DATE: March 16, 1987
CASE NO. 86-STA-6

CURTIS McDANIEL
    Complainant,

    v.

BOYD BROTHERS TRANSPORTATION
    Respondent.

BEFORE: THE SECRETARY OF LABOR

    This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305(b) (1982),¹ which prohibits a covered employer from discriminating against an employee because the employee has refused to operate a vehicle in violation of Federal rules, regulations, standards or orders applicable to commercial motor vehicle safety or health.

    The case is before me on the Recommended Decision and Order (R. D. and O.) of Administrative Law Judge Quentin P. McColgin (ALJ) issued on December 2, 1986. The ALJ found "that complainant has failed to prove his prima facie case of discrimination" and that Respondent "did not fire complainant for refusing to drive more hours than the regulations allow." The ALJ further found 'that complainant resigned due to payroll problems he was having with the [Respondent]." R. D. and O. at 6. Therefore the ALJ recommended that the complaint be dismissed. R. D. and O. at 9.

    The ALJ based his findings on the testimony of Respondent's witnesses which he accepted as more plausible than the conflicting testimony of Complainant and his wife which he rejected.² R. D. and O. at 7. The ALJ, who heard the witnesses and observed their demeanor, is "uniquely able to make credibility determinations." N.L.R.B. v. Jacob E. Decker and Sons, 569 F.2d 357, 364 (5th Cir. 1978). When resolution of the case depends, as it does here, on witness credibility, "special deference must be paid to the ALJ's conclusion." Centre Property Management v. N.L.R.B., 807 F.2d 1264, 1268, (5th Cir. 1987). See also N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).

    Complainant, however, has filed a brief with me incorporating by reference the Legal and Evidentiary Brief previously filed with the ALJ and the accompanying 'Affidavit" of Ronald M. Mesa, a field investigator for the Department of Labor. Complainant had filed with the ALJ a motion to Supplement The Administrative Record (Motion to Supplement) with the "affidavit"³ after the hearing but prior to issuance of the R. D. and O. The basis for the motion was that "said evidence was not attainable at the time of the hearing due to the fact that Complainant did not have full [access] to Mr. Mesa's file." Motion to Supplement. Respondent moved to strike the motion to supplement because inter alia, "[t]he witness testified at Trial, and the contention that the evidence was unattainable is not true."

    The ALJ did not discuss the motion to supplement the administrative record in his R. D. and O. but his failure to grant the motion or discuss the statement constitutes an implicit denial of Complainant's motion. In any event, the record should not have been reopened since the statement submitted was not "'newly discovered evidence . . . in existence of which a party was excusably ignorant, discovered after trial.'" N.L.R.B. v. Jacob E. Decker and Sons, 569 F.2d at 363 (quoting United States v. 41 Cases, More or Less, 420 F.2d 1126, 1132

    As the transcript makes plain, Respondent's argument that Mr. Mesa testified at the hearing is correct. T. 115-126 and 276-300. Indeed, he testified after all of Respondent's witnesses had testified and could have been questioned as to any and all matters discussed in the statement. Complainant's claim that he was hampered by lack of access to the investigative record, which I note is not part of the record in this proceeding, is unavailing. Complainant admittedly had full access to Mr. Mesa's recollection, aided by Mesa's cooperation, see Objection to Recommended Decision and Order of Quentin P. McColgin, Administrative Law Judge at 2 (Objection to R. D. and O.), and the "failure to show diligence" to discover the evidence "before the close of the hearing," Decker, 569 F.2d at 365, militates against reopening the record.

    There is, however, another reason that the record should not have been

    The record properly before me in this case has been thoroughly reviewed. It fully supports the ALJ's finding that Complainant was not fired by Respondent but, had resigned because of payroll problems⁴ and the ALJ's conclusion that Complainant had failed to establish a prima facie case of discrimination.

    Therefore I adopt the ALJ's R. D. and O., which is appended and made a part hereof, as my own.

    Accordingly, the complaint in this case is DISMISSED.

    SO ORDERED

       WILLIAM E. BROCK
       Secretary of Labor

Washington, D.C.

¹Section 2305 (b) provides:

No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition.

²Counsel for the Complainant recognized "that the credibility factor is the key thing here, and that [the ALJ was] going to have to weigh out the factor of who is telling the truth." Transcript of hearing (T.) at 310.

³It should be noted that the document submitted and characterized by Complainant's counsel as an "affidavit" is not a sworn statement: nor does it meet the provisions of 28 U.S.C. § 1746 (1982) which provide for submission "with like force and effect" of unsworn statements when properly executed.

⁴It is noted that Complainant had a prior period of employment with Respondent but had quit "because he didn't get his checks on time", R. D. and O. at 2, and that on his last day of employment he told Larry Davis, the Terminal Manager who allegedly fired him, that he was not having a problem with his wife, "but you people probably are because you won't send my check like you are supposed to on time." T. at 50-51.