Episode 18

Labor Law Lineup Ep18 - Credibility Matters

Hosted by Mark G. Eskenazi and Katherine Cohodes.

Witness credibility is critical in an NLRB case or arbitration.

The views expressed in this podcast are those of the participants and should not be considered the views of Fox Rothschild LLP or its attorneys. This podcast is for informational purposes only, is not legal advice, and does not create an attorney-client relationship.

The views expressed in this podcast are those of the participants and should not be considered the views of Fox Rothschild, LLP, or its attorneys.

This podcast is for informational purposes only, is not legal advice and does not create an attorney-client relationship.

Welcome to "Labor Law Lineup." I'm Mark Eskenazi.

And I'm Katie Cohodes.

Mark

We're labor and employment attorneys at Fox Rothschild breaking down how the current state of labor law affects your workplace.

Mark draws on deep experience shaping federal labor policy at both the White House and the National Labor Relations Board.

Katie offers sharp insight as former in-house counsel who's dealt firsthand with a broad range of workplace challenges.

Together, we break down labor law news for people leaders.

And we promise to keep it brief, because we know your time is valuable and your inbox is full.

Please reach out if you're a client of Fox Rothschild or a listener who wants to continue the conversation on anything we cover.

Today we're diving into a crucial topic, witness credibility.

Essentially, it's about how the NLRB figures out if someone's telling the truth.

We often talk about workplace investigations, but it's easy for HR leaders to forget that these investigations can actually lead to full-blown trials.

That's where witness credibility becomes critical.

What people say during the initial HR investigation and how they present themselves later on can make or break an NLRB case or an arbitration.

And it's a really big deal.

The Supreme Court said way back in 1951 that the NLRB Administrative Law judge, the person who actually watches your witness testify and literally

lived with the case, is in the best spot to decide who's being truthful.

That core principle has stuck around ever since.

The appeals courts have been super clear that they really don't like to second guess what the ALJ decides.

Some courts have even said they won't touch credibility findings unless the testimony is, and I love this

phrase, "hopelessly incredible." That's a high bar.

So what does this look like in practice?

The board often includes a standard credibility footnote in decision after decision, when parties try to challenge these findings.

This footnote basically dismisses appeals based on credibility.

The board, much like the courts has explicitly stated that demeanor evidence, meaning how a witness acts, their body language,

tone and reactions, gives the fact finder a ton of discretion.

Honestly, there's just no substitute for an ALJ's direct observation of a witness in real time.

Yes, and it's not just about a witness's behavior, attitude or mannerisms while testifying.

ALJs also weigh whether a witness's testimony is consistent with or contradicted by documentary evidence.

So if your witness says one thing on the stand, but the emails, payroll records or other documents tell a different story,

that inconsistency can seriously undercut their credibility.

Exactly, and if your star witness loses credibility at the hearing, don't count on getting a second shot on appeal.

In a prior episode, we discussed a recent board decision that centered on a credibility dispute.

The board asked the ALJ to make a credibility determination over whether an employer sufficiently responded to a union's information request.

So, Mark, the question of who to believe comes up often and management should be prepared.

Yes, for sure.

Witnesses are critical and that should be taken into account when assessing a case with counsel.

Thanks for listening.