(concurring in part, dissenting in part):
The National Labor Relations Board (hereinafter the “Board”) is permitted *1349to draw reasonable inferences from facts presented to it, Republic Aviation Corp. v. NLRB, 324 U.S. 793, 800, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), including an adverse inference from the failure to produce relevant evidence. NLRB v. Wal-lick, 198 F.2d 477, 483 (3rd Cir. 1952). The majority concludes that in the case at bar the Board must draw an adverse inference from Gyrodyne’s failure to produce the requested documents.1 While I concur in the thirty day reprieve granted Gyrodyne, I respectfully dissent from the majority’s mandate to draw the requested inference.
The adverse inference rule speaks to a permissive inference which may be drawn by the trier of fact, not a mandatory inference which an appellate tribunal directs must be drawn. Although the rule has been applied in the areas of criminal,2 civil,3 and administrative law,4 it has been consistently treated as a permissive one invocable by the trier of fact.5 See, e. g., Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59 S. Ct. 467, 83 L.Ed. 610 (1939) (failure to call witness “is itself persuasive”); Tendler v. Jaffe, 92 U.S.App.D.C. 2, 7, 203 F.2d 14,19 (1953) (“aids the case”); Washington Gas Light Co. v. Biancaniello, 87 U.S.App.D.C. 164, 167, 183 F. 2d 982, 985 (1950) (“permits” the inference) ; NLRB v. Wallick, supra, 198 F.2d at 483 (Board “warranted” in drawing inference).
Professor Wigmore states the rule as follows: “The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its [tenor is unfavorable to the party’s cause].” 2 J. Wigmore, Evidence § 285, p. 162 (3rd ed. 1940) (Emphasis supplied). Where there has been a failure to produce, Professor Jones states the “court may properly instruct the jury that they may infer that the documentary evidence would have operated unfavorably to the party refusing to produce it.” 1 B. Jones, Evidence, § 28, p. 62 (5th ed. 1958) (Emphasis supplied).
In speaking of inferences this court has stated that it is a “conclusion which the jury is permitted, but not compelled, to draw from the facts.” Bray v. United States, 113 U.S.App.D.C. 136, 140, 306 F.2d 743, 747 (1962) (Emphasis in original). See United States v. Johnson, 140 U.S.App.D.C. 54, 63-64, 433 F.2d 1160, 1169-1170 (1970); Pendergrast v. United States, 135 U.S.App.D.C. 20, 30-33, 416 F.2d 776, 786-789 (1969); Black’s Law Dictionary 917 (4th ed. 1957) (“An inference being a deduction which the trier may or may not make according to his own conclusions.”).
The law is succinctly stated in Aetna Casualty & Surety Co. v. Smith, 127 A. 2d 556 (D.C.Mun.App. 1956):
Assuming there was sufficient foundation for an unfavorable inference of this kind, the fact that the trial court failed to draw the inference constitutes no error reviewable on appeal. The inference arising from the refusal or unexplained failure to produce relevant documentary evidence is permis*1350sive in nature, and is merely another factor which may be given consideration by the trier of the facts when weighing the evidence and determining the credibility of witnesses. *******
The trial court could have drawn an unfavorable inference, but it was not required to do so and apparently chose not to. Failure of the trier of the facts to draw an inference, permissible in nature, cannot be advanced to an appellate court as a ground justifying reversal of the judgment.
Id. at 559. See also Edwards v. Zahner, 395 S.W.2d 185, 191 (Mo.1965) ; Sorby v. Three Rivers Motors, 178 Pa.Super. 187, 114 A.2d 347 (1955).
An inference is within the discretion of the trier of fact. Congress has placed the authority to draw inferences in the Board not the courts. NLRB v. Link-Belt Co., 311 U.S. 584, 597, 61 S.Ct. 358, 85 L.Ed. 368 (1941); NLRB v. Falk Corp., 308 U.S. 453, 461, 60 S.Ct. 307, 84 L.Ed. 396 (1940). Decisions, “beyond [the] possibility of misunderstanding, have repeatedly reminded us that the power to draw inferences was entrusted to the Board and not to the courts.” NLRB v. American Creosoting Co., 139 F.2d 193; 195 (6th Cir. 1943). See Standard Generator Serv. Co. v. NLRB, 186 F.2d 606, 607 (8th Cir. 1951); NL RB v. Mt. Ciemens Pottery Co., 147 F. 2d 262, 264 (6th Cir. 1945). Indeed, the right has been denominated “unquestionably exclusive.” NLRB v. Austin Co., 165 F.2d 592, 596 (7th Cir. 1947). Notwithstanding the majority’s assertion that several decisions “suggest” that a court might reverse the Board for failing to draw an adverse inference, not a single decision cited by the majority does so.6 Nor is there a decision cited wherein a court ordered the Board to draw an adverse inference.7
Moreover, the decisional law is supported by the facts in the instant case. The Board justifiably refused to draw the inference 8 because inter alia credited *1351testimony indicated that none of the discharged employees were subsequently rehired.9 It is established that the credibility of witnesses is a matter peculiarly within the province of the trier of fact. Indeed, it has been held that the evaluation of oral testimony may not be upset by a court unless it is “hopelessly incredible.” NLRB v. Dinion Coil Co., 201 F.2d 484, 490 (2nd Cir. 1952). Had the oral testimony been unreliable or controverted the subpoenaed materials would, of course have assumed greater importance.10
The majority itself alludes to the type of evidence in dispute here as that “which the trier of fact should consider, whether he be judge, trial examiner, or member of a jury.” It is submitted that this is precisely what transpired. The trier of fact after due consideration concluded that the adverse inference rule should not be applied to the particular facts at bar. We should not substitute our judgment for that of the Board’s.
Moreover, the Board in its supplemental decision stated:
Even assuming, arguendo, adverse inferences were to be drawn from the Respondent’s failure to produce, we nevertheless do not believe that such inferences as could be drawn would produce a sufficient evidentiary base for reversing our Decision herein, particularly in view of the Trial Examiner’s credibility findings which were based on evidence subsequently adduced by the Employer. (Supp.App. 39.)
The majority chides the Board for “speculating” on the possible results of an adverse inference and yet with necromantic elan goes on to do precisely that which it had just condemned by itself engaging in speculation.
Judicial review of administrative decisions is narrowly circumscribed in order to encourage autonomy and allow greater expression to agency expertise. Unfortunately, the decision of the majority abnegates the traditional respect we have accorded agencies as “collaborative instrumentalities of justice.” 11 I respectfully dissent.
. The majority characterizes Gyrodyne’s failure to produce the subpoenaed materials as “defiance” of the Board’s compulsory process. The record, however, indicates, as the Board noted in its supplementary decision, that the General Counsel and the charging party refused some documents produced; that Gyrodyne did produce many of the documents requested; and that when the General Counsel asked Gyrodyne if it had a list of employees transferred and hired or rehired, the matter was dropped after obtaining an affirmative response. (Supp.App. 3-4, 39).
. 8 J. Wigmore, Evidence § 2273 (3rd ed. 1940).
. Washington Gas Light Co. v. Biancaniel-lo, 87 U.S.App.D.C. 164, 183 F.2d 982 (1950).
. P.R. Mallory & Co. v. NLRB, 400 F.2d 956 (7th Cir. 1968).
. Admittedly, there is considerable confusion as to the distinction between a presumption and an inference. It is submitted, however, that those decisions which use the word “presumption” in reference to the adverse inference rule are using it as a permissive presumption much like an inference. See, e. g., Hall v. Van-derpool, 156 Pa. 152, 26 A. 1069 (1893).
. In both cases cited by the majority the court held there was not substantial evidence in the record as a whole to support the Board’s findings. In NLRB v. Ford Radio & Mica Corp., 258 F.2d 457 (2nd Cir. 1958), the court held there was “no evidence whatsoever” in the record to show that the employer knew the employees were engaging in protected activity and that they were discharged for engaging in such activities. Id. at 462. In passing the court noted that General Counsel’s failure to elicit testimony of a disinterested witness “may well be taken to mean that the information was adverse to his case.” Id. at 463. This is hardly a suggestion that the court would reverse the Board for failure to draw an adverse inference. In NLRB v. Selwyn Shoe Manufacturing Corp., 428 F.2d 217 (8th Cir. 1970), the court’s holding was that there was not substantial evidence to support the Board’s findings of §§ 8(a) (3) and (1) violations. The comments of the Selwyn court set forth by the majority in footnote 44 must be viewed in the context of the unique position of General Counsel in Board proceedings. As the Selwyn court indicated: “The General Counsel has responsibilities beyond that of a mere adversary. As a public official he has a duty and obligation to be fair to all parties and not to knowingly suppress relevant evidence.” Id. at 225. Moreover, in Selwyn the testimony of the suppressing party was discredited by both the Board and the examiner whereas in the instant case both credited the testimony of Papadakos.
. In our previous disposition of this case I joined in the decision that the case “must be remanded to the Board, which may (1) explain its failure to draw the requested inferences, (2) draw the inferences and explain the consequences, or (3) require production of the records.” International Union, U.A., A & A. Imp. Wkrs. v. NLRB, 136 U.S.App.D.C. 104, 105, 419 F.2d 6S6, 687 (1969). In that decision we, however, cited no authority which permits an appellate tribunal to require a trier of fact to draw an adverse inference permissive in nature. Upon further reflection I am now convinced that we improvidently remanded the case in our first decision.
. No unfavorable inference arises from a failure to produce evidence where “the contents of a desired instrument are fully and satisfactorily proved by other evidence.” 1 B. Jones, Evidence, § 29, p. 63 (5th ed. 1958).
. The Board stated in its supplemental decision :
Regarding a list of employees rehired, the record shows and the testimony was credited, that none of the laid off or discharged employees were subsequently rehired. There was also credited testimony that further terminations had taken place subsequent to the alleged discriminatory discharges which were not even alleged as discriminatory. And the record discloses that the total number of employees dropped substantially from the time of the alleged discriminatory layoffs until the time of the hearing. (Supp.App. 38).
See also Supp.App. 9, 24, 27.
. See Hanson v. Eustace’s Lessee, 43 U.S. (2 How. 665) 653, 708, 11 L.Ed. 416 (1844).
. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941).