CASE PROCESSING PROCEDURES; EVIDENCE – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

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1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

To resolve a dispute over whether supervisor knew Charging Parties participated in a lunchtime union demonstration, the Board needed to make a credibility determination. The ALJ credited the supervisor over Charging Parties on this point because of non-observational factors, noting alleged inconsistencies in Charging Party’s testimony and finding supervisor’s testimony relatively consistent. While the Board generally defers to an ALJ’s credibility determination based on observational factors, it accords no particular deference to those aspects of an ALJ's credibility determination, such as those relied on here, that are not based on the ALJ’s firsthand observations. The Board found that supervisor was repeatedly inconsistent or less than truthful when asked about union activity in the shop. Likewise, the Board rejected employer’s arguments that Charging Party was not credible because of minimal differences in various statements he made during the employer’s investigation. Both Charging Party and supervisor showed efforts—common among witnesses in a fraught trial—to bend events to their pre-determined viewpoint. Neither is inherently more believable than the other as to every point. (pp. 16-21.)