NLRB ALJ reversed for using sex stereotypes and demonstrated bias

In an amazing display of sexual stereotyping, an administrative law judge for the NLRB ruled that a female truck driver's testimony lacked credibility. But the full Board stepped in and vacated the ALJ's decision, and remanded the case for a brand new hearing in front of a different ALJ. International Longshoremen's Association, Local 28 (Ceres Gulf Inc.) (NLRB 02/20/2018) [PDF].

Truck driver Donna Mata charged her union with a violating its duty of fair representation by (1) refusing to refer Mata for training based on her sex; and (2) soliciting her to withdraw her unfair labor practice charge. The ALJ dismissed her charge because he credited the testimony of the training coordinator rather than Mata.

In an extremely short opinion, the Board said, in part,

"We agree that the judge erred by relying in part on improper bases in making his credibility determinations, but rather than reverse the judge, we will vacate the judge’s decision and remand to the chief administrative law judge for reassignment to a different judge for a hearing de novo."

The ALJ stated four reasons to discredit Mata's testimony. Here is the one that reeks of sexism:

"Third, the implausibility of several key parts of her story further undercuts her creditability. It is simply implausible that Mata, who appeared to be a tough woman who performs stevedoring work on the docks and previously drove a truck in Iraq, would have meekly allowed Harris to harass and assault her a whopping 10 times, without an utterance. It is even less plausible that she would have tolerated such egregious misconduct to preserve a job that only paid her less than $10,000 annually. (R. Exh. 7.) It is still less plausible that a woman, who was empowered by having two relatives holding influential union positions (e.g., San Miguel Jr. and San Miguel Sr.), would have allowed Harris to repeatedly violate her. It is also implausible that, if Harris withheld training because she rejected his advances from 2010 to 2015, as she alleges, he would have then enrolled her for training in June 2015 after her rejection. (R. Exh. 2.) It is also implausible that Mata, who claims that she was too embarrassed to complain about sexual harassment, would have not opted to address her training problems by solely complaining about Harris’ other reportedly less embarrassing comments (e.g., his alleged comment that, as a driver, she did not require training, or that he did not want to train her to perform grimy jobs)."

The NLRB's decision was by Chairman Kaplan, Member Emanuel (both Republicans), and Member Pearce (Democrat).