My Cousin Vinny was a wonderful movie in many respects. One of those respects involves the cross examination by Vinny of a so-called eye witness. After close questioning, the “eye witness” admitted he had made eggs and grits while the two defendants were supposedly robbing a small, rural store. As Vinny explained, the witness could not have possibly cooked his 20 minute grits and eggs during the five minutes he said he saw the defendants enter and rob the store. His time estimate was way off. As cross examinations go, it was actually good.

In Novato Healthcare Center v. National Labor Relations Board, No. 17-1221 (D.C.Cir. 3/5/2019), the employer fired four union organizers two days before the election to unionize. Like Vinny’s two defendants, the case here turned on the testimony of one person, a supervisor who allegedly saw the four organizers sleeping on the job. In reaching its result, the District of Columbia Court of Appeals could not help but point to Vinny as precedent for skilled cross-examination. The supervisor testified that she saw the four workers asleep and then 21 minutes later, the workers were still asleep. The supervisor then took she took a picture of two of the workers/organizers. If they slept more than 10 minutes, the maximum time allowed for a personal break, then they committed a fireable offense.

The four workers were working the night shift at a healthcare facility. The job duties slow down a great deal at 4:00 a.m., but they still cannot sleep while on duty. So, the question becomes were they on duty when the supervisor took the picture of them sleeping? The supervisor said she saw them asleep at about 4:00 a.m. and then still asleep at 4:21 a.m., the time of her photo. So, that would mean they had slept 21 minutes or longer.

The supervisor, however, lost her credibility when under cross-examination, she admitted to performing the following tasks during that alleged 5-10 minutes:

• drove three blocks to the healthcare facility, stopping at one stop sign about mid-way
• parked her car and went into the facility
• walked to her office where she logged onto her computer and checked email
• walked to the facility kitchen, where she checked the temperature logs for a refrigerator and for a walk-in freezer, and checked the labels and dates of the items in the refrigerator
• walked to and through the break room, where she used the rest room and collected anti-union organizing material
• gone back to her office and read the anti-union flyers
• walked down the hallway, peeking into rooms along the way, checking on patients
• and then arrived at a nurse’s station where she claims she saw the two workers (organizers/employees) asleep

And, she had already admitted under direct examination that she also opened the oven doors, inspected the stove and tidied up the kitchen. As the court of appeals recognized, that was just too many tasks for 15-20 minutes. At another portion of her cross-examination, she estimated the time it took for these various activities, one-by-one. Those time estimates pushed the time period even longer. It did not help her testimony that she denied knowing the workers were union organizers, when testimony had already established they were wearing union lanyards.Or, that she had initially denied wearing an anti-union lanyard that day and later had to retract her denial.

Too, she said all four employees were asleep at 4:21. Yet, she only took pictures of two of the sleeping workers. And, she made no attempt to wake them up. It strains credulity to think a supervisor would not wake a sleeping employee at a healthcare facility. The D.C. Court of Appeals would not buy it. After all, neither would Vinny if he were writing the opinion.

See the decision here.