Electrical Workers Ibew Local 211 (Atlantic Division Neca)

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 85 (N.L.R.B. 1986)

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 requi res 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).