Penasquitos Village, Inc., Penasquitos Gardens, Inc., Penasquitos Hills, Inc., and San Diego Leisure Life Village v. National Labor Relations Board , 565 F.2d 1074 ( 1977 )

DUNIWAY, Circuit Judge

(concurring in part and dissenting in part):

I concur in the result reached in part II A of Judge Wallace’s opinion, but I have some reservations about the rationale by which that result is reached. I dissent from part II B of the opinion, and would enforce the part of the Board’s order that is considered in part II B.

I.

My reservations relate to Judge Wallace’s adoption of the dichotomy between “credibility determinations based on demeanor . testimonial inferences” and those based on “inferences drawn from the evidence itself — . . . derivative inferences. . . ” This distinction he finds in a concurring opinion of Judge Frank in NLRB v. Universal Camera Corp., 2 Cir., 1951, 190 F.2d 429, 432, on remand from Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Judge Wallace is careful to emphasize that the administrative law judge’s determinations of credibility are not conclusive, but I am concerned lest the dichotomy that he adopts may result in future decisions that are merely mechanical applications of labels, which hinder rather than help the intelligent and principled application or growth of the law. I fear that Judge Wallace’s opinion may have just such an effect, one which, I am sure, he does not intend, and which he properly disavows.

The notion that special deference is owed to the determination of a trier of fact, whether judge, trial examiner, hearing officer (“administrative law judge”), or jury, because the trier “sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records,” NLRB v. Walton Manufacturing Co., 1962, 369 U.S. 404, 408, 82 S.Ct. 853, 855, 7 L.Ed.2d 829, is deeply imbedded in the law. There must be thousands of appellate decisions that state and restate it in an infinite variety of ways. I could not disregard it if I would; indeed, I have no desire to do so. As a generalization, it is unassailable.

In his opinion, Judge Wallace fleshes it out:

All aspects of the witnesses’s demeanor— including the expression of his countenance, how he sits or stands, whether he is inordinately nervous, his coloration during critical examination, the modulation or pace of his speech and other nonverbal communication — may convince the observing trial judge that the witness is testifying truthfully or falsely. These same very important factors, however, are entirely unavailable to a reader of the transcript, such as the Board or the Court of Appeals.

Here is where I begin to have difficulty. I venture to suggest that, as to every one of the factors that Judge Wallace lists, one trier of fact may take it to indicate that the witness is truthful and another may think that it shows that the witness is lying.

I am convinced, both from experience as a trial lawyer and from experience as an appellate judge, that much that is thought and said about the trier of fact as a lie detector is myth or folklore. Every trial lawyer knows, and most trial judges will admit, that it is not unusual for an accomplished liar to fool a jury (or, even, heaven forbid, a trial judge) into believing him because his demeanor is so convincing. The expression of his countenance may be open and frank; he may sit squarely in the chair, with no squirming; he may show no nervousness; his answers to questions may be clear, concise and audible, and given without hesitation; his coloration may be normal — neither pale nor flushed. In short, he may appear to be the trial lawyer’s ideal witness. He may also be a consummate liar. In such a case, the fact finder may fit Iago’s description of Othello:

The Moor is of a free and open nature, That thinks men honest that but seem to be so;

And will as tenderly be led by the nose as asses are.

(Othello, Act 1, Sc. 3, 1. 405-8)

On the other hand, another fact finder seeing and hearing the same witness may conclude that he is just too good a testifier, that he is an expert actor, and that he is also a liar.

Conversely, many trial lawyers, and some trial judges, will admit that the demeanor of a perfectly honest but unsophisticated or timid witness may be — or can be made by an astute cross-examiner to be — such that he will be thought by the jury or the judge to be a liar. He may be unable to face the cross-examiner, the jury, or the judge; he may slouch and squirm in the chair; he may be obviously tense and nervous; his answers to questions may be indirect, rambling, and inaudible; he may hesitate before answering; he may alternately turn pale and blush. In short, he may, to the trier of fact, be a liar, but in fact be entirely truthful. Again, however, another fact finder, seeing and hearing the same witness, may attribute his demeanor to the natural timidity of the average not very well educated and non-public sort of person when dragged to court against his will and forced to testify and face a hostile cross-examiner, and conclude that the witness is telling the truth.

While there are innumerable cases that' state and restate the importance of a witness’s demeanor to the trier of fact, there are very few that deal with the proper effect of this or that aspect of demeanor. Those that I can find tend to confirm my view that myth and folklore are involved.

In Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321, the Supreme Court reversed because the trial judge had commented to the jury:

And now I am going to tell you what I think of the defendant’s testimony. You may have noticed, Mr. Foreman and gentlemen, that he wiped his hands during his testimony. It is rather a curious thing, but that is almost always an indication of lying. Why it should be so we don’t know, but that is the fact. I think that every single word that man said, except when he agreed with the Government’s testimony, was a lie.

289 U.S. at 468, 53 S.Ct. at 698.

In People v. Patubo, 1937, 9 Cal.2d 537, 71 P.2d 270, the California Supreme Court reversed a murder conviction when the trial judge commented:

Now you can see this man’s manner of testifying in the courtroom when he was on the witness stand. He had that hangdog look of a guilty man. He could not talk hardly above a whisper and he could not talk so the court could hear him. .

If ever a man by his appearance and his manner of giving testimony has shown himself to be a willful, deliberate and outright perjurer as to material facts in a case, the defendant in this case has been it.

71 P.2d at 272.

In United States v. Meltzer, 7 Cir., 1938, 100 F.2d 739, the trial judge said to the jury:

But that brother in law of Mrs. Lage, Oscar Ellefson; he looked to me and he seemed to me like an honest man, I can’t see any reason why he, with his responsible position, with the Wisconsin Telephone Company, why he should be here telling anything other than the truth. He is not accustomed to courts. Maybe this was the first time that he has ever been in a court, and he meticulously tried to tell the truth ; therefore, he was slow in his testimony; his mind doesn’t operate very rapidly, at best; he works out on construction jobs; he seemed to me like an honest man; .

(Emphasis in original) 100 F.2d at 742. The Seventh Circuit reversed.

In People v. Earl, 1935, 10 Cal.App.2d 163, 166, 51 P.2d 147, 148, the trial judge characterized a witness’s testimony as follows: “I have tried to get this witness to speak like a man, but it doesn’t seem to do any good. He doesn’t seem to want the jury to hear his testimony.” The judge later cross-examined the same witness as to whether or not he ever told the truth. The appellate court found these statements to be error, but harmless.

The Labor Board itself has refused to accept a trial examiner’s credibility findings when they were supported by comments like this:

To credit her, youthful, buxom and attractive as she was, and to disregard the contradictory testimony of many less fancy, but more solid people would require the trier of fact to be completely “bewitched, bothered and bewildered.” Hadley Manufacturing Corp., 1954, 108 N.L.R.B. 1641, 1644.

Finally, in Dworkis v. Dworkis, 1959, Fla. App., 111 So.2d 70, a Florida appellate court overturned a lower court decision in which “[t]he chancellor believed the husband and disbelieved the wife; and in absence of other corroboration, found corroboration for the husband’s testimony regarding adultery in the demeanor and attitude of the wife during the trial.” 111 So.2d at 74. However, the opinion does not mention exactly why the witness’s demeanor indicated that she had committed adultery. One might perhaps be excused for wondering about it.

I write to suggest that Judge Wallace’s dichotomy should not be taken to protect the myth and folklore behind an almost impenetrable wall. I do not want fact finders to believe that to make their findings almost totally unassailable they need only use the right incantation: “I don’t (or I do) believe him because of his demeanor,” or “on the basis of testimonial inferences.”

I doubt if there are many cases in which the fact finder relies on demeanor alone. There may not be any; I hope that there are none. I think that in every ease in which he thinks about what he is doing, the fact finder should and does consider both the demeanor of the witness and what he says — the content of his testimony — and weighs those factors in relation to the fact finder’s knowledge of life’s realities, the internal consistency of what the witness is saying, and its consistency, or lack of it, with the other evidence in the case, testimonial, documentary, and physical. The fact finding as to credibility of the witness should be, and is, based on all of these things. Judge Wallace’s dichotomy seems to me to give to demeanor a more important effect than it ought to be given, considering the inherent ambiguities in demeanor itself. Anyone who really believes that he can infallibly determine credibility solely on the basis of observed demeanor is naive.

I do not at all mean to suggest that the demeanor of a witness is not, or ought not to be, an important factor in the process of fact finding. The law would not permit me to so hold if I wished to, and I do not wish to. But I am wary of overemphasizing demeanor. As Judge Merrill said when speaking for this court in Carbo v. United States, 9 Cir., 314 F.2d 718 at 749:

Credibility involves more than demeanor. It apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence.

We need a bit more play in the joints of the reviewing process than I discern in Judge Wallace’s analysis, and this is particularly true when we deal with review by the Board, which the law makes the primary fact finder, of the findings of its own delegate, its Administrative Law Judge. The Board should have, and does have, more leeway in making its own findings, and in rejecting findings of its trial examiners, than we have in reviewing the Board’s findings or those of a trial judge or jury. Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 492, 71 S.Ct. 456, 467, 95 L.Ed. 456:

Section 10(c) of the Labor Management Relations Act provides that “If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact . . . 61 Stat. 147, 29 U.S.C. (Supp. Ill) § 160(c). The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner’s findings only when they are “clearly erroneous.”

I conclude that Judge Lumbard was right when he said in NLRB v. Interboro Contractors, Inc., 2 Cir., 1967, 388 F.2d 495, at 499:

While the standard set forth in Universal Camera is imprecise, “it provides as much clarity as the area affords.” Bon-R Reproductions Inc. v. NLRB, 309 F.2d 898 (2 Cir. 1962).

II.

Having stated my doubts about Judge Wallace’s dichotomy, I nevertheless agree with the result that he reaches in part II A of his opinion. The evidence as a whole, including the credibility rulings of the administrative law judge, seems to me too thin to be called substantial support for the Board’s findings. I therefore concur in the result stated in part II A.

III.

I do not concur in part II B. As Judge Wallace observes, the question is “extremely close.” In such a case, I give more weight to the experience and expertise of the Board than he does. I refer particularly to the two uncontradicted facts, the abruptness and the timing of the discharges. I cannot say that the inferences that the Board drew from these facts are “irrational” or “tenuous” or “unwarranted” (Judge Wallace’s opinion at 1079), or “arbitrary” (id. at 1082).

I would enforce that part of the Board’s order that deals with the discharges of Rios and Martinez.