NLRB Reverses ALJ Who Found Worker Not Credible Because He Testified To Using A False SSN To Obtain Employment

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

NLRB REVERSES ALJ WHO FOUND WORKER NOT CREDIBLE BECAUSE HE TESTIFIED TO USING A FALSE SSN TO OBTAIN EMPLOYMENT
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

The National Labor Relations Board (NLRB) has decided that an administrative law judge’s decision to discredit a worker’s testimony solely because he testified to presenting a false Social Security number (SSN) to obtain employment was erroneous, and it has remanded the case for reconsideration of that particular issue. The NLRB found that the ALJ’s decision amounted to a sanction against the employee for his conduct and was not a proper credibility determination. The NLRB noted that if this type of sanction were allowed, it would essentially deny the protections of the National Labor Relations Act (NLRA) to anyone who had made false statements regarding his SSN or immigration status, and that this result would be inconsistent with the NLRA’s coverage of undocumented workers.

This case originated in 2001 when the general counsel of the iron workers union in Miami, Florida, charged that Double D Construction violated the NLRA by, among other things, discharging Tomas Sanchez and making a threatening statement to him two days before an election was held to decide whether Double D’s workers would join the union.

The uncontested evidence showed that a supervisor “pointed and shook his index finger at Mr. Sanchez and repeated three times, ‘Remember your bills.’” Sanchez testified that he understood this message to mean that if he voted for the union, he would be fired and be unable to pay his bills. The ALJ found that this testimony lacked credibility and held that the statement “was merely a reference to a legitimate election campaign theme of the [employer], which emphasized the Union’s wasteful expenditure of employees’ dues money”—even though he also found that the employer had threatened to close the company if the union won the election. The ALJ questioned the credibility of Sanchez’s testimony concerning his discharge and instead credited a supervisor who testified that Sanchez had simply stopped showing up for work.

The ALJ discounted the credibility of Sanchez’s testimony in its entirety because Sanchez “admitted [on the stand] that when he applied for work with [the employer], he used a false Social Security number.” It appears that Sanchez later acquired a valid SSN, which he provided to his employer.

The NLRB noted that, rather than disqualifying Sanchez as a credible witness solely on this issue, the ALJ should have made a “true credibility determination” by considering Sanchez’s testimony along with other factors, such as “his demeanor, the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole.” The NLRB also cited to a history of prior decisions in which it had credited witnesses who made false statements on employment applications or unemployment claims, if their testimony could otherwise be judged reliable.

In addition, the NLRB rejected the dissent’s opinion finding that the ALJ had properly exercised judicial discretion and that judicial restraint counseled against the NLRB’s reconsideration of his determination. Unlike the dissent’s, the majority’s reading of the Immigration Reform and Control Act of 1986 (IRCA) is that a person who has violated a provision of the IRCA, such as by providing a false SSN on an employment application or on an I-9 employment eligibility verification form, is not disqualified from serving as a witness in federal legal proceedings, which in essence would be the result of the ALJ’s underlying decision.

The majority also clarified that this decision should not be read as holding that an employee’s use of a false SSN can never be taken into account, but that a careful analysis into all the factors that bear on the witness’s credibility “at the time of his testimony” is required (emphasis in original). The NLRB found unacceptable the ALJ’s inference that because Sanchez had once used a false SSN, he was giving false testimony once again. The NLRB distinguished the two situations, stating that “[w]ith respect to the incentives for truth-telling, filling out a government immigration form in the workplace—even one that recites the criminal penalties for false statements in the event the signer’s false statement is detected and leads to a conviction—is not the same as testifying under oath in a legal proceeding. This may be particularly true with respect to immigrants who face compelling pressure to find work and earn a livelihood.”

Finally, in his concurring opinion, recently appointed NLRB member Alex Acosta reiterated the NLRB’s commitment to enforce the NLRA on behalf of undocumented workers since the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, stating that “this requires an understanding of the workplace and the realities faced by these individuals.”

Double D Construction Group, Inc., 339 NLRB No.8, 2003
N.L.R.B. LEXIS 318 (June 17, 2003).