General Teamsters Local 959

National Labor Relations Board - Board Decisions

Mar 26, 1980

248 N.L.R.B. 693 (N.L.R.B. 1980)

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