and Walker had been qualified to sit for that exam, the judge concluded that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by engaging in such conduct. We affirm the judge's finding on this point.2 Additionally, the complaint alleged that the Re- spondent further violated the Act by referring cer- tain applicants in preference to three alleged discri- minatees who had registered before them. The 1 The General Counsel, the Charging Party , and the Respondent have excepted to some of the judge's credibility findings . The Board's estab- lished 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. 2 In doing so, however, we find it unnecessary to pass on the judge's statements regarding Campbell's and Walker's purported failure to "pursue" the applications for membership they submitted to the Respond- ent in May 1981. 280 NLRB No. 10 I 85 judge found, while quoting from Operating Engi- neers Local 406 (Ford, Bacon & Davis Construction), 262 NLRB 50, 51 (1982), that a union can rebut a prima facie case of unlawful referral by demon- strating that "its interference with employment .. . was necessary to the effective performance of its representative function." She further concluded based on the Board's decision in Sheet Metal Work- ers Local 20 (Employers Assn. of Sheet Metal Work- ers), 253 NLRB 166 fn. 1 (1980), that a respondent also can make out a valid defense to this allegation by showing that the failure to refer was not discri- minatorily motivated. Because she found that the Board has not established that only one of these tests is appropriate for hiring hall cases, the judge decided that if the General Counsel established a prima facie case of unlawful referral here the Re- spondent could rebut it by meeting either standard. Then, applying these standards to the present case, the judge concluded that the Respondent did not, as alleged, violate the Act in the operation of its referral system. We disagree with the two-pronged test that the judge applied to determine whether the Respond- ent made unlawful referrals. For this reason and others set out below, we find merit in the General Counsel's and the Charging Party's exceptions to the judge's findings on four referrals, set out below, involving Campbell and Walker. Neverthe- less, we affirm the judge's findings that four other referrals the Respondent made were lawful.3 The relevant facts here are as follows: The Re- spondent and the Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Con- tractors Association (NECA) have entered into a succession of collective-bargaining agreements cov- ering electrical workers. Pursuant to these con- tracts, the Respondent has maintained and adminis- tered an exclusive hiring hall to refer applicants for employment to the various employer-members of NECA. The collective-bargaining agreement in effect at all relevant times herein was for a term beginning 1 September 1980 and ending 31 August 1982. The agreement has certain classifications for re- ferral consisting of several groups of applicants. Thus, persons assigned to group I receive prefer- ence to available work over all other applicants. Persons in group II are preferred over those in 3 The judge's dismissal of the allegation that the Respondent discrimi- nated against registrant James McMillon is affirmed for the reasons set out in her decision. We further affirm the judge's findings regarding three other referrals where she found no violation in the failure to refer (1) Walker on 22 April 1981, (2) Walker on 14 May 1981, and (3) Campbell or Walker on 20 May 1981, and referring Knittel instead. Based on the facts as found by the judge, we conclude that the Respondent followed its established referral procedures in these instances 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group III and so forth. The criteria for assignment to the various groups is set forth in section 5.4 of the contract as follows:4 GROUP I-All applicants for employment who have four or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman's examina- tion given by a duly constituted Local Union of the IBEW and who have been employed for a period of at least one year in the last four years under a collective bargaining Agreement between the parties to this Agreement. GROUP II-All applicants for employment who have four or more years' experience in the trade and who have passed [a] journey- man's examination given by a duly constituted Local Union of the IBEW. GROUP III-All applicants for employment who have two or more years' experience in the trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least six months in the last three years in the trade under a collective bargaining Agreement between the parties to this Agreement. GROUP IV-All applicants for employ- ment who have worked at the trade for more than one year. Campbell and Walker are black electricians who are not members of any IBEW local. They were classified in group III when they began regularly seeking employment at the Respondent's Atlantic City, New Jersey hiring hall during 1979. Both men were ineligible to register for work in a higher category because they had not passed the journey- man wireman's examination. 5 Thereafter, on 1 May 1980 Campbell and Walker complained to the Respondent's business manager George Stockinger about their lack of referrals from the hall. After Stockinger did not give them any definite reason why they were not being re- ferred, Campbell inquired about the procedure for becoming members of the Respondent. Stockinger replied that there was an apprenticeship program. Campbell then asked if they could fill out an appli- cation for membership and Stockinger said that they could do so the following week. At this point, Stockinger pulled out a black book, which Camp- bell thought was a copy of the Union's bylaws, and threw it on his desk, saying to Walker, "[S]how me 4 The complaint does not allege, and no party contends, that the refer- ral system described in the contract is unlawful s We agree with the judge, as noted, that the Respondent subsequently violated Sec. 8(bXlXA) and (2) of the Act by not allowing Campbell and Walker to take this test. in here where I've got to refer you to work." Campbell and Walker subsequently returned to the Respondent's hiring hall on 6 May and submitted applications for membership. Thereafter, because of a construction boom in Atlantic City, the two men worked steadily over the next 8 months until early 1981. When work slowed down and they were laid off in January 1981,6 Campbell and Walker hired an attorney, Junius Williams, to investigate why no action had been taken on their applications for union membership. Further, Campbell and Walker again registered at the hiring hall on 12 and 19 Jan- uary, respectively. Walker regularly signed the reg- ister thereafter but did not obtain any employment pursuant to the Respondent's referrals. Although Campbell ultimately was referred to a job in late March, the NECA contractor discharged him for poor performance.? Campbell subsequently regis- tered to get another job on 6 April. Thereafter, on 30 April, Attorney Williams wrote the Respond- ent's counsel, stating Campbell's and Walker's belief that they should not be required to take any formal test in order to receive more frequent refer- rals because such a test would be graded by the same people who thus far had denied their applica- tions for membership. Williams further stated that his clients were of the view that they should not be required to join the Respondent as apprentices in light of their experience, and that they would pursue their rights under Title VII of the Civil Rights Act if they had no other recourse. 1. In May, following its receipt of the letter, the Respondent made three referrals of other non- member applicants in group III to commercial jobs in preference to these alleged discriminatees who had registered before them. The judge found, and we agree, that in each instance the General Coun- sel had made out a prima facie case that the refer- ral was contrary to the Respondent's hiring hall procedures. However, since the applicants whom the Respondent referred to work, like the discri- minatees, were not members of any IBEW local, the judge concluded that Campbell and Walker clearly had not been discriminated against for rea- sons related to union membership. She also found that the record fails to establish that the Respond- ent's failure to refer was motivated by personal ani- mosity. Accordingly, based on the standards dis- cussed above, which she found appropriate for hiring hall operations, the judge decided that the 6 All dates hereinafter are in 1981 unless otherwise noted T Campbell's discharge affected only his placement on the register and not his eligibility for future referrals. ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) Respondent had met its burden of showing that the referrals were not discriminatorily motivated. Contrary to the judge, we find that a union cannot justify referrals that are contrary to its es- tablished procedures simply by demonstrating that the conduct lacked a specific discriminatory moti- vation. The Board has held that a union operating an exclusive hiring hall must represent all individ- uals who seek to utilize the hall in a fair and impar- tial manner.8 The labor organization conducting such an operation has a duty to conform with and apply lawful contractual standards in administering the referral system. Critically, as the Board stated in Operating Engineers Local 406, 262 NLRB at 51: [A]ny departure from established exclusive hiring hall procedures which results in a denial of employment to an applicant falls within that class of discrimination which inherently en- courages union membership, breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2), unless the union demonstrates that its interfer- ence with employment was pursuant to a valid union-security clause or was necessary to the effective performance of its representative function. The Respondent has made no such showing in this case. Thus, even assuming the absence of a specific discriminatory intent, we conclude that the Re- spondent has violated Section 8(b)(1)(A) and (2) of the Act in each case that it made referrals which did not comport with its establishing hiring hall procedures.9 The particular violations, which we find, are as follows: (1) failing to refer Walker on 12 May and referring Michael Barnes instead, where Walker was in the same group and preceded Barnes on the referral register; (2) failing to refer either Walker or Campbell on 20 May and refer- ring Edward Jennings instead, where both Camp- bell and Walker were in the same group and pre- ceded Jennings on the register; (3) failing to refer Walker on 27 May, where Walker was at least in the same group and preceded McMillon on the register. ° Plumbers Local 725 (Powers Regulator), 225 NLRB 138, 143 (1976) ° In so concluding, we reject the judge's finding that Sheet Metal Workers Local 20, 253 NLRB 166 at fn 1 , stands for the proposition that a union can rebut a prima facie case of unlawful referral simply by show- ing that its conduct was not specifically discriminatorily motivated In that case the complaint was narrowly drawn in that it alleged only that the union unlawfully refused to refer the charging party for work be- cause he had run for union office and had testified adversely to the union's interests at a prior Board proceeding Since the General Counsel there made no attempt to raise or litigate the issue of whether the union's out-of-sequence referrals constituted "a separate violation," the Board found it unnecessary to decide this issue 87 2. We also find, contrary to the judge, that the Respondent further violated the Act on 19 March 1981 by failing to refer Campbell and referring ap- plicant Ronald Turner for work instead. The record shows that Campbell had been signing the referral book with sufficient regularity since 12 January to keep his place on the list, whereas Turner had been signing only since 16 March. Al- though Turner is a member of an IBEW local other than the Respondent, he has not passed the journeyman wireman's examination. Turner, in fact, admitted as much on the referral card he filled out upon registering at the Respondent's hiring hall. Moreover, Turner at the time of his referral, unlike Campbell, was not a resident of the Respondent's geographical area and thus should have been eligi- ble only for group IV referral under the contract. However, since Turner provided a letter of referral from his IBEW local stating that he was a journey- man, the Respondent's assistant business manager, George Fenwick, assumed that Turner had passed the exam and classified him in group II. The Respondent established during the hearing that Campbell had declined a referral on 16 March. Because one of the rules governing its hiring hall requires applicants declining a referral to lose their place on the list, the Respondent claimed that Turner's referral was lawful. The judge concluded that the rule was inapplicable to Campbell because the Respondent had failed to inform him that it ex- isted. The judge's finding on this point is affirmed for the reasons she sets out in her decision. The judge then considered the issue of whether the Respondent had properly classified Turner in group II . Based on Fenwick's credited testimony that he had been under the impression that passage of the journeyman's exam was a requirement for being classified an IBEW journeyman, the judge found that Fenwick had acted reasonably in assum- ing that Turner, as a member of another IBEW local, would have passed such a test and thus have been eligible for group II referral ahead of Camp- bell.10 She therefore concluded that the error Fen- wick made in classifying Turner was not of the type which the Board previously has found to be unlawful. Accordingly, the judge found that Turn- er's resulting referral on 19 March did not consti- tute a violation. We disagree with the judge's conclusion regard- ing the reasonableness of Fenwick's assumption in this instance. During the hearing, Fenwick testified that in order to be referred for work from the Re- spondent's hiring hall an applicant either had to be a member of the Respondent whose proper classifi- 10 There is no residency requirement for group II referral. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation Fenwick would certainly know, or had filled out a card with information necessary for making this determination. Normally, in cases like Turner's, Fenwick relied on the referral card as one source to determine the registrant's referral status. As Turner specifically indicated on his re- ferral card that he had not passed the test, we therefore conclude that Fenwick either knew or should have known from checking Turner's refer- ral card that he did not meet the requirements for group II referral." Accordingly, we find that Re- spondent's failure to refer Campbell on 19 March also violated Section 8(b)(1)(A) and (2) of the Act. AMENDED CONCLUSIONS OF LAW Insert the following as Conclusion of Law 4 and renumber the subsequent paragraph accordingly: "4. By failing and refusing to refer for employ- ment applicants Robert S. Campbell and James E. Walker in the manner prescribed by its collective- bargaining agreement with the Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Association, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(b)(1)(A) and (2) of the Act." THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices within the meaning of the Act, we shall order it to cease and desist therefrom and to take certain af- firmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully discriminated against Campbell and Walker by de- nying them the opportunity to take its journey- man's examination, we shall order that the Re- spondent offer them the opportunity to take the ex- amination, and to give them reasonable notice of when the examination is scheduled.12 11 We affirm, however, the judge's finding that Fenwick acted reason- ably in assuming that William Myers, also a member of another IBEW local who had not passed the test, was eligible for group II referral based on his journeyman status. Unlike Turner, Myers failed to indicate on his referral card that he had not passed the test. Absent any direct evidence that Myers had not passed the test, we find that Fenwick could reason- ably rely on his belief that Myers had done so In so concluding, we note that Fenwick's assumption also was supported by Myers' extensive expe rience in the trade that Myers listed on the back of his referral card Thus, we do not impose on the Respondent the duty to investigate com- pletely the qualifications of every applicant seeking employment at its hiring hall. 11 If, after the opportunity to take the examination is offered to them on a nondiscriminatory basis, Campbell or Walker requests a postpone- ment, the Respondent is obligated to treat that request in the same manner it would treat similar requests from any other applicants , e g , ap- prentices who have finished their training or employees of newly orga- nized employers Having found that the Respondent unlawfully denied referrals to Campbell and Walker, we shall order that the Respondent make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. In addi- tion, a standard remedy for a union's discriminato- ry failure to permit an applicant for a journeyman's test to take the exam is to treat the discriminatee as if he or she had taken and passed the test.13 Ac- cordingly, we shall order that the Respondent con- sider Campbell and Walker as if they were in group I for referral purposes from the first date after 3 December 1981 on which the Respondent reasonably could have arranged for them to take the examination to whatever date they take a non- discriminatory journeyman's examination or, if they decline a nondiscriminatory offer, the date of the offer. 14 Additionally, we shall order that Campbell and Walker also be made whole for any loss of earnings they may have suffered by payment to them of what they would have earned during the applicable period had they been classified and re- ferred as group I applicants, less any net interim earnings. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), to which interest shall be added, to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, International Brotherhood of Electrical Workers, Local 211, Atlantic City, New Jersey, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to refer applicants for employment in accordance with the hiring hall practices and procedures set forth in its collective- bargaining agreement with the Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Association. (b) Failing and refusing to allow Robert S. Campbell and James E. Walker to take the jour- neyman wireman's examination, thereby denying them the opportunity to qualify for a higher priori- ty group under the exclusive referral system set forth in the collective-bargaining agreement. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. is Electrical Workers IBEW Local 367 (Penn-DelJersey Chapter, NECA), 230 NLRB 86, 96 (1977) '* All the Respondent's legitimate hiring hall rules, of course , apply to this remedy, thus Campbell and Walker were only entitled to referrals on days when they were at the hiring hall and in accordance with the places they would have held on the group I referral list ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Operate its exclusive hiring hall in accord- ance with the practices and procedures set forth in its collective-bargaining agreement with the Atlan- tic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Association. (b) Refer Robert S. Campbell, James E. Walker, and all other applicants for employment to posi- tions for which they are entitled under this con- tract. (c) Offer Robert S. Campbell and James E. Walker the opportunity to take the Respondent's journeyman wireman's examination on a nondis- criminatory basis, and provide reasonable notice of the scheduling of the examination. (d) Place Robert S. Campbell and James E. Walker in group I of the Respondent's referral system as of the first date after 3 December 1981 on which the Respondent reasonably could have arranged for them to take the journeyman's exami- nation, and offer them referrals pursuant to that classification until such time as they take the jour- neyman wireman's examination or, if they decline a nondiscriminatory offer of examination, the date of that offer. (e) Make Robert S. Campbell and James E. Walker whole for any loss of earnings they may have suffered as a result of the Respondent's dis- crimination against them in the manner set forth in the remedy section of this decision. (f) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all job registration and referral records and any other documents or records showing job refer- rals and work assignments, and the basis for making such referrals and assignments, of members, employees, job applicants, and registrants which are necessary to compute and anlayze the amount of backpay due to Campbell and Walker and to de- termine their right to referral to jobs under the terms of this Order. (g) Post at all places where notices to employees, applicants for referral, and members are posted copies of the attached notice marked "Appen- dix."15 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places 'a If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 89 where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT fail and refuse to refer applicants for employment in accordance with the hiring hall practices and procedures set forth in our collective- bargaining agreement with the Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Association. WE WILL NOT fail or refuse to allow Robert S. Campbell and James E. Walker to take the jour- neyman wireman's examination, thereby denying them the opportunity to qualify for a higher priori- ty group under the exclusive referral system main- tained under our collective-bargaining agreement with the Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contrac- tors Association. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL operate our exclusive hiring hall in ac- cordance with the practices and procedures set forth in our collective-bargaining agreement with the Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors As- sociation. WE WILL refer Robert S. Campbell, James E. Walker, and all other applicants for employment to positions for which they are entitled under this contract. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Robert S. Campbell and James E. Walker the opportunity to take the journeyman wireman's examination on a nondiscriminatory basis, and provide reasonable notice of the schedul- ing of the examination. WE WILL place Robert S. Campbell and James E. Walker in group I of our referral system as of the first date after 3 December 1981 on which the Respondent reasonably could have arranged for them to take the journeyman's examination, and offer them referrals pursuant to that classification until such time as they take the journeyman wire- man's examination or, if they decline a nondiscrim- inatory offer of examination, the date of that offer. WE WILL make Robert S. Campbell and James E. Walker whole for any loss of earnings they may have suffered as a result of our discrimination against them, with interest. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 211 Bruce G. Conley, Esq., for the General Counsel. Robert F. O'Brien, Esq. (Tomar, Parks, Seliger, Simonoff & Adourian), of Haddonfield, New Jersey, for the Re- spondent. Richard A. Goldberg, Esq., and Verice M. Mason, Esq. (Division of Public Interest Advocacy, New Jersey Depart- ment of the Public Advocate), for the Charging Party. DECISION STATEMENT OF THE CASE MARY ELLEN R. BERNARD, Administrative Law Judge. The original charge in this case was filed on Sep- tember 3 and amended on December 24, 1981, by Robert S. Campbell, an individual, against International Brother- hood of Electrical Workers, Local 211 (the Respondent or the Union). On February 26, 1982, the complaint was issued alleging, in substance, that the Respondent had failed to refer Campbell, James H. McMillon, and James E. Walker for employment as electricians on various specified dates in 1981 for arbitrary and discriminatory reasons, including their lack of membership in any local of the International Brotherhood of Electrical Workers (the IBEW). The complaint further alleges that by this conduct the Respondent violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act. On December 13, 1982, the complaint was amended to allege, in sub- stance, that about December 3, 1981, the Respondent has unlawfully denied Campbell and Walker the opportunity to take a journeyman's examination, thereby denying them the ability to improve their opportunities for em- ployment.' In June 1983 the complaint was further amended to allege that the Respondent had additionally violated Section 8(b)(1)(A) and (2) of the Act by failing to refer Walker to a job as a residential wireman in May ' The amendment also changed the date of the alleged refusal to refer McMillon 1981 . The Respondent has denied the commission of any unfair labor practices. A hearing was held before me at Philadelphia, Penn- sylvania, on March 21 through 23, April 27 through 29, and June 13, 1983. Following the hearing the General Counsel, the Charging Party, and the Respondent filed briefs,2 which have been considered.3 On the entire record in the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYERS The Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Associa- tion (the Association) represents employers engaged in the electrical construction industry in multiemployer col- lective bargaining with the Respondent. During the 12- month period preceding issuance of the original com- plaint, employer-members of the Association, in the course and conduct of their business operations, pur- chased and received goods and materials valued in excess of $50,000 from points directly outside the State of New Jersey. Environmental Design, Limited, trading as Mitchell Mechanical and Electrical Contractors (Mitchell) is a Delaware corporation engaged in the business of electri- cal contracting with its principal place of business locat- ed in Linwood, New Jersey. During the 12-month period preceding June 13, 1983, Mitchell, in the course and con- duct of its business operations, purchased and received goods valued in excess of $50,000 from points directly outside the State of New Jersey. The answer admits and I find that the Association and its employer-members and Mitchell are each employers engaged in commerce within the meaning of the Act, and I further find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background; the Hiring Hall The Respondent has represented electricians employed by members of the Association for an undisclosed number of years and has been party to a series of collec- tive-bargaining agreements with the Association as well as other employers. The agreement covering commercial 8 The briefs contain some statements that are contrary to the clearly expressed positions of the parties on whose behalf the briefs were submit- ted In view of the length and somewhat confusing nature of this record, I conclude that these statements were inadvertent and do not view them as conceding any issue to the opposition s The General Counsel also filed a motion, in which the Charging Party joined, to correct the record by amending an exhibit . The Re- spondent has not opposed the motion and, accordingly, the motion is granted ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) construction in effect at material times in this case (the commercial agreement) was for a term beginning Sep- tember 1, 1980, and ending August 31, 1982. 1. The contractual provisions relating to the Respondent's hiring hall The commercial agreement provided, inter alia, that the Union would operate a hiring hall pursuant to the following provisions: 5.1 The Union shall be the sole and exclusive source of referral of applicants for employment. 5.2 The Employer shall have the right to reject any applicant for employment. 5.3 The Union shall select and refer applicants for employment without discrimination against such applicants by reasons of membership or non-mem- bership in the Union and such selection and referral shall not be affected in any way by rules , regula- tions, bylaws, constitutional provisions or any other aspect or obligation of Union membership policies or requirements. All such selection and referral shall be in accordance with the following proce- dure. 5.4 The Union shall maintain a register of appli- cants for employment established on the basis of the groups listed below. Each applicant for employment shall be registered in the highest priority group for which he qualifies. GROUP I-applicants for employment who have four or more years' experience in the trade, are resi- dents of the geographical area constituting the normal construction labor market, have passed a journeyman's examination given by a duly constitut- ed Local Union of the IBEW and who have been employed for a period of at least one year in the last four years under a collective bargaining Agree- ment between the parties to this Agreement. GROUP II-All applicants for employment who have four or more years' experience in the trade and who have passed [a] journeyman's examination given by a duly constituted Local Union of the IBEW. GROUP III-All applicants for employment who have two or more years' experience in the trade, are residents of the geographical area consti- tuting the normal construction labor market and who have been employed for at least six months in the last three years in the trade under a collective bargarging Agreement between the parties to this Agreement. GROUP IV-All applicants for employment who have worked at the trade for more than one year. The contract further provides that examinations "shall include only written and/or practical examinations given by this Local Union, or any other duly constituted Local Union of the IBEW. Reasonable intervals of time for ex- aminations are specified as 30 days. An applicant shall be eligible for examination if he has four years' experience in the trade." 91 Finally, the contract specifies that "[t]he Union shall maintain an `Out of Work List' which shall list the appli- cants within each group in chronological order of the dates they register their availability for employment," and that applicants shall be referred first from group I in the order of their place on the out-of-work list and then successively from group II, group III, and group IV. The Respondent is also a party to a collective-bargain- ing agreement with the Southern Residential Section of the Southern New Jersey Chapter, Inc., National Electri- cal Contractors Association (the residential section). That contract (the residential agreement) covers residen- tial construction and includes provisions for the Union's operation of a hiring hall, which are similar to those in the commercial agreement quoted above, except that for group I status an applicant must have 2 or more years' experience in the trade rather than 4, have passed a resi- dential wireman's examination rather than a journey- man's examination, and have worked 1 of the last 2 years under a contract between the parties to the residential agreement; similarly, for group II status the applicant must have 2 or more years' experience in the trade and have passed the residential wireman's examination. For group III status the applicant must, like applicants under the commercial agreement, have 2 or more years' experi- ence in the trade and reside in the geographical area con- stituting the normal construction labor market, but they are required to have been employed in the trade for at least 6 months in the last 2 years rather than 6 months in the last 3 years as is required by the commercial agree- ment. 2. The operation of the hall The Respondent's office, during the period material to this case, was on the second floor of a building that also housed offices of some other construction trades unions. The record establishes that the usual practice was for an electrician seeking a referral from the Respondent for the first time to go to the Respondent's office where he filled out a card entitled "Registration for Referral Group." The form contained spaces for the registrant to list his name, address, social security number, date of birth, race, national origin, sex, and card number and local union number, if any, and also included boxes for the registrant to check to specify his classification as "journeyman wireman," "journeyman lineman," "residential wireman," "welder," or "other." The form also included a line for the registrant to specify whether he had "passed a jour- neyman examination or completed an apprenticeship pro- gram given by a duly constituted Local Union of the I.B.E.W. for construction?" and how long he had been employed under a collective-bargaining agreement be- tween the Respondent and the Association' "in the last 4 4 The employer association's name as printed on the card is "Atlantic Division of the N. J. Chapter of N.E.C A," while the Association's name, as printed in the commercial agreement, is "Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Association " I assume that the two names refer to the same organization, and there is no indication to the contrary in the record 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD years." Although the back of the card is blank, George Fenwick, the Respondent's assistant business manager, credibly testified that he usually asked registrants if they wanted to list their experience on the back of the card, and it is undisputed that a clerical employee of the Union frequently lists the registrant's subsequent referrals in that space. At material times there were more than 300 members of the Respondent, and the hiring hall main- tained at least 1000 referrals cards for electricians who were either members of other IBEW locals or were not members of any labor organization. 5 The referral cards do not indicate in which group the registrant is classified; according to Fenwick, he relied on the information on the referral cards and his own per- sonal knowledge to determine the group in which an electrician belonged. Specifically, Fenwick testified that when an electrician came into the hall and filled out a referral card Fenwick would attempt to verify the infor- mation given on the card by asking the applicant to show him either a letter from his local business manager or a dues receipt from his local union. According to Fenwick, letters from business managers of other IBEW locals would state whether the bearer had passed a jour- neyman's examination;6 however, none of these letters was introduced into evidence.? Similarly, the IBEW dues receipts include a line for the member's classifica- tion, but do not indicate whether the member passed a journeyman's examination. Fenwick credibly testified that no one can become a journeyman in the Respondent without taking the examination :8 apprentices generally are required to take the test in order to make the transi- tion to journeyman, and when the Respondent organizes a previously nonunion contractor the employees take a test to determine their classification.9 Fenwick further credibly testified that he thought that to become a jour- neyman member of any IBEW local an applicant would have to pass the examination. During the hours the hiring hall is in operation, appli- cants appear in person and sign ledgers maintained by the Respondent, which have a date on each page, there- by indicating their availability for work. Until May 26, 1981, the Respondent used one ledger and applicants who signed it would put their group number next to their name; after that date the Respondent used separate ledgers for each group with the group number marked on the front of the ledger. According to Fenwick, "99 percent of the time" the applicants for referral would sign the right book. 5 Members of the Respondent did not fill out referral cards after they joined the Local. 6 However, later in his testimony Fenwick stated , in response to the question, "Do some [letters] indicate passage of a journeyman exam?" "I believe they do; yes." T According to Fenwick, the applicants generally keep the letter al- though it is addressed to the Respondent 's business manager. 6 However, Fenwick credibly testified that some members of the Re- spondent are sign serviceman, residential wiremen, or residential trainees, and he was not sure whether all those members had passed a test. According to Fenwick, after a shop is organized representative of the Respondent talk to the employer to discuss the qualifications of each of the electricians working for him, as a result of those discussions some of the electricians may be classified as apprentices and those who are prob- ably classifiable as journeymen are offered the ,journeyman 's examination Fenwick testified that he made copies of pages of the referral book, which he would mark up to show who had been signing the book the longest and therefore had the highest priority for referral within his group. Then, when an employer called and requested electricians, Fen- wick would look at his personal list, get the book to see who had signed and who was physically present in the hall, and then call the individual with the highest priori- ty who was present and give him the referral. Although the collective-bargaining agreements, as quoted above, require the Respondent to maintain an out-or-work list, it is clear that the only list which might satisfy that re- quirement was this list which Fenwick made for his own use. 10 The hiring hall was in operation between 8 and 10 a.m., Monday through Friday, excluding holidays. Al- though sometimes Fenwick would come out of his office before 10 a.m. to advise the men waiting around the hall that there was no more work, he testified that if he did not make such an announcement the men could assume by 10 a.m. that no more referrals would be made that day. Fenwick further testified that he would know when there was no more work on a given day because the con- tract required that the men be paid from 8 a.m.; conse- quently, contractors were very unlikely to call for men after 9 a.m. because they would have to pay them for too much time not worked. Fenwick credibly testified that sometimes he received calls from contractors in the afternoon and that men for those jobs would be referred the next morning. Fenwick testified that, if a registrant proffers a letter saying that he has passed a journeyman's examination (assuming he does not live within the Respondent's geo- graphical jurisdiction), Fenwick would know that he be- longed in group II. However, although the contract refers to having passed the journeyman 's examination rather than being a journeyman, it is clear from the record that Fenwick equated the two, and that if some- one showed him a dues receipt which recited that he was a journeyman Fenwick took that to mean that the individual had passed the journeyman 's examination. Indeed, as discussed below, it is clear from the record that Fenwick considered some applicants journeymen be- cause their dues receipt and/or letters from their business agents so indicated, even though these individuals had not in fact passed an examination. 3. Other rules relating to the hiring hall a. The 7-day rule Fenwick testified that in order for a registrant to main- tain his place on the referral list he must sign the book at least once a week. It is undisputed that this rule was not included in either the commercial or the residential agreement . However, Fenwick testified that the rule was printed on a card that was posted in the window of the 10 There is reference in the record to an out-of-work list which is un- dated and Fenwick testified that he was not familiar with it, in any event, it appears that his list predates any of the events at issue in this proceed- mg and that during material times no such list was maintained. ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) office. 11 Fenwick further testified that on occasion some- one who intended to keep his place on the list could not i get to the hall to physically sign the book within the 7- day period and that in that event he would advise George Stockinger, the Respondent's business manager, of the situation and Stockinger might decide that if the man appeared the next day and had been continually signing the book he would not lose his place on the list. Fenwick credibly testified, however, that he never signed the book for someone else. b. The rule that registrants must be physically present in the hall to be referred Fenwick also credibly testified that in order to be re- ferred a registrant had to be physically present in the hall. The consequence of this rule, in tandem with the rule that a registrant had to sign the book every 7 days to keep his place on the list, was that a registrant might keep his place on the list but not a referral unless he was actually at the hall when the referral was made.12 It is undisputed that this rule was not posted in the hall. c. The consequences of refusing a referral Fenwick further testified to a rule that if someone who is offered a referral declines the job he goes to the bottom of the list for his priority group. Fenwick testi- fied that the rule might have been memorialized in an old report of the Union's executive board,13 but he was not sure whether it had ever been committed to writing at all. However, Fenwick testified that in any event the rule was communicated to registrants because whenever someone turned down a referral he told them the conse- quences.14 Fenwick further testified that the rule was implemented because some electricians were turning down jobs to wait for others they found more desirable and the Respondent wanted to discourage that practice, which was making it difficult for the Respondent to meet the manpower needs of contractors with short jobs. d. The rule regarding short jobs As a corollary to the rule that refusal of a job would cause a registrant to go to the bottom of the list for his group there is a rule that, it a registrant accepts a job that only lasts a "week,"15 he does not lose his place on the list unless he either quits or is discharged for cause. However, this rule was not embodied in any written document and there is no evidence that it was otherwise communicated to all registrants. 11 Between the time the events at issue and the hearing the Union moved its office, and Fenwick testified that the card was no longer in the window of the old office and he did not know where it was 12 However, Fenwick credibly testified that if he saw someone in the hall before they had had a chance to sign the book that day and he knew that they had the highest priority for a referral that individual would be referred even though he had not yet signed 18 Fenwick, who at material times was the Respondent's recording secretary, was a member of the executive board. Stockinger was the fi- nancial secretary 14 As discussed below, there is a dispute whether the alleged discri- minatees were aware of this rule, and, if not, whether it should be applied to them 15 Fenwick testified that it had never been defined whether a week meant 5 days or 7 days 93 B. The Construction of the Atlantic City Casinos Fenwick credibly testified that prior to February or March 1979 there had been substantial unemployment in the Atlantic City, New Jersey area among electricians. In early 1979 construction began of various casinos in Atlantic City and as a result there was more than enough work for all the registrants of the Respondent's hiring hall. This casino construction boom lasted for about 2 years, according to Fenwick, until about the end of 1980. Fenwick further testified that by March 1981 work was again slow. During the period of high employment, the hiring hall had operated under a rule that a registrant would not lose his place on the referral list as long as he signed the referral book every 30 days. Fenwick credibly testified that when work began on the casinos, because more men were required than he could supply from group I, he started calling other registrants and discovered that some of every 30 to come down to Atlantic City and sign the book. In consequence, the Respondent decided that a sig- nature on the book would be good only for I week and that in order to be referred an electrician would have to be physically present in the hall. Fenwick also credibly testified that if there were not enough people in the hall to fill all the requests he received from employers he would call other locals asking for men, but that he did not normally personally make telephone calls to individ- uals. Fenwick further testified that he announced that in order to be referred one had to be physically present in the hall by answering the registrants' questions on how he would contact them; as noted above, however, he did not post the rule in writing. All three of the alleged discriminatees in this case are black. Thus, another aspect of the casino construction which was significant with respect to this case was the New Jersey Casino Control Commission's goal that 20 percent of the employees engaged in the work be mem- bers of minority groups. C. Credibility There are substantial conflicts among the testimony of the various witnesses with respect to most of the issues in this case. Unfortunately, none of the principal wit- nesses, Robert Campbell, James Walker, and James McMillion for the General Counsel and George Fenwick for the Respondent, was entirely credible, and, thus, al- though portions of each of these witnesses' testimony were credible, I cannot wholly accept the version of events told by any of them (even, in some instances, where corroborated by another witness) as an accurate account of events.' a Accordingly, I have analyzed the testimony of each witness about every issue in light of his demeanor at the hearing and have made my credibil- ity determinations in light of that analysis. 16 It is worth repeating here the often-quoted maxim that "nothing is more common in all kinds of judicial decisions than to believe some and not all" of a witness' testimony NLRB v. Universal Camera Corp, 179 F 2d 749, 754 (2d Cr 1950) 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Alleged Discriminatees 1. Robert Campbell Campbell credibly testified that he first worked in the electrical construction industry in 1966 as an electrician's helper for 1 year working on a six-story condominium. Campbell then worked for another electrical contractor for 4 months in the summer and fall of 1967 as a helper on commercial work and for a third contractor, R. L. Morgan, in combined residential and commercial work. According to Campbell, he began working as a helper for Morgan but was later classified as a "mechanic," which he characterized as a journeyman. Campbell fur- ther testified that in 1967 and 1970 he took an electronics course at a community college with an emphasis on com- puterized printed circuits. Also between 1969 and 1971 Campbell worked for about 1 year and 8 months for var- ious electrical contractors . From February 1972 to June 1975 Campbell taught an entry-level course in residential electricity for the Atlantic City Opportunities Industriali- zation Center, a training organization. For about a year beginning in 1975 Campbell worked for an Albert Newman in Atlantic City doing about half commercial and half residential work, and then from February until about May 1978 he worked for a Benard Kiner in Atlan- tic City. Campbell testified that he solicited and per- formed all the work on that job himself. In the meantime, in 1973 Campbell went to the Re- spondent's office and talked to Stockinger. After Camp- bell described his experience to the business manager Stockinger told him to fill out a referral card and that if something became available in the future he would con- tact him. Campbell testified that on five or six occasions between 1973 and 1979 he went back to the union hall and talked to Stockinger about the availability of work, but he did not receive any referrals from the Respondent during that period. On February 5, 1979, Campbell went to the union hall and was called into the office by Fenwick, who referred him to Calvi Electric Company (Calvi) to work on a casino and hotel referred to in this record as the Pent- house. The registration card that Campbell filled out at that time shows that he listed his classification as "jour- neyman wireman"; he testified that he checked that box because he did not see any other classification that stated his experience. 17 Campbell testified that in the late summer of 1979, while he was still working at the Penthouse job, he went to the Respondent's office to ask Stockinger if he could get some work on nights and weekends. According to Campbell, other electricians were working on a hotel known as the Bally at that time and he and two men 17 On that card Campbell wrote that he had 13 years' experience in the trade with "various" employers, but he did not specify any of them by name. Campbell testified that the previous times that he had filled out cards he had listed his experience on the back of the card, but that on this occasion he did not have time to do so because he was being immedi- ately referred to a job . It appears that this was the only card filled out by Campbell that the Respondent had in its possession; Fenwick credibly testified that although registrants may have filled out more than one re- ferral card the Respondent tries to maintain only one per person, so a registrant's old referral card might be destroyed after he fills out a new one. from out of town were the only ones who had not been offered that work. Campbell testified that Stockinger said that he would see what he could do but that nothing ever happened. Campbell further testified that he asked Oscar Dutch, the foreman on the Penthouse job, if he could work on the Bally, but that Dutch replied that only members, apparently referring to members of the Respondent, were receiving that overtime work.18 On December 10 or 11, 1979, Calvi transferred Camp- bell from the Penthouse to another Calvi jobsite called the Claridge project, which was also in Atlantic City. Campbell testified that he was laid off from the Claridge job on January 18, 1980, and was then referred, on Feb- ruary 11, 1980, to a job at the Brighton Hotel and Casino for Keystone Engineering Corp. (Keystone). Campbell was laid off after working about 12 days. In the first part of March 1980 Campbell was referred to Calvi to work on the Bally for approximately 3 weeks. According to Campbell, after he was laid off from the job at the Bally he went to the Respondent's hall every working day and signed the book, staying at the hall as long as referrals were being made. Also about this time, Campbell contacted the New Jersey Division of Civil Rights because he thought he was not being properly re- ferred by the Respondent. Campbell also contacted a Casino Control Commission affirmative action officer who arranged a meeting for Campbell and some other individuals with Chairman Lordi of the Casino Control Commission. According to Campbell, Lordi said he would meet with Stockinger to discuss complaints about the Respondent's operation of its hiring hall, but the record does not indicate what action, if any, was taken. On May 8, 1980, after a meeting with Stockinger, which is described below, Campbell was referred to a firm called Dynalectric for work at the Golden Nugget Casino. Campbell's job with Dynalectric lasted until No- vember 4, 1980, when he was laid off. According to Campbell, he was in charge of certain parts of the work on that job and was occasionally helped by three or four other people. Campbell was then referred, on November 19, 1980, to Riley Neon Sign, which was also working at the Golden Nugget. That job lasted until December 24, 1980, when Campbell requested a voluntary layoff so he could take a vacation. Campbell credibly testified that he returned to the Respondent's office on January 12, 1981, and again started signing the referral book regularly. 2. James Walker Walker testified that in 1950 he completed 3 years of an electrical apprenticeship at the Philadelphia Navy Yard, where he worked until 1954. He apparently did not work at the trade for some years thereafter, but testi- fied that in 1968 he worked for a firm known as Kyle Electric in Atlantic City for 14 months. Walker's first contact with the Respondent was in April 1970, when he 18 Dutch did not testify In any event, this comment, if made, occurred outside the 6-month limitations period prescribed by Sec 10(b) of the Act and, further, there is no connection that Dutch was an agent of the Re- spondent ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) filled out a referral card,' 9 and he testified that between 1970 and 1973 he worked for several electrical contrac- tors for periods ranging between 3 and 6 or 7 months. Apparently Walker was again out of the trade for some period of time after 1973, but in 1977 and 1978 he worked for electrical contractors for a total of about 14 months. According to a second referral card for Walker introduced into evidence, in 1979 Walker again regis- tered for work at the Respondent's hiring hall.20 Appar- ently, Walker had already been referred in December 1978 to Calvi at the Boardwalk Regency Hotel and Casino for a job that he testified lasted about 8 months. Fenwick then referred him to the Claridge, again to work for Calvi. That job, according to Walker, lasted about 2 months. However, it must have been only 8 or 9 months' total that Walker worked for Calvi, including the time at the Claridge, for in August 1979 Fenwick re- ferred Walker to Keystone to work on the Greate Bay Hotel and Casino for 7 months.21 According to Walker, he left that job in consequence of a foreman's announce- ment one morning that all the "permit men" had to go. In March 1980 Walker was referred to Mitchell to work on a high rise apartment house; according to Walker, after about 4 to 6 weeks on that job he was told that there was nothing for him to do except sweep the floor, so at lunchtime he went to the union hall to see Stockinger. According to Walker, Stockinger merely asked him where else he could get $15 an hour for sweeping the floor, so he went back to work. Walker further testified that the next day he was laid off and that no reason for the layoff was given. However, Lawrence Mitchell, chief executive officer of Mitchell, credibly tes- tified that Walker was terminated because Mitchell's out- side superintendent on the project found that he was not qualified.22 As a result of this layoff Walker returned to the hiring hall, and was referred in May 1980 to Calvi again, this time to work at Harrah's, a casino, and at the Tropicana, apparently also a casino and/or hotel. Walker worked until January 15, 1981, and has not thereafter held any jobs pursuant to referrals by Respondent. 3. James McMillon McMillon studied electronics at a technical school from 1967 to 1969 and on receiving his diploma worked for about 2-1/2 years for computer manufacturers. In 19 The card Walker filled out on that occasion stated that he worked at the Philadelphia Navy Yard from 1958 to 1965, was self-employed from 1965 to 1968, worked for Atlantic City Coal Company from 1969 to 1970. I have considered the discrepancy between the card and Walker's testimony about when he worked for the navy yard in assessing Walker's overall credibly Specifically, as there is no explanation for this discrep- ancy in the record, I conclude that it was not inadvertent, and that Walker intentionally exaggerated the extent of his experience when he listed it. 20 Walker did not list any of his employers on this card. S1 At the time of the hearing that casino was known as the Sands, ap- parently due to a change of ownership 22 Mitchell impressed me as an honest and straightforward witness who testified candidly and with good recollection. Walker, however, as already indicated, appeared to me to be credible only with respect to cer- tain areas of his testimony In any event , there is no inconsistency be- tween the testimony of Mitchell and Walker on this point, as Mitchell did not testify whether Walker was told the reason for his layoff 95 1972 McMillon worked for a boatbuilder for about 11 months wiring electrical systems and then spent the next 4 years in business for himself installing burglar alarms and closed-circuit television systems. McMillon testified that he first went to the Respond- ent's office in July 1973, asking if he could join the Union or be referred for work. According to McMillon, he was told that although there was no work available at the time he should fill out a referral card anyway, and that to join he would have to go through the Union's ap- prenticeship program. McMillon testified that he was not told how to apply for that program, but there is no evi- dence that he asked. McMillon did not contact the Respondent again until March 1979, when he went to the office and asked Fen- wick if he could get work. Fenwick, according to McMillon, referred him to Stockinger, who told him that there was no work available at the time, but that he could fill out a registration card and sign the referral book, which McMillon did, giving an address in Ham- montgn, New Jersey. According to McMillon, at the time he was actually living at 33 Massachusetts Avenue in Atlantic City; however, he did not have a telephone and had recently separated from his wife so he used her address and telephone number in the hope that any mes- sage from the Respondent would reach him. McMillon testified that about a month later he re- turned to the hall, bringing with him a letter from the National Association for the Advancement of Colored People, asking the Respondent to tell him and the NAACP what he would have to do to obtain member- ship. McMillon further testified that Stockinger referred him to something referenced in the record as the Recruit Training Program, apparently an IBEW-sponsored pro- gram to train members of minority groups for work in construction, and that he consequently went to see some- one affiliated with that program. However, according to McMillon, that person said that he did not need that training and that he would be put to work, and in April 1979 he was referred by the Respondent to work for Calvi at Caesar's Hotel and Casino. After about 2 weeks McMillon and a number of other employees were trans- ferred to Calvi's project at Bally's Hotel and Casino for 2 more weeks; McMillon was laid off from that job as part of a reduction in force. McMillon testified that following his layoff from Bally's he registered with the New Jersey Employment Service, which referred him to a job with Jaden Electric which lasted about a year and a half. In September 198023 McMillon filled out another referral card, giving an address in Pleasantville, New Jersey, and was referred by the Respondent to R & S Electric to work on con- struction of a bank in Atlantic City. That job lasted about 7 months, and when McMillon was laid off in March 198124 he returned to the hiring hall and began to sign the referral book. as Although McMillon said at the hearing that he left Jaden in Sep- tember 1981 , it is clear from the context of that testimony and from other evidence that he intended to say 1980, and I so find. 24 Although McMillon testified that he was laid off in March 1982, I find, as I did with respect to his reference to September 1981, that he meant to refer to the previous year 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Journeyman's Examination 1. Campbell's, Walker's, and McMillon's attempts to join the Respondent and/or achieve placement in a higher priority group Campbell testified that at some point he and Walker decided they should talk to Stockinger personally about the referral situation and did so about May 1, 1980. Ac- cording to Campbell,25 Stockinger did not give the men any definite reasons why they were not being referred, so Campbell asked the procedure for becoming members of the Respondent. Stockinger responded that there was an apprenticeship program.26 Campbell then asked if they could fill out applications for membership and Stockinger said they could do so the following week. According to Campbell and Walker, whom I credit on this point, Stockinger also pulled out a black book, which Campbell thought was a copy of the IBEW bylaws, and threw it on the desk, saying to Walker, "[S]how me in here where I've got to send you to work." Campbell further testified that Stockinger told them that their applications would be submitted to the Union's executive board and they would be invited to a meeting of that group. On May 6, 1980, Campbell and Walker returned to the Respondent's office and asked Fenwick for applications for membership in the Union. According to both Camp- bell and Walker, after Fenwick gave them the applica- tion cards they started to leave the hall but Fenwick told them they could not take the cards out of the building. They left anyway, had copies made of the forms, and then returned to the union office where they filled out the cards and gave them back to Fenwick. Campbell testified that on May 8, 1980, when he re- ceived the referral to Dynalectric he asked Stockinger what was happening with his and Walker's applications for membership in the Respondent and Stockinger said that the applications would be submitted to the executive board and that Walker and Campbell would be invited to the executive board 's meeting. However, I do not credit the testimony that Stockinger, on either May 1 or 8, told Campbell and Walker that they would be invited to the 25 Campbell testified that at the beginning of the meeting Stockinger said that "people's being going downtown talking about our business." However, when initially asked how the meeting started Campbell replied that he asked Stockinger why he and Walker had not been referred. When asked if he recalled any statements by Stockinger at the beginning of the meeting other than what he had already testified about, Campbell said he did not The reference to Stockinger's comment about people going downtown to talk about the Union's business was then elicited in response to a leading question from the General Counsel about whether Campbell recalled any reference by Stockinger to "downtown ." Walker testified about this meeting but did not refer to this alleged comment by Stockinger, and Stockinger did not testify. Even though Stockmger thus did not contradict Campbell's testimony on this point. I do not credit Campbell, for he did not appear truthful. 28 Campbell testified that he then asked if there was a ,journeyman's test that they could take and Stockinger said that there was not "and even if there was, you probably couldn't pass it." Campbell said that nonetheless he would like to take the test if there was one and Stockmger said they did not have one but the Respondent's executive board could make one up for them, Walker substantially corroborated this testimony, but I nonetheless do not credit either Walker or Campbell on this point, for they appeared on this matter to be attempting to tailor their testimony to their positions in this litigation. executive board meeting at which their applications would be considered. Walker did not corroborate Camp- bell on this point, and I note that there is no provision in the IBEW constitution for applicants for membership to appear personally before the local union executive board. I also note that no such invitation is indicated in any of the correspondence, discussed below, which later passed back and forth between counsel for the Union and coun- sel for Campbell and Walker. Accordingly, I conclude that Stockinger did not tell Campbell and Walker that they would be invited to attend an executive board meet- ing. Campbell further testified that in January 198127 he and Walker retained an attorney , Junius Williams, to in- vestigate why no action had been taken on their applica- tions to join the Respondent. However, Campbell testi- fied that at no time during March, April, and May 1981 did he complain to either Fenwick or Stockinger that he was not properly referred and there is no evidence that Walker made such a complaint. In April Williams wrote to Robert O'Brien, counsel for the Respondent, stating that Campbell and Walker felt that they should not be required to take any formal test in order to receive more frequent referrals because such a test would be graded by the same people who had so far "denied their entry into the union." Williams further stated that Campbell and Walker were of the view that they should not be required to join the Re- spondent as apprentices in light of their experience and that they would pursue their rights under Title VII of the Civil Rights Act if they had no other recourse. Following an exchange of correspondence, O'Brien wrote to Williams that the Respondent's executive board would consider at its June 8 meeting the assertions made by Campbell and Walker. Williams replied on June 5, stating, in part, that Campbell and Walker had "been es- sentially out of work for approximately five months. They have only received during that time three referrals between them (one additional assignment was made but lasted only seven days, and another was declined because of transportation problem). Since they have been regis- tered for work, hundreds of men have gone out ahead of them, although their qualifications were no higher than that [sic] of Mr. Campbell and Mr. Walker." By letter dated June 30 Williams, apparently not having been ap- prised of the results of the June 8 executive board meet- ing, wrote to O'Brien, commenting, in the course of the letter, that "[a]ny jobs that have been refused [by Camp- bell or Walker] have been turned down because of dis- tance from their place of residence, which posed a trans- portation hardship. In addition this has occurred on no more than two occasions which leaves the balance of the time for which there has been no accounting ." On July 1 O'Brien wrote to Williams, stating his understanding that neither Campbell nor Walker had 4 or more years' expe- rience in the trade, and that neither of them had passed a journeyman's examination or undergone a 4-year appren- ticeship program, and thus they were not entitled to re- ferral as group I registrants . O'Brien noted that Campbell 27 All dates hereinafter are in 1981 unless otherwise indicated. ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC. DIVISION NECA) and Walker were signing the referral book as group III registrants, and that if they so desired they should apply to the apprentice program. O'Brien further commented that he had been told that in early. June Campbell and Walker had declined a referral, and that "although your clients may in their own minds have had legitimate ex- cuses not to report, the requirement of the Local is to refer employees immediately and for that reason, other employees were sent instead of Mr. Campbell and Mr. 'Walker." However, O'Brien did not mention any other consequences of Campbell's and Walker's declining the referral, such as the Respondent's rule that such a refusal would cause the registrant to lost his place on the list. On July 25 Campbell wrote to Ed Troy, assistant to the vice president for the third district of the IBEW, complaining of the Respondent's failure to refer him and others who were not members and requesting a hearing with respect to the Union's hiring hall procedures and membership policies. Grant Tate, a national representa- tive of the IBEW, responded by letter of August 17, ad- vising that he would be conducting an investigation of Campbell's complaint on August 24 at the Respondent's office and inviting Campbell to attend. Campbell and Walker consequently met on that date with Fenwick and Tate. According to Campbell, Tate asked him what his complaint was and if he understood how the referral procedure was supposed to work and Campbell said that he did. Tate then asked Campbell if there were specific instances when he thought someone else was improperly referred ahead of him and when Campbell replied in the affirmative Tate asked for dates. At that point, still ac- cording to Campbell, Tate asked Fenwick if he had the referral books available and when Fenwick said that he could not find the page for April 22 Tate said he could not conduct an investigation without information. At that point Fenwick said that he had been advised by counsel not to discuss the Respondent's referral proce- dure because there was litigation pending between the Respondent and Campbell and Walker. With that, the meeting ended. Walker essentially corroborated Campbell's testimony as to what occurred at this meeting, but credibly' added that after Fenwick refused to turn over the referral books Tate called his supervisor and then told Campbell and Walker to give him their papers and he would get back to them. Walker further credibly testified that he never received any further communications from Tate. Fenwick testified that when Tate opened the meeting he told him that his attorney had instructed him to meet with Tate to discuss the matter, but not in front of Campbell and Walker because of their pending litigation. According to Fenwick, he then left the room and Tate continued to meet with Campbell and Walker. I find that the difference between the testimony of Campbell and Walker on the one hand and that of Fenwick on the other, with respect to this meeting, is not so substantial to require a determination that one version is more credi- ble than the other. Campbell and Walker testified that on October 9 they and some other men, including McMillon, went to the Respondent's office because they had been advised by their new attorney, Richard Goldberg, assistant deputy 97 public advocate for the State of New Jersey, to'apply for membership and group I status. When the group arrived at the hall, Fenwick told them he would only talk to them one at a time so they each went into the office indi- vidually. When Campbell went in, according to his testi- mony, he told Fenwick why he was there and Fenwick said that he would let him know something the next day. Walker testified to a similar experience. Fenwick testified with respect to this, incident that nine men, including Campbell and Walker, came to the door of the office and one of them demanded an applica- tion for membership. Fenwick, who apparently did not know the individual's name, told him to come into the office and discuss it. According to Fenwick, the man re- fused to come in unless the others accompanied him and, in consequence, Fenwick refused to talk to him. Fenwick further testified that the men left for a few minutes and that the first man then came into the office by himself and asked for an application for membership. Fenwick explained that he was not the business manager and said that he did not know what to do but would find out by the next morning and his visitor could return to the office then.28 The next day some of the men, including Campbell, Walker, and, apparently, McMillon, returned to the Respondent's office and Fenwick gave them appli- cations for membership. It is undisputed that Fenwick asked the men for any experience they could list that would aid the Respondent in investigating their qualifica- tions for membership. Fenwick credibly testified that he was not aware of any previous occasion when so many people had applied for membership at once. In response to this request, both Campbell and Walker submitted resumes to Fenwick a few days later, listing their education and experience. 2. The Respondent's offer of the residential wireman's examination Fenwick credibly testified that the executive board met on October 26 and that at that meeting the president read the applications and directed the executive board to investigate the applicants' qualifications for membership. Fenwick further testified that he then sent letters to all the employers listed on the resumes, asking them to supply the Respondent with information on how long the applicant was employed, the type of work he per- formed, his ability to perform as a journeyman wireman, and the circumstances surrounding the termination of his employment. In support of this testimony the Respondent offered into evidence copies of various of the letters Fenwick had written seeking information about Campbell and Walker. Specifically, the record shows copies of letters Fenwick wrote to Dynalectric, Riley Neon Sign and Keystone about Campbell; all of these are employers to which Campbell was referred by the Respondent. How- ever, Campbell listed six other contractors for whom he had worked between 1966 and 1979 on jobs he had not 98 Fenwick testified that at that time Stockinger had just had surgery and was too ill even to confer by ,telephone, and that he had never been confronted with a similar request for membership applications. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received through the Respondent, and also listed Henkels & McCoy (Henkels), to which he had been referred by the Respondent in March 1981 .29 No copies of any let- ters to these firms were offered into evidence, but I credit Fenwick's testimony that he wrote to every em- ployer Campbell listed. Fenwick testified specifically that he received no re- sponse to the letters he wrote to two of the contractors, and that another contractor, to whom Fenwick talked in person on a jobsite, denied that Campbell had ever worked for him. Fenwick also testified that he received a reply to the letter he wrote to Keystone about Campbell. That response, dated November 3, advised Fenwick that Campbell had worked for that firm from February 11 to 26, 1980, in the "temporary group" and that, inasmuch as there were several hundred electricians on the job, Key- stone could not evaluate his work performance. Fenwick also credibly testified that he wrote to all of the employers Walker had listed except the Philadelphia Navy Yard,30 and copies of those letters were intro- duced into evidence. Fenwick testified that he received a reply from Key- stone about Walker comparable to that he received about Campbell, and that in response to his letter to McCaf- frey's Electric Motor and Machine Co. (McCaffrey) he received his own letter back, with a notation on the bottom from F. J. McCaffrey Jr., apparently an owner of that firm, that Walker might have worked for McCaf- frey's brother, who had died in 1974, but that the writer had no knowledge of Walker's employment with the firm. Fenwick further testified that he wrote to Napier Electrical Contractor, which Walker had listed as one of his employers, and that Bill Napier, again apparently an owner of the firm, telephoned him and in the course of that conversation said that Walker had been employed as a helper rather than as an electrician and had dug ditches while working for that contractor.3 t 29 Campbell also listed the Opportunities Industrialization Center in Atlantic City as an employer; however, Fenwick credibly testified that he did not attempt to contact that organization because the executive board was interested in practical experience. 30 Fenwick credibly testified in this regard that he did not write to anyone listed on the resume as a school or training. I recognize that Walker had worked at the navy yard; however, on his resume he listed it only under "Training." I also note that Walker 's resume states that he was at the navy yard from 1946 to 1954, as noted above, the referral card he filled out in 1970 states that he worked there from 1958 to 1965 as an electrician. a' At the hearing I received Fenwick's notes of this conversation into evidence over objections that they were hearsay, finding that they were admissible for what Napier told Fenwick but not for the truth of the as- sertions Napier made I adhere to that ruling. Counsel for the Charging Party further objected to this document on grounds that it was irrelevant because competence was not a factor in determining whether an individual would be referred by the hi ring hall However, the commercial agreement requires that the journeyman's ex- annnation be offered to electricians with 4 or more years ' experience "in the trade," and, thus, the evidence whether Campbell and Walker had the requisite experience is clearly relevant. In addition, there is evidence that the Respondent, when determining where to place employees of newly organized firms, i.e., whether they would go into the apprentice- ship program or be offered the journeyman's examination, talked about their qualifications with their employer . I therefore conclude that infor- mation offered to Fenwick about the backgrounds , work history, and competence of applicants for membership is relevant to the issue of whether the Respondent had an obligation to offer them the journeyman wireman's examination. In the meantime, on October 21 Goldberg wrote to O'Brien advising him that the Department of the Public Advocate represented Campbell, McMillon, and Walker as well as Dudley Butler, Edward Jennings , Isaac Robin- son, Marvin Baits, Harold Vey, and Barry Harmon, all of whom had applied for membership in the Respondent, and requesting that he be provided with a timetable for the consideration of their applications . O'Brien replied by letter of October 28, explaining that the Respondent did not admit to membership anyone who did not reside in its geographical jurisdictional or who was not em- ployed in the trade. O'Brien further advised that the Re- spondent had undertaken an investigation of Goldberg's clients' residence and qualifications and would contact them on the results of that investigation . After some fur- ther correspondence O'Brien wrote to Harriet Katz, as- sistant deputy public advocate, on November 9, explain- ing that it was "very unusual" for the Respondent to admit to membership people who had not completed the apprenticeship program, that an investigation of the ap- plications were not "unduly delay[ed]," and that as soon as the Respondent had acted she would be notified. Also on November 9, there was a meeting of the Re- spondent's executive board, but, according to Fenwick and his minutes of the meeting, the only discussion of Campbell's and Walker's applications was to the effect that the Respondent had not yet received answers to all its inquiries about them. The executive board met again on November 23. At that meeting, according to Fenwick's minutes and his tes- timony, various individuals who had worked with Camp- bell and/or Walker appeared and expressed their opinion of Campbell's and Walker's work performance. With re- spect to Campbell, the minutes show that Skip Schroyer, a foreman for Henkels, told the executive board that Campbell was terminated from that firm's Bay 500 project in Ocean City after 1 week for unsatisfactory performance. Oscar Dutch, a forman for Calvi, told the executive board that Campbell had not performed jour- neyman's work at the Penthouse, and John Costello told the board that while Campbell worked at Greate Bay, also called the Sands, for Keystone he was in a tempo- rary light gang and was not a journeyman.32 With respect to Walker, Dave Atack, apparently a forman for Calvi, for whom Walker worked on the Har- rah's Casino project, told the executive board that Walker had worked in the toolroom moving and unload- ing material; Harry Martin, whom the minutes do not otherwise identify, said that Walker did what he was told but "was not a journeyman"; and Dave Prosser, who is also not otherwise identified, said that Walker was not a good helper. John Costello said that Walker was in the temporary light gang when he worked for Keystone at Greate Bay and that he was terminated for missing work often. Herman Schenker said that Walker sa This was presumably the job to which Campbell was referred in February 1980. Campbell testified that on that occasion he worked at the Brighton Hotel and Casino, but I note that that operation subsequently became Greate Bay and then the Sands ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) was not a journeyman when he worked at Caesar's,33 and Harry Snow stated that when Walker was referred to the Claridge to work for Calvi he went to the wrong project. The November 23 minutes also reflect the executive board's decision to offer certain of the applicants, includ- ing Campbell and Walker, participation in the Respond- ent's program for residential wireman. In consequence, on December 3 Fenwick wrote to Campbell, stating, in pertinent part: The Executive Board of Local Union #211, IBEW is currently evaluating your application. Your resume indicates the majority of your experi- ence is in the Residential field. Would you kindly notify the Executive Board by December 14, 1981, if you are interested in taking an examination to qualify as a Residential Wireman. In response to this letter, Katz wrote to Fenwick on De- cember 11, asking for an opportunity to talk to him in order to understand the consequences for her clients of taking the residential wireman examination. After receiv- ing some information from Fenwick, Katz wrote to O'Brien on December 22, asking why her clients were not qualified to take the journeyman wireman examina- tion and why the Respondent required residential wire- man to wait 3 years before they could take the additional coursework to qualify as journeyman wireman. O'Brien replied on December 31, advising Katz that the Re- spondent's executive board had determined that her cli- ents' experience might be in the residential field and that the 3-year waiting period "is something that is in the Union's By-Laws and frankly, we do not believe it is a proper subject for your concern." Fenwick testified that the Respondent decided to offer that test because most of the employers Campbell and Walker listed on their resumes had not supplied any in- formation and such information as the Union did have in- dicated that they had been performing residential work. Fenwick conceded that the jobs to which Campbell and Walker were referred by the Respondent were commer- cial. However, Fenwick further testified that he did not know what type of work had observed both men on var- ious jobs and that they were not performing on those oc- casions what would normally be considered journeyman wireman's work. Indeed, Fenwick testified that when he saw Walker at the Ocean Point job in 1973 Walker was pulling wire, at Harrah's he was sweeping the floor of the toolroom, at the Boardwalk Regency Walker was unloading a truck, and when he saw Walker at the Bally he had to tell him he was supposed to be at the Claridge, another jobsite altogether. With respect to Campbell, Fenwick testified that when he saw him working at Calvi and Keystone he was wiring hotel units. It is undisputed that Campbell and Walker did not take the residential wireman's examination, and Campbell tes- tified that he did not take that test because he felt that his experience qualified him for group I status. Campbell 38 Apparently, this was when Walker was referred to Calvi at the end of 1978 , Caesar's and the Boardwalk Regency are the same hotel and casino 99 further testified that he told Goldberg and Katz that be- cause of his experience he was not interested in taking the residential wireman's test, and that he did not talk personally to either Stockinger or Fenwick about the matter. Fenwick testified that letters dated January 13, 1982, were sent to Campbell and Walker stating, in essence, that if they did not indicate to the Respondent by Janu- ary 27, 1982, that they were interested in applying to become residential wiremen, the Respondent would assume that they were "not interested in becoming a member of the Local or in taking the Residential Wire- man examination." Campbell and Walker both denied ever seeing these letters before the instant hearing. I note that, although the letters indicate that they were sent by certified mail, no receipts were produced at the hearing. Nonetheless, I credit Fenwick and find that the letters were properly mailed to Campbell and Walker. 3. The offer of the journeyman' s examination At the February 8, 1982 meeting of the executive board the applicants for membership of various individ- uals were again considered. The minutes Fenwick took of that meeting show that the board concluded that McMillon did not meet the residency requirements speci- fied in the IBEW constitution for membership in a given local and directed that he so notified.34 The minutes fur- ther show that the executive board decided to offer the journeyman wireman's examination to Campbell and Walker. Pursuant to this direction, Stockinger wrote to both Campbell and Walker on February 16, 1982, advising them that the journeyman wireman's examination had been scheduled for 8 p.m. on February 24, 1982, at the Respondent's offices. It is undisputed that the Respondent's examining board met at the appointed time but tha neither Campbell nor Walker came to the Respondent's office that evening. Fenwick testified that the examining board convened around 7 o'clock, pursuant to their usual procedure of meeting before giving a test, and that about 7:50 Camp- bell telephoned and told Stockinger that he was just get- ting in from work and it would take too long for him to get to the Respondent's office, and that he would get back in touch with Stockinger later. Fenwick further tes- tified that the examining board stayed at the Respond- ent's office until sometime between 9 and 9:30 but that Walker did not contact them. Campbell testified that he received Stockinger's Febru- ary 16 letter about Friday, February 19, and that he con- tacted Goldberg and told him that he did not think he had enough time to prepare for the test and did not want to take it at that time. According to Campbell, Goldberg told him to call the Respondent and he therefore tele- phoned Stockinger at the union hall about 7:30 or 7:45 p.m. on February 24 and told him that he had been ad- vised by his attorney not to take the examination at that time but that he would like to have it rescheduled. 34 There is no contention that this action by the Respondent was im- proper 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Campbell further testified that he did not later renew his request that the test be rescheduled, and that he was not told that the examining board had been waiting for him to appear. According to Campbell, he did not appear to take the test because he did not receive the letter an- nouncing the examination until the Friday before, he was going away for the weekend, and at the time he was spending 6 hours per day commuting to and from his job. Campbell further asserted that the New Jersey state agency which administers examinations for electrical contractors gives 30 days' notice of its tests and that most other examining authorities give 15 to 30 days' notice of the dates on which they will administer exami- nations. However, Fenwick credibly testified that he be- lieved that on one occasion applicants for the test were told on a Sunday they would be taking it the following Wednesday, and that he himself was told about the test the same day he took it. Walker testified that he received Stockinger's Febru- ary 16 letter on February 20, 1982, but did not take the test because he did not think 4 days was enough notice. Walker conceded that he did not contact the Respondent himself to say that he would not take the test, and that he did not know whether anyone else had so advised the Respondent. Katz testified that after Campbell and Walker told her that they did not have enough advance notice of the test to prepare for it she tried to call O'Brien on Monday, February 22, 1982, and on the following days, but never talked to him directly and his returns of her calls missed her. Katz further testified that she finally talked to O'Brien either the afternoon of February 24, 1982, or the next morning and discussed with him Campbell's and Walker's concerns and their request that they have 2 weeks to prepare for the test, and that O'Brien said he would see whether he could make such an arrangement. Fenwick testified that after February 24, 1982, the Re- spondent never heard anything more from either Camp- bell or Walker, that he believed that neither man ever re- turned to the Respondent's office, and that neither one ever asked for another opportunity to take the test. However, it is undisputed that the Respondent subse- quently received a letter dated February 26, 1982, from Katz, in which she stated that she had been advised that Campbell and Walker had been invited to take the test and had declined because they had insufficient time to prepare for it. The letter further stated that Campbell and Walker regretted any inconvenience their failure to be at the Respondent's office had caused and that they were still interested in taking the test "if it can be ar- ranged with at least two weeks notice, at your earliest convenience." F. The Failure to Refer 1. The alleged failures to refer before March 3, 1981 Charging Party Campbell contends that on certain oc- casions prior to March 3 he was entitled to referrals which were offered to other hiring hall registrants.35 as Sec. 10(b) of the Act provides "(thhat no complaint shall issue based upon any unfair labor practice occurring more than six months prior to Specifically, the Charging Party contends that Lawrence Benson was improperly referred on January 23, inas- much as he lived outside the jurisdiction, had not passed a journeyman's examination, and had only been signing the referral book since the previous day, while Campbell had been signing since January 12 and Walker had been signing since January 19.3 6 The Charging Party also argues that George DeVito was improperly referred on February 17 on grounds that he lived outside the juris- diction and had not passed a journeyman's examination, and he did not sign the referral book on that day while Campbell and Walker did. Finally, the Charging Party argues that the referral of Alvin Melton on February 10 was improper because he was in group IV and had only been signing the referral book since January 21. Fenwick credibly testified that he did not know DeVito, and that Melton was a laborer who had been re- ferred to unload trucks and move materials pursuant to a request by the business agent of his union and in order to comply with the Casino Control Commission's guidelines on hiting members of miniority groups to work on the casino construction projects. Fenwick further credibly testified that at the time there was more work than there were people available to perform it. 2. The failure to refer Campbell on March 19 It is undisputed that on March 19 Ronald Turner was referred to a job at the Claridge Hotel for Keystone En- gineering Corp. instead of Campbell. Campbell had signed the referral book with sufficient regularity since Monday, January 12, to keep his place on the list,34 while Turner had been signing only since March 16. Turner was not a member of the Respondent, but had been a member of Local 71 of the IBEW in Columbus, Ohio, since 1964. Turner was inducted into the local as a journeyman after he had completed an apprenticeship program established by an employer for whom he worked. It is undisputed that he had never completed an IBEW apprenticeship or taken a journeyman's examina- tion. Turner credibly testified38 that before his first visit to the Respondent's office he had received a letter of refer- ral from his local which stated that he was a journey- man. However, according to Turner, the letter did not say that he had passed a journeyman' s examination and he never told Fenwick that he had not passed a journey- man's test or otherwise discussed the matter with Fen- wick. It is undisputed that Turner was first referred by the Respondent in September 1980 and that he was laid off from that job about the middle of March 1981. In conse- the filing of the charge with the Board " Inasmuch as the instant charge was filed on September 3, I have considered the evidence relating to re- ferrals prior to March 3 only as background Machinists Local 1423 Y. NLRB, 362 U S 411 (1960) 96 Both Campbell and Walker signed the book on January 23; Benson did not 97 Indeed, Campbell's signature appears almost every day between Jan- uary 12 and March 26 38 Turner impressed me as a disinterested witness who testified honest- ly and with good recall ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) quence, Turner went to the Respondent's office to sign the referral book on March 16, 17, 18, and 19. The Respondent contends that Turner was properly referred ahead of Campbell on grounds that (1) was not in the hall when the referral was made, (2) Campbell de- clined a referral on March 16 and thus was at the bottom of his priority group, and (3) Turner was properly classi- fied as group II while Campbell was in group III. In support of the Respondent's first contention, Fen- wick testified that he did not see Campbell in the union hall on March 19. In that regard, Fenwick testified that in making a referral he would open the door to the office and call out a name, and that the men who were waiting around outside the office would tell him if the person he called was in the "carpenters' room"39 or had gone to get a cup of coffee or was in the men's room. Fenwick testified that he would not, in order to find a registrant to give him a referral, go downstairs on the landing or outside. However, on cross-examination, Fenwick con- ceded that he did not know whether Campbell was in the hall that day and did not attempt to call his name. Campbell testified that during March he was in the hall every day from 8 to 10 a.m. unless Fenwick came out earlier to say there was no work, and further testified that in January, on advice of counsel, he began taking notes almost every day that he was at the hall about who was referred to what jobs. According to Campbell, ini- tially he made these notes on a newspaper that he was reading and would later transcribe them onto a legal pad, but starting the beginning of April he wrote the ntes on a tablet which he carved to the hall with him. However, although some of the notes teken after April were intro- duced into evidence, none of the notes Campbell alleged- ly took in March were introduced at the hearing and no explanation was offered for the failure to produce them. Other witnesses were asked whether they had seen Campbell at the hall, but there is no specific testimony from any witness other than Campbell that he was at the Respondent's office during the referral hours on March 19. Thus, Turner testified that he remembered seeing Campbell at the hall on 1 of the 4 days that Turner was there in March 1981, but could not remember which day that was. Michael Barnes and Walker were the only other witnesses who signed the referral book on March 19, but neither was asked whether Campbell was present in the hall during the entire time the referral service was in operation that day. I credit Campbell, having taken the following into consideration: (1) As indicated above, with respect to de- meanor, neither Fenwick, Campbell, nor Walker favor- ably impressed me at all times. Each witness, during por- tions of his testimony, appeared to me to evasive, unre- sponsive, or lacking in candor. At other times, however, each witness impressed me as frank and honest. On this point, I was most favorably impressed by Campbell. (2) I find that Campbell signed the referral book most of the 99 The "carpenters' room" was room used by the Carpenters Union as a meeting hall Sometimes men waiting for referrals from the Respondent would sit in that room although the area was supposed to be off limits and Fenwick had asked them to stay out of it Apparently , the electri- cians; used that room because there were chairs in it 101 days that the hall was open during this period;40 none- theless, it is perfectly possible that he left the hall imme- diately after signing the book. Indeed, Campbell testified that he lived about 8 to 10 blocks from the Respondent's office, and it was thus not a very time-consuming trup for him to go to the Respondent's office, sign the referral book, and then leave. However, there also does not seem to be much point in such an exercise, particularly as it is undisputed that Campbell could keep his place on the book by signing only once a week, instead of almost daily. (3) The Respondent suggests that one reason Campbell and Walker might have signed the referral book regularly and then left the hall was that by this action they would be able to demonstrate to the satisfac- tion of the state unemployment compensation agency that they were looking for work. However, Campbell credibly and without contradiction testified that no one from the unemployment compensation office ever asked him if he was looking for work and he never indicated on any unemployment compensation forms that he was seeking referrals from the Respondent. Campbell further testified, again without contradiction, that, although he received unemployment compensation of $133 per week in March, April, and May, he would have earned $541 per week by working full time. (4) Although both Camp- bell and Walker denied making a general practice of sit- ting in Walker's car during the times the hiring hall was in operation, they conceded that on one occasion in May Fenwick talked to them at Walker's car and they turned down the job he offered. Nonetheless, although they may have sat in the car on other occasions when the all was in operation, there is no evidence that they did so on March 19. (5) In all the correspondence between counsel for the Respondent and the various attorneys who repre- sented the alleged discriminatees in this case, there is no contention by the Respondent that one reason Campbell and Walker had not been referred was their absence from the hall when the referrals at issue were made. (6) As mentioned above, although Campbell testified that he took notes of what occurred at the hall starting in Janu- ary, no such notes for March 19 were produced at the hearing. However, although the General Counsel initial- ly raised the issue of the notes, neither he nor the Re- spondent asked Campbell whether he still had notes from that period. Accordingly, I find it inappropriate to draw an adverse inference against either party for the failure to produce these notes. In sum, in light of Campbell's de- meanor while testifying on this point and as there is no probative evidence to the contrary, I find that Campbell was at the Respondent's office when Turner was referred on March 19.41 With respect to the contention that Campbell had for- feited his place on the list by refusing a referral on March 16, Fenwick testified that on that date he re- ceived a telephone call from a firm called McAdam Die 40 Campbell testified that whenever his name appeared in the book he signed it, he appeared credible on this point , and there is no evidence to the contrary 4 i As is generally recognized, whether to draw an adverse inference in the circumstances is a matter of discussion for the factfinder. Auto Work- ers v NLRB, 459 F 2d 1329, 1338-1339 (D C Cir 1972) 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Electric (McAdam) which was working at the Golden Nuggent Casino as a joint venture with Dynalec- tric and wanted to hire some electricians who were members of a miniority group. According to Fenwick, he had seen Walker and Campbell in a car parked out- side the Respondent's office and none of the registrants in the hall were members of a minority group , so he sug- gested to Stockinger that he offer Campbell and Walker the job. Stockinger agreed, and consequently Fenwick, still according to his testimony, went out to the car and asked the two men if they wanted to be referred to the Golden Nugget. However, Fenwick testified, Campbell and Walker refused the referral. Fenwick further testified that later that afternoon he was advised that McAdam no longer needed anyone. Both Campbell and Walker denied declining a referral on March 16. They conceded that they had had a con- versation with Fenwick on one occasion in the street outside the union hall and that on that occasion they de- clined a referral, but contended that that conversation in- volved a different job and occurred in May. Indeed, Campbell testified that if the job had been offered he would have taken it because he had worked for Dynalec- tric for approximately 6 months in 1980 and it had been the best paying job he had received out of the union hall. Campbell further testified that he was not aware of the consequences of refusing a referral or whether such a re- fusal would have any effect on a registrant's placement within his group, and that no notice was posted in the hall about the consequences of refusing a referral or about how ofter a registrant must sign the referral book to keep his place. I credit Fenwick. His testimony about the incident seemed to be candid, while Campbell's and Walker's de- nials did not impress me as truthful . Accordingly, I ford that Campbell refused Fenwick's offer of a job on March 16. This fording does not dispose of the issue , however, for, as discussed above, Campbell testified that he was unaware of the rule that refusal of a referral would result in the registrant's going to the bottom of the list for his priority group, and there is no evidence to the contrary. Indeed, it is undisputed that this rule was not posted in the hall and, although Fenwick testified that he advised registrants of this rule when they turned down a job, his account of his conversation with Campbell and Walker on March 16 did not include any reference to his telling them the consequences of their declining the referral. Further, although Campbell's and Walker's refusals of certain referrals were discussed in some of the corre- spondence between their counsel and the attorney for the Union, this rule was not mentioned . I therefore fmd that at the time Campbell and Walker declined the refer- ral on March 16 they were unaware of the consequences of that action. Finally, in support of the Respondent's final proffered reason for not referring Campbell on March 19, Fenwick testified that he made no referrals to anyone in group III that day. 3. The failure to refer McMillon on April 8 On April 8 William Myers, who had been signing the referral book since March 30, was referred to a job for Henkels instead of McMillon, although McMillon had been signing the referral book since March 23. Myers credibly testified that he was a member of Local 902 of the IBEW at the Philadelphia Navy Yard and that he was a journeyman, although he had never taken a journeyman's examination or gone through an apprenticeship program. Myers further credibly testified that in 1980 he had heard that electricians were being hired in Atlantic City and that in consequence he went to the Respondent's office and talked to Fenwick, who asked him if he was "sure" that he was an electrician and asked to see his dues receipt. Fenwick also told Myers to fill out a registration for referral card, which he did, checking his classification as "journeyman wireman" and listing on the back of the card experience as an electri- cian for 4 years at the Philadelphia Navy Yard, 2 years in the Navy (as an electrician's mate), and 2 years with private contractors in Philadelphia. Thereafter, Myers was referred several times, including the referral at issue here, and each time Fenwick asked to see his dues re- ceipt. Myers further testified that when he filled out his registration for referral card in 1980 Fenwick told him to return the next morning at 8 a.m., and that when he did so the people who were already at the hall waiting for referrals told him what he should do. The Respondent contends that the referral was proper because Myers was classified as group II while McMil- lon was in group IV, and that, in any event, McMillon was not at the hall when Myers received the referral. With respect to the Respondent's first contention, Fen- wick testified that he did not believe that McMillon lived in the Respondent's jurisdiction because while McMillon was working for Jaden Electric in the latter part of 1979 or early 1980 Fenwick mounted an organizing campaign among Jaden's employees, including McMillon, and was aware that McMillon carpooled with some employees from Philadelphia. Fenwick further testified that McMil- lon had given his address as "33 Massachusetts Avenue" in Atlantic City, but that "anybody who knows anything about Atlantic City knows that it either had to be 33 North Massachusetts or 33 South Massachusetts. When I asked [McMillon] what it was, he didn't know. Now, that led me to believe that he didn't live on Massachu- setts Avenue." McMillon initially testified that as of the time of the hearing he had lived at 28 Brown Street in Pleasantville, New Jersey, since January 1981, and from February 1979 to January 1981 at 33 Massachusetts Avenue in Atlantic City. According to McMillon, at the time he filled out his registration for referral card in March 1979 he had just separated from his wife and, inasmuch as he did not have a telephone, listed her address on Forest Drive in Hammonton. McMillon further testified that he listed the 28 Brown Street address on the referral card he filled out in September 1980 because that was his landlord's address and McMillon still had no telephone at the Mas- sachusetts Avenue house. However, McMillon was called as a rebuttal witness following Fenwick's testimo- ny about his belief that McMillon had not given him his correct address, and testified that during the organizing campaign at Jaden in 1980 he had moved from the Mas- ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) sachusetts address to 28 Brown Street and that for about 3 weeks during that campaign he was dating someone in Philadelphia and consequently carpooled with other em- ployees who lived there, but that he never had a resi- dence in Philadelphia.42 I found McMillon not to be a credible witness on the issue of where he lived during material times. Thus, while initially testifying that he lived on Massachusetts Avenue during the entire period from February 1979 to January 1981, McMillon changed this testimony, without explanation, when called as a rebuttal witness and testi- fied that in 1980 he moved to the Brown Street address. Further, Fenwick's testimony that any address on Massa- chusetts Avenue would include a designation of north or south was not contradicted, and McMillon never ex- plained why he did not list such a designation. In addi- tion, it is undisputed that for some period of time McMil- ton commuted to Jaden from Philadelphia and Fenwick was aware of that fact. Accordingly, I find that Fenwick had reason to believe both that McMillon did not live where he said he did, and that, in fact, McMillon was re- siding outside the Respondent's geographical jurisdiction. With respect to the question of whether McMillon was at the hall when Myers received the referral, McMillon testified that he was sitting in the carpenters' room along with Myers that day when Fenwick came in and asked for a journeyman electrician with an IBEW card. Ac- cording to McMillon, he did not have a card and there- fore did not raise his hand, but Myers did and, in conse- quence, Myers received the referral to Henkels. Contrary to McMillon, Fenwick testified that McMil- lon was not in the hall that day; Myers testified that he knew McMillon but did not recall if he was in the hall on the day in question. I found Myers, who appeared to testify honestly and to the best of his recollection, to be a completely credi- ble witness; however, neither Fenwick nor McMillon im- pressed me as candid on all issues, and I have credited only portions of each of their versions of events. Specifi- cally, I credit McMillon over Fenwick on the question of whether McMillon was in the hall. However, I do not credit McMillon's testimony with respect to the com- ment he attributed to Fenwick. I note that Fenwick was not asked specifically whether he made this remark;43 nonetheless, McMillon's demeanor as he testified on this issue did not indicate candor. Further, Myers, whom I found to be a trustworthy witness, was not asked to cor- roborate McMillon on this point. I therefore find that Fenwick did not ask for a journeyman "with an IBEW card" on this occasion. 4. The failure to refer Walker on April 21 or 22 On April 22 Michael Barnes, who is not a member of any IBEW local, was referred to Henkels to work on a highrise condominium in Ocean City, New Jersey. Barnes had been signing the referral book since March 12, while Walker had been signing with sufficient regu- 42 Philadelphia is outside the Respondent 's jurisdiction; Pleasantville and Atlantic City are within the jurisdiction 42 Of course, Fenwick's denial that McMillon was at the hall that day could be inferred as a denial that he made this comment. 103 larity to keep his place on the list since January 19; both Walker and Barnes were classified by Fenwick as in group II. Nonetheless, the Respondent contends that the referral of Barnes was proper because Walker was not in the hall when Barnes was referred and because Walker had turned down a job on March 16, which put him at the bottom of his referral group. The Respondent further contends that, even if Barnes was not properly referred, no case of discrimination against Walker is made out be- cause Barnes was not a union member either. The General Counsel and the Charging Party point out that neither Walker nor Barnes signed the referral book on April 22, and contend that Fenwick told Barnes on April 21 to come back the next morning and he would receive a referral. However, Barnes, who im- pressed me as a forthright witness who testified to the best of his recollection, testified that on April 22 Fen- wick asked him if he still lived in Ocean City and he re- plied in the affirmative. The next morning, according to Barnes, as he walked into the hall about 8 o'clock Fen- wick was standing by the door to his office and said he would be right with him; after a minute or so Fenwick called him into the office and gave him the referral to Henkels. Barnes specifically denied that Fenwick had told him on April 21 to come in the next morning to re- ceive a referral and I credit that denial. Both Fenwick and Barnes credibly testified that when Barnes received the referral on April 22 neither Campbell nor Walker was present at the hall, and it is undisputed that neither Walker nor Barnes signed the referral book on April 22. 5. The failure to refer Walker on May 12 On May 12 Barnes, who had been signing the referral book since May 4, was referred to Rumsey Electric (Rumsey) instead of Walker, who had been signing the list since January 19. The Respondent contends that the referral of Barnes was proper because Walker was not present in the hall when the referral was made and that, in any event, even if Barnes should not have been re- ferred over Walker, the fact that Barnes was also not a union member precludes any finding of discriminatory conduct by the Respondent. Walker's signature appears in the book for May 12, and he testified that Barnes told him that he had been re- ferred as the two of them went down the steps from the Respondent's office about 9 or 9:30 that morning. How- ever, Fenwick testified that Walker was not there at the time Barnes was referred and that Barnes was the only person in the hall at the time of that referral. Barnes tes- tified that he did not know whether Walker was present when he received his referral or not. I credit Walker, whose demeanor while testifying on this point impressed me more favorably than that of Fen- wick, and find that he was present in the hall when Barnes was referred. 6. The alleged comment by Fenwick on May 14 Edward Jennings testified that on May 14 he was near the door of the carpenters' room with Walker and Campbell when Fenwick came into the room and asked if there were any journeyman wiremen in the hall. Ac- 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Jennings, Walker said that he was and Fen- wick said, "IBEW journeymen wiremen." Fenwick then went back into his office. Walker substantially corroborated Jennings' testimony about this incident except that Walker testified that it oc- curred on May 15 and that Fenwick initially asked for a "wireman." No other witnesses, including Campbell and Fenwick, were asked about the exchange; however, I found Jennings to be a credible witness who appeared to testify to the best of his recollection, and I find that the incident occurred as he described it. 7. The failure to refer Walker on May 14 It is undisputed that Raymond Keller, a member of IBEW Local 592, was referred to Mitchell on May 14 as a residential wireman, although he had not signed the re- ferral book and Walker had been signing since January 19. Walker's name appears on the referral book for May 14, and I find that he was in the hall at some point that day. Fenwick testified that he received a telephone call from Lawrence Mitchell the end of April or beginning of May seeking a replacement for a residential wireman who had quit. Fenwick further testified that it was diffi- cult to fill residential wireman positions because residen- tial wiremen earn a much lower hourly wage then com- mercial journeymen, and that therefore he would an- nounce such job openings orally at the hall to see if any of the electricians seeking referrals were interested in the jobs. On this occasion he did just that, and there was no affirmative response. Fenwick testified that he then called other locals seeking someone to fill the position, and that in response to one of those calls Keller came to the hall and received the referral. Keller credibly testified44 that he was a member of IBEW Local 592 and that his business agent called him because he had been laid off and told him that there was a job available in Atlantic City and that he should go see Fenwick. In consequence, Keller went to the Respond- ent's office and spoke to Fenwick, who sent him to Mitchell. Keller further credibly testified that while he was at the Respondent's office he did not see anyone else waiting for a referral. The General Counsel and the Charging Party contend that, even if Walker was not in the hall when Keller was referred, he should have been offered this referral at an earlier date when he was at the Respondent's office. The Respondent, on the other hand, argues that Walker was never present when Fenwick mentioned the job and therefore was not offered it. Walker testified that the days he went to the hall he arrived there about 7:50 a.m. and did not leave until it was clear that there was no more work. However, Fen- wick testified that during the first 2 weeks of May he never saw Walker, and Barnes credibly testified45 that 44 Keller impressed me as an absent witness who testified candidly and to the best of his recollection. 45 As I have indicated above, I found Barnes to be a completely credi- ble witness. he had sometimes seen Walker sign the referral book and then leave the hall, without waiting until it was clear that no more referrals would be made. Walker did not impress me as favorably as did Barnes. Walker's answers to questions were frequently nonre- sponsive and he appeared to tailor his testimony to serve his position in this litigation. Similarly, I do not find all of Fenwick's testimony to be credible, particularly his testimony that he "never" saw Walker in the hall during the first 2 weeks of May. In light of these considerations, and particularly in view of Keller's credible testimony that Walker was not at the hall when he was referred, I find that Walker was at the hall at some time on May 14, but not when Keller received the referral to Mitchell. I further credit Fenwick's testimony that when he re- ceived Mitchell's request for a residential wireman he made general announcements of the job in the hall. I thus find that Walker did not respond to those announce- ments either because he was not there at those times or because he was not interested in taking the job.46 8. The failure to refer Campbell and Walker on May 20 On May 20 Jennings and Charles Knittel were referred to Calvi. Jennings, who had been signing the referral book since May 4, was not a member of any IBEW local. Knittel had been signing the referral book since April 3 and was a member of IBEW Local 126. Knittel did not testify, but a registration for referral card he filled out in 1979 shows that he lived within the Union's jurisdiction. However, the only classification he checked was "other," listing himself as a winch truck op- erator,47 and there is no indication in the record whether he ever showed Fenwick anything indicating that he had passed a journeyman's examination or was classified as a journeyman by his local. Jennings' registration for referral card dated 1980 lists an Atlantic City address, and he listed his classifications as "journeyman wireman" and "residential wireman," but he also answered the question whether he had passed a journeyman's examination in the negative. Neither Knittel nor Jennings answered the question on the card on how long he had worked under an Association con- tract in the previous 4 years. Jennings testified that he had had no conversations with Fenwick about his work experience and that when he was referred on May 20 Fenwick did not ask to see a dues receipt or any similar document, and there is no other evidence on what Fenwick knew about the qualifi- 46 Walker testified that he never heard anything about residential work when he was at the hall and , as noted above, that when he went to the hall he stayed as long as referrals were being made In view of Barnes testimony I discredit the latter assertion and, in light of this finding, find it unnecessary to determine whether Walker was testifying truthfully when he said he never heard of any residential positions available. 47 The commercial agreement contains an exception to the general re- ferral procedure for situations, where an employer requests an employee with special skills. However, there is no evidence whether winch truck operators were considered to have such special skills, nor whether Knit- tel was referred on May 20 pursuant to a request for a winch truck oper- ator ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) cations or work experience of either Knittel or Jennings before that referral. Fenwick testified that the referral at issue was made at 8 a.m. or shortly thereafter and that neither Campbell nor Walker was present at the time. However, Jennings, while testifying that he received the referral about 8:20, also testified that Walker and Campbell were present at the time he was referred and I credit him. The General Counsel contends that Walker's seniority on the referral book dates from January 19 and that Campbell's seniority dates from January 12.48 Campbell had been referred at the end of March to Henkels, but was laid off from that job on April 3, and began signing the book again on April 6. The General Counsel and the Charging Party contend that that job should not cause Campbell to lose his place on the list under the Respond- ent's rule on jobs of short duration, inasmuch as Camp- bell worked only from March 27 to April 3. However, Fenwick credibly testified that following Campbell's layoff Henkels Foremen Skip Schroyer and Eddie Lunn told him that they had terminated Campbell because he could not do the work, and the Respondent substantiated this testimony by introducing into evidence a letter, dated May 12, from Lunn to Fenwick stating that Campbell was terminated from this job because of "unsatisfactory performance." I therefore find that Campbell was not entitled to the benefit of the "short- term job rule," and that he should be considered as having a place on the book as of April 6.49 9. The failure to refer Walker on May 27 On May 27 McMillon was referred to Henkels. McMillon had been signing the referral book since May 6 while Walker had been signing since January 19. The Respondent contends that nonetheless Walker was not entitled to the referral because he had declined a referral on May 20. At the hearing, the Respondent further con- tended that Walker was not in the hall on May 27. With respect to the May 20 referral, Campbell testified that about 9:30 a.m. that day, after Jennings and Knittel had been referred to Calvi, he, Walker, and the only other registrant present in the hall all assumed that there would be no more referrals and, consequently, left the hall. As they were approaching Walker's car, according to Campbell, Fenwick came up to them and asked if they wanted to go to work, but when they tried to get more information Fenwick asked them if they wanted jobs or not. Campbell further testified that he and Walker then *s As discussed above, both Campbell and Walker had turned down a referral on March 16 However, in this instance whether the rule regard- ing the consequences of this action applied to them is immaterial because in any event they both signed the book on March 17, and thus their places on the list would still be ahead of either Kmttel or Jennings if they were in the same priority group. *a Campbell testified that he was not told until somtime dung the in- vestigation of the instant case that he had been discharged by Henkels and that when he was laid off all Schroyer said was that the job was not going the way he had anticipated and that since Campbell was the last man there he was the first to be laid off Assuming this testimony of Campbell's to be credible, I find that Campbell was nonetheless not enti- tled to the benefit of the short-term job rule, for there is no requirement in the collective-bargaining agreements that an employee be advised of the reasons for his layoff 105 said that they already had commitments at that point and that they would like to talk to Fenwick about it in the morning, and Fenwick said "all right." Campbell also testified that on May 21 Fenwick called him into the office and offered him a job in Mullica Township,50 which is about 20 to 30 miles from Atlantic City. Campbell declined the job. On cross-examination, Campbell testified that he had transportation problems, but stated that the primary reason he declined the refer- ral was that he thought he should have been referred to Calvi the day before. Walker substantially corroborated Campbell's account of their conversation with Fenwick on May 20. Walker also testified that he was unaware of the consequences of declining a referral and, as discussed above with respect to Walker's and Campbell's declining a referral on March 16, there is no contrary evidence. I credit Walker on this point. McMillon testified that both Walker and Campbell were present when he was referred on May 27, although Walker testified that he did not know if he was at the hall that day or not. I credit McMillon, and find that Walker was present when McMillon was referred. 10. Campbell's and Walker's subsequent referrals of referrals Fenwick testified that on June 4 he offered Campbell and Walker referrals to Rumsey and they both declined. Fenwick also testified that he offered the two men a re- ferral to a government installation on June 10 and they declined that job also. Campbell admitted declining the June 4 referral, but denied that he had been offered a referral around June 10. Walker denied being offered a referral on either June 4 or 10. I credit Fenwick. His testimony about these referrals seemed to be forthright, while Campbell and Walker did not appear candid when they testified about this matter. Accordingly, I find that Fenwick offered both Campbell and Walker referrals on June 4 and 10, which they re- fused. G. Analysis and Conclusion 1. The alleged refusal to permit Campbell and Walker to take the journeyman's examination The complaint alleges that since about December 3 the Respondent has violated Section 8(b)(1)(A) and (2) of the Act by refusing to permit Campbell and Walker to take the journeyman wireman's examination and thus qualify for classification as group I for referral purposes. In sup- port of this allegation, the General Counsel contends that: (1) the Respondent subjected Campbell's and Walk- er's October 1981 applications to more intense scrutiny than that given to other applicants; (2) the minutes of the November 23 executive board meeting prepared by Fen- wick should not be credited as accurately reflecting what the various employer representatives told the executive so Apparently, this was the same job to which Fenwick had tried to refer him the day before 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD board; 51 (3) the decision to offer the two men the resi- dential wireman's examination in December was not made in good faith, inasmuch as the experience they listed demonstrated their commercial experience, and thus the offer to take the residential wireman' s examina- tion was merely one more attempt by the Respondent to avoid allowing them to take the journeyman's examina- tion; and (4) when the offer was finally made to take the latter, the motive provided was so short as to be calcu- lated to prevent Campbell and Walker from having a le- gitimate opportunity to take the test. The General Coun- sel further contends that in any event the Respondent was obliged to offer Campbell and Walker another op- portunity to take the test after February 24, 1982. In addition to most of the arguments made by the General Counsel, the Charging Party contends that the Respondent's failure to offer Campbell and Walker the journeyman's examination requires that they should be considered to have group I status as of March 3, the date 6 months before the filing of the instant charge. It is well established that a labor organization violates Section 8(b)(1)(A) and (2) of the Act by denying non- members the same opportunities to take a journeyman's examination as are afforded to members.52 The record shows that both Campbell and Walker, in- tially submitted applications for membership to the Re- spondent in May 1980, but it is undisputed that they did not pursue the matter further until early 1981. Attorney Williams' first contact with the Respondent on Camp- bell's and Walker's behalf was by letter dated April 30, 1981; significantly, in that letter Williams stated that his clients were reluctant to take a journeyman' s examina- tion, which, as I have found above, was the only route for an application to become a journeyman member of the Respondent. Thereafter, Williams and O'Brien ex- changed several letters, culminating in O'Brien's letter to Williams dated July 1 in which he expressed his under- standing that neither Campbell nor Walker had 4 or more years' experience in the trade. Although Walker and Campbell listed on their registration for referral cards that they had considerably more than 4 years' ex- perience, it does not appear that Williams made any at- 11 Specifically, the General Counsel states that these minutes are hear- say and imprecise. The General Counsel also points out that none of the individuals who appeared before the executive board were called to testi- fy in this proceeding and thus it is appropriate to draw the inference that, had they testified, they would not have corroborated the statements con- tained in these minutes. However, I credit Fenwick's testimony that he routinely took minutes of executive board meetings , that these minutes are then read at the next general membership meeting , and that he quoted certain comments by the employer representatives who appeared I there- fore find that the minutes are properly admissible as within the business records exception to the hearsay rule and that the various employer rep- resentatives made the comments the minutes attribute to them. I also do not agree with the General Counsel that the minutes of the November 23 meeting are so imprecise as to preclude reliance on them. The Respondent had a legitimate concern whether Campbell and Walker had been working in the electrician's trade and Fenwick's notations on what the employer representatives said were adequate to meet that con- cern I further find no adverse inference warranted from the failure of these individuals to testify in this proceeding, for there is no showing that they were not as available to the General Counsel and the Charging Party as they were to the Respondent . Auto Workers Y NLRB, 459 F 2d 1329, 1338-1339 (D C. Cir 1972) 52 Electrical Workers !BEW Local 367 (Penn-Del-Jersey Chapter NECA), 230 NLRB 86, 94 (1977) tempt to advise O'Brien that his understanding was mis- taken. Indeed, there is no evidence of any further at- tempt by Campbell and Walker to attain membership in the Respondent or an opportunity to take the journey- man's examination until October.59 In these circum- stances, and especially in light of Williams' comments in his first letter to O'Brien about his clients' reluctance to take a test, I find that the Respondent did not act arbi- trarily or capriciously in failing to act on the May 1980 applications. After Campbell and Walker again applied for member- ship in October, the Respondent acted on the applica- tions reasonably promptly. Thus, as discussed above, on October 26 the executive board directed Fenwick to make inquiries of their previous employer, and Fenwick did so by letters dated october 27.54 The minutes of the November 9 executive board meeting show that the matter was discussed, and various employer representa- tives appeared at the November 23 meeting. Also at the November 23 meeting the executive board decided to offer Campbell's and Walker the residential wireman's test. Contrary to the statements in the minutes of that meet- ing, the resumes proffered Campbell and Walker do not indicate that their experience was primarily in the resi- dential field. Even if that were the case, the contact re- quires that the journeyman's examination be given to ap- plicants who have at least 4 years' experience "in the trade," without respect to whether that experience was in residential or commercial work. Further, classification as a residential wireman would require Campbell and Walker to remain in that status for 3 years and then take a 2-year course before they became eligible to request that their classification be upgraded to that of journey- man. In these circumstances, I find that the Respondent had no basis in the contract or other legitimate reason for offering the residential wireman's examination to Campbell and Walker in lieu of the journeyman' s exami- nation,55 and that by failing to offer them the journey- 53 The meeting of Walker and Campbell with Tate, the IBEW national representative, was apparently concerned only with referrals; although Campbell's July 25 letter to Troy referred to the Union's membership policies, there is no evidence that membership or testing was discussed with Tate 84 As mentioned above, the General Counsel contends that the Re- spondent subjected Walker's and Campbell' s membership applications to more scrutiny than that of other applicants, citing Fenwick's testimony that when an Ernest McGahn asked to take the journeyman's examina- tion Fenwick did not write letters to the employers he mentioned but did talk to them I find no merit to this contention Fenwick credibly testified that the applications of apprentices are investigated and I note that the IBEW constitution provides that the president of a local union shall ap- point a committee "to pass and report upon " applications for member- ship. The fact that Fenwick wrote to Campbell' s and Walker's employers instead of merely attempting to contact them by telephone or by chance at jobsites does not suggest that the Respondent was being more rigour- ous in investigating the two applicants' previous employment. Indeed, in- asmuch as an unfair labor practice charge on the failure to refer had al- ready been filed, the Respondent can hardly be faulted for attempting to document its actions. 55 I realize that the Respondent had been advised by various employer representatives that Campbell and Walker had not been performing jour- neyman's work on jobs to which the Respondent had referred them. However, the contract does not require 4 years' experience as a journey- Continued ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) man's examination in December 1981 the Respondent violated Section 8(b)(1)(A) and (2) of the Act.58 Howev- er, as indicated by the foregoing discussion, I also find that the Respondent did not act unlawfully by failing to offer them any examination earlier. With respect to the offer to Campbell and Walker to take the journeyman's examination in February 1982, I further find that the Respondent was obligated to pro- vide them with more notice of the scheduling of the ex- amination. I recognize that the contract requires only that examinations be offered at "reasonable intervals," specified as 30 days, and there is no mention in the con- tract of the amount of notice to be given to examinees. I also have credited Fenwick's testimony that other appli- cants, including himself, had received less notice. None- theless, unlike apprentices, who presumably understand that within a comparatively short time after they finish their training a test will be scheduled for them, there is no evidence that Campbell and Walker had any idea at all before they received the February 16, 1982 letters that they should be preparing to take the journeyman's examination . In these circumstances, I conclude that it was not enough for the Respondent to treat them as ap- prentices, and that the Respondent had an obligation to give them more notice than might otherwise be required. I therefore find that the Respondent's offer of the jour- neyman's examination in February 1982 did not cure its unlawful conduct in failing to offer it in December 1981.57 2. The failure to refer a. General principles There is no dispute that a union may lawfully operate an exclusive hiring hall,58 nor that the contract's estab- man, but only 4 years' experience. By classifying Campbell and Walker as group III the Respondent conceded that they had at least 2 years' experi- ence in the trade, it is undisputed that Campbell worked for almost a year pursuant to his first referral from the Respondent , that he worked ap- proximately another month between February and March 1980, and that he worked all but about 2 weeks of the period between May 8 and De- cember 24, 1980 Thus, the Respondent knew that Campbell had worked pursuant to its referrals for a period totaling almost 20 months . Similarly, it is undisputed that Walker's referral to Calvi beginning in December 1978 lasted for 8 months at the Boardwalk including 2 months at the Claridge, that this next referral, to Keystone, lasted for 7 months, and that the May 1980 referral to Calvi resulted in his working another 8 months. It is thus clear not only that Campbell and Walker had both spent more than 4 years in the trade, but the Respondent knew it. In any event, the minutes of the November 23 meeting and Fenwick's testimony about it do not indicate that the executive board took the position that Campbell and Walker had not spent 4 years "in the trade," but that they should be offered the residential wireman's examination because that was consonant with their experience. 66 Stockinger's letters of January 13, 1982, to Campbell and Walker do not cut off the Respondent's Lability . Having acted unlawfully in offering them only the residential wireman 's examination, the Respondent was not free to decide that their failure to respond to that offer meant that they were not still interested in becoming members of the Union 57 However, I do not rely on Campbell's testimony about the amount of notice given by state agencies which administer contractors' examina- tions, for the Respondent is not required to follow the example of other examining boards. 58 Teamsters Local 357 v NLRB, 365 U S. 667 (1961). 107 lishment of priority groups based on having passed a journeyman's examination given by an IBEW local, years worked under a collective-bargaining agreement, or residence within the Union's geographical jurisdiction is proper.59 It is also well established that a union may not operate an otherwise lawful exclusive hiring hall in such a manner as to discriminate between those regis- trants who are members of the Union and those who are not-60 Other issues in this case, however, are the subject of more controversy. The threshold inquiry is what the General Counsel must do to establish a prima facie case that an exclusive hiring hall is unlawfully operated and what the Respond- ent must do to rebut that showing. In Sheet Metal Work- ers Local 20 (Employers Assn. of Sheet Metal Workers), 253 NLRB 166 fn. 1 (1980), the Board found that the General Counsel made out a prima facie case by showing that a large number of registrants had been referred by the respondent's exclusive hiring hall ahead of the charg- ing party, and that not all of these referrals fell within any exceptions to the hiring hall's first-in-first-out rule. However, the Board found that the respondent rebutted the prima facie case by showing that the failure to refer the charging party was not discriminatorily motivated. Subsequently, in Operating Engineers Local 406 (Ford, Bacon & Davis Construction), 262 NLRB 50, 51 (1982), the Board held: Even assuming the absence of specific discrimina- tory intent, a violation must be found in the circum- stances of this case. The Board was held that any departure from established exclusive hiring hall pro- cedures which results in a denial of employment to an applicant falls within that class of discrimination which inherently encourages union membership, breaches the duty of fair representation owed to all hiring hall users, and violates Section 8(b)(1)(A) and (2), unless the union demonstrates that its interfer- ence with employment . . . was necessary to the ef- fective performance of its representative function.61 The United States Court of Appeals for the Fifth Circuit enforced the Board's Order, specifically commenting, inter alia, that "the union may not apply arbitrary or in- vidious criteria in referring employees to jobs . . . . In instances where, as here, a union is alleged to have sin- gled out one employee for disparate treatment, an in- quiry into the union's motives is essential. . . . Given sufficient competent evidence, the trier-of-fact properly may infer a discriminatory animus from the circum- 69 Interstate Electric Co, 227 NLRB 1996 (1977) 80 Electrical Workers IBEW Local 948 v. NLRB, 697 F.2d 113, 116 (6th Cir 1982) Si Citing Plumber Local 392 (Kaiser Engineers), 252 NLRB 417 (1980). The United States Court of Appeals for the Sixth Circuit denied enforce- ment of the Board's Order in this case, finding that there was no evi- dence of hostility or discriminatory motive (citing Local 20, above) and that the record did not establish that the union deviated from clear and unambiguous contractual provisions . 712 F.2d 225 (1983) 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances surrounding a departure from a standard hiring hall procedure."62 Operating Engineers Local 406 was recently quoted by the administrative law judge, and apparently followed by the Board, in Operating Engineers Local 450 (Houston Chapter AGC), 267 NLRB 775 (1983), as providing the applicable standard for determining whether a union vio- lates Section 8(b)(l)(A) and (2) in its operation of an ex- clusive hiring hall.63 The administrative law judge also cited Local 20, above, for the proposition that once the General Counsel has made a prima facie case the burden shifts to the respondent to go forward with rebuttal evi- dence, with the overall burden of persuasion remaining with the General Counsel. In many cases, if a union meets the standard articulat- ed in Local 406 of showing that its deviation from estab- lished and lawful procedure is "necessary to the effective performance of its representative function," it also meets the standard stated in Local 20 of showing that the fail- ure to refer the alleged discriminatee was not "discrimin- atorily motivated," and vice versa. However, there are also situations where a union may meet one standard, but not the other. Inasmuch as it does appear that the Board has established that only one of these two tests is appro- priate, I conclude that if the General Counsel makes a prima facie case the union may rebut it by meeting either standard. b. The March 19 failure to refer Campbell The principal legal issues surrounding the March 19 referral are (1) whether Campbell's lack of knowledge about the rule regarding declining a referral exempted him from its application; (2) whether Campbell should 62 Operating Engineers Local 406 v. NLRB, 701 F.2d 504, 508 (1983) Cf. Laborers Local 282 (Elzinga-Lakin), 226 NLRB 958 (1976), in which the employer permitted the union to select the employees to be laid off pursuant to a reduction in force . Three nonmembers were selected for layoff, other nonmembers as well as members continued to work. The ad- ministrative law judge, affirmed by the Board , found that no party to the litigation had established whether the selections for layoff were based in any way on membership in the union or the lack of same In making this finding, the judge noted specifically that there was no evidence whether three other employees laid off at the same time as those alleged to be discriminatees were union members, nor that a disproportionate number of nonmembers were laid off Accordingly, he found that "[w]hile, to be sure, suspicion may exist as to the real motivations and reasons which un- derly the layoffs in question, suspicion breeds and feeds upon itself, and it may not form the core for inference nor serve as substitute for the sub- stantial credible proof that the law requires." 226 NLRB at 959. The judge, further noting that the respondent 's failure to admit the alleged discriminatees to membership was not alleged to be unlawful, found that the failure to admit them, coupled with their selection for layoff, was not ipso facto a violation of Sec . 8(bX2), and that Teamsters Local 357, above, required evidentiary proof of discrimination. 66 Compare, however, Plumbers Local 513 (Master Plumbers), 264 NLRB 415 (1982), in which the administrative law judge had found that the union made referrals in a haphazard manner, although there was a well-established hiring hall procedure, but that the hall was not an exclu- sive referral system and thus there was no violation of the Act The ad- ministrative law judge had also found that the respondent 's failure to tell the charging party about various jobs to which he nugnt have been re- ferred was not motivated by his protected activity. The Board, however, found that the hiring hall was an exclusive system and that, therefore, the respondent's arbitrary failure to follow its established system violated Sec. 8(b)(lXA) and (2) of the Act, finding it unnecessary to reach the issue of whether the failure to refer was motivated by animosity against the charging party because of his protected activities. have been considered to be in group I or group III; and (3) whether Fenwick properly classified Turner in group II. With respect to the first issue, the Board has held that a union's failure to maintain in writing rules governing the operation of its hiring hall is not a per se violation of the Act.64 I fmd that the rule that registrants would lose their places on the referral list if they declined a referral was reasonably related to legitimate union goals in light of Fenwick's credible testimony on the reason for the rule's adoption. Nonetheless, the Board has held that a union's failure to notify the users of its hiring hall of the rules which govern referrals is "arbitrary and in breach of its duty to represent job applicants fairly by keeping them informed about matters critical to their employ- ment status."85 I therefore conclude that the fact that Campbell was not aware of the rule about declining re- ferrals exempted him from its application. As to the second issue, I have found above that the Respondent did not act unlawfully in failing to offer either Campbell or Walker the journeyman' s examination prior to December 1981. I therefore further fmd that Fenwick properly classified both men in group III in March, April, and May of that year. With respect to the question of whether Fenwick should have categorized Turner as in group IV instead of group II, it is clear that Fenwick interpreted the des- ignation of a registrant as a "journeyman" to mean that the individual was properly classified in either group I or group II, depending on whether he lived in the Respond- ent's jurisdiction. However, the commercial collective- bargaining agreement does not refer to "journeyman," but to passing a journeyman's examination. As discussed above, I have credited Fenwick's testi- mony that passage of a journeyman wireman's examina- tion was required for anyone seeking to become a jour- neyman member of the Respondent. I have also credited Fenwick's testimony that he was under the impression that in order to be classified as a journeyman the IBEW required passing the journeyman's examination. Accord- ingly, it seems to me reasonable that Fenwick should assume that any member of another IBEW local who carried either a letter or a dues receipt stating that his classification was "journeyman" would also have passed such a test. The fact that Fenwick was wrong in that as- sumption does not, in my view, constitute the type of de- 89 Laborers Local 394 (Building Contractors Assn. of NJ), 247 NLRB 97 fn 2 (1980) 66 Operating Engineers Local 406 (Ford, Bacon & Davis,), supra, 262 NLRB at 51 See also Boilermakers Local 40 (Envirotech Corp.), 266 NLRB 432 (1983), in which the Board found that the union did not act unlawfully in disciplining, by a 90-day suspension from the hiring hall, an employee who violated a well-known rule prohibiting employees from at- tempting to obtain work by contacting employers directly instead of using the referral procedure. In so finding, the Board distinguished Local 667 Bodmakers (Union Boiler Co.), 242 NLRB 1153, 1155 (1979), in which the administrative law judge, affirmed by the Board, found that a union's unpublicized rule that an employee who quit certain types of jobs would not be referred for a reasonable length of time was overly vague and that the failure to specify the length of time for which an employee would not be eligible for referral and to publicize the rule did not "conform with the standard of fairness required of [a] statutory bargaining representa- tive." ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) viation from the Respondent's hiring hall procedures, which the Board has previously found to be unlawful.66 Accordingly, I find that Fenwick acted reasonably in classifying Turner in group II, and in referring him ahead of Campbell on March 19. I shall therefore recom- mend that this allegation of the complaint be dismissed. c. The failure to refer McMillon on April 8 Since I have found that McMillon was at the hall when Myers was referred and that McMillon had been signing the referral book longer than Myers, the issue be- comes whether Myers was properly classified in group II instead of group IV, and whether Fenwick properly clas- sified McMillon in group IV instead of group III. As in- dicated above, it is undisputed that Myers had never taken a journeyman's examination, but he was classified as a journeyman by his own local. For the reasons listed above with respect to the classification of Turner, I find that Fenwick's reliance on Myers' classification as listed by his own local and consequent determination that Myers was in group II was not an unlawful deviation from the Respondent's legitimate hiring hall procedure. Moreover, I further conclude that Fenwick was enti- tled to categorize McMillon as group IV based on his reasonable belief that McMillon did not live in the juris- diction, even though Fenwick did not confront McMil- Ion on the issue. As far as I know, there is no require- ment that in the operation of an exclusive hiring hall a union agent must either accept whatever information the registrant proffers or cross-examination the registrant if the agent has contrary information. To require such action, in my view, puts a burden on the union which was not anticipated by the Supreme Court in Teamsters Local 357, supra. Accordingly, I find that Fenwick did not unlawfully discriminate against McMillon by classify- ing him as group IV. I therefore conclude that Myers was properly referred ahead of McMillon on this occa- sion and shall recommend that this allegation of the com- plaint be dismissed. d. The failure to refer Walker on April 22 It is undisputed that Barnes was in group III and, as stated above, I fmd that Walker was also properly classi- fied in that group. Although at the time of this referral Walker had been signing the book longer than Barnes, I have found that Barnes was referred on April 22 before he had had time to sign the referral book and that Walker was not present at the time. The mere fact that a registrant for referral neglected to sign the referral book before being dispatched does not constitute such a depar- ture from established referral practice as to justify a find- 88 Thus, for example, in Operating Engineers Local 406, above, the busi- ness agent called whomever he pleased for certain jobs, without regard to either their presence in the hiring hall or their position on the out-of- work list. (262 NLRB at 55.) Although the collective-bargaining agree- ment did not specify that these jobs were covered by the hiring hall pro- cedure, the administrative law judge found that they had been regarded as falling within the referral system In the instant case , in contrast, Fen- wick consistently applied the hiring hall rules as he interpreted them, and did not make referrals on the basis of his unfettered discretion. 109 ing that the referral was improper.67 I therefore con- clude that Barnes' referral was in accord with the Re- spondent's normal, legitimate procedure, and I shall rec- ommend that this allegation of the complaint be dis- missed. e. The failure to refer Walker on May 12 As discussed above, when Barnes was referred to Rumsey on May 12, he had only been signing the refer- ral book since May 4, while Walker had been signing the book regularly since January 19. Although I have found that Walker declined a referral on March 16, I have also credited his testimony that he was unaware of the rule that declining a referral would cause the registrant to go to the bottom of the list of his priority group. Conse- quently, and for the reasons expressed above with re- spect to Campbell, I find that the Respondent could not properly apply this rule to Walker, and that his place in the referral book dates from January 19. As also discussed above, I have found that Walker was present in the hall when Barnes was referred; according- ly, as they were both in group III and as Walker had been signing the referral book longer, Walker was enti- tled to the referral. Thus, the General Counsel has made a prima facie showing that the failure to refer Walker on this occasion was unlawful, and the burden shifts to the Respondent to rebut that showing. Initially, the Respondent contends that no violation can be found with respect to this referral because Barnes was not a union member and therefore Walker was not treated discriminatorily. I agree with the Respondent that the evidence establishes that Walker was not treated disparately on this occasion because he was not a member of the IBEW, but this finding does not end the inquiry, for the complaint alleges that Campbell, Walker, and McMillon were denied referrals not only because of their lack of union membership but on the basis of other "arbitrary and discriminatory considerations" as well. Specifically, the General Counsel and the Charging Party contend that the Respondent's failure to refer Campbell, Walker, and McMillon on the occasions speci- fied in the complaint were additionally motivated by hostility engendered by their activities in retaining coun- sel and complaining to various agencies and to the IBEW about their lack of referrals. The Charging Party further contends that Stockinger's comment in May 1980, as well as the alleged discriminatory failures to refer occurring outside the 10(b) period, is evidence of the Respondent's hostility toward the three men, and that Fenwick's comment on May 14 further indicates Fenwick's animosity toward nonmembers. With respect to the contention that the Respondent was hostile toward Campbell, Walker, and McMillon be- cause of their attempts to obtain more referrals, it ap- pears from this record that neither Campbell's nor Walk- er's dissatisfaction was communicated to the Respondent at any time between the meeting they had with Stock- inger in May 1980 and O'Brien's receipt of Williams' 87 Operating Engineers Local 450 (Houston Chapter AGC), 267 NLRB 775 (1983) 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 30 letter. Thus, at the time of the allegedly improp- er referrals outside the 10(b) period, as well as the fail- ures to refer in March and April, there had apparently been no complaint either by any of the three alleged dis- criminatees individually or on their behalf for several months. With respect to the January and February refer- rals, Fenwick credibly explained the referral of Melton, and I conclude that, although it is possible that the refer- rals of DeVito and Benson were improper , the record does not demonstrate that they were, or that the failure to refer either Campbell or Walker at that time was due to hostility toward them.68 Stockinger's comment in May 1980, although indicat- ing at least irritation with Campbell's and Walker's com- plaints, was made more than 10 months before any of the failure to refer alleged in the complaint to be unlawful, and in the intervening period both Campbell and Walker were referred to jobs by the Respondent . Indeed, a week after this conversation with Stockinger, Campbell was referred to Dynalectric for a job which lasted until No- vember 1980, and Walker was referred to a job with Calvi which lasted even longer . I therefore find that any animosity expressed by Stockinger on that occasion cannot be held to have carried into the 10(b) period.69 With respect to the Respondent's attitude toward Campbell, Walker, and McMillon after they retained Williams, the latter's reference in his April 30 letter to the possibility of litigation under Title VII of the Civil Rights Act may have angered or disturbed Stockinger and Fenwick, but I do not believe that receipt of that letter would have caused the Respondent to retaliate against either Campbell or Walker by intentionally by- passing them for referrals. Indeed, as discussed above, Fenwick offered both men a referral on May 20, which they declined, and offered Campbell another opportunity to take the job the next day, which he also declined. Ad- ditionally, I have found that Fenwick also offered both men two referrals during the first part of June, which they refused. Further, although there was some further correspond- ence between O'Brien and Williams in May, Campbell conceded that he never made any complaint personally to Fenwick or Stockinger in March, April, or May 1981 about what he viewed as the Respondent's improper fail- 88 In this regard, I have credited Fenwick's testimony that there was plenty of work available at the time , and, in light of my further crediting Fenwick's testimony that at times Campbell and Walker were not present in the hall when they said they were, I find that this record does not establish that the pre- 10(b) referrals on which the Charging Party relies to show animus were indeed improper , much less that the failure to refer Walker or Campbell on those occasions evidenced the Respondent's hos- tility toward them. 89 In Local 20, above, in fording that the union had rebutted the prima facie showing of discrimination, the Board relied in part on its findings that the charging party's protected activity was in June and December 1976, while the failures to refer occurred between November 1977 and January 1979, and that the charging party received some referrals after his protected activity. 253 NLRB 166 fn. 1. Similar considerations apply here. See also Electrical Workers IBEW Local 1701 (Dynalectric Co.), 252 NLRB 820, 829 (1980), where the Board adopted the administrative law judge's finding that the evidence of a union 's illegal motive outside the 10(b) period did not carry over to a refusal to permit applicants to regis- ter for referral some 9 months later, where an employer's attempt to un- dermine the normal, legitimate opertion of the hiring hall gave the union a lawful reason to reject the applicants. ure to refer him and there is no evidence that either Walker or McMillon made such a complaint. Finally, with respect to Fenwick's reference on May 14 to an "IBEW journeyman ," I find that in the context in which it was made the record does not establish that by this comment Fenwick was expressing animosity toward hiring hall applicants who were not members of the IBEW, as opposed to emphasizing that he was look- ing for someone who had journeyman status according to his interpretation of the contract. In light of all the foregoing , I find that the Respondent has met its burden of showing that Fenwick's referral of Barnes instead of Walker on May 12 was not motivated either by Walker's lack of membership in a labor organi- zation or by personal animosity, and I shall therefore recommend that this allegation be dismissed. f. The failure to refer Walker on May 14 Having found that Walker was not in the hall when the referral of Keller was made on May 14 and that was either hot present or did not respond to Fenwick's gener- al queries on preceding days whether anyone was inter- ested in residential work, the question becomes whether Fenwick was obligated to specifically offer the Mitchell job to Walker at some time prior to that date. Under the circumstances, I find that Fenwick was jus- tified in making general announcements rather than fol- lowing the precise order of the referral book to ask every individual in the hall whether he was interested in the referral to Mitchell. Fenwick's testimony that re- quests for residential wiremen were difficult to fill was credibly corroborated by Lawrence Mitchell, and the record establishes that it would have been a waste of time for Fenwick to individually ask everyone waiting for a referral each day whether they were willing to take a residential wireman's job. Indeed , as Administrative Law Judge Ries observed in Operating Engineers Local 324 (Michigan Chapter AGC), 226 NLRB 587, 595 (1976): And I appreciate the problems inherent in operating a large hiring hall . It would seem a waste of re- sources, for example, to require a union to plow rig- idly through a long list of registrants for every re- ferral, calling each registrant in turn by seniority, even though the business agent knows full well that the first 50 registrants, for reasons of their own, will refuse a given job. Accordingly, I find that the Respondent did not act im- properly in not specifically offering Walker the referral before May 14, and thus I conclude that the Respondent did not act arbitrarily in offering the referral to Keller. I shall therefore recommend that this allegation of the complaint be dismissed. g. The failure to refer Campbell and Walker on May 20 The General Counsel and the Charging Party contend that Walker and Campbell should have been referred in- stead of Knittel and Jennings because the evidence does not establish that Knittel and Jennings should be classi- ELECTRICAL WORKERS IBEW LOCAL 211 (ATLANTIC DIVISION NECA) 111 feed in a higher category than group IV. In addition, the General Counsel and the Charging Party contend that, even if Jennings and Knittel were in group III, Walker had been signing the referral book since January 19 and Campbell should be credited with signing since January 12. The Respondent, on the other hand, contends that the General Counsel has not shown that Knittel and Jen- nings were in a lower group than Campbell and Walker therefore no prima facie case has been established. The Respondent further argues that Campbell and Walker were not present in the hall when the referrals were given to Jennings and Knittel and that, in any event, no discriminatory motivation for these referrals has been shown. As shown above, I credit Jennings' testimony that Campbell and Walker were in the hall when he was re- ferred. I have also found that Campbell was not entitled to the benefit of the "short-term job rule" as a result of his layoff from Henkels on April 3, and that his place in the referral book dates from April 6, when he resumed signing after that layoff. I have also found that Walker's place on the list dates from January 19. As mentioned above, Jennings had been signing the referral book since May 4, while Knittel had been signing since April 3. All the parties apparently agree that the record does not establish in which group Jennings and Knittel should be classified. The question thus becomes the consequence of this lack of evidence. In Sheet Metal Workers Local 20 (Employers Assn. of Sheet Metal Workers), 233 NLRB 732 (1977) (Local 20 1 to distinguish it from the later case cited above and in- volving the same parties), the union's hiring hall general- ly referred registrants in the order in which their names appeared on an out-of-work list; however, there were certain exceptions to this procedure under which regis- trants could properly be referred regardless of their place on the list. The General Counsel established that approximately 53 people who signed the list after the charging party were referred out ahead of him, but there was evidence whether any of these referrals were made pursuant to one of the exceptions to the general rule. The judge, affirmed without comment by the Board, found that the General Counsel bore the burden of showing that the out-of-order referrals were improper, and that inasmuch as the General Counsel had not car- ried that burden she had failed to establish a prima facie case. Applying the principles of Local 20 1 to the instant case, I conclude that the General Counsel has the burden of establishing that Knittel and Jennings belonged in the same or a lower referral group then Campbell and Walker. I further find that the General Counsel has shown that Jennings was in either group III or group IV, depending on how long he had worked under a con- tract between the Respondent and the Association. Ac- cordingly, since Jennings had not been signing the refer- ral book as long as Campbell and Walker, I find that the General Counsel has made a prima facie showing that Jennings' referral was improper. However, inasmuch as it is undisputed that Jennings was not a union member, I find, for the reasons set forth with respect to the May 12 referral of Barnes, that the Respondent has adduced sufficient evidence to rebut the prima facie case of discrimination based on lack of mem- bership in an IBEW local. I further find, again for the same reasons discussed above, that the referral of Jen- nings was not made for other discriminatory reasons. With respect to the referral of Knittel, I find that the General Counsel has not made the requisite prima facie showing. As discussed earlier, Fenwick sometimes relied on his own knowledge of the status of hiring hall regis- trants in determining their classification; I find that it was not improper for him to do so.70 There is no evi- dence whether Fenwick ever talked to Knittel about his work experience or training, or whether Knittel ever told Fenwick that he was classified as a journeyman by his home local or produced documents to that effect. Consequently, I find that the General Counsel has not shown that Knittel was not entitled to be referred on May 20. I shall therefore recommend that this allegation of the complaint be dismissed. h. The failure to refer Walker on May 27 Although Walker declined a referral on May 20, as discussed above, I have found that the rule about the consequences of declining a referral could not legitimate- ly be applied against him, and that his place on the regis- ter therefore dated from January 19. Further, I have found above that Fenwick's classification of McMillon as group IV was not unjustified, and the Respondent con- cedes that Walker was in group III. Accordingly, I find that Walker was entitled to be referred ahead of McMil- lon on May 27. However, as with the referral of Barnes on May 12, the inquiry does not end here, for it is undisputed that McMillon was not a member of any union. Furthermore, McMillon, although he had apparently not joined Camp- bell and Walker in retaining counsel, had previously complained about the Respondent's failure to refer him as much as Campbell and Walker had. Accordingly, and for the reasons discussed above with respect to the May 12 referral, I conclude that the Respondent has rebutted the General Counsel's prima facie case, and I shall there- fore recommend that this allegation of the complaint be dismissed. On the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1. The Atlantic Division of the Southern New Jersey Chapter, Inc., National Electrical Contractors Associa- tion and its employer-members and Environmental Design, Limited, trading as Mitchell Mechanical and Electrical Contractors are employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local 211 is a labor organization within the meaning of Section 2(5) of the Act. TO See, for example, Stage Employees IAISE Local 592 (Saratoga Center), 266 NLRB 703 (1983) 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By failing and refusing, since about December 3, 1981, to allow Robert S. Campbell and James E. Walker to take the journeyman wireman's examination, thereby denying them the opportunity to qualify for a higher pri- ority group under the exclusive referral system main- tained under its collective-bargaining agreement with the Association, the Respondent has violated Section 8(b)(1)(A) and (2) of the Act. 4. A preponderance of the credible evidence does not establish that the Respondent has otherwise violated the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes of the Act. Having found that the Respondent unlawfully dis- criminated against Campbell and Walker by denying them the opportunity to take its journeyman's examina- tion, I shall recommend that the Respondent be ordered to offer them the opportunity to take the examination and to give them reasonable notice of when the examina- tion is scheduled.71 71 If, after the opportunity to take the examination is offered to them on a nondiscriminatory basis, Campbell or Walker requests a postpone- ment, the Respondent is obligated to treat that request in the same manner it would treat similar requests from any other applicants, e g., ap- In addition, a standard remedy for a union's discrimi- natory failure to permit an applicant for a journeyman's test to take it is to treat the discriminatee as if he or she had taken and passed the test.7 2 Accordingly, I recom- mend that the Respondent be ordered to consider Camp- bell and Walker as if they were in group I for referral purposes from December 3, 1981, the date on which they should have been offered the opportunity to take the ex- amination, to whatever date they take a nondiscrimina- tory journeyman's examination or, if they decline a non- discriminatory offer, the date of the offer.73 I further recommend that Campbell and Walker be made whole for any loss of earnings they may have suffered by pay- ment to them of what they would have earned during the applicable period had they been classified and re- ferred as group I, less any net interim earnings . Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), to which shall be added inter- est, to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).74 [Recommended Order omitted from publication.] prentices who have finished their train ing or employees of newly orga- nized employers 72 Electrical Workers IBEW Local 367 (Penn-Del-Jersey Chapter), 230 NLRB 86, 94 (1977) See also Plumbers Local 633 (B & W Construction), 249 NLRB 67 (1980). 73 Of course, all the Respondent's legitimate hiring hall rules apply to this remedy, thus Campbell and Walker were only entitled to referrals on days when they were present at the hiring hall and in accordance with the places they would have held on the group I referral list. 74 See generally Isis Plumbing Co., 138 NLRB 716 (1962).