General Teamsters Local 959

GENERAL TEAMSTERS LOCAL 959 693 General Teamsters Local 959, State of Alaska, affili- ated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Northland Maintenance)' and Alan Lynch. Case 19-CB-3341 March 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAI.E On December 21, 1979, Administrative Law Judge Frederick C. Herzog issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, 2 find- ings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- The General Counsel excepts to the Administrative Law Judge's des- ignation of Green Construction as an employer in the caption. We find merit in this exception and the caption has been corrected to show that Northland Maintenance is the sole employer involved herein. 2 We agree with the General Counsel's contention that theAdministra- tive Law Judge erred by refusing to allow Alan Lynch to give testimony on certain additional matters. Based on the offers of proof, the rejected testimony appears to be relevant and admissible, although of arguable weight. But, even assuming that Lynch would have testified as stated in the offers of proof, the additional evidence adds little to the General Counsel's case and does not warrant a different result here. We do not agree with the General Counsel's contention that the Ad- ministrative Law, Judge misapplied the negative inference he drew from Respondent's witnesses' failure to give specific details about some of their conversations with the Charging Party. Respondent did not withhold evi- dence bearing on, or witnesses with knowledge of, critical matters in dis- pute Indeed, Business Agent Brown's testimony contradicted the Charg- ing Party's on the critical issue involved herein, the reason for the Union's refusal to dispatch Lynch. Furthermore, the General Counsel had ample opportunity to question Brown about his discussion with Lynch, since Brown was called as a witness by both the General Counsel and Respondent. Thus, while the specificity of testimony is certainly a legitimate factor that may be weighed in evaluating the relative strength and probability of conflicting versions of events, under these circum- stances we do not believe that the Administrative Law' Judge was either required, as a matter of law, to draw the adverse inference or, as argued by the General Counsel, to credit the Charging Party's testimony as a result of the application of the adverse inference. 3 The General Counsel has excepted to certain credibility findings made by the Administrative Law' Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. 248 NLRB No. 100 lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE FREDERICK C. HERZOG, Administrative Law Judge: On November 1, 1978, a charge was filed by Alan Lynch. A complaint issued thereon on December 27, 1978, alleging violations of Section 8(b)(l)(A) of the Act and setting the case for hearing on July 17, 1979, at An- chorage, Alaska. The Respondent's answer was duly filed on January 11, 1979, generally denying the violation alleged in the complaint. An amended charge was filed on January 30, 1979, and on February 5, 1979, an amend- ed complaint issued thereon alleging violations of Sec- tion 8(b)(1)(A) and (2) of the Act. An answer to amend- ment to complaint was filed by the Respondent on Feb- ruary 20, 1979, once again generally denying all wrong- doing. The case was heard by me at Anchorage, Alaska, on July 17, 1979. All parties appeared and were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. Upon the request of counsel for the General Counsel the due date for filing post-hearing briefs was extended to August 31, 1979. Both the Respondent and counsel for the General Counsel filed timely briefs herein, which have been duly considered. Upon the entire record of the case and from my obser- vations of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND COMMERCE JURISDICTION As alleged in the amended complaint and as admitted by the Respondent's amendment to its amended answer, the Employer most directly involved in this proceeding is Northland Maintenance (herein called Northland), a wholly owned subsidiary of Green Construction Co. (herein called Green), an Alaska corporation engaged in the construction business. Together, in the 12 calendar months preceding the issuance of the amended complaint herein, Northland and Green purchased and received goods within Alaska directly from sources outside that State, or from suppliers within that State which in turn obtained such goods and materials directly from outside Alaska. On the basis of such admitted facts I find that at all times material herein Northland and Green are, and have been, employers engaged in commerce and in oper- ations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE ORGANIZATION INVOLVED General Teamsters Local 959, State of Alaska, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Respondent herein, is alleged by the amended complaint, 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted by the answer to amendment, and is hereby found by me, to be a labor organization within the mean- ing of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background and Agreed Facts The parties stipulated that Northland and Green are engaged in the business of providing maintenance ser- vices pursuant to contract, apparently with Alyeska Pipeline Service Company, upon the Alaskan oil pipe- line. Further, it was stipulated that, while the two share common ownership, they are not joint employers or alter egos. Northland has been a member of the Trans-Alaska Pipeline System Maintenance Contractor Association since the beginning of 1978. While the record is less than clear on the matter, it appears undisputed that the Asso- ciation entered into a collective-bargaining agreement with the Alaska Petroleum Joint Crafts Council, which included among its members the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Amid charges that the previous agreement was violative of Section 8(f) of the Act, the Respondent formally agreed on February 2, 1979, to abide by, though still refusing to sign a document re- ferred to as "Schedule A," an attachment to the Trans- Alaska System Project Maintenance Agreement (PMA) negotiated between Alaska Petroleum Joint Crafts Coun- cil and Trans-Alaska Pipeline System Maintenance Con- tractors Association. The Respondent, however, stated its intent to honor only its own "nonconstruction" hiring hall provision, which it deemed to be nonviolative of Section 8(f) of the Act because it claimed not to grant geographic or length-of-service preferences. Finally, the Respondent noted that it had been following those iden- tical procedures in its dealings with the Association's members since November 1977. As stated by counsel for the General Counsel: since sometime in 1977 [when] the maintenance con- tractors [association] came into existence and Green at that time was one of them and later Northland. The Teamsters have been dispatching people and treating it as if they had an agreement, which is es- sentially the Schedule A's that are attached to this letter and they're a part of our exhibit, so for practi- cal purposes, there has been a contractual relation- ship whatever the parties thought the legal rights of it were. Schedule A, in both its November 22, 1977, draft (G.C. Exh. 2(d)) and its January 12, 1979, draft (G.C. Exh. 2(c)) provides for the Respondent to furnish em- ployees to the Association's members through an exclu- sive hiring hall. (G.C. Exh. 2(a), art. XIV, sec. 1.) Thus, article I, section 9, of both drafts of Schedule A, and "Section 5," admitted in evidence as Respondent's Ex- hibit I without objection, each provide, in pertinent part, as follows: Request for People with Special Skills and Abili- ties. Bona fide requests for employees with spe- cial skills and abilities will be honored, with the following provisions: The dispatcher shall refer persons possessing such skills and abilities in the order in which their names appear on the list. The decision of the dispatcher in referring registrants is appealable to the Joint Hiring Committee, as hereafter provided. Non-driver spe- cial skills will not be utilized in other classifications without prior approval of the Union. Special skills shall be defined as follows: a. Lowboy drivers, where required to breakdown or load cats, cranes or other similar type equipment. b. Partsmen and/or warehousemen where required to have knowledge of special Federal numbers or other nomenclature. c. Tiremen where required to repair and maintain oversize tires and/or equipment. d. Greaser when servicing specialized equipment. e. Air cushion or similar type vehicles-Pilots. f. Ambulance Drivers. g. Loadmasters (Air and Water). h. Oil distributor drivers. i. Herman, Delta, Commanders, Delta-3s, Rollagons, and similar type equipment. j. Riggers. k. Such other new classifications that may arise during the term of this Agreement. The parties agree that the Respondent agreed to fur- nish employees to the Association's members upon any of three bases: (a) Open call, which simply means that the Respondent would refer employees in the classifica- tion required by the employer in the order that such em- ployees had previously signed a register and noted their respective "out-of-work" dates; (b) name request based upon the requested employee's prior employment with the requesting employer; or (c) name request based upon the requested employee's possession and demonstration of "special skills." All the parties agree that this case is concerned only with the manner in which the last mentioned type of re- ferral was administered by the Respondent when the Charging Party, Alan Lynch, sought to be referred on October 20 and 23, 1978. B. Issues The complaint alleges that (a) Lynch was name re- quested on the basis of special skills, (b) Lynch possessed the requisite special skills, (c) the Respondent (through Business Representative Leo Brown) refused to dispatch or refer Lynch, (d) Brown told Lynch the refusal was because of Lynch's involvement in a prior dispute with the Respondent, (e) an additional reason for the Respon- dent's refusal to refer was Lynch's having given testimo- ny to the National Labor Relations Board in connection with a charge Lynch had filed with respect to his prior dispute with the Respondent, and/or (f) the Respondent's refusal to refer was based on "other" unlawful, arbitrary, and invidious reasons (all of which remain undisclosed). GENERAL TEAMSTERS LOCAL 959 695 The obvious issue is whether or not the allegations are true, for, if they are, it is equally obvious that Section 8(b)(1)(A) and (2) of the Act have been violated. C. The Refusal To Refer' On October 20, 1978, Lynch, a member of the Respon- dent since 1975, was out of work, having been laid off due to a reduction in force by Green about a week earli- er. He had previously signed up at the Respondent's office in Fairbanks for referral on an open-call basis. But, evidently wishing to hasten or facilitate his referral, he went back to the Moose Creek Dam project where he had been employed by Green. He spoke to Bill Powell, the project manager. He asked Powell to help him get a job with Northland. According to Lynch he heard Powell telephone Northland and put in a good word for him. When Powell hung up the phone he told Lynch that Northland was going to request that the Respondent refer Lynch as a lowboy operator. In light of Powell's words Lynch went to the Respon- dent's hiring hall in Fairbanks that same day, arriving there sometime late in the workday. He first spoke to the Respondent's dispatcher, Arnold T. (Hogie) Hoag. From Hoag he learned that Northland had, in fact, called and requested his referral on the basis of his special skills as a lowboy driver. Hoag sought to have the dispatch of Lynch cleared, initially by telephoning the Respondent's dispatch office in Anchorage, and then by referral to Brown, who had returned to his office at that time. While Lynch's testi- mony seems to point toward his understanding that Hoag had been on the verge of "clearing" his referral, being unable to reach Anchorage by phone, and Brown being out of the office, it appears more likely that Hoag per- sonally issues referrals only in instances where the right to referral appears clear, and that, as here, where he noted that the prospect for referral had not demonstrated the possession of the requisite special skills, his normal procedure was to send the prospect to Brown for a deci- sion. The testimony of Hoag, Brown, and Calvin Stroble, the Respondent's chief dispatcher, taken as a whole, on the issue of the procedure for signing the special skills book or list was to the effect that "special skills" could be demonstrated to the Respondent's satisfaction by the employee either "signing up" on the "special skills list," or by submitting a resume of his work history. In either event the Respondent's dispatcher could then check the Respondent's records, to satisfy himself that the employ- ee was indeed possessed of special skills by virtue of his experience. Hoag testified that he never referred anyone who had not either signed the special skills book or submitted a resume. In fact, he testified that he has in the past de- clined to refer persons who had not signed the special skills book, and that this was the reason why he did not dispatch Lynch. I Much of the factual detail with respect to the refusal to refer is un- disputed, Where a dispute does exist, the differing versions will be set forth or referred to specifically It is undisputed that Lynch has never submitted a resume or signed the special skills list or book. Lynch testified that both Hoag and another dispatcher named Doug Yoherty had rebuffed his efforts since 1975 to sign the special skills list by telling him there was no need for him to sign, since he had already been dispatched to work on lowboys under the special skills provision. Lynch claimed to have had such an exchange with Hoag on October 20, 1978. Hoag, however, was not specifical- ly asked about this. Yoherty was not called to testify and no explanation was given for his absence. The record is unclear, even internally contradictory, as to whether Lynch told Brown of his problems with Hoag and Yo- herty. Lynch further testified that he had made no fur- ther attempt to sign the list since October 23, 1978, and that Brown specifically told him on that date to sign the list, despite Lynch's telling Brown he had been name re- quested on several previous occasions without the neces- sity that he sign the list. Hoag was never specifically asked whether he had given Lynch assurances that he need not sign the list, as Lynch testified. In any event, Lynch and Brown both testified that, upon Brown's return to the Fairbanks union hall late in the afternoon of Friday, October 20, 1978, Lynch and Brown went to Brown's office. There Lynch chatted with Brown, and explained that Hoag had sent him to Brown to have the dispatch cleared. Lynch testified that Brown told him he would go ahead and clear the dis- patch after first mentioning that normally no dispatch was made unless the employee had worked for the em- ployer previously. In fact, he testified that Brown went so far as to telephone Hoag and tell him to proceed with Lynch's dispatch. Lynch testified he was instructed to come by Brown's office on Monday morning to pick up the dispatch since it was too late to complete the work of checking the information needed for the dispatch that day. That information was contained in computerized re- cords which were shared, and displayed electronically on a screen similar to a television, by and at the Respon- dent's Fairbanks and Anchorage hiring halls or offices. The computer shuts down at 5 p.m. each day. Brown's testimony about the meeting of October 20, 1978, with Lynch was to the effect that Lynch came to him late that afternoon because he had not been dis- patched by Hoag, and that he (Brown) told Lynch to come back on the following Monday, October 23, 1978, after he had had an opportunity to check into the matter. Lynch and Brown agreed to meet once again around midmorning on Monday, October 23, 1978, in Brown's office. Their meeting was scheduled after Brown con- cluded his regular meeting of early Monday morning with other staff members of the Respondent. There is no evidence that Lynch was mentioned at the regular staff meeting. While Lynch testified that he and Brown were acquainted prior to their meeting of October 20, Brown stated that he had no recollection of Lynch. Brown also testified that he was not aware, until told by Lynch on either October 23 or 24, 1978, of Lynch's prior troubles with the Respondent or of Lynch's having filed charges with the National Labor Relations Board against the Re- spondent. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown testified that he had checked Lynch's work his- tory by the time he met with Lynch on October 23, and that, finding that Lynch was not previously employed by Northland and that Lynch was not on the special skills list, he "must have" reported to Lynch on October 23 that he could not be dispatched. Lynch specifically denied ever being told this by Brown. Brown was not asked the details of this conversation with Lynch. Lynch, however, testified that when he went to see Brown on the morning of October 23, Brown asked him to come into his office and shut the door. According to Lynch, Brown then said there was a little problem with the dispatch of which he had been unaware previously. Lynch testified that Brown explained that Lynch had "got sideways" with the Respondent in 1977. Lynch stated that Brown told him that "the ends didn't meet somewhere because some people thought that [he] should have been expelled from the Union [in 1977] and [he] hadn't been, [his] dues were paid and [he] was in good standing and there was some people that thought at that time I shouldn't have been expelled, so [Brown] said, therefore, I'm [Brown] not going to honor this re- quest." Lynch went on to state that Brown twice told him, apparently in response to Lynch's question about the true reason for being refused the dispatch, that he had gotten "sideways" with the Respondent in 1977. There is no dispute about the fact that Lynch was ac- cused in 1977 of crossing a picket line, or that internal union charges were leveled against him in what he termed an Advisory Board ("A" Board) proceeding in February 1978 in Fairbanks. Respondent had its business manager, Gary Atwood, present at that meeting, as well as two business agents, Mel Cavet and Tim Sanderson. Dispatcher Yoherty and Shop Stewards Ed Yarborough and Richard O'Neil were also present. The charges were brought by Cavet. Lynch told the Advisory Board that he had not crossed any picket line which he had ob- served. Nevertheless Lynch was disciplined by the Advi- sory Board when it recommended that he be expelled from membership. He appealed that decision to the Re- spondent's Executive Board ("E" Board) in Anchorage, as well as taking the action of filing a charge against the Respondent with the National Labor Relations Board. However, when he appeared for the Executive Board hearing he was asked if he had flown down to Anchor- age "for this bullshit" by one Jesse Carr, who is evident- ly an official of the Respondent. Carr had Lynch arrange with James Witt, the Respondent's attorney herein, to be reimbursed for the expense Lynch had incurred in flying to Anchorage. The intraunion charges against Lynch were thereafter withdrawn, as was Lynch's charge with the National Labor Relations Board against the Respon- dent. Lynch has been dispatched by the Respondent on a number of occasions. Sometimes he was dispatched on an open call basis, and sometimes by having been name requested by a former employer. Since 1976, it happens that all his dispatches by the Respondent have been on a name request basis. On at least four instances since No- vember 2, 1978, Lynch was dispatched upon name re- quest without interference from any representative of the Respondent. However, such dispatches bespeak no arbi- trary conduct by the Respondent, since they were appar- ently based upon prior work experience with the em- ployers who requested him by name.2 Such work experi- ence can be reviewed, as previously stated, by any dis- patcher asking the computer to display it. It is uncontro- verted that the computer stores no information concern- ing disciplinary action against a member, other than showing whether the members' dues are paid and that he is in good standing. Neither point would have applica- tion in this case. D. Analysis and Findings Counsel for the General Counsel specifically dis- claimed any intent to demonstrate a failure to abide by the provisions of the collective-bargaining agreement, or that Lynch was entitled to referral to Northland by virtue of the relationship between Green and Northland and Lynch's prior employment by Green. Consequently, the only remaining questions are whether the factual al- legations set forth earlier herein are true, and, if so, whether they demonstrate a violation of Section 8(b)(l)(A) and (2)3 of the Act. The practice of using "hiring halls," particularly "ex- clusive" ones, in which an employer cedes to a union much of its authority to select its own work force, has been long recognized as having special potential for abuse. But the Supreme Court overturned efforts by the Board to devise tests of legality of any hiring hall ar- rangement, when in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961), it labeled the Board's special tests of the legality of such arrangements as unwarranted at- tempts to engage in a legislative act. The Court, in com- menting upon the question of whether the existence of an exclusive hiring hall tends to illegally "encourage" em- ployees to join a union, stated at 675, 676: 2 The record is unclear, but it appears that the Respondent made no objection to a name request by Green Construction in May 1978 because the project to be worked upon bore no relation to the type of work cov- ered by the collective-bargaining agreement cOering maintenance work on the Trans Alaska Pipeline System. It does not appear that Lynch had previously been employed by Green Construction 3 Sec. 8(b)(l)(A) of the Act provides that: (b) It shall be an unfair labor practice for a labor organization or its agents- (I) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership herein; Sec. 8(b)(2) of the Act provides: (b) It shall be an unfair labor practice for a labor organization or its agents- (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discrimi- nate against an employee with respect to whom membership in such organizaion has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; Sec. 8(a)(3) of the Act, in turn, makes it an unfair labor practice for an employer to "encourage or discourage membership" in any union "by discrimination in regard to hire or tenure of employment or any term or condition of employment GENERAL TEAMSTERS LOCAL 959 697 It may be that the very existence of the hiring hall encourages union membership. We may assume that it does. The very existence of the union has the same influence. When a union engages in collective bargaining and obtains increased wages and im- proved working conditions, its prestige doubtless rises and, one may assume, more workers are drawn to it. When a union negotiates collective bargaining agreements that include arbitration clauses and su- pervises the functioning of those provisions so as to get equitable adjustments of grievances, union mem- bership may also be encouraged. The truth is that the union is a service agency that probably encour- ages membership whenever it does its job well. But, as we said in Radio Officers v. Labor Board supra, the only encouragement or discouragement of union membership banned by the Act is that which is "ac- complished by discrimination." Applying this standard through the yea;.t the Board has consistently held that a union violates Section 8(b)(1)(A) and (2) where it discriminatorily refuses to refer an employee or an applicant for employment pursu- ant to the terms of an exclusive hiring hall system or contract. Painters Local Union No. 1555, affiliated with the International Brotherhood of Painters and Allied Trades, AFL-CIO (Alaska Constructors, Inc.), 241 NLRB No. 112 (1979). Moreover, in situations where a union's refusal to refer is motivated by factors other than mere reliance upon the hiring hall contract, such as animus toward a particular employee, that action contravenes the Act. International Association of Bridge, Structural, Reinforcing and Ornamental Iron Workers, Local 75, AFL-CIO (Bob C. Keith, an Individual Proprietor d/b/a Tyler Reinforcing), 232 NLRB 1194 (1977), enforcement denied4 583 F.2d 1094 (9th Cir. 1978). The Board's rationale was clearly expressed in Interna- tional Union of Operating Engineers, Local 18, AFL-CIO (Ohio Contractors Assn.), 204 NLRB 681 (1973), when it stated: When a union prevents an employee from being hired or causes an employee's discharge, it has dem- onstrated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer-or, if you please, adopt a pre- sumption that-the effect of its action is to encour- age union membership on the part of all employees who have perceived that exercise of power. But the inference may be overcome, or the presumption re- butted, not only when the interference with em- ployment was pursuant to a valid union-security I The denial of enforcement herein appears to have been based upon the Court's view that the Board erred in delving into the respondent's motivation, given the fact that it was acting within the confines of the collective-bargaining agreement While this case need not be decided upon the Ironworkers, Local 75, ibid., rationale, it must be stated that, if it were, I would be constrained to follow the Board's holding, rather than that of the Ninth Circuit Court of Appeals. See, e.g., Iowa Beef Packers. Inc., 144 NLRB 615, 616 (1963); Ford Motor Company (Chicago Stamping Plant), 230 NLRB 716, fn. 12 (1977); Novak Logging Company, 119 NLRB 1573, 1575-76 (1958); Insurance Agents' International Union, AFL- CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773 (1957) clause, but also in instances where the facts show that the union action was necessary to the effective performance of its function of representing its con- stituency. 5 Drawing upon this rationale the Board has consistently held that a union may not take action, such as refusing to refer to jobs against a member in retaliation for filing an unfair labor practice charge against the union. Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local Union No. 577 (Tri-State Steel Erectors, Inc.), 199 NLRB 37 (1972); Amalgamated Meat Cutters and Butcher Workmen of North America, Amalgamated Food Employees Union, Local 590. AFL- CIO (National Tea Company), 181 NLRB 773, 775 (1970); International Brotherhood of Boilermakers, Iron Ships Builders, Blacksmiths, Forgers & Helpers, Local Lodge No. 587, AFL-CIO (Stone and Webster Engineering Corporation), 233 NLRB 612, 617 (1977); Local #624, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Power Piping Company), 211 NLRB 942 (1974). In Graphic Arts International Union 96 B (Williams Printing Company), 235 NLRB 1153 (1978), the Board discussed its test for finding a violation: It is well established that a union may not resort to restraint and coercion in order to restrict the right of an employee-member to file charges with the Board, and that such conduct constitutes a vio- lation of Section 8(b)(1)(A) of the Act. In determin- ing whether conduct amounts to restraint or coer- cion in the exercise of an employee's Section 7 right to seek redress from the Board, the test is an objec- tive, rather than a subjective, one and depends on whether, in the circumstances of a given case, the probable effect of the conduct is to restrain or coerce an employee in the exercise of his Section 7 rights. It must, nevertheless, be remembered that it is the General Counsel who bears the burden of proof that dis- criminatory activity has been practiced upon an employ- ee by the union, or of showing circumstances giving rise to inference of arbitrary or invidious actions by the union. Sheet Metal Workers International Association, Local Union No. 20, AFL-CIO (The Employers Associ- ation of Sheet Metal Workers and Associated Roofers of Middlesex County, N.J.), 233 NLRB 732 (1977); Boiler- makers Local union No. 83 AFL-CIO (Missouri River Basin Association; Reactor Controls, Inc.), 205 NLRB 951 (1973); Boston Cement Mason and Asphalt Layers Union No. 534, a/w Operative Plasterers and Cement Masons In- ternational Association, AFL-CIO (Duron Maguire Eastern Corp.), 235 NLRB 826 (1978). As will be seen, this case comes down to a matter of credibility resolutions. However, as I explain below, I find myself unable to credit the testimony of any witness s Cf. Plumbers and Steamfitters Local No. 40. United Association of Jour- neymen and Apprentices of Plumbers and Ppefitters Industry of the United States and Canada, AFL-CIO (Mechanical Contractors Associations of Washington), 242 NLRB No 168 (1979). 698 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD as to the major events of this case, and, therefore, recom- mend that the case be dismissed in its entirety. It is clear that the General Counsel's evidence, if cred- ited, would have established a prima facie case, either of actual discriminatory intent and action, or of a failure to fairly represent, such as the Respondent's failure or re- fusal to inform Lynch of, and allow him to take, the steps requisite to becoming eligible for referral by name request on the basis of special skills. This latter finding is based upon the testimony of Lynch concerning his inquiries of Hoag and other dis- patchers of the Respondent about being allowed to sign the special skills list. It appears that Lynch could have furnished some evidence of "special skills"; his work record demonstrates that he worked as a lowboy opera- tor on occasions preceding October 1978. However, whether or not such experience should have enabled him to qualify for name requests based upon his demonstra- tion of special skills, it is clear that Lynch did not take proper steps to qualify by either signing the special skills list or submitting a resume sheet. And, in light of Lynch's own testimony to the effect that Brown told him on October 23 that he needed to sign the special skills list in order to become eligible for referral there- from, Lynch's failure to attempt to sign the list there- after, up to the date of hearing herein, makes his testimo- ny concerning having been unfairly denied an opportuni- ty to sign the list before October 23, 1978, implausible. There is no evidence to link the dispatcher, Hoag, an el- derly and inoffensive clerk, to the discriminatory or unfair scheme which Lynch attributes to Brown's having contact with other, though unnamed, officials of the Re- spondent over the weekend of October 20-23, 1978. To the contrary, it seems more reasonable to believe that Lynch, had he truly been denied referral in the manner to which he testified, would have immediately demanded to be allowed to sign the special skills list regardless of Hoag's view about the necessity for such action. Nor am I convinced from Lynch's testimony that he was ever actually refused an opportunity to sign the spe- cial skills list. The finding on this point is in accord with my other credibility resolutions in this case. I am con- vinced that Lynch, in his testimony, magnified upon each possible misstep by the Respondent-Union. Had he ever been denied the right to sign the special skills regis- ter I believe he would have said so, in unequivocal terms. Instead, far short of being denied the right to sign, he testified merely that his prior efforts were met with responses to the effect that he did not need to sign. I find such evidence insufficient to establish a failure by the Respondent-Union to meet its duty to fairly represent Lynch, or to "fail to properly inform" Lynch. The core of this case is, however, what was said be- tween Lynch and Brown at their meetings of October 20 and 23, 1978. And, on these critical points, Brown was not asked to testify as to the details of his conversations with Lynch. Lynch, on the other hand, testified at some length about the precise details of his meetings with Brown. He specifically testified that Brown told him that some unnamed person or persons within the Respondent- Union harbored resentment of Lynch's action in crossing a picket line some time prior thereto. Thus, Lynch's tes- timony, if credited, establishes direct evidence of dis- crimination, for Brown was purportedly explaining why the Respondent had decided not to refer Lynch upon the name request it admittedly received on October 20, 1978. After observing the demeanor of the witnesses, and after considering the matter carefully, I have determined that I must discredit the testimony of Lynch about those two critical conversations with Brown. I was not favorably impressed with Lynch's demeanor as a witness. For example, when testifying about relative- ly unimportant matters Lynch seemed candid and forth- right. But this merely served to highlight the contrast with his halting and evasive manner when testifying about the critical details of his two conversations with Brown. The changes in Lynch's demeanor while testify- ing were not subtle, but were quite pronounced. The changes were such as to cause me to discredit those por- tions of Lynch's testimony where he recounted his con- versations with Brown and claimed that Brown bluntly admitted to a discriminatory motivation. Brown was an experienced agent of a union, and, if Lynch were to be credited, he would certainly have surmised by the time he spoke to Lynch on October 23 that Lynch would not hesitate to again invoke the processes of the Board and, in doing so, repeat Brown's words to an investigating agent and, quite possibly, a judge. That being so it strains credulity to believe that Brown would have made no effort at all to disguise an unlawful action. Brown would possibly have done so if he were a stupid and/or an arro- gant person. My observations of him led me to precisely opposite conclusions. I have been mindful of and troubled by, the fact that Brown, and other witnesses called by the Respondent, failed to testify in specific detail about words attributed to them by Lynch. Where the evidence is within the control of a respon- dent the failure to testify about points which would nor- mally elicit responses, or the failure of the respondent's counsel to ask witnesses about such points, gives rise to an inference that the testimony would have been unfa- vorable to the respondent.s Brown and Hoag impressed me as careful and truthful witnesses. They each appeared to avoid any attempt to depict Lynch as a liar or a person suffering from delu- sions of persecution. Nonetheless, I feel compelled to, and do, draw an adverse inference with respect to their credibility from the failure of their counsel to inquire fully and in detail. The failure to credit either Brown or Hoag is not based on their demeanor, or any inherent improbability in the details of their testimony. And the fact that they have not been credited does not compel a finding that Lynch's testimony must be accepted, since it stands un- a The principle can be traced at least so far back as to the year 1722. when it was applied in the famous "case of the chimney sweep's jewel." Amory v. Delamirie, I Strange 505. Cf. American Lumber Sales, Inc., 229 NLRB 414, 421 (1977); Fred Stark and Jamaica 201 Sr. Corp., Inc. and Jamaica 202 St. Corp., Inc., 213 NLRB 209, 214 (1974); and International Union, United Automobile, Aerospace and Agricultural Implement Workers ofAmerica (UAW) v. N.L.R.B., 459 F.2d 1329 (D.C. Cir. 1972), reversing Gyrodyne Company of America, Inc., 185 NLRB 934 (1970). International Association of Bridge, Structural and Ornamental Ironworkers, Local 600 (Bay City Erection Company, Inc.), 134 NLRB 301, 306, fn. 11 (1961). GENERAL TEAMSTERS LOCAL 959 699 controverted. "A trier of fact need not accept uncontra- dicted testimony as true if it contains improbabilities or if there are reasonable grounds for concluding that it is false." Operative Plasterers' & Cement Masons' Internation- al Association, Local 394 (Burnham Brothers, Inc.), 207 NLRB 147 (1973). Thus, the case is one in which all the witnesses to the critical conversations of October 23 and 24, 1978, have been discredited, albeit for differing reasons. As a result, it appears clear that the General Counsel cannot be said to have sustained the burden of proof that the Respon- dent committed unfair labor practices. The allegations of the complaint must, therefore, be dismissed. CONCLUSIONS OF LAW 1. Northland is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(l)(A) and (2) of the Act by refusing to refer Alan Lynch for em- ployment, or in any other respect alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. I In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 699