Warshawsky & Co. v. National Labor Relations Board

*958WALD, Circuit Judge,

dissenting:

In my view, the majority goes too far afield from the record and established restraints on our appellate review powers in order to overturn the Board and find that the union committed a violation of section 8(b)(4). An opinion upholding the decision of the Board in this case, which I support, on the other hand would have had only a limited impact; at most, it would have sent a message to future companies that they ought not agree to be bound by too sparse factual records. Instead, the majority issues a surprisingly broad-based opinion which reverses the Board, finds a union in violation of federal labor law,1 and sets forth new constitutional law restricting the reach and protection of the First Amendment.

The relevant facts of this case are easily summarized. Warshawsky & Company (“the Company”) is engaged in the warehousing and sale of auto parts and accessories. In 1997, the Company decided to build a warehouse and mail order facility in LaSalle, Illinois. The Company hired a general contractor who, in turn, hired various subcontractors, each of which maintained collective bargaining agreements with various unions representing employees working on the construction site (“construction employees”). These employees worked at the construction site Monday through Friday, 7 a.m. to 3:30 p.m. and on occasional Saturdays as well.

In March 1997, the Company directly retained Automotion Inc. (“Automotion”) to install certain rack and conveyor systems at the construction site. Shortly thereafter, Ironworkers Local 386 (“Union”), which had no labor dispute with either the general contractor or any of the subcontractors, engaged in area standards picketing against Automotion. The Union discontinued this picketing after being informed that Automotion was not yet working on the site. Subsequently, an agent of the Company sent the Union a letter stating that Automotion employees would be scheduled to work on the site Monday through Friday from 4 p.m. to 6 a.m. and all day Sunday. The letter requested that any future picketing of Automotion be conducted only when Automotion employees were on site.

On March 13, 1997, at around 6:40 a.m., various agents of the Union were stationed in close proximity to the entrance of the construction site. During about a four hour period, the Union agents distributed copies of a handbill to construction employees as they approached the construction site. A copy of the handbill appears as an appendix to the majority’s opinion. Union agents distributed the same handbill at the same location and at approximately the same time on March 14, 17, 18, and 19. Employees of Automotion were not at the site on any of these occasions. Certain construction employees (number unknown, see below) refused to enter the construction site on each of the days on which the Union handbilled.

On March 13, 1997, the Company filed an unfair labor practice charge alleging illegal secondary activity on the part of the Union. On March 25, 1997, the Regional Director issued a complaint charging that the Union had violated section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, which, in relevant part, makes it unlawful for a union to “induce or encourage” any individual employed by a neutral employer (i.e., one with whom the union has no primary labor dispute) to engage in a work stoppage, where the union’s object is to force the neutral to cease doing business with an employer with whom the union does have a primary dispute.

*959Before the Administrative Law Judge (“ALJ”), the parties presented a joint motion accepting a stipulation of facts and agreeing to waive a hearing. The stipulation contained a copy of the handbill distributed by the Union. The stipulation also provided that “various” agents of the Union were stationed on a road used primarily by individuals going to and from the construction site. The stipulation provided that the Union agents gave copies of the handbill to individuals entering the site and that the agents “briefly spoke” with these individuals. Finally, the stipulation provided that “the individuals” on the first day, and then “various individuals” on subsequent days refused to enter the construction site and perform work for their respective employers. Based on the stipulation of facts, which constituted the entire record, and on the briefs, the ALJ dismissed the complaint against the Union, concluding that “a preponderance of the ... evidence fails to establish that the failure of some of [the construction] employees to report for work ... had been other than a spontaneous reaction by those employees to the [Union’s] lawful actions of publicizing, other than through picketing or through conduct tantamount to picketing, undisputed facts about Automation’s wages and benefits.” Iron Workers Local 386 (WARSHAWSKY & CO.), 325 N.L.R.B. No. 141, at 4-5, 1998 WL 251581 (May 14, 1998). The Board subsequently adopted the opinion of the ALJ, with Chairman Gould writing a concurring opinion. The majority opinion today reverses the Board and insists that it lacked “substantial evidence” for its conclusion that a violation of section 8(b)(4) had not been proven. I dissent from that holding on two basic grounds.

First, in order to reach its result, the majority creates new constitutional law restricting the scope and protection of the First Amendment. In taking the ALJ to task for considering the First Amendment in his analysis of whether the Union violated section 8(b)(4), the majority opines that “the First Amendment does not protect communications directed at — and only at— ... neutral employees.... ” Majority opinion (“Maj. op.”) at 952. This novel proposition, I believe, is simply wrong.

In his opinion, the ALJ correctly noted that in order to establish a violation of section 8(b)(4)(i)(B) and (ii)(B), the General Counsel had to prove by a preponderance of the evidence both that the Union induced or encouraged individuals employed by the Company to engage in a work stoppage and that the Union had the object thereby of forcing the Company to cease dealing with Automotion. The ALJ was guided in his attempt to discern the intent and motive of the Union by the Supreme Court’s decision in Edward, J. DeBartolo Corp. v. Florida Gulf Coast Bldg, and Constr. Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (DeBartolo II).

DeBartolo II is a case where the Supreme Court, under the canon of constitutional avoidance, construed section 8(b)(4) as not prohibiting the distribution of handbills to consumers “pressing] the benefits of unionism to the community and the dangers of inadequate wages to the economy and the standard of living of the populace.”2 Id. at 576, 108 S.Ct. 1392. In so holding, the Supreme Court emphasized the difference, constitutionally speaking, between pickets and handbills, the former constituting a mixture of conduct and communication and the latter constituting pure expressive speech:

[Picketing is a “mixture of conduct and communication” and the conduct element “often provides the most persuasive deterrent to third persons about to enter a business establishment.” Handbills containing the same message ... are “much less effective than labor pick*960eting” because they “depend entirely on the persuasive force of the idea.”

Id. at 580, 108 S.Ct. 1392 (quoting NLRB v. Retail Store Employees (Safeco), 447 U.S. 607, 619, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980) (Stevens, J., concurring)). In reaching its decision in DeBartolo II, the Court defined the so-called “publicity proviso” to section 8(b)(4) as constituting a clarification of section 8(b)(4). The publicity proviso provides, inter alia, that section 8(b)(4) did not prohibit “publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer.” 29 U.S.C. § 158(b)(4) (1994). The handbills in De-Bartolo II did not fall specifically under the publicity proviso; however, the Supreme Court, in interpreting the proviso as a clarification of, rather than an exception to, section 8(b)(4), found that other forms of handbilling (i.e., in addition to those that fall within the terms of the proviso) would not necessarily be prohibited under section 8(b)(4).

Like the handbills in DeBartolo II, the handbills in the instant case were not covered by the publicity proviso.3 And while the handbills in DeBartolo II were distributed to consumers at a shopping mall, the ALJ nevertheless found the reasoning of DeBartolo II to be “important to the resolution of the instant case”:

[T]he fact that the [Supreme Court found the publicity] proviso [to be] an express “clarification,” rather than an exception, is some indication that Congress contemplated other, unstated, clarifications which would inform resolution of issues arising under Section 8(b)(4) of the Act’s stated prohibitions. Second, such unstated clarifications arise in the context of the publicity proviso’s ... definition of “the public” which embraces both “consumers and members of a labor organization^]” Inasmuch as the proviso serves as a clarification, rather than an exception, the reach of the prohibition which it interprets, explains, and clarifies must, of necessity, take into account publicity of disputes which is directed to members of labor organizations, without too readily concluding that such publicity constitutes unlawful inducement or encouragement.

WARSHAWSKY & CO., 325 N.L.R.B. No. 141, at 6 (emphasis added).

Of course, as the ALJ acknowledged, handbilling does not enjoy unfettered exemption under section 8(b)(4), in that “[especially in the context of common situs situations, labor organizations must make reasonable efforts to minimize the impact of their messages on neutral employers and their employees.” Id. at 7. However, he continued, this does not mean that “those labor organizations [in the context of a common situs] are ... required to abandon altogether communication of their messages.” Id. Citing again to DeBarto-lo II, the ALJ noted the following:

*961[T]he Supreme Court recognized the constitutional and statutory protection extended to handbill messages protesting failures to satisfy area wage and fringe benefit standards — those which “press[ ] the benefits of unionism to the community and the dangers of inadequate wages to the economy and the standard of living of the populace.” [DeBartolo II,] 485 U.S. at 576, 108 S.Ct. 1392. Therefore, when evaluating the lawfulness of [handbill] messages, even when disseminated to members of a labor organization at a common situs, analysis must proceed with care.

Id. The ALJ’s point was that the Supreme Court has recognized the constitutional and statutory protection of handbills, like those in the instant case, which press the benefits of unionism and the dangers of inadequate wages to the community. The Supreme Court also defined the publicity proviso as a clarification, an explanation, of section 8(b)(4). The publicity proviso in turn defines the public as including members of labor organizations. Accordingly, the analysis of whether a union has violated section 8(b)(4) as a result of communicating via handbills with members of other labor organizations must proceed with some care. In other words, one ought not too easily assume that a union has an illegal intent or motive when hand-billing neutral employees; a union has a First Amendment right, even if not an unfettered right, to express its ideas to all members of the public.

Surprisingly, the majority seems to be saying that the First Amendment is not implicated at all when a union communicates solely with neutral employees. There is no support for this belief. The majority jumps from the Supreme Court’s holding that the prohibition under section 8(b)(4) of the inducement or encouragement of a secondary work stoppage does not constitute an unconstitutional abridgement of free speech, See International Bhd. of Elec. Workers v. NLRB, 341 U.S. 694, 705, 71 S.Ct. 954, 95 L.Ed. 1299 (1951), to its conclusion that any kind of union speech directed to neutral employees carries no First Amendment protection. This, in my view, puts the cart before the horse. It is of course true that if the General Counsel had actually proven that a union induced and encouraged employees of a neutral employer to engage in a work stoppage with the object of forcing a neutral employer to cease dealing with the primary, then that union could not complain that its First Amendment rights had been violated. But it does not follow from this proposition that no communication to neutral employees is protected speech or, as the majority implies, that the ALJ erred in interpreting “induce” or “encourage” narrowly in order to avoid First Amendment concerns. See Maj. op. at 951 (“[The ALJ] presumably thought that ... the constitutional avoidance canon suggests that the words ‘induce or encourage’ in § 8(b)(4) should be interpreted, and applied, narrowly so as not to proscribe the handbilling involved in this case. We think the First Amendment is not at all implicated.... ”).

The majority places great reliance, in this regard, on its ability to distinguish the facts of DeBartolo II from those here. Again, without any affirmative support that I can find, the majority thinks it adequate to point out that DeBartolo II involved handbills directed to consumers as opposed to the handbills here, directed to neutral employees. It reasons that when a union handbills consumers and they subsequently refuse to patronize a neutral employer, these consumers are following a wholly legal course of action, namely, withholding their buying power. In contrast, it argues, when a union handbills neutral employees, the only course of .action open to these employees is illegal to them under section 8(b)(4); that is, neutral employees, when informed through a handbill that a primary employer pays substandard wages, can only respond sympathetically by engaging in an illegal work *962stoppage.4 This single-option assumption is, however, mistaken. Members of labor organizations — even employees of neutrals — are people too. They also consume. They also may be potential future joint venturers with or employees of the offending company. They certainly are members of their communities with an interest in knowing which employers in the area pay substandard wages. The majority assumes that any time a union expresses its ideas to neutral employees, that union has an illegal intent under section 8(b)(4) and the neutral employees can only “contribute to the cause” by engaging in an illegal work stoppage under section 8(b)(4), an assumption without support in this record or in ordinary experience and without which, the distinction the majority attempts to draw between DeBartolo II and the instant case simply dissolves. In my view, the ALJ was completely justified in construing section 8(b)(4) narrowly and in assessing the situation with appropriate concern for the First Amendment rights of union members.

My second ground for dissenting is that I believe the majority errs in concluding that the stipulated record reasonably compels the conclusion that the Union had an illegal intent and motive under section 8(b)(4). It is settled law that the burden of proof is on the General Counsel to prove each and every element of a section 8(b)(4) violation, see Local Union No. 501, Int’l Bhd. of Elec. Workers v. NLRB, 756 F.2d 888, 898 n. 8 (D.C.Cir.1985) (“The general counsel and the charging party bear the burden of proving a secondary boycott violation ... ”), and that courts owe substantial deference to the findings of the Board, see Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 228 (D.C.Cir.1995) (“The court’s review of the Board’s factual conclusions is highly deferential ...”).5 The majority nevertheless reverses the Board for failing to draw all inferences from purely circumstantial evidence in favor of the party with the burden of proof. This result is quite unprecedented; it is akin to reversing a jury verdict in a civil case because the jury, based on purely circumstantial evidence, declined to find in favor of the plaintiff. In reality, this case is quite simple: the Company (and the General Counsel) made a fatal strategic error in waiving a hearing before the ALJ and in agreeing to be bound by a stipulated record that did not sufficiently support (let alone compel) the conclusion that the Union violated section 8(b)(4).

To begin with, the majority unfairly wrests more (negative) substance from the stipulation of facts than is actually there. In truth, the stipulation is quite spare. The stipulation contains a copy of the handbill given to the construction employees. The handbill mentions nothing about the neutral employer (ie., does not say that the Company had engaged in any wrongdoing by hiring Automotion) and, instead, contains a specific proviso stating that the Union was engaged in a labor dispute with Automotion (again, not the neutral employer) and that the Union was *963“not seeking any person to cease work or to stop making deliveries.” Second, the stipulation states that “various” agents of the Union “were stationed at certain locations along Murphy Road ... a road used primarily by individuals going to and from the LaSalle facility construction project.” From this stipulation, we know only that Union agents (number unknown) were stationed along a road used primarily (but not exclusively) by individuals entering the construction project. The stipulation also states that the agents gave copies of the handbill to the individuals entering the construction project and “briefly spoke with” these individuals. From this, we know only that the agents spoke with the employees, but we have no evidence whatsoever of the content of the conversations, nor do we know how long these conversations were; “briefly” could mean five seconds, merely enough time to say, “We are members of the Iron Workers Local 386, please read this handbill,” or five minutes, enough time to request that the employees not engage in a work stoppage, to request that the employees engage in a work stoppage, or, indeed, to talk about the Cubs. Finally, the stipulation states only that “the individuals” (on the first day) and then “various individuals” (on the subsequent days) refused to enter the construction project and perform work for their respective employers. We know from this only that more than one employee refused to work, but we do not know whether the number amounted to 10 out of 50; 50 out of 100; or 200 out of 200. The exact number and ratio of employees who refused to work would certainly shed a great deal of light On what one ought infer from the other facts of the case, but, alas, we have no access to that information on this record.

The majority speaks about the need to draw “reasonable” inferences, see Maj. op. at 953-54, but then proceeds to draw every possible inference against the Union. For example, with respect to the handbill itself, the majority finds that the legal disclaimer on the handbill is of no evidentiary moment because “that caveat is contained in only very small print at the bottom of the handbill.” Maj. op. at 954. In contrast, the ALJ found the disclaimer to constitute some “evidence that ‘[the Union] effectively took steps to neutralize [any] implied inducement or encouragement of employees’ of other employers.” WARSHAWSKY & CO., 325 N.L.R.B. No. 141, at 9 (quoting Service & Maintenance Employees Union No. 399 (The William J. Burns Int’l Detective Agency), 136 N.L.R.B. 431, 437, 1962 WL 16286 (1962)). The ALJ’s inference with respect to the disclaimer is, at the very least, reasonable. The disclaimer is perfectly readable and although all boilerplate language is somewhat legalistic, that does not mean that it is without any effect.6

*964The majority also infers that because the Union handbilled only neutral employees, it must have had an illegal intent thereby. But the ALJ’s inference from this same fact is equally compelling, or, again, at least reasonable. The Company chose to segregate Automotion employees from the constrüetion employees; by scheduling Automotion employees at odd hours, the Company made it impossible for the Union to communicate its message to both Automotion and construction employees at the same time. The ALJ found that because the Automotion employees were presumably already aware that their wages were below area standards, nothing was to be gained by the Union in reinforcing this knowledge. On the other hand, the construction employees were less likely to have been aware that Automotion’s wages were below area standards. The ALJ determined that the Union had a legitimate (non-illegal) interest in informing the construction employees of Automotion’s substandard wages and that it was not required to republish this fact to Auto-motion employees simply to avoid the appearance of an improper motive under section 8(b)(4).

The majority’s final inference of intent to induce is drawn from the fact that a conversation between Union agents and employees took place and that some kind of a work stoppage ensued. But what the majority infers from that sequence paints too bleak a picture for the Union. The majority conveniently ducks the question of how many of the neutral employees, in response to the handbill and the words spoken by Union agents, turned around and went home on the days that the Union handbilled. See Maj. op. at 959-50. If in fact we knew that all, virtually all, or even a substantial number of the employees spoken to refused to work each day, then, perhaps, the majority’s inference that the work stoppage was due to the Union’s words might be justified. However, we do not know from the record how many employees in fact turned around and went home. More specifically, we do not even know the ratio of employees who went home to employees who stayed and went to work. The stipulation tells us nothing and the ALJ only found that a preponderance of the evidence failed to “establish that the failure of some of those employees to report for work ... had been other than a spontaneous reaction by those employees to the [Union’s] lawful actions.... ” WARSHAWSKY & CO., 325 N.L.R.B. No. 141, at 4-5 (emphasis added). The majority has to assume something totally absent from the record, namely, that all, virtually all, or at least a substantial number of the employees, refused to work, in order to infer from that that “any ‘non-inducement’ words would be inconsistent with the setting, and to suppose the union agents uttered them would be sheer speculation.”7 Maj. op. at 955. Absent this first assump*965tion that the conversations and handbills affected more employees than not, to guess at the contents of these brief car-side conversations is sheer speculation. It is not unfathomable, for example, that the Union agents merely reconveyed orally the gist of the handbill they were distributing. Clearly, had a hearing been held, testimony as to the content of the conversations could have been elicited. Without such testimony, it is the General Counsel’s burden to prove the Union’s speech fell on the inducement side, not the Union’s burden to prove it did not.8

In the end, the majority’s decision requires an acceptance of the proposition that the evidence here, entirely circumstantial, is so overwhelming against the Union that it brooks of only one conclusion, a conclusion that is at odds with the judgment of both the ALJ and the unanimous Board and one which must be reached in the face of accepted legal principles that the General Counsel bears the burden of proof and that courts owe substantial deference to the Board’s findings. Ultimately, Chairman Gould’s concurrence said it right:

[T]he Respondent’s conduct here, although arguably consistent with an attempt to induce a work stoppage, ultimately lacks a sufficient basis to support such a finding [of a section 8(b)(4) violation]. The “nod, wink, and a smile” theory cannot prevail in these circumstances where the handbill explicitly stated that the Respondent was not seeking a work stoppage, and where the record fails to show what the Respondent said to the employees as they approached the jobsite and received the handbills. In the final analysis, a finding of a violation must be based on something more than the mere fact that the employees ceased work in response to the Respondent’s conduct.

WARSHAWSKY & CO., 325 N.L.R.B. No. 141, at 2.

I respectfully dissent.

. In so finding, the majority does not take seriously enough the proposition that unions, as well as individuals, are innocent until proven guilty, and that courts must therefore be cautious in concluding that a union has violated federal labor law. See NLRB v. Ironworkers Local 433, 850 F.2d 551, 555 (9th Cir.1988) ("What is at issue is a finding that [the union] violated federal law. This is a serious conclusion, one we do not lightly reach.”).

. The handbills in DeBartolo II were distributed to patrons of a mall in order to protest the alleged substandard wages paid by a company hired by the mall owner to construct a department store there.

. The handbilling in this case did not fall under the publicity proviso because, on its face, the proviso deals only with handbilling that does not result in a work stoppage. Additionally, the ALJ found that the handbilling here did not fall under the publicity proviso because the handbills did not advise the public that the Company was distributing Auto-motion's products. The full text of the proviso is, as follows:

[Nothing in section 8(b)(4) ] shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.

29 U.S.C. § 158(b)(4) (1994).

. Indeed, the majority says, being “informed [of the message on the handbill] there is only one possible action [neutral employees] can take that will contribute to the cause.” Maj. op. at 954.

. The deference owed to the Board's findings is even greater where, as here, the critical question involves the intent and motive of the Union. As we have repeatedly warned:

The court's review of the Board’s determination with respect to motive is even more deferential [than the court's review of Board findings more generally]. Motive is a question of fact that may be inferred from direct or circumstantial evidence. In most cases only circumstantial evidence of motive is likely to be available. Drawing such inferences from the evidence to assess an employer’s [or union’s] ... motive invokes the expertise of the Board, and consequently, the court gives "substantial deference to inferences the Board has drawn from the facts,” including inferences of impermissible motive.

Laro Maintenance Corp., 56 F.3d at 229 (quoting Gold Coast Restaurant Corp. v. NLRB, 995 F.2d 257, 263 (D.C.Cir.1993)) (citations omitted).

. The cases which the majority cites for discounting the existence of the disclaimer are clearly distinguishable. In National Ass’n of Broad. Employees, Local 31, 237 N.L.R.B. 1370, 1978 WL 7966 (1978), the Board simply found that the existence of a legal disclaimer on a handbill did not override the otherwise clear indication that the handbilling involved there was an integral part and extension of picketing being conducted simultaneously by the same union. Catalytic, Inc. v. Monmouth & Ocean County Building Trades Council, 829 F.2d 430 (3d Cir.1987), is not even a Board case; it is a review of a district court injunction against a labor union. Moreover, counsel for the union in that case admitted at oral argument that the union handbilling constituted a "signal." Finally, the court of appeals’ finding that the disclaimer on the flyer constituted a "signal" was preceded immediately by the statement that the union's argument against the findings of the district court “ignore[d] the wide latitude open to triers of fact to make factual determinations on the basis of rational inferences which arise from the nature, location, and effect of picketing.” Id. at 436 (quoting American Radio Ass’n, AFL-CIO v. Mobile Steamship Ass’n, Inc., 419 U.S. 215, 232, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974)). Of course, the trier of fact in the instant case made the opposite factual determination, that the disclaimer constituted credible evidence against an illegal intent under section 8(b)(4). Finally, in International Bhd. of Elec. Workers, Local 453 (Southern Sun Elec. Corp.), 252 N.L.R.B. 719, 1980 WL 12469 (1980), the Board simply noted that a self-serving disclaimer that picketing was for *964a recognitional purpose was not determinative of the union’s object in picketing. This unremarkable proposition does not mean that legal disclaimers have no evidentiary weight at all, it simply means that the mere existence of such a disclaimer does not necessarily win the day for the union.

. The majority cites again to Catalytic for the proposition that the "simple cause-and-effect of the appearance of leafletters and work stoppages eloquently testified to the purpose of the enterprise." 829 F.2d at 435. Again, Catalytic is not a Board case. It is a case where the court affirmed the findings of the district court, after trial, that a union had violated section 8(b)(4) and that an injunction was proper. The court in Catalytic rejected the union's arguments against the findings of the district court because they "ignore[d] the wide latitude open to triers of fact to make factual determinations on the basis of rational inferences which arise from the nature, location, and effect of picketing.” Id. at 436 (quoting American Radio Ass’n, AFL-CIO v. Mobile Steamship Ass’n, Inc., 419 U.S. 215, 232, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974)). In any event, it is decidedly not the law that the effect of a work stoppage requires the conclusion of a section 8(b)(4) violation. To be sure, a work stoppage may constitute evidence of inducement, and the ALJ never said otherwise, but a work stoppage alone is not sufficient proof thereof. See Teamsters, Local Union No. 688 (Levitz Furniture Co.), 205 N.L.R.B. 1131, 1973 WL 5220 (1973).

. The majority attempts to shift this burden to the Union by citing a string of cases, see Maj. op. at 954, which stand for the proposition that when a party who has relevant information in her control fails to produce that evidence, that failure may give rise to an inference that the evidence is unfavorable to her, see, e.g., International Union, United Automobile, Aerospace & Agric. Implement Workers of Am. v. NLRB, 459 F.2d 1329, 1335-42 (D.C.Cir.1972). It is true that had a hearing been held, and the Union had refused to call its agents to testify (or its agents refused to testify) as to the contents of the conversations, then the ALJ might have been justified in drawing an inference that the missing testimony would have been damaging to the Union. Here, however, there was no hearing and no such phantom testimony. The Union did not fail to provide evidence in its control; it merely agreed, jointly with the Company, to a stipulation of facts. There is absolutely no justification for drawing an inference against the Union merely because it agreed to a joint stipulation of facts.