Local 581, International Brotherhood Of Electrical Workers

940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 581, International Brotherhood of Electrical Workers and Walter Harms and Tri County Di- vision of Northern New Jersey Chapter, Nation- al Electrical Contractors Association , Party to the Contract. Case 22-CB-5491 30 December 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 30 June 1987 Administrative Law Judge Steven B. Fish issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and a supporting brief. 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, i and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local 581, International Brotherhood of Electrical Workers, Parsippany, , New Jersey, its officers, agents, and representatives, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Additionally, we are satisfied that the Respondent's conten- tions that the judge was biased are without merit There is nothing in the record to suggest that his conduct at the hearing, his resolutions of credi- bility, his rulings, or the inferences he drew were affected by any bias or prejudice Gary A. Carlson, Esq., for the General Counsel David Solomon, Esq (Schneider, Cohen, Solomon, Leder and Montalbano, Esqs.), of Jersey City, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN B. FISH, Administrative Law Judge. Pursuant to charges and amended charges filed by Walter Harms (Harms) the Regional Director for Region 22 issued a complaint and notice of hearing on 30 June 1986 t The i All dates hereinafter are 1986 unless otherwise indicated complaint alleged in substance that Local 581, Interna- tional Brotherhood of Electrical Workers (Respondent or Local 581) violated Section 8(b)(1)(A) of the Act by denying Harms the opportunity to take a journeyman's examination, which in turn would have made Harms eli- gible for a higher referral preference The hearing with respect to the issues raised by the complaint was heard before me in Newark, New Jersey, on 12 and 20 January 1987 Briefs have been received from Respondent and the General Counsel and have been carefully considered. Based on the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Tri County Division of Northern New Jersey Chapter, National Electrical Contractors Association (NECA) is an Employer Association with member-employers en- gaged in the electrical industry in the State of New Jersey and other states of the United States. During the past year, member-employers of NECA provided and performed electrical services valued in excess of $50,000 from outside the State of New Jersey. It is admitted and I find that NECA is now, and has been at all times mate- rial, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. It is also admitted and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. FACTS Respondent had been a party to a collective-bargaining agreement with NECA for many years, containing a pro- vision for an exclusive hiring hall with respect to em- ployment by NECA member -employers . The hiring hall procedure in the contract sets forth the following prior- ities for employment JOURNEYMAN WIREMAN - JOURNEYMAN TECHNICIAN 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 Wireman's examination given by a duly constituted Inside Construction Local Union of the I.B.E W or have been certified as a Jour- neyman Wireman by any Inside Joint Apprentice- ship and Training Committee 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 journeyman wireman's exami- nation given by a duly constituted Inside Con- struction Local Union of the I B E.W. or have been certified as a Journeyman Wireman by any 287 NLRB No. 25 ELECTRICAL WORKERS IBEW LOCAL 581 941 Inside Joint Apprenticeship and Training Commit- tee 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 bar- gaining 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 applicants for employment in group Iz have prior- ity in referral over applicants for employment in the lower groups. A shortened version of the referral procedure, set forth in the contract, is posted on the wall at the hiring hall at Respondent's office in Parsippany, New Jersey Neither the contract nor the summary of the referral procedure posted at the hall required union membership for selection into group or book I. Of the 450 individuals registered in group I, however, only 1 is not a member of Respondent. That individual, Duke Matera, had previ- ously been a member of Respondent, when he purchased a bar in upstate New York, and permitted his member- ship to lapse. Subsequently Matera reapplied for mem- bership in the Union, but his application was rejected by the executive board. However, Matera was allowed to register for group I after working a year in Respondent's jurisdiction, since he had previously passed the journey- man wireman's examination. Concerning the examination requirement for registra- tion in book 1 (and book 2), Respondent's bylaws refer to such examination under article IV entitled executive board This article sets forth the various functions of the executive board, including the investigation of all appli- cations for membership Section 7 of article IV provides that "the Board shall furnish to the Examiners and also notify each applicant, when it comes time for examination, the list of those eli- gible." Article V of the bylaws entitled examining board, sets forth the duties of the examining board including, "to ex- amine all applicants for membership to determine their qualifications for the trade " The International constitution that is specifically incor- porated by Respondent's bylaws, also makes reference to the examination requirement In article III there entitled, "Qualifications of Members," section 1 states that "any worker . is eligible for membership, provided he passes a satisfactory examination when required to do so by the Local Union " Neither the Respondent's bylaws, the International constitution, the collective-bargaining agreement, nor the summary of the referral procedure posted at Respond- ent's hall makes any reference to whether Respondent will give the journeyman's examination to individuals who were not seeking to become a member of the Union. 2 The groups specified above are sometimes referred to as "Books" Walter Harms (the Charging Party) and Stuart McGowan, both nonunion members who have been using the hiring hall for many years,3 testified that they never heard of any examination being given by the Re- spondent, other than as part of the membership process, and that they believed that no such exam existed Harms admitted that he never asked anyone from Re- spondent if he could take the examination separately or get into book 1 without applying for membership, be- cause he had "never heard of such a thing." Harms added that, "as far as I knew, there was no one that ever took the test that didn't become a member " Bert Carr, Respondent's business manager and the in- dividual in charge of the operation of the hiring hall, tes- tified that there is no doubt in his mind that if an individ- ual asked to take the examination separately from the membership process, such request would be granted. However, Carr admitted that such a request had never been made to his knowledge by anyone during his career at the Union, and that he was not aware of any such ex- amination being given Carr also testified that the subject never came up at any local or International meetings that he ever attended When asked why he was sure that Re- spondent would have given the test separately if it had been asked, Carr responded, "That's the law. That's my understanding of the law." Joseph Krawchuk, Respondent's assistant business manager and a member of the executive board, also testi- fied that if an individual applied to take the examination separately, the executive board would determine whether he meets all the other qualifications for referral, and if so submit the name to the examining board to schedule a test for that person However, Krawchuk also admitted that no one has ever during his 21 years in the local, ever asked to take the examination separately from the membership process. Finally, Grant Tate, an International representative of the IBEW, furnished some testimony on this subject. He asserted that individuals do not have to be a member of the Union in order to register in book 1 or to take the examination Tate also admitted however that the normal procedure for all the locals in the International is that an individual takes the examination when he seeks membership as part of the same process. As for giving the test separately, the only specific ex- ample of such an occurrence that Tate could recall, in- volved Local 211 of the IBEW about 3 years ago. Ac- cording to Tate, this situation involved three or four mi- nority individuals who filed some sort of racial discrimi- nation charges against the Union As a result of this liti- gation, the local gave the test to these minorities apart from the membership process. Tate also asserted that at an International progress meeting between 1 and 5 years ago, the subject of giving the examination separately arose Tate could not recall whether he was present when the matter was raised or whether it was reported to him that the issue was pre- 3 individuals using the hall who are not members of Respondent are referred to as "permit men " There are approximately two dozen permit men who regularly use the hall for referrals 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sented In any event Tate claimed that some local repre- sentatives stated that they gave the examination to anyone who was eligible, and others stated that they gave it only as part of the membership process. Tate could not recall whether he or anyone in the Internation- al attempted to resolve this apparent conflict in proce- dures among the locals at that time Tate also did not know which representatives from Local 581 were present during this progress meeting, nor what position Local 581 representatives took if any when the subject of separately giving the examination was raised. In this regard, Carr testified that he did not recall being present when the subject was brought up at any progress meet- ing that he attended.4 Walter Harms began registering at Respondent's hiring hall in the late 1960s. He did not apply for membership at that time, because he was told by Frank Kelly and Ron Pierson, business manager and assistant business manager of Respondent, respectively, that he should not apply, "that the time wasn't right." Harms initially registered in book 4, and at some sub- sequent time, undisclosed by the record was eligible for and registered in book 3. However his employment op- portunities were still restricted by this grouping, as he was still being passed over by individuals in higher groups. Harms wanted to become a member of Respond- ent primarily because he wanted to get into group 1.5 Thus, in view of his employment situation, on 23 Sep- tember 1976, Harms' wife wrote a letter to the Interna- tional Union's president Charles Pillard. The letter de- scribed the difficulties that Harms was experiencing in obtaining employment because of his status as a "permit man," as well as the impact of Harms' chronic unem- ployment on the Harms family. The letter asked for the International's help in trying to assist Harms in getting work. The letter was referred to Grant Tate, who subse- quently arranged to meet with Harms. They met at an A T & T jobsite in New Jersey There were about 35 electricians working on the job at the time, including Joe Krawchuk.° Harms complained to Tate about his inability to obtain employment and his desire to obtain membership in a local union in order to better his employment opportunities Tate responded that things were slow all over the country and if he heard of anything he would get back to Harms. Tate also mentioned the procedures of the Union and the rights of the local union to reject any ap- plicants.7 Tate asked Business Manager Kelly about Harms prob- lems, and Kelly promised to review the situation with the executive committee A few days later Kelly confronted Harms and asked him why he had met with Tate. Harms replied that it did Carr has been Respondent's business manager for 9 years Harms believed that he could not register in group I unless he was a member of Respondent 6 Krawchuk was not a union official at the time He became assistant business manager of Local 581 in June 1986, and has been a member of Respondent's executive board for 7 years Krawchuk admitted that Tate's visit to that job was the only time in his 21 years in Local 581's jurisdic- tion that he recalled an International representative coming to a jobsite ' The letter from Harms' wife had also referred to his rejection from membership by Local 262 IBEW a local out of Plainfield, New Jersey not pertain to Kelly, but his wife was a nervous wreck because of his unemployed status Harms reported to Kelly that he asked Tate about Plainfield, and if anything could be done about getting Harms into a local. At a general membership meeting of Respondent sometime in 1976, with 125-140 members present, the letter written by Mrs. Harms to the International was read aloud to the membership. At some point subsequent to Tate's meeting with Harms and Kelly, Tate followed up by contacting Kelly. Kelly informed Tate that Harms' application for mem- bership was rejected by the executive board. Kelly did not tell Tate, nor did Tate ask why Harms' application had been rejected. In early 1985, Harms telephoned Tate and said that he was having problems with employment because of his grouping and he wanted membership in Local 581. Tate replied that he would check into the situation. Tate then -called Carr and informed him that Harms had called and complained about his difficulties in ob- taining employment, and that he would like membership in Local 581. Carr replied that he would look into the matter, and added that Harms would shortly be referred to a job. In the summer of 1985, Harms and McGowan were picketing on behalf of Respondent at a plant in Hack- etstown, New Jersey. Carr was present at the time, and suggested to Harms that he appear before the next Local 581 executive board meeting to apply for membership. Harms attended the next executive board meeting on 18 June 1985 Art Flynn, the chairman of the board, Robert Curnow, recording secretary, and other members includ- ing Krawchuk were present Harms asked about becom- ing a member of the Union, and furnished information pertaining to his work history and skills. He presented records and grades from trade schools that he had at- tended Flynn informed Harms that at that time Re- spondent's books were not open and no one was being accepted into membership. However, he promised to keep Harms in mind when they do.8 Shortly thereafter, Harms and McGowan found out that Respondent had admitted an electrician employed by Jayden Electric into membership. They both com- plained separately to Carr about this development. Carr explained to both Harms and McGowan that the Interna- tional had directed Respondent to admit into member- ship all electricians employed by Jayden, because local IBEW unions throughout the country have been at- tempting to organize Jayden's employees. Harms and McGowan both told Carr that they still felt that it was unfair that they as longtime permit men were not able to become members. Carr agreed that they should have been considered as well, and promised to talk to the ex- ecutive board about the matter. In late summer of 1985, McGowan and Harms met with Carr at Respondent's offices They asked about their chances of becoming members Carr replied that he submitted their names to the executive board and they were considering taking them into membership. Carr, 8 Respondent had not admitted any new members for over 10 years ELECTRICAL WORKERS IBEW LOCAL 581 943 added that in order to become' a member they would have to take a test that would be devised by the execu- tive board They wondered about the test, especially considering that they had been away from school for a long time Carr assured them that the test would be fair and that the board would consider the length of time they had spent away from school. Carr concluded the meeting by cautioning Harms and McGowan that if they went over the heads of the local, it would not speed up the process.' In early October 1985, Tate telephoned Harms and asked, if he had gotten into Locals 262 or 581 Harms said no. Tate replied that he felt that Harms had put in enough years, and that he would speak to Carr about the situation. According to Tate, he had received calls from a number of other permit men, in addition to Harms about membership in Local 581 and about obtaining employ- ment Tate then telephoned Carr and informed him that he had received calls from several permit men complain- ing about the failure of Respondent to open its member- ship rolls. Harms asked Carr to prepare and send him a list of all permit men working out of Respondent's hall for 4 or more years. Tate also informed Carr that he wished to attend an executive board meeting after he had received and reviewed the list of names that he had re- quested. During the first week of November, Carr notified the executive board that he had pursuant to Tate's request prepared a list of permit men working in the area, 1 0 and that Tate wished to attend the next Board meeting to discuss the matter with the Board. Carr also added that the list that he had compiled consisted of 11 names Carr admitted that the executive board "weren't too happy to hear the International was coming in "11 On 19 November 1985 Tate attended Local 581's exec- utive board meeting. Tate explained that he had been contacted by several permit men who complained about the fact that they had been working in the area for a lengthy period of time and "who had not obtained mem- bership or had not got themselves into a group one situa- tion." Tate added that he felt that these workers were being exploited by Respondent, and he ordered it - to open up their rolls and consider for membership the 11 individuals on the list submitted to him by Carr The members of the executive board reacted with "dismay" and questioned why they had had to open up their books. Tate responded that it was unfair for the Union to use the talents of the workers only it wants them, and tell them to take a hike when things are slow. Tate added that Respondent had provided jobs for these people and gotten nothing in return, as it has lost large sums of money by not collecting dues from these people 9 According to Carr, between May and October he made a number of requests to the executive board to admit Harms and McGowan into membership Carr asserted that the Board responded that they would get to it, but they were very busy 10 The list included the names of Harms and McGowan ii This was confirmed by Flynn who admitted that the International representatives rarely come to executive board meetings, and that "we don't like to see them, and they don't like to see us," and "we don't like the idea of them coming in and telling us what to do " Some members of the executive board expressed some objections to taking in new members. It was stated that if Respondent were to accept these 11 into membership, people would hear about it and apply, and turn a 500- man local into a 1000-man local overnight. Additionally, executive board members also expressed the fear that if new people were allowed into membership, then the cur- rent membership's employment could be jeopardized. Krawchuk added that right then the local was busy, but the Board was worrying that if work slowed down, would there be enough work for all its members. Tate was not moved by the objections or fears ex- pressed by the board, and insisted that they consider the 11 individuals for membership. At one point during the meeting, a Board member asked Tate for the name of the person who had contact- ed the International. Tate replied that he would not di- vulge that information 12 Tate concluded the discussion by the following com- ments "You have 90 days to clean up this mess, or I'll be back and clean it up for you. This mess leaves your local with a black eye within the state and the I.P. [International] " Grant Tate then left the meeting The board then dis- cussed Tate's comments. The board members felt that they had been doing a good job in taking in members and that Tate was "at the wrong time coming in with this." They added that Tate should have let the local go through their own proceedings and take in men as it saw fit. The board decided to discuss its action at a future meeting. On 11 December 1985 the executive board held a spe- cial meeting to review the names of the 11 permit men who Tate had ordered the local to consider for member- ship The board concluded that there were problems with two or three of the names, due to their residency and prior membership It was decided that Flynn would work these problems out with Tate On 16 December 1985 the board sent letters to the 11, permit men including Harms, requesting that they each fill out an enclosed questionnaire, which was an applica- tion for membership consideration. On the first Tuesday in January 1986 a general mem- bership meeting was held by Respondent The member- ship was informed that Tate had ordered the local to consider 11 permit men for membership. Recording Sec- retary Curnow read the minutes of the executive board meeting of 18 June 1985, which included Tate's remarks that Respondent was exploiting these men, and giving it 90 days to "clean up this mess" The names of the 11 men, including Harms were disclosed, and Flynn invited the membership to come forth and give their opinions about the "good points or bad points" of these appli- cants. Approximately 35 members spoke out, usually 1 or 2 speaking in favor of or against each of the applicants, except for Harms As for Harms, 1 individual spoke in favor of Harms, while 18 made unfavorable comments 12 Carr was present during the executive board meeting when this question was asked and answered Carr, although aware that Harms had contacted the International, asserts that he did not disclose this informa- tion to the executive board at this or any other time 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about him The substance of most of these remarks was essentially that Harms was a "leaner" and that he let other people do most of the work The executive board considered applications for mem- bership at a special meeting conducted on 13 January The board reviewed the questionnaires that had been re- turned by the applicants with Pierson and Carr A ,motion was made and passed to send letters to all 11 ap- plicants, inviting them to appear at the next executive board meeting on 21 January . Such a letter was sent to all 11 applicants including Harms ,The 11 permit men reported as requested to Respond- ent on 21 January Each applicant was interviewed sepa- rately by the executive board, in the presence of Carr and Pierson . When McGowan was interviewed, he was told his application for membership was being consid- ered, and various items on his questionnaire were re- viewed and discussed McGowan was asked if he would be willing to take the examination and he agreed. After some discussion about the examination , Krawchuk asked if McGowan had at any time contacted the International union either by phone or by letter McGowan replied no Harms was the last person interviewed by the board. He was asked if he had any problems with foreman and if he would be willing to take the examination Flynn then mentioned that 18 members had spoken against him and only 1 member had spoken in favor of him. Flynn asked if Harms could explain Harms replied that he could not explain it, since the only problems that he had were with two members in 1974 or 1975 Harms asked what these members had said about him Flynn refused to say. Krawchuk then asked Harms if he had called the International Harms responded that he had not tele- phoned the International , but that Grant Tate of the International had phoned him Krawchuk asked why someone from the International would phone Harms, who has been a permit man for only 19 years, when there are other permit men with as much as 25 years working out of the local Harms explained that his wife had written to the International 10 years before and that consequently Tate had interviewed him at that time. Krawchuk replied that he would get to the bottom of the matter, and would contact Tate to find out who had called the International 13 After a brief discussion of what matters would be on the examination, Harms was informed that he would be contacted by the executive board The executive board then discussed the applications of the 11 individuals and selected 10 individuals to be mem- bers; all applicants except for Harms According to Krawchuk, Harms was rejected because of the numerous 'a The above is based on the credited testimony of Harms I do not credit the testimony of Krawchuk and Flynn that Harms did not tell the executive board about his contacts with Tate I note in any event that both Flynn and Krawchuk admitted being aware of the fact that Harms' wife had written to the International in 1975 Moreover, Flynn admitted that in the summer of 1985 , Harms volunteered at an executive board meeting , that his wife had previously written a letter to the International, and that it was "common knowledge" at the local that Mrs Harms had written such a letter complaints about him made by the members 14 Kraw- chuk further testified that the board accepted the 10 for membership and forwarded only the names of these 10 to the examining board for the test . As Krawchuk phrased it, "The ten that we felt would be an asset to the local and gave their names to the Examining Board for the test " There was no discussion of whether the board should or would submit Harms' name to the examining board, for the test, separate and apart from the denial of his membership application. On 3 February , the executive board held a special meeting, in order to explain to Tate its compliance with his instructions . The board explained to Tate that it was recommending 10 applicants to the floor for membership, and listed the 10 names Tate thanked the board for a job well done. Once again there was no discussion of whether to give Harms the examination. The next day, Carr met with Harms at the hall, and informed him that the board had decided that 10 individ- uals would be permitted to take the examination, and that the 11th, Harms, was being dropped . Harms asked why, and Carr replied that Harms was a leaner, not a worker. Harms responded , "That's bullshit," and added that he was going to make a phone call. 15 Harms then telephoned Grant Tate . Tate told Harms that he was sorry for the way things worked out, and suggested that Harms talk to Carr and try to work some- thing out and reapply in 6 months. A few weeks later, Harms met with Carr, as per Tate's suggestion. Harms told Carr about Tate's suggestion that he reapply in 6 months Carr replied that he did not think that the executive board would change its mind, adding that it was the board's job to keep people out Meanwhile, in early or mid-February the chairman of the examining board sent what is obviously a form letter to the 10 applicants other than Harms The letter notified them of the date and place of the journeyman 's test, and described what subjects would be included The letter concluded with the following- Upon completion of this test with a passing grade, you will be required to attend a preinduction con- ference at the Parsippany office on and if selected you will be inducted at our general meet- ing on On 18 February , the 10 permit men took the examina- tion, and all 10 passed Within a week they received a letter in the mail congratulating them for passing the test and advising them of the date of the swearing in as mem- bers. " According to Flynn, in all his years on the board , there has never been as many as 18 members speaking against someone applying for membership He recalled at the most two or three speaking out against an applicant As noted above, however , the record reveals that for the past 10 years, the local has not admitted any new members 15 1 do not credit the testimony of Harms that Carr informed him that the board did not want Carr to refer Harms anymore I find it unlikely that this would be stated , in view of the fact that Harms had always been referred by the hall, within his group , notwithstanding his prior history of complaints to the International I therefore credit Carr 's denial that he made such a remark to Harms ELECTRICAL WORKERS IBEW LOCAL 581 Sometime in February, Harms consulted an attorney, Glen Bergenfield On 21 February Bergenfield wrote a letter to Respondent mentioning that Harms had sought membership in the local and sought permission of the ex- ecutive board for Harms to take the membership exam The letter then states that, "I am, by this letter, request- ing that my client be allowed to take the exam immedi- ately Kindly advise me as soon as possible if he will be permitted to take the exam at this time " Finally the letter requests copies of all material relied on by the board undenying Harms the right to take the exam, as well as copies of rules and regulations of Re- spondent relative to qualifying for the examination On 4 March the 10 permit men were sworn in as mem- bers at a general membership meeting. The minutes of that meeting also reflected that Bergenfield's letter was read to the membership The minutes further reflected that by the letter "Bergenfield requested that his client be allowed to take an entrance exam immediately. After a short discussion it was decided to turn this letter over to our lawyer for a reply." According to Krawchuk the board decided that it would not give Harms a member- ship examination, because we "already denied him " There was no discussion about the possibility of giving Harms the examination, separate and apart from applying for membership. On 28 May Harms filed the instant charge against Re- spondent The Regional Director issued a complaint and notice of hearing on 30 June Respondent filed its origi- nal answer on 14 July, in which it admitted allegations in the complaint that Respondent maintained a practice that applicants become members in order to take the journey- man's test and that Respondent does not have a non- member journeyman's test Additionally, the answer ad- mitted the paragraph that alleged that Respondent "denied membership to Harms thereby denying him the opportunity to take the journeyman's test." Thereafter on 28 October, the Regional Director post- poned the hearing indefinitely, so that the General Coun- sel could file a motion for summary judgment. During the first week of November, Harms received a call from a Board agent. The Board agent informed Harms that he had spoken to the Respondent's attorney and was told that Harms would be permitted to take the examination Harms was also told that his rights to back- pay were not affected and he need not withdraw his charge Harms then called Respondent and spoke to Pierson He mentioned to Pierson what the Board agent had said to him. He asked Pierson about taking the test that ev- eryone else had taken, allegedly authorized by Respond- ent's attorney Pierson replied that the matter was not in his hands, and Harms would have to speak with Carr about the request Carr was not available that day. When Harms returned home that day, he received a copy of an amended answer from Respondent's attorney which now denied some of the paragraphs of the com- plaint that had previously been admitted. Most signifi- cantly, Respondent in the amended answer then denied the paragraph alleging that "Respondent does not have a nonmember journeyman's test," and the portion of the complaint asserting that Respondent by denying Harms 945 membership, thereby denied him the opportunity to take the test 16 Harms testified that after reading this amended answer from Respondent's attorney, he concluded that "I wouldn't belittle myself again, and go ask them again to take the test " Harms further clarified his testimony, that he did not want to "embarrass" himself again by contact- ing Carr and asking again to take the test. Therefore he made no further efforts to contact Respondent or to re- quest taking the test. Similarly, Respondent made no efforts to contact Harms about his request to take the test, nor did it schedule the test for him III ANALYSIS It is well established that a union violates Section 8(b)(1)(A) of the Act when it accords its own members preference in job referrals over nonmembers who utilize its hiring hall Teamsters Local 357 v NLRB, 365 U.S. 665 (1965). Although incorporation of such member preference in the terms of the collective-bargaining agreement is of course plainly unlawful, such "preference" as no less un- lawful when "accomplished by discriminatory adminis- tration of benign contract provisions or by fashioning seemingly objective criteria for referral priority which in fact only union members can meet " Electrical Workers IBEW Local 99 (Crawford Elec- tric), 214 NLRB 723, 724-725 (1974) It is clear that Respondent's contractual provisions, which require the highest catergory of referrals to pass a journeyman wireman's examination, do not on its face violate the Act. Electrical Workers IBEW Local 592 (United Engineers), 223 NLRB 899, 990 (1976), Walter J. Barnes Electrical Co., 188 NLRB 183, 184 (1971) However, although such requirement is not unlawful, a union may not use the devise of an examination to pro- mote discriminatory practices Plumbers Local 633 (B & W Construction), 249 NLRB 67, 71 (1980), enfd 668 F 2d 921 (6th Cir. 1981). In that connection, a union violates the Act by deny- ing nonmembers the same opportunity to take a journey- man's examination that it affords to members Electrical Workers IBEW Local 211 (Atlantic Division NECA), 280 NLRB 85 (1986), Electrical Workers IBEW Local 367 (Penn-Del-Jersey Chapter of NECA), 230 NLRB 86, 93 (1977), enfd. 578 F 2d 1375 (3d Cir 1978) A union is ob- ligated to schedule an examination for nonmembers as expeditiously, and in as timely a fashion, as it does for members Electrical Workers IBEW Local 46 (NECA), 277 NLRB 1235 (1985); B & W Construction, supra In applying the above precedent to the facts of the in- stant case, I am persuaded that Respondent's conduct in denying Harms the opportunity to take the journeyman's examination, because his membership application had been rejected, is violative of the Act See also Plumbers Local 633 (Associated Building Contractors of Evansville), 's As a result of this amended answer, which now raised factual issues, the General Counsel rather than pursuing a motion for summary judg- ment , on 14 November rescheduled the case for hearing 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178 NLRB 398, 399 (1969). In short, by virtue of Harms' nonmembership in Respondent, he was unable to demon- strate the competence that Respondent felt was neces- sary to be eligible for group I status, and greater employ- ment opportunities Ibid. Respondent argued however that Harms was not denied the right to take the examination, but only the right to be a member. Therefore Respondent contends that Harms could and should have asked to take the ex- amination separately, and if he did, the request would have been granted. I find Respondent's position to be un- supported by the record and unpersuasive In fact the record established that Respondent had es- tablished a system whereby the journeyman wireman's examination necessary for advanced group status is given as part and parcel of the membership process The only reference to the journeyman's examination in the bylaws of Local 581 or of the International for that matter comes in connection with applications for membership. A journeyman's examination has never been given by Respondent to anyone other than as part of the member- ship process. Moreover, there is nothing in the contract, or Respondent's bylaws, which provides for a separate journeyman's examination Respondent points out in this regard, that the contract, as well as the shortened version of the agreement posted in the hiring hall, refers to the examination as a require- ment for group I or II status, but without mentioning membership. Therefore Respondent argued that this es- tablished the existence of a separate examination. I do not agree These provisions merely set forth the require- ment that one must pass the examination in order to ad- vance to the higher categories. It says nothing about how and when or in what circumstances the examination will be given The practice which Respondent has itself instituted and adbided by was simply to give the exami- nation to an individual only after he has been approved by membership, and as part of the membership process. I reject the self-serving, unconvincing, and contrived testimony of Respondent's officials that it would have given the examination to Harms separate from the mem- bership process, if he had simply asked. All these offi- cials admitted that such a request had never been made before They would not point to anything in writing or any other evidence of prior discussions among Respond- ent's officials of the issue, or any other evidence to sup- port their testimony or their belief that Respondent would have given Harms the examination separately.'' In my view, Respondent has not set up a procedure for giving the examination, other than as part of the membership process, because it never intended to do so. Ir Tate testified in this regard that at a recent International progress meeting, the subject came up for discussion He asserted that some locals stated that they gave the examination separately, and others did not Tate could not recall what position Local 581 representatives took on this issue , or in fact whether any such representatives were present during these discussions Even more strangely, Tate although asserting that it was the policy of the International that the examination must be provided separately from the membership process, did not recall if the Internation- al attempted to rectify or change the apparent violation of International rules by those locals who did not give such an examination I find this testimony to be totally unpersuasive in establishing any practice of Re- spondent in this area Indeed the very form letter that was sent to the 10 indi- viduals notifying them to take the examination, also re- ferred to their being inducted as members of Respondent, should they pass the examination Additionally, I would note that a number of permit men, including Harms and McGowan, have been regis- tering for many years at the hiring hall, with a clear and obvious financial incentive to take the examination and advance their employment status It is inconceivable for me to believe that had an examination been available, apart from the membership process, that none of these permit men would have taken advantage of such an op- portunity Similarly, I conclude that had such an exami- nation been available, one of Respondent's representa- tives would have mentioned it to Harms or one of the other permit men over these many years. Indeed both Harms and McGowan testified credibly that they never heard of such a thing (i e , a separate examination being given apart from membership), and that their primary reason for seeking membership in Respondent was to en- hance their employment opportunities, by advancing into group I status. Carr, in fact, admitted that he realized that the number one reason that Harms sought member- ship was "employment." Tate was similarly aware, as it was obvious from the complaints made by Harms and his wife from 1976 to date, that his main reason for seeking membership in Respondent was to obtain more employ- ment The only way that this record demonstrated that membership in Respondent could enhance employment opportunities is the fact that membership provides a chance for individuals to take the journeyman' s examina- tion and to advance into a higher referral classification. Thus it would seem and I find that if Respondent had a another procedure to obtaining group I status, i e , the taking of the examination separate and apart from the membership process, Carr or Tate surely would have so informed Harms However, they never so informed him, even after he had been rejected for membership. In this connection, Respondent relied on the conversa- tion between Harms and the Board agent in November, during which the agent allegedly transmitted to Harms an offer by Respondent to take the examination. Re- spondent contends that this conversation, as well as Harms' failure to take advantage of this offer, proved both that Respondent would have given the test to Harms if he had asked and that Harms was not in fact interested in taking the test to advance into book I. Once again, I do not agree. The fact that Respondent may have offered Harms the chance to take the examination separately, resulting from a discussion between the Board agent and Respondent's attorney, after the complaint was issued, had little or no probative value in assessing Respondent's willingness to do so when the relevant events occurred. As noted, Re- spondent had ample opportunity to make the offer to Harms, prior to the instant charges being filed, and it did not do so A more likely explanation for Respondent's offer to permit Harms to take the examination in Novem- ber was the issuance of the instant complaint, and Re- ELECTRICAL WORKERS IBEW LOCAL 581 947 spondent's desire to reduce its potential backpay liability to Harms,18 and or to expedite settlement of the case. As for Harms' failure to accept the offer in November, this is an issue more appropriately raised in connection with the issue of the tolling of his backpay, and I will reserve my discussion of same to that portion of my de- cision. Suffice to say here that I have considered and re- jected Respondent's claim that Harms' conduct in con- nection with the November offer established that Harms did not wish to take the test to advance his group status The evidence overwhelmingly supports Harms' credible testimony that he was interested in membership primarily to enchance his employment opportunities, and that Re- spondent was fully aware of his intentions in this regard.19 Thus, I find that Respondent had continued its prac- tice of requiring nonmember applicants to obtain approv- al for acceptance, before allowing them to take its jour- neyman's examination which was necessary for place- ment in the top referral group. This practice which re- sulted in the denial to Harms of opportunity to take the examination, is obviously discriminatory and violative of the Act Crawford Electric, supra, 214 NLRB at 728, As- sociated Contractors of Evansville, supra, 178 NLRB at 399. Moreover, even if I were to credit the self-serving tes- timony of Respondent's officials, which I do not, and find that a separate nonmember examination does exist, Respondent's actions would still be unlawful Thus, when Respondent devised an examination in 1985 and 1986, it allowed only the permit men that it had selected for membership to take the test Indeed Krawchuk testi- fied, that the executive board decided to give the exami- nation to individuals, who "would be an asset to the local." Harms, the only applicant who was rejected for membership, was not permitted to take the examination Respondent was obligated to schedule an examination for Harms "as expeditiously" and in as timely a fashion as it scheduled one for the others who were accepted into membership. NECA, supra, B & W Construction, supra, 249 NLRB at 71. Respondent's actions constitute a clear and invidious example of discrimination based on nonunion member- ship, and is violative of Section 8(b)(1)(A) of the Act.20 NECA, supra, B & W Construction, supra, Penn-Del- Jersey, supra; and Crawford Electric, supra. Respondent placed substantial reliance on Asbestos Workers Local 42 (Catalytic Construction), 164 NLRB 916 (1967), and argued that such case mandates dismissal of the instant complaint I conclude that Catalytic Construc- tion, supra, is both factually and legally distinguishable from the case at bar. The union there utilized a classifica- tion system for referral quite similar to that in the instant case, and also required the passing of a journeyman's ex- 11 See Windsor Industries, 265 NLRB 1009 ( 1982), enfd in pertinent part 730 F 2d 860 (2d Cir 1984) 19 The testimony of Harms that he also had other reasons for wanting to become a member does not detract from the above conclusions Nor does the fact that Harms failed to register in book 3 on three occasions 20 Although such conduct may also be violative of Sec 8 (b)(2) of the Act, NECA, supra , Penn -Del, supra, B & W Construction, supra, no such violation was alleged in the complaint , nor does the General Counsel so contend I therefore make no findings as to this section of the Act amination for group advancement. The charging party there, who was in the lowest group and a nonmember, was unaware of the requirement for the passing of an ex- amination, and did not make a timely request to do so. When he finally requested that he be given the examina- tion, his request was denied as being too late, since at that time he was no longer employed on a job 21 The Board affirmed the administrative law judge's dis- missal of the complaint issued on those facts The judge credited the testimony of the union official who asserted that if the charging party had made a timely request (i.e , when he was working on a job) for the examination, the union would have given it to him.22 Therefore, it was concluded that there is nothing discriminatory in requir- ing that the examination consist of a man's performance on the job, and that the charging party himself was to blame .for not being aware of the classification system and examination requirements. Clearly, these facts are significantly distinguishable from the facts here In this case, unlike Catalytic Con- struction, supra, the journeyman's examination is part and parcel of the membership process, and has not been given separately. That was not the case in Catalytic Con- struction, where the examination had no connection with the membership process Although it is true that the membership there rejected the charging party's request to take the examination, the reason had nothing to do with his nonmembership in the union, since his member- ship was not involved The decision was based solely on his failure to meet the nondiscriminatory and uniform re- quirement that he be on the job at the time of his request so that his work can be inspected. Thus, no unlawful dis- crimination was found Respondent stressed that portion of the decision that the charging party had only himself to blame for not being aware of the union's classification system and re- quirements that were posted at the hiring hall Respond- ent infered from that language that the case stands for the proposition that since an applicant (such as Harms) did not make a request for an examination, the union is not obligated to inform him of his opportunity to do so. I do not agree with Respondent's interpretation of the facts or the law concerning this contention. The charg- ing party in Catalytic Construction, supra, as noted was unaware of the entire classification system as well as the examination requirement, although these items were posted in the hall Thus, it is reasonable to place some blame on him for not knowing about his rights that were so clearly posted. Harms on the other hand was aware of the classification and examination requirements as posted, but quite reasonably believed (as I have found to be the case) that the examination was only given by Respondent as part of the membership process Moreover, the Catalytic Construction decision did not in fact discuss whether and in what circumstances a union had an obligation to inform applicants about their right to take the examination. Later cases have consist- 21 The test in that case consisted of an inspection of the applicants work on the jobsite 22 Note that I have not credited the similar testimony of the union offi- cials here 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ently required unions to keep job applicants or unit mem- bers informed about matters critical to their employment status Operating Engineers Local 406 (Ford, Bacon & Davis Construction), 262 NLRB 50 (1982), enfd 701 F 2d 504, 510 (5th Cir. 1983) (change in hiring hall rules); Electrical Engineers IBEW Local 11 (Los Angeles NECA), 270 NLRB 424 (1984), enfd. 772 F.2d 571, 576 (9th Cir. 1985) (qualifications for group I referrals); Boilermakers Local 667 (Union Boiler Co), 242 NLRB 1153 (1979) (re- ferral rule with regard to quitting construction jobs), Teamsters Local 860 (Emporium), 236 NLRB 844 (1978), enfd 652 F 2d 1022, 1025 (D.C Cir 1981) (failure to advise clerical employees that their wage demands jeop- ardized their jobs); Asbestos Workers Local 5 (Insulation Specialties Co.), 191 NLRB 220 (1971) (obligations on ap- plicant to quality for registry on out-of-work list). Thus I conclude, contrary to Respondent's view, that Local 581 even assuming that it did allow nonmembers to take a journeyman's examination separately from the membership process was obligated to notify job appli- cants including Harms, of his right to take such an exam- ination and the requirement that he make a separate re- quest to do so. This obligation is particularly significant with respect to Harms, since Respondent was aware of his desire to improve his employment status. Thus, on its denial of his membership request, I conclude that Re- spondent was at the very least obligated to inform Harms that he had the right to request taking the exami- nation separately from the membership process 23 Finally, Respondent's position is further weakened by its actions on receipt of the letter from the attorney for Harms. The letter requested that Harms be permitted to take the examination Although the attorney used the term "membership exam," the letter did not request that Harms be made a member, and the letter could reason- ably be construed as a request to take the examination separately. In any event, even assuming that Respondent correctly construed the letter as merely another request for membership, I believe that the above precedent re- quired that it at least notify Harms and or his attorney that Harms had the right to request to take the examina- tion separate and apart from the membership process 24 Accordingly, based on the above analysis, I conclude that Respondent had violated Section 8(b)(1)(A) of the Act by denying Harms the opportunity to take the jour- neyman's examination because of his having failed to be admitted to membership 25 23 I have of course found above that Respondent violated the Act by failing to schedule the examination for Harms, while doing so for those who were accepted for membership 24 Once again i emphasize that contrary to Respondent 's argument, the posting at the union hall of the contract groupings does not provide any notice that the examination can be taken separately Although the notice does not require that the examinations be taken as part of the membership process, the practice set up and uniformly followed by Re- spondent has been to schedule such an examination after one has been approved for membership 25 Respondent in its answers , but not in its brief, alleged that Harms failed to "exhaust the internal dispute procedures before filing the charge in the instant matter " Respondent adduced no evidence of what internal dispute procedure it believed Harms was bound by, nor cited any author- ity in support of its contention in this regard In fact the Board has uni- formly rejected such defenses Penn-Del-Jersey, supra, 230 NLRB at 94- In view of the above disposition, I find it unnecessary to pass on the General Counsel's alternate theory that Respondent's actions were motivated by the fact that Harms complained to the International union about his treatment by Respondent. Because the remedy for Re- spondent's violation would be substantially the same, I do not deem it essential to make findings with respect to this theory. CONCLUSIONS OF LAW 1 Tri County Division of Northern New Jersey Chap- ter, National Electrical Contractors Association and its employer-members are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 Local 851, International Brotherhood of Electrical Workers is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to permit Walter Harms to take the journeyman wireman 's examination , thereby de- nying him the opportunity to qualify for a higher priori- ty group under the exclusive referral system maintained under its collective-bargaining agreement with NECA, because Harms had not been approved for or was not a member of Respondent, Respondent has violated Section 8(a)(1)(A) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has 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 necessary to effectuate the policies of the Act. Having found that Respondent unlawfully discriminat- ed against Harms by denying him the opportunity to take the journeyman's examination, I shall recommend that Respondent be ordered to offer Harms the opportunity to take such examination Because Respondent's actions in so depriving Harms of this opportunity , resulted in his inability to advance into group I status,26 it is appropriate to assume that Harms would have passed the exam if given the chance, and advanced into group I Thus, I recommend that Re- spondent consider Harms as if he was in group I for re- ferral from 18 February 198627 to whatever date Harms takes a nondiscriminatory journeyman wireman 's exami- nation or if he decline a nondiscriminatory offer, the date of the offer Atlantic Division of NECA , supra. I shall also recommend that Harms be made whole for any loss of earnings he may have suffered by payment to him of what he would have earned during the applicable period had he been classified and referred as a group I applicant , less any interim earnings. Backpay shall be 95, Electrical Engineers IBEW Local 592 (United Engineers & Construction Co), 223 NLRB 899, 903 (1976) 26 It is undisputed that Harms met all the other requirements for such status 2v The date that the other applicants were given the test ELECTRICAL WORKERS IBEW LOCAL 581 computed in accordance with F W Woolworth Co., 90 NLRB 289 (1950), to which interest shall be added, to computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) In this connection, a question is presented as to the possible tolling of backpay for Harms in November 1986, by virtue of his actions or lack of same in response to the indirect offer made to him to take the examination. As noted, above, at that time counsel for the General Coun- sel transmitted a message from Respondent's attorney that Harms could take the journeyman's examination without prejudice to the further processing of his charges. Harms then related to Pierson, Respondent's assistant business manager, what the Board agent had informed him, and asked about taking the examination Pierson re- plied that the matter was not in his hands and suggested that Harms speak with Carr, who was not available that day After receiving Respondent's amended answer, deny- ing certain allegations that it had previously admitted, Harms decided that he did not want to "belittle" or "em- barrass" himself by again requesting Respondent to take the test. Therefore he made no further efforts to contact Respondent about the examination Significantly, Re- spondent insofar as the record discloses, made no effort to contact Harms directly about the examination As a wrongdoer, Respondent bears the burden of rem- edying its unfair labor practice. To meet such a burden, it must make a clear, unequivocal, and legitimate offer to remedy its wrong 28 In this case, Respondent must recti- fy its refusal to permit Harms to take the journeyman's examination. The Board has generally looked with disfavor on at- tempts to toll backpay obligations of Respondents, based on communications with Board agents Smyth Mfg. Co, 277 NLRB 680 (1985), Henrich Motor, 166 NLRB 783, 785-786 (1965), enfd 403 F.2d 145, 150, Roadway Ex- press, 108 NLRB 855, 881 (1954); Seligman & Associates, supra Where a respondent transmits an offer to remedy its discrimination through a third party as Respondent did here, rather than directly, it must bear the burden of any confusion that results. Rafaire Refrigeration Corp, 207 NLRB 523 (1973). Applying the principles of the above cases to the in- stant matter, I conclude that Respondent has not met its burden of establishing that its backpay obligation should be tolled It could easily have done so, by making a clear unequivocal and direct offer to Harms, preferably in writing, to take its journeyman's examination Yet it chose to make its alleged offer through a Board agent, without any further followup. When Harms received the offer through the Board agent, he immediately contacted the Respondent and asked Pierson about the alleged offer Pierson's professed ignorance of any such offer, and his insistence that Carr must be spoken to, could only have created confusion 28 Seligman & Associates, 273 NLRB 1216, 1217 (1984), Iron Workers Local 377 (Judson Steel), 208 NLRB 848, 851 (1974), Iron Workers Local 426 (Tryco Steel), 192 NLRB 97 (1971) 949 and doubt in Harms' mind about the good faith of Re- spondent's offer One must recognize the runaround that Respondent has been giving Harms over the years about his desires to enhance his employment opportunities, cul- minating in its unlawful failure to permit him to take the examination, while allowing all 10 other applicants to do so Thus Pierson's equivocal response to Harms' request, coupled with his receipt of Respondent's amended answer, which denied significant allegations that it previ- ously had admitted, provided in my view ample justifica- tion for Harms to be confused about Respondent's inten- tions See Rafaire, supra. Thus, I conclude that he acted reasonably in failing to make any additional efforts to contact Respondent about its alleged offer, and not to "embarrass" or "belittle" himself again In fact, as noted, Harms had responded to Respond- ent's offer by inquiring of Pierson about taking the test Although it may be true that Pierson, although the assist- ant business manager, was unaware of Respondent's deci- sion,29 it certainly was incumbent on him to forward Harms' request to Carr or whoever else was authorized to schedule the test for Harms It was also in my view incumbent on Respondent, once having been made aware of Harms' interest in accepting its offer to take the exam- ination, to schedule it for him, or at the very least at- tempt to contact him about the matter, preferably in writing. It made no such efforts, and as the wrongdoer, must bear the burden of its failure to make a clear, un- equivocal, and direct offer to rectify its discriminatory conduct Seligman & Associates, supra, Tryco Steel, supra, Rafaire, supra, Judson Steel, supra. Therefore I find that Harms' backpay has not been tolled. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edso ORDER The Respondent, Local 581, International Brotherhood of Electrical Workers, Parsippany, New Jersey, its offi- cers, agents, and representatives, shall 1 Cease and desist from (a) Failing and refusing to allow Walter Harms or any other job applicant or registrant to take a journeyman wireman's examination, thereby denying them the oppor- tunity to qualify for a higher priority group under the exclusive hiring hall provisions of its contract with the Tri County Division of Northern New Jersey Chapter, National Electrical Contractors Association, because the individuals have not been approved for membership in or are not members of its organization 29 Indeed the record does not disclose who from Respondent, if anyone, authorized its attorney to transmit the offer to Harms through the Board agent so If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Walter Harms the opportunity to take the Respondent's journeyman wireman's examination (b) Place Walter Harms in group I of the Respondent's referral system as of 18 February 1986, and offer him re- ferrals pursuant to that classification until such time as he takes the journeyman wireman's examination or, if he de- clines a nondiscriminatory offer of examination, the date of that offer. (c) Make Walter Harms whole for any loss of earnings that he may have suffered as a result of Respondent's discrimination against him in the manner set forth in the remedy section of this decision (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at all places where notices to employees, ap- plicants for referral, and members are posted copies of the attached notice marked "Appendix "31 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 31 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 " (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent 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 or- dered us to post and abide by this notice WE WILL NOT fail or refuse to allow Walter Harms or any other job applicant or registrant to take our journey- man wireman's examination, thereby denying them the opportunity to qualify for a higher priority group under the exclusive hiring hall provisions of our contract with the Tri County Division of Northern New Jersey Chap- ter, National Electrical Contractors Association, because the individuals have not been approved for membership in or are not members of our organization. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Walter Harms the opportunity to take our journeyman wireman's examination. WE WILL place Walter Harms in group I of our refer- ral system as of 18 February 1986, and offer him refer- rals pursuant to that classification until such time as he takes the journeyman wireman's examination or, if he de- clines a nondiscriminatory offer of examination, the date of that offer. WE WILL make Walter Harms whole for any loss of earnings that he may have suffered as a result of our discrmination against him with interest. LOCAL 581, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS