In Moyer v. Yellow Freight System, Inc., 89-STA-7
(Sec'y Oct. 21, 1993), the Secretary addressed how to interpret
employee protection provisions:
Statutory provisions which protect employees for
participating in agency proceedings are accorded
"exceptionally" broad application. [citations
omitted] The purpose of employee protection provisions is
to protect all forms of access to respective agencies at all
stages of administrative process and thus to prevent
agencies' channels of information from "being dried up
by employer intimidation . . . ." NLRB v.
Scrivener, 405 U.S. 117, 121-124 (1972) (equal and
consistent protection at all stages of investigation and
litigation essential to preserving integrity of the process
in its entirety); DeFord v. Secretary of Labor, 700
F.2d 281, 286 (6th Cir. 1983). [additional citations
omitted] * * *
[STAA Whistleblower Digest III A]
STATUTORY CONSTRUCTION; OBLIGATION OF ALJ NOT TO ACCEPT AS
STARE DECISIS APPELLATE RULINGS WHERE OSHA DID NOT ACTIVELY
PARTICIPATE IN PRIOR CASE
In Ass't Sec'y & Bates v. West Bank
Containers, ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the
ALJ ruled as a matter of law that Complainant engaged in protected activity when he made
internal safety complaints of an overweight load. Respondent had argued that safety complaints
are not protected activity within the meaning of §405(a)(1)(A) unless (a) they relate to an
actual violation of a commercial motor vehicle regulation, standard or order and (b)
the regulation, standard or order in question is a safety law. OSHA argued that it
makes no difference whether a commercial motor vehicle regulation was actually violated or
whether the regulation purportedly violated is a safety law -- rather, OSHA contended that all
that is required by §405(a)(1)(A) is that the employee have a reasonable belief that the
events in question violate a motor vehicle safety regulation. The ALJ treated the meaning of
§405(a)(1)(A) as a matter previously resolved in Yellow Freight Sys., Inc. v.
Martin, 954 F.2d 353, 356-57 (6th Cir. 1992) -- in which the Sixth Circuit held that
protection under §405(a)(1)(A) is not dependent on an actual violation and Ex rel
Galvin v. Munson Trans., Inc., 1991-STA-41 (Sec'y Aug. 31, 1992) -- in which the
Secretary of Labor stated that it was undisputed that the driver refused to operate an overweight
truck and that his refusal was based on the potential violation of federal regulations and a safety
concern for himself and the public.
The ARB found that it was error for the ALJ to have relied on these prior decisions and not
to have resolved the statutory construction issue presented by Respondent's and OSHA's
interpretations of section 405(a)(1)(A). The ARB wrote:
In this case, the ALJ should have resolved the interpretive
dispute between OSHA and West Bank, which was a dispute over the meaning of
statutory text, by applying the traditional tools of statutory construction. The first
step in that process is to determine whether Congress' intention is clear. If
Congress' intentions are clear, they must be given effect. If it is not clear how
Congress intended the statute to apply to the matter in issue, the adjudicator must
determine whether the agency's clarifying interpretation is rational and consistent
with the statute. If the adjudicator concludes that the agency's interpretation is
reasonably consonant with the statutory structure and purpose, the adjudicator
should defer to it. PBGC v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct.
2668, 2678 (1990); Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781 (1984); OFCCP v.
Keebler Co., No. 97-127 (ARB, Dec. 21, 1999).
We assume, for purposes of this discussion, that Congress
was silent on the question whether §405(a)(1)(A) requires proof that the
related safety law was actually violated, and that OSHA's interpretive views on
that question would therefore have to be evaluated for reasonableness. If that is so,
it necessarily follows that OSHA would have to have made clear to the ALJ what
its reasons were for construing §405(a)(1)(A) as not requiring evidence of
an actual violation. These reasons would certainly include policy choices and
OSHA's experience and expertise in administering §405(a)(1)(A) and other,
similar, statutes. Without a clear explanation from OSHA for the view it has
taken, the ALJ has no basis on which to evaluate the reasonableness of OSHA's
ultimate conclusion. "[I]f the administrative action is to be tested by the
basis upon which it purports to rest, that basis must be set forth with such clarity
as to be understandable. It will not do for a court to be compelled to guess at the
theory underlying the agency's action; nor can a court be expected to chisel that
which must be precise from what the agency has left vague and indecisive. In
other words, 'We must know what a decision means before the duty becomes ours
to say whether it is right or wrong.'" SEC v. Chenery Corp., 332
U.S. 194, 196, 67 S.Ct. 1575, 1577 (1947) (internal citation omitted).
Equally important, without a clear explanation from OSHA,
the ALJ lacks a legal basis for accepting OSHA's ultimate conclusion. This is
because "an agency's order must be upheld, if at all, 'on the same basis
articulated in the order by the agency itself.'" FPC v. Texaco, Inc.,
417 U.S. 380, 397, 94 S.Ct. 2315, 2326 (1974), quotingBurlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239,
245-246 (1962). "[A] simple but fundamental rule of administrative
law" is "that a reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized to make, must judge
the propriety of such action solely by the grounds invoked by the agency. If those
grounds are inadequate or improper, the court is powerless to affirm the
administrative action. . . ." Chenery, supra.
The ARB acknowledged the principle of stare decisis, but held that where the
agency itself is a litigant in a case which presents an interpretation issue previously decided
without the agency's input "it makes no sense for the agency to 'rely' on the earlier decision
as if it were stare decisis concerning the meaning of the unclear text." The ARB
held that in the instant proceeding, "[n]o prior decisional rulings existed that represented a
meaningful statutory construction analysis, replete with consideration of OSHA's policy and
experiential reasoning." Applying statutory interpretation, the ARB held that
§405(a)(1)(A) requires a link to a motor vehicle safety law.
In regard to the Sixth Circuit holding that protection under §405(a)(1)(A) is not
dependent on an actual violation, the ARB found that "the Sixth Circuit's deference to
OSHA's appellate argument about the meaning of §405(a)(1)(A) cannot be taken at face
value" because OSHA had not participated in the litigation of the case before the ALJ
or the Secretary of Labor, and the Solicitor's role in Respondent's appeal to the Sixth Circuit was
to defend the Secretary's ruling in favor of the complainant. The ARB stated that
"[w]hether the court of appeals fully appreciated that the views expressed in the
Department's brief to the court were not views that OSHA had expressed in the administrative
litigation is impossible to know."
The ARB then reviewed the caselaw in the area, and without deciding the issue, concluded
that it was "inconsistent, replete with conclusory statements, short on analysis, and
virtually bereft of OSHA input."
One member of the ARB dissented from the part of the decision rejecting the ALJ's and
OSHA's analysis of the protected activity issue under Section 405(a), finding that
"[o]pinions issued by the Secretary, the ARB, and the courts provide well reasoned
analyses interpreting the 'complaint clause' of the STAA, and thus provide us with an adequate
standard against which to gauge the Assistant Secretary's interpretation of Section 405(a)."
III. A. Broad application of statutory provisions
protecting whistleblowers
Statutory provisions which protect employees for participating in
agency proceedings are accorded "exceptionally" broad
application. The impetus is to protect all forms of access to
respective agencies at all stages of administrative process and
thus to prevent agencies' channels of information from
"being dried up by employer intimidation . . . ."
Information and testimony obtained in related proceedings in turn
may precipitate or otherwise bear on STAA complaints or
investigations. Citations omitted. Gay v. Burlington
Motor Carriers, 92-STA-5 (Sec'y May 20, 1992).
In Lajoie v. Environmental Management Systems,
Inc., 90-STA-31 (Sec'y Oct. 27, 1992), the Secretary
referred to National Labor Relations Act and Title VII of the
Civil Rights Act of 1964 precedent in regard to a complainant's
intemperate language and impulsive behavior associated with the
exercise of STAA rights.
[STAA Digest III B]
APPLICABILITY OF STATE MOTOR VEHICLE LAWS
Where a complaint would be driving a commercial vehicle on state roads, the state's motor
vehicle laws are subsumed and incorporated into STAA as a "regulation" of the United
States by reason of the FHA regulation at 49 C.F.R. §392.2 (1998). Thus, in Ass'y Sec'y & Cotes v. Double R Trucking,
Inc., ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999), Complainant's
refusal to drive a truck that would be illegally overweight under state law was protected activity and the
Company's termination of him for that protected activity constituted a violation of STAA.
III.B. Relationship to other whistleblower acts
In Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1
(Sec'y July 13, 1984) (the first STAA complaint), the Secretary
held that cases arising under the employee protection provision
of the STAA will be reviewed in accordance with the same
prescription for allocating burdens of proof and burdens of
production or going forward with the evidence as he had applied
to analogous employee protection laws under 29 C.F.R. Part 24.
See, e.g., Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y
Apr. 25, 1983) (applying Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981) and NLRB v. Transportation
Management Corp., 103 S. Ct. 2469 (1983)).
III. B. Relationship to other act
In Yellow Freight System, Inc. v. Reich, No. 93-
3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585), the Respondent contended that the trigger date for the
180 limitation period for filing a STAA whistleblower complaint
is the date an employee receives warning letters rather than the
date of actual discharge. The Respondent relied on Local
Lodge No. 1424 v. NLRB, 362 U.S. 411, 415, 80 S. Ct. 822, 4
L. Ed. 2d 832 (1960) (six month statute of limitations under
§ 10(b) of the NLRA prevents attacking legitimacy of
time-barred violations) and NLRB v. McCready and Sons,
Inc., 482 F.2d 872, 875 (6th Cir. 1973) (same).
Observing that the Supreme Court noted in Local Lodge No.
1424 that its decision "has drawn on [the National Labor
Relations Act's] purpose and history, and we do not assert the
universal applicability of our resolution of the particular
question presented for decision." 362 U.S. at 424 n.15, the
Sixth Circuit cited with approval the Secretary adoption of the
following ALJ finding:
Unlike the NLRA, which has the overall purpose of
securing industrial peace through the balance of competing
interests . . . the "whistleblower" provisions of
the Surface Transportation Assistance Act were enacted
specifically to encourage employee reporting of
noncompliance with safety regulations and to protect such
employees against retaliation [*23] for reporting these
violations. Moon v. Transport Drivers, Inc., 836 F.2d
226, 228 (6th Cir. 1987).
The Sixth Circuit concluded that the NLRA and STAA have different
"purposes and histories," and there is no reason to
believe that the Supreme Court intended the rationale of Local
Lodge No. 1424 to apply here.
The Sixth Circuit found more to the point English v.
Whitfield, 858 F.2d 957, 961 (4th Cir. 1988), in which the
Fourth Circuit determined that the statute of limitations begins
to run only upon receipt of "final and unequivocal
notice" of discharge. Until an employee is notified of
termination "there is the possibility that the
discriminatory decision itself will be revoked, and the
contemplated action not taken, thereby preserving the
pre-decision status quo." Id.
The Sixth Circuit found this language to aptly describes the
situation in this case. It also noted that the Respondent's
argument would require employees to file protective STAA
complaints each time they are disciplined, regardless of the
nature of the discipline, or risk being discharged 181 days later
without recourse. The three letters all advised of more severe
discipline if Smith failed to follow company rules; none even
hinted that he would be discharged for events that had already
occurred.
In a proceeding under STAA, 49 U.S.C. app. § 2305, a party
may explicitly object to the Assistant Secretary's preliminary
"order," without placing the preliminary
"findings" at issue before the administrative law
judge. See 49 U.S.C. app. § 2305(c)(2)(A); 29 C.F.R.
§ 1978.105(a). Generally speaking, the Assistant
Secretary's preliminary findings are deemed final and not subject
to review where the parties fail to object to the findings within
thirty days.
Where an objection to the findings or preliminary order is filed,
a hearing is conducted de novo by an administrative law judge.
20 C.F.R. § 1978.106(a). Thus, the investigative findings
have effect only if unchallenged. In the event that a hearing is
requested, they are not accorded weight in any decision in the
case.
Where, however, it appeared that the employer had accepted the
terms of the preliminary findings and order only as a matter of
expediency (intending those terms to act as a settlement offer),
it was unclear whether the Employer was actually notified of the
complainant's objection to the order (which did not require
reinstatement), it was not clear that the pro se employer was
advised that complainant's objection did not place the entire
case at issue until just prior to the hearing, any attempt to
press the administrative law judge to expand the hearing issues
would probably have been futile, and none of the administrative
law judge's pre-hearing orders directly required or solicited
employer's position on this precise issue. The Secretary found
that, under these precise circumstances, the employer had not
been offered proper notice and meaningful opportunity to respond
to the Assistant Secretary's preliminary decision, and remanded
the case for a de novo hearing on the merits. Smith v.
Specialized Transp. Servs., 91-STA-22 (Sec'y Nov. 20,
1991).
III C Once a hearing is requested, the adequacy of
the OSHA investigation is
not relevant
In White v. "Q" Trucking Co., 93-STA-28
(Sec'y June 9, 1995), the
Complainant requested reconsideration, alleging, inter alia, that
the investigation by OSHA was
inadequate. The Secretary denied the motion, holding that the
extent of the OSHA investigation was
not at issue -- once the Complainant objected to the
investigative findings, he was accorded the
opportunity for a de novo hearing and assumed the burden of
proving unlawful discrimination.
III.C. Binding effect of Assistant Secretary's findings
on issues to be heard by ALJ
The Assistant Secretary's preliminary resolution is not binding
or determinative of the precise issues to be heard before the
ALJ. Nevertheless, where is was not clear from the record that
the respondent had adequate notice of all the issues and theories
to be heard before the ALJ, that is relevant to the overall
inquiry. Brame v. Consolidated Freightways, 90-
STA-20 (Sec'y June 17, 1990) (the Secretary did not state what
should be done about inadequate notice, but simply affirmed the
ALJ's conclusion that the addition incidents did not permit the
complainant to prevail).
III.C. Weight accorded to Assistant Secretary's findings
- STAA
The Assistant Secretary's investigation findings become final
only in the absence of timely objection. 29 C.F.R. §
1978.105(b)(2). A hearing in the matter, which may be obtained
by filing an objection to the Assistant Secretary's findings or
preliminary order, is conducted de novo by an ALJ, 29 C.F.R.
§ 1978.106(a), and the ALJ's factual findings are conclusive
if supported by substantial evidence on the record considered as
a whole. 29 C.F.R. § 1978.109(c)(3). Thus, the
investigation findings of the Assistant Secretary have effect
only if unchallenged. In the event that a hearing is requested,
they are not accorded weight in any decision in the case.
Holloway and Murray v. Lewis Grocer Co., 87-STA-16 (Sec'y
Jan. 25, 1988), slip op. at 2 n.2, aff'd in relevant part,
874 F.2d 1008 (5th Cir 1989).
Moyer v. Yellow Freight Systems, Inc., 89-STA-7
(Sec'y Nov. 21,1989), aff'd in part and rev'd in part sub nom.
on the ground that the Secretary must provide sufficient notice
of the raising of an issue to provide procedural due process,
Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir.
1992).
To the same effect, see Spinner v. Yellow Freight System,
Inc., 90-STA-17 (Sec'y May 6, 1992) (Assistant
Secretary's preliminary investigation findings do not supplant
the Secretary's final decision in review of findings issued by an
ALJ after according the parties an opportunity for full
hearing).
III.C. Preclusive effect of Assistant Secretary's
findings
It is well settled that, once a hearing is requested, the ALJ
conducts a de novo hearing and the investigative findings of the
Assistant Secretary are not accorded any weight. Moravec
v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan.
6, 1992).
III.C. Weight given to preliminary findings
In Holloway & Murray v. Lewis Grocer Co., 87-
STA-16 (Sec'y Jan. 25, 1988), Complainants refused to drive
vehicle they believed Respondent had failed to repair. Pursuant
to a complaint filed with the Department of Labor by
Complainants, a preliminary investigation was conducted. The
Secretary's findings resulting from that investigation concluded
that there was not reasonable cause to believe that Respondent
had violated Section 405 of STAA.
Noting that the ALJ accepted or modified findings issued by the
Supervisory Investigator of OSHA in reaching his conclusions, the
Secretary determined that such findings are preliminary findings
and, even where made part of the record, carry no weight once a
hearing had been requested. Hearings under Section 2305 must be
conducted as hearings de novo.
The ALJ's decision to afford no weight to a grievance proceeding
concerning the same circumstances relating to complainant's STAA
action was appropriate where the only information concerning that
proceeding was a limited two-page summary, and the record gave no
indication that the grievance committee considered the case as a
matter involving discriminatory retaliation by respondent based
on complainant's alleged safety-related protected activity.
See 29 C.F.R. § 1978.112(a)(1) and (c). See also
McDonald v. City of West Branch Michigan, 466 U.S. 284, 289,
292 n.12 (1984).
Mecus v. Consolidated Freightways, 91-STA-37 (Sec'y
Jan. 23, 1992).
[STAA DIGEST III D]
DEFERENCE TO FINDINGS OF ANOTHER GOVERNMENT AGENCY
In STAA whistleblower cases, deference is paid to the findings of another
government
agency made in proceedings brought under different statutes only in limited
circumstances. 29
C.F.R. § 1978.112. Nichols v. Gordon Trucking, Inc.,
97-STA-2
(ARB July 17, 1997).
III.D.1. Weight accorded grievance
proceeding
Noting that arbitration is a favored method of grievance
resolution, and that the decision of a joint employer-union
committee may have a conclusive effect if the contract so
provides, the ALJ held that any deference to such a decision must
be limited to the factual findings and have little or no
conclusive effect on conclusions of law in STAA proceedings.
Overton v. Consolidated Freightways, Inc., 86-STA-2 (ALJ
Mar. 25, 1986).
[Editor's note: The Secretary affirmed the ALJ's dismissal in
Overton v. Consolidated Freightways, Inc., (Sec'y June 26,
1986).]
III.D.1. EEOC investigation; state referee
In Judd v. Helena Truck Lines, Inc., 91-STA-48 (ALJ
Dec. 24, 1992), the administrative law judge noted that the
Supreme Court has liberalized the applicability of the doctrine
of equitable estoppel, or issue preclusion, and therefore other
courts will continue to do so. University of Tennessee v.
Elliott, 478 U.S. 788 (1986); United States v. Utah
Construction & Mining Co., 384 U.S. 394 (1966). Such an
approach has been endorsed under the STAA since the regulations
promulgated thereunder authorize the Secretary of Labor to afford
deference to the determinations of other jurisdictions on issues
related to the Act. See 29 C.F.R. § 1978.112.
The ALJ concluded, however, that collateral estoppel should not
be applied where the determination relied on was made by the Area
Director of the Equal Employment Opportunity Commission based on
evidence obtained from an agency investigation rather than
through a judicial process. In making this determination, the
ALJ stated that if an agency, whether federal or state, is
"acting in a judicial capacity" and "the
proceedings were fair, regular and free of procedural
infirmities" with both parties having "a full and fair
opportunity to argue their version of the facts and an
opportunity to seek court review of any adverse findings,"
then the determination should be controlling on another agency
which is addressing the same factual issue. Elliott, 788
U.S. at 799; 29 C.F.R. § 1978.112(c); Utah Construction
& Mining Co., 394 U.S. at 422.
A closer question was presented by the decision of an appeals
referee of the Tennessee Department of Employment Security. That
referee conducted a hearing, the decision was appealed to the
Board of Review of the state agency, and that decision was then
appealable to the Chancery Court of Tennessee. The record before
the ALJ, however, did not reveal whether the proceeding of the
state agency was of a judicial nature with the parties being
afforded a fair and reasonable opportunity to present credible
evidence. Specifically, the record did not reveal the procedural
or evidentiary aspects of the referee hearing. Moreover, the ALJ
noted that acceptance of the state proceeding would serve little
purpose since collateral estoppel generally is applied to avoid
duplicative litigation, and the parties in the instant case had
already developed extensive evidence and the only matter
remaining was the issuance of the ALJ's decision based on that
evidence.
III.D.1. Deferral to grievance committee
Where the record included only the form on which a grievance with
the New York State Joint Area Grievance Committee was filed, and
the decision of the committee which read, "Unanimous-based
on the facts, claim of the grievant denied, discharge is
upheld," the ALJ held that it was not possible to evaluate
the adequacy and fairness of the grievance proceeding on such a
record, and gave no weight to the committee's findings.
Thom v. Yellow Freight System, Inc., 93-STA-2 (ALJ
July 20, 1993), adopted (Sec'y Nov. 19, 1993).
The Secretary approved the ALJ's recommendation to dismiss a STAA
complaint based on the outcome of an NLRB proceeding where the
Department had used diligence in affording complainants the
opportunity to state whether NLRB proceeding afforded them full
relief. In 1988, the Solicitor had informed the ALJ that
complainant had received full relief in the NLRB proceeding. The
ALJ issued two orders to show cause why the case should not be
dismissed. Only the Solicitor responded. The Secretary issued
an order permitting the parties to submit briefs, but no parties
took advantage of that order. Hence, the Secretary adopted the
ALJ's finding that the NLRB's decision was fair and just and does
no disservice to the purposes or policies of the STAA.
Combs v. Mash Transportation Services, Inc., 86-
STA-14 (Sec'y July 24, 1992).
III.D.2 Deferral to NLRB proceeding
In Assistant Secretary of Labor for Occupational Safety and
Health and Leidigh v. Freightway Corporation, 88-STA-13,
(Sec'y June 10, 1991), the Secretary held that deferral to the
outcome of proceeding initiated by an STAA complainant in other
forums was acceptable "if those proceedings (1) dealt
adequately with all factual issues; (2) were fair, regular and
free of procedural infirmities; and (3) produced an outcome that
is not repugnant to the purpose and policy of the STAA."
The Assistant Secretary's deferral to an arbitral ruling in favor
of the respondent does not prevent the complainant from seeking a
hearing before an administrative law judge.
Yellow Freight System, Inc. v. Martin, No. 92-4074
(2d Cir. Jan. 25, 1993), aff'g,Spinner v. Yellow
Freight System, Inc., 90-STA-17 (ALJ Jan. 17, 1992),
aff'd, (Sec'y May 6, 1992).
III.D.3. Collective bargaining does not
preempt STAA
The Secretary rejected an employer's argument that a collective
bargaining forum in any manner preempts an STAA claim or that it
is a more appropriate forum for resolution. Self v. Carolina
Freight Carriers Corp., 89-STA-9 (Sec'y Jan. 12, 1990).
The Administrative Law Judge applied an erroneous standard when
he found that "complainant failed to rebut the presumption
of no discrimination arising from the resolution of complainant's
grievance in respondent's favor." The Secretary found that
the record did not support deferral to the outcome of the
arbitration. Curless v. Thomas Sysco Food Serv.,
91-STA-12 (Sec'y Sept. 3, 1991).
III.D.3.b. Preclusive effect of arbitration award -
STAA
In Spinner v. Yellow Freight System, Inc., 90-STA-
17 (Sec'y May 6, 1992), an arbitration award denying
complainant's contract grievance was found not to be entitled to
preclusive effect in an STAA proceeding. The Secretary noted
that the complainant was not represented by personal counsel and
did not call his own witnesses or cross-examine respondent's
witnesses; the union attorney conducted no meaningful cross-
examination and permitted introduction of extensive hearsay; the
hearing focused exclusively on the events surrounding the
particular incident resulting in discharge; the parties never
agreed on the issues; the arbitrator made factual findings
contrary to the Secretary's view of the circumstances (knowledge
of safety of the tractor, whether complainant was directed to
violate safety regulations; voluntary resignation v. discharge);
order confirming the award by a New York Supreme Court acting
justice was granted on default and contained no opinion.
The Secretary found that the issues raised in the arbitration
proceeding and the STAA hearing were not congruent and that the
arbitrator did not consider complainant's STAA rights
adequately.
Twenty nine C.F.R. § 1978.112(c) provides that "[a]
determination to defer to the outcome of other proceedings . . .
must necessarily be made on a case-by-case basis, after careful
scrutiny of all available information." Deferral may be
appropriate if it is "clear that those proceedings dealt
adequately with all factual issues, that the proceedings were
fair, regular, and free of procedural infirmities, and that the
outcome of the proceedings was not repugnant to the purpose and
policy of the [STAA]." See Leidigh v. Freightway
Corp., 88-STA- 13 (Sec'y June 10, 1991) (deferral to outcome
of labor board proceeding appropriate).
III.D.3.b Preclusive effect of arbitration award -
STAA
An arbitration award, though affirmed by the state appellate
court, does not have a preclusive effect on the finding of the
ALJ in an STAA proceeding. Martin v. Yellow Freight
System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331;
1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992), citing
N.L.R.B. v. Yellow Freight Systems, Inc., 930 F.2d 316, 320
(3d Cir.), cert. denied, 112 S. Ct. 78 (1991).
III.D.3.b. Deferral not required
In Yellow Freight Systems, Inc. v. Reich, No. 93-
1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS
28378), the Fourth Circuit agreed with the ALJ and the Secretary
that it was appropriate not to defer to a five-word decision of
an arbitration panel. See Roadway Express, Inc. v. Brock,
830 F.2d 179, 182 (11th Cir. 1987).
The terms of collective bargaining agreements do not diminish any
rights afforded employees under the STAA. Brame v.
Consolidated Freightways, 90-STA-20 (Sec'y June 17,
1990).
III.E. IF CBA conflicts with STAA, statute governs
If a collective bargaining agreement conflicts with the Surface
Transportation Assistance Act, then the statute supersedes the
agreement because labor contracts cannot operate to deprive
employees of rights specifically protected by federal
statutes. Roadway Express, Inc. v. Dole, 929 F.2d
1060, 1064 (5th Cir. 1991).
III.E. STAA supersedes CBA
Four employees refused to drive the company's trucks during a
hazardous ice storm. Employer paid the drivers their
regularcompensation for the trip, but refused to pay for their
overnight layover. Employees filed complaints with the
Secretary of Labor arguing that Employer violated section 405(b)
of STAA. The collective bargaining agreement did not entitle the
employees to delay time compensation, but there was substantial
evidence that Employer had on past occasions authorized its
employees to discontinue their trips and receive delay time
compensation. The court held that if the collective bargaining
agreement conflicts with the STAA, then the statute supersedes
the agreement because labor contracts cannot operate to deprive
employees of rights specifically protected by federal statutes.
Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1064
(5th Cir. 1991).
In Moravec v. HC & M Transportation, Inc., 90-
STA-44 (Sec'y July 11, 1991) (order of remand), the ALJ erred in
finding the complainant's testimony "questionable"
simply because his reason for filing his STAA complaint was that
respondent opposed his claim for unemployment compensation. It
is the respondent's motive in discharging complainant that is
under scrutiny. See also Perez v. Guthmiller Trucking
Co., 87-STA-13 (Sec'y Dec. 7, 1988), slip op. at 13-15
(rejection of testimony because of alleged motive of witness
improper absent supportive evidence); Flener v. Cupp,
Inc., 90-STA-42 (Sec'y Apr. 9, 1991).
III.F. Respondent's motive
The record established that the complainant's safety complaints
motivated respondent to discharge him where
The complainant had previously sent a letter to
respondent's national headquarters which particularly upset
the regional officials who discharged complainant because it
elicited scrutiny by top management and caused the
regional officials who discharged complainant to spend a
ten-month period attempting to address complainant's
concerns
Respondent monitored complainant in an attempt to
document vehicle tampering despite lack of a basis for a
tampering charge
The discharge was irregular in that complainant's safety
concerns regarding the incident leading to the discharge
were given cursory treatment, complainant had threatened
renewal of internal complaints and to complain externally
where upon he was promised "trouble" if he
continued to complain; less than an hour elapsed between
complainant's report for dispatch and his discharge;
complainant's refusal to depart absent verification was
tape-recorded in part. This constitutes compelling evidence
that respondent induced complainant's work refusal and
seized upon it to rationalize his discharge.
Spinner v. Yellow Freight System, Inc., 90-STA-17
(Sec'y May 6, 1992).
In Ertel v. Giroux Brothers Transportation, Inc.,
88-STA-24 (Sec'y Feb. 16, 1989), Complainant refused to drive a
truck back to Respondent's truck yard after it had been placed
out of service for safety violations. Respondents picked up
Complainant and took him back to the truck yard. There,
Complainant requested another driving assignment but was told by
Respondent's dispatcher to wait for a while. After a half hour
(during which Respondent's dispatcher criticized Complainant for
Complainant's prior mechanical breakdowns) Complainant requested
that Respondent's dispatcher either work him or fire him. At
that time Respondent's dispatcher fired Complainant.
Subsequently, Complainant's discharge was ratified by Respondent,
who had the authority to discharge Complainant while the
dispatcher did not. Complainant testified at the hearing.
Respondent testified as to Respondent's dispatcher's version of
the conversation. The dispatcher did not testify at the hearing
and when given the opportunity, Respondent declined to depose the
dispatcher after the hearing. The ALJ credited Respondent's
version of Complainant's conversation with the dispatcher over
Complainant's version.
The Secretary rejected the ALJ's credibility findings regarding
the conversation that took place between Complainant and
Respondent's dispatcher. Specifically, the Secretary noted that
the ALJ failed to discuss Complainant's account of the exchange
and chose to accept the account of Respondent, who was not even
present during the conversation. Finding that the ALJ's
conclusions were not supported by substantial evidence, the
Secretary accepted Complainant's testimony regarding his exchange
with the dispatcher and found that it occurred as he testified.
[STAA Whistleblower Digest III G]
WITNESS CREDIBILITY; DEFERENCE TO ALJ'S CREDIBILITY FINDINGS UNLESS THEY ARE INHERENTLY INCREBILE OR PATENTLY UNREASONABLE
In Johnson v. Rocket City Drywall, ARB No. 05-131, ALJ No. 2005-STA-24 (ARB Jan. 31, 2007),
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HTM
the Complainant's only allegation on appeal was that the Respondent's witnesses perjured themselves to avoid higher rates on unemployment compensation.
The ARB stated that it will uphold an ALJ's credibility findings based on substantial evidence unless they are "inherently incredible or patently unreasonable."
In the instant case, the ALJ had found all of Rocket's witnesses to be "highly credible," and found that the Respondent's witnesses were consistent in
their testimony as to the reasons for the Complainant's firings. The Board deferred to the ALJ's findings, noting that upon review of the hearing
transcript, they had concluded that the ALJ had fairly and throughly analyzed the testimony.
[STAA Whistleblower Digest III G]
CREDIBILITY; SPECIFIC FINDING OF ALJ SUFFICIENT TO WITHSTAND
SCRUTINY ON APPEAL
In Poll v. R. J. Vyhnalek Trucking, ARB No. 99-110, ALJ No. 1996-STA-35 (ARB June 28, 2002), the ARB affirmed the ALJ's determination that Respondent's President's testimony as to the reason he fired Complainant was credible, despite a finding that Respondent had a policy of mandating that drivers falsify records. This was because the ALJ's credibility finding was "sufficiently specific to withstand scrutiny." The ARB, however, noted that it was referring the finding of records falsification to the Office of Motor Carriers, Federal Highway Administration, U.S. Department of Transportation.
[STAA Whistleblower Digest III G]
CREDIBILITY; SPECIFIC FINDING OF ALJ SUFFICIENT TO WITHSTAND
SCRUTINY ON APPEAL
In Poll v. R. J. Vyhnalek Trucking, ARB No.
99-110, ALJ No. 1996-STA-35 (ARB June 28, 2002), the ARB affirmed the ALJ's determination
that Respondent's President's testimony as to the reason he fired Complainant was credible,
despite a finding that Respondent had a policy of mandating that drivers falsify records. This
was because the ALJ's credibility finding was "sufficiently specific to withstand
scrutiny." The ARB, however, noted that it was referring the finding of records
falsification to the Office of Motor Carriers, Federal Highway Administration, U.S. Department
of Transportation.
[STAA Whistleblower Digest III G]
EXPERT TESTIMONY; 29 CFR § 18.702 AND DAUBERT
In Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001), the ARB made reference to 29 C.F.R. §18.702 (2000), in explaining when expert testimony is admissible. Under that rule expert testimony is admissible where "scientific, technical, or other specialized knowledge will assist the judge as trier of fact to understand the evidence or to determine a fact in issue" and "a witness [is] qualified as an expert by knowledge, skill, experience, training or education."
The Board cited Daubert v. Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993), for what a trial judge must access when faced with a proffer of expert scientific testimony. The Board quoted the following from Daubert:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
Daubert, 509 U.S. at 592-93.
[STAA Digest III G]
EVIDENCE; CREDIBILITY OF MEDICAL CERTIFICATE PREPARED BY
PHYSICIAN WHO WAS ON INDEFINITE PROBATION
In Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No.
1999-STA-5 (ARB Mar. 29, 2000), Complainant had presented a medical certificate upon
returning to work from an illness. Respondent attempted to discredit the medical certificate on
the ground that the physician who prepared the report had been placed on indefinite probation by
order of a state Medical Licensing Board. The ARB agreed with the ALJ that this information
was immaterial to the outcome of the STAA whistleblower case because at the time she treated
Complainant, the physician was still licensed to practice medicine.
[STAA Digest III G]
WEIGHING OF EVIDENCE; IMPLAUSIBILITY OF INFERENCE NEEDED TO
SUPPORT COMPLAINANT'S THEORY
In Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11 (ALJ
Feb. 18, 1999), Complainants alleged that Respondent retaliated against them by various acts of
sabotage. The ARB found, however, that there was no evidence in the record to support
Complainants' supposition of sabotage. In weighing the evidence, the ARB noted that in order
to draw an inference of tampering or sabotage, it would be required to drawn several improbable
inferences such as, inter alia, that Respondent had no concern for injury to the public,
for damage to the freight being carried, or for delay in delivery. As the inferences were
implausible, and not supported by any evidence of record, the ARB adopted the ALJ's
conclusion that Complainants did not carry their burden of proof.
[STAA Digest III G]
CREDIBILITY; USE OF SATELLITE TRACKING DEVICE TO IMPEACH
COMPLAINANT'S TESTIMONY
In Demma v. Landstar Ranger & Scheel
Enterprises, Ltd., 1998-STA-22 (ALJ July 17, 1998), witness credibility was a
crucial factor in the ALJ's recommendation. The ALJ was required to carefully review testimony
and documentary evidence in the record to
resolve conflicts in the testimony. In particular, the ALJ was required to examine data relating to
a satellite communications and tracking device installed on Complainant's truck, and
Complainant's driver's log, which were proffered to impeach Complainant's testimony about
when he was or was not driving.
[STAA Digest III G]
EVIDENCE; EXISTENCE OF FREQUENT SAFETY REPORTS BY
COMPLAINANT
DOES NOT ESTABLISH, BY ITSELF, RETALIATORY INTENT
In Griffin v. Consolidated Freightways
Corp. of Delaware, 96-STA-8 (ARB Feb. 3, 1998), Complainant
asserted that
Respondent engaged in a pattern of harassment against him for making an internal complaint
and
filing a union grievance involving the safety of a tractor. Complainant asserted that this
harassment consisted of 38 incidents involving the intentional assignment of unsafe equipment
to
him. The ARB agreed with the ALJ that the nature of Respondent's business necessitated that
it
rely on drivers to notify it of safety issues relating to equipment; the documents submitted by
Complainant simply did not establish that his experience was any different from other drivers
or
that the frequency of his safety reports was any greater than that prior to the protected activity.
In fact, the record indicated that Respondent was responsive, taking prompt action to ensure
that
equipment was in compliance with federal safety regulations.
PRIOR EMPLOYMENT INFRACTIONS AS EVIDENCE OF SUBSEQUENT
NONDISCRIMINATION
[STAA Digest III G]
Where the record was replete with warning letters concerning Complainant's
poor work
history similar to and consistent with letters issued subsequent to
Complainant's protected
activity, Complainant did not prove by a preponderance of the evidence that
Respondent issued
the post-protected activity warning letters for discriminatory reasons.
Complainant admitted the various acts of misconduct in the warning letters at
issue, and
the record did not support his assertion that they involved incidents for
which warning letters
where not usually issued by Respondent. Complainant, a driver, did not have
sufficient
background or expertise for his views on the trucking industry or Respondent's
disciplinary
practices, whereas management officials testified that the reprimands were
consistent with
Respondent's policies.
RETALIATORY INTENT; WITNESS FOR DEFENSE'S MENDACITY AS
SUPPORTING INFERENCE OF RETALIATORY INTENT
[STAA Digest III G]
Where a defense witness's testimony was inconsistent and
evasive, evincing an intent to obfuscate the facts, it supported
a finding of retaliatory intent. Cook v. Guardian Lubricants,
Inc., 95-STA-43 (Sec'y May 1, 1996).
WEIGHING OF EVIDENCE; CONFLICTING TESTIMONY WITH NO
DISCERNABLE MEANS OF JUDGING CREDIBILITY
[STAA Digest III G]
In Cook v. Kidimula International, Inc.,
95-STA-44 (Sec'y Mar. 12, 1996), the Secretary approved the
ALJ's weighing of the evidence concerning whether the
Respondent took adverse action against the Complainant.
In Cook, the only evidence on the issue was
the conflicting testimony of the Complainant and the
Respondent's owner. The Secretary quoted the ALJ:
In view of the lack of evidence to corroborate
either man's testimony on this issue and an inability
to discern the truth through the demeanor of the
witnesses, I cannot conclude that the Complainant's
version of events is any more credible [than the
Respondent's owner's version]. Thus, there is an
insufficient basis for finding that the Complainant has
shown the occurrence of an adverse action by a
preponderance of the evidence.
Slip op. at 6, quoting R. D. & O at 7.
III G Credibility not undermined by reluctance to
discuss psychologic matters
In Moyer v. Yellow Freight System, Inc., 89-STA-7
(Sec'y Aug. 21, 1995), the Complainant's reluctance to discuss
the psychological component of his SAA disability finding and
other difficulties was not found to undermine his credibility
regarding his disabilities.
III.G. Fact finders's task to decide who to
believe
When a case has been fully tried on the merits, the task of the
fact finder is to "decide whether 'the defendant
intentionally discriminated against the [employee].' [citation
omitted.] . . . In short, [the trier of fact] must decide which
party's explanation of the employer's motivation it
believes." United States Board of Postal Serv. Bd. of
Governors v. Aiken, 460 U.S. 711, 715-16 (1983).
Melton v. Morgan Drive-Away, Inc., 90-STA-41 (Sec'y
Apr. 26, 1991).
III G Evidence of other wrongs is not
admissible to prove character
In Etchason v. Carry Companies of Illinois, Inc.,
92-STA-12 (Sec'y Mar. 20, 1995), the ALJ did not err in assigning
no weight to evidence of the Respondent's misconduct in an
entirely different case brought before the NLRB. See 29
C.F.R. § 18.404(b) (1994) (evidence of other wrongs not
admissible to prove character in order to show action in
conformity therewith). The Secretary noted that the ALJ had
independently found most of the Respondent's managers not
credible and noted an unflattering picture of Respondent's
operations. In the end, however, the ALJ's decision to credit
the testimony of the manager who fired the Complainant was well
explained.
III.G. Credibility determination
In Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y
Mar. 10, 1993), the Secretary declined to overturn the ALJ's
credibility determinations despite the Assistant Secretary's
arguments that the Complainant's testimony is reliable and that
logic supports an inference contrary to that drawn by the ALJ.
The Secretary reviewed the evidence and found that it supported
the ALJ's decision to credit the testimony of the Respondent's
witnesses over that the Complainant and his girlfriend.
III.G. Credibility determinations
In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y
Jan. 19, 1993), the ALJ properly attributed greater credibility
about the condition of the respondent's truck to the testimony of
independent witnesses, a police officer and a person who cleaned
the truck, than to the respondent's witness-employee who had
reason to agree with his employer about the safe condition of the
truck.
III.G. Credibility findings based on demeanor of
witnesses
In Perez v. Guthmiller Trucking Company, Inc., 87-
STA-13 (Sec'y Dec. 7, 1988), the Complainant's employment with
the Respondent was terminated after the Complainant walked off
the job. The Complainant testified that he walked off the job
because of the unsafe condition of the truck. The ALJ credited
the Complainant's testimony over that of the Respondent's
witnesses, who stated that the truck was in safe driving
condition and furthermore claimed that the Complainant quit his
job as he walked off the job site.
The Secretary held that the ALJ's credibility findings, based on
the weighing of selective evidence rather than on the demeanor of
the witnesses, were not binding on the Secretary.
III.G. Credibility of Witnesses
In Ertel v. Giroux Brothers Transportation, Inc.,
88-STA-24 (Sec'y Feb. 16, 1989), the Secretary disagreed with
the ALJ's credibility finding when the ALJ gave greater weight to
Respondent's testimony than Complainant's testimony. The ALJ
stated that he took into account the demeanor of the witnesses.
Citing NLRB v. Cutting, Inc., 791 F.2d 659, 663 (7th Cir.
1983), the Secretary noted that credibility findings resting
"explicitly on an evaluation of the demeanor of the
witnesses" may be accorded exceptional weight by a reviewing
court. However, demeanor findings are in direct contrast to
credibility findings based on aspects of testimony itself, e.g.
discrepancies, impeachment, and witness self-interest. All
factual findings, including credibility findings, must be
supported by substantial evidence in the record as a whole.
Where a factfinder's "theory of credibility is based on
inadequate reasons or no reasons at all, his findings cannot be
upheld." Id. at 667. All relevant, probative, and
available record evidence must be explicitly weighed by the
factfinder who must make explicit statement as to what portions
of the evidence he has accepted or rejected. Dobrowolsky v.
Califano, 606 F.2d 403, 409-410 (3rd Cir. 1979). A full
explanation of why specific evidence was rejected is imperative,
since a factfinder "cannot reject evidence for no reason or
for the wrong reason. Cotter v. Harris, 642 F.2d 700,
706-707 (3rd Cir. 1981).
In this case the Secretary found that although the ALJ stated
that he took into account the demeanor of the witnesses, what
followed was not a discussion of witness demeanor. Furthermore,
the ALJ characterized the Respondent as
"straightforward" and "candid" while
characterizing the Complainant's testimony as "evasive,
vague, inconsistent, and only self-serving." The Secretary
noted that in NLRB v. Cutting, Inc., 701 F.2d at 666, the
court held that
Given its context and the overall
reliance on inferences drawn from the
substance of the testimony, we do not believe
the statement about the witnesses' lack of
candor is the kind of explicit, demeanor-
based credibility finding entitled to
exceptional weight under Kopack v.
NLRB, 668 F.2d 482 (7th Cir. 1982). An
ALJ may not make his credibility findings
unassailable by simply invoking "the
right incantation" to the witnesses'
demeanor. Id. at 953-54.
The Secretary determined that the record did not support the
ALJ's characterization of Complainant's testimony. Accordingly,
the Secretary rejected the ALJ's general credibility
characterization to the extent that they could be directed at a
wholesale rejection of Complainant's testimony.
While a pro se complainant may be held to a lesser standard than
legal counsel with regard to matters of procedure, the burden of
proving the elements necessary to sustain a claim of
discrimination is no less. Flener v. H.K. Cupp,
Inc., 90-STA-42 (Sec'y Oct. 10, 1991).
[STAA Whistleblower Digest III I] PRO SE LITIGANTS; ALTHOUGH ALJ BEARS A RESPONSIBILITY TO PROVIDE SOME ASSISTANCE, BURDEN OF PROOF ON LITIGANT REMAIN UNCHANGED
In Young v. Schlumberger Oil Field Services, ARB No. 00-075, ALJ No. 2000-STA-28 (ARB Feb. 28, 2003), the ARB interpreted Complainant's brief as arguing that the ALJ breached a duty to assist her due to her pro se status. The ARB wrote: "We agree with the proposition that ALJs have some responsibility for helping pro se litigants. . . . However, 'the burden of proving the elements necessary to sustain a claim of discrimination is no less' for pro se litigants than for litigants represented by counsel. . . . Although the ALJ has some duty to assist pro se litigants, he also has a duty of impartiality. A judge must refrain from becoming an advocate for the pro se litigant. . . . " Slip op. at 9 (citations omitted). The ARB reviewed the record and found that the ALJ had satisfied both his duty to assist the Complainant, while also remaining impartial and fair to both sides.
Merely because the ALJ makes several findings in favor of the
complainant does not entitle the complainant to prevail under a
"preponderance of the evidence" standard. For example,
when an ALJ finds for the complainant regarding the timeliness of
his complaint and the establishment of a prima facie case, once
the respondent articulates a legitimate, nondiscriminatory reason
for taking the adverse action, the burden shifts back to the
complainant to show by a preponderance of the evidence that the
reasons were pretextual. See Reemsnyder v.
Mayflower Transit, Inc., 93-STA-4 (Sec'y May 19, 1994).
[STAA Whistleblower Digest III J]
FORMAL RULES OF EVIDENCE, HEARSAY RULE; APPLICATION TO STAA WHISTLEBLOWER HEARINGS
In Calmat Co. v. USDOL, No. 02-73199 (9th Cir. Apr. 19, 2004) (case below ARB No. 99-114, ALJ No. 1999-STA-15), the 9th Circuit Court of Appeals stated:
STAA administrative hearings are conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings. See 29 C.F.R. § 1978.106(a) (citing 29 C.F.R. § 18). Under these rules, which conform to the Federal Rules of Evidence, hearsay statements are inadmissible unless they are defined as non-hearsay or fall within an exception to the hearsay rule. 29 C.F.R. § 18.802.5/ "Hearsay" is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted by the out-of-court declarant. 29 C.F.R. § 18.801(c).
________
5/During the hearing, the ALJ believed that formal rules of evidence do not apply to STAA hearings because they do not apply in administrative hearings for whistleblower complaints under other statutes. However, her decision states that she was "mindful to screen out objected to evidence admitted based on this error."
Slip op. at 5117. The Respondent contended that the ALJ improperly admitted and relied upon hearsay evidence. The court, however, found that much of the objected to testimony was not hearsay (mostly on the ground that the statements were not admitted to establish the truth of the matter asserted, but rather that the statements had been made), and that any hearsay admitted in error had not been prejudicial. The court also observed that prejudice from hearsay is less likely when an ALJ rather than a jury weighs evidence, that the ALJ had expressly stated that she had not relied on hearsay evidence omitted over the Respondent's objections, and that there was other corroborating evidence in the record to support the ALJ's finding of disparate treatment.
[Editor's note: CompareDutkiewicz v. Clean Harbors Environmental Services, Inc., 1995-STA-34 (ARB June 11, 1997) (ARB ruling that ALJ had properly admitted hearsay testimony and rendered judgment on the weight it was due )]
[STAA Whistleblower Digest III J]
HEARSAY; NOT ADMISSIBLE IN STAA WHISTLEBLOWER PROCEEDINGS;
ERROR IN ADMISSION, HOWEVER, NOT GROUND FOR REVERSAL UNLESS IT AFFECTS
A SUBSTANTIAL RIGHT OF A PARTY
In Germann v. Calmat Co., ARB No. 99-114,
ALJ No. 1999-STA-15 (ARB Aug. 1, 2002), the ARB ruled that hearsay evidence is inadmissible
in STAA proceedings before an ALJ under 29 C.F.R. § 18.802, as made applicable by 29
C.F.R. § 1978.106(a). The ARB held, however, that the ALJ's erroneous admission of
hearsay evidence was not reversible error, applying the "substantial right of a party"
standard of 29 C.F.R. § 18.103. The hearsay testimony related to the fact that
Respondent had engaged in excess hours violations and how Complainant came to know about
them. The parties had already stipulated that the hours violations occurred, so the ARB
concluded that the testimony could not be said to have affected a substantial right of the
Respondent. Respondent also argued that the testimony prejudiced the ALJ because she could
have become more sympathetic to a shop steward concerned about traffic safety. The ARB,
however, reviewed the record and found no evidence that the ALJ had become biased. The ARB
also reviewed other alleged instances of misuse of hearsay testimony by the ALJ and found
either that the ALJ had expressly discounted the testimony, or that it would have not materially
contributed to the ALJ's decision.
Compare Pogue v. United States Dept. of the Navy, 1987-ERA-21, slip op. at 24 n.16.
(Sec'y May 10, 1990), rev'd on other grounds, Pogue v. United States Dept. of Labor,
940 F.2d 1287 (9th Cir. 1987), holding that hearsay is not inadmissible in administrative
proceedings merely because it is hearsay, and citing 29 C.F.R. §§ 18.44(b) and
24.5(e) (1989). (now 24.6(e)).
[STAA Digest III J]
RESPONDENT'S DECISION NOT TO CALL CERTAIN WITNESSES
In Tierney v. Sun-Re Cheese, Inc., ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001), Complainant argued on appeal to the ARB that because Respondent did not call various witnesses, it failed to disprove that discrimination occurred. The ARB found that such an argument places the burden of proof on its head - it is the complainant who must prove that an adverse action occurred.
But seeOverall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001) (Respondent's failure to produce a witness on issue of whether funding for Complainant's position existed, supported an adverse inference).
[STAA Digest III J]
EVIDENCE; CONFLICT OVER COMPLAINANT'S UNION ACTIVITIES
In Ass't Sec'y & Helgren v. Minnesota Corn Processors, 2000-STA-44 (ALJ Feb. 21, 2001), the ALJ permitted admission into the record evidence showing that contract negotiations and Complainant's union activities were a source of conflict between Complainant and an assistant terminal manager, over the strenuous objection of Respondent. The ALJ admitted the evidence because of its temporal proximity to the events leading to Complainant's termination, and because the ALJ determined that exclusion of this evidence would foreclose a complete and accurate understanding of the relationship between Complainant and Respondent's management at the time of his termination.
The ALJ noted that in Etchason v. Carry Companies of Illinois, Inc., 1992-STA-12 (Sec'y March 20, 1995), slip op. at 3 n.2., it was held that the ALJ did not err in giving no weight to evidence of respondent's misconduct in an entirely different case brought before the National Labor Relations Board, noting that 29 C.F.R. §18.404(b) provides that evidence of other wrongs is not admissible to prove character in order to show action in conformity therewith.
In the instant case, however, the ALJ viewed the incident which occurred between Complainant and his immediate supervisor a little over a month before his termination as not an entirely different case. The ALJ found that the incident provided, at a minimum, relevant background.
[STAA Digest III.J.]
ALTERNATIVE THEORIES OFFERED BY RESPONDENT NOT PROHIBITED
In Mason v. Potter's Express, Inc.,
ARB No. 00-004, ALJ No. 1999-STA-27 (ARB Nov. 21, 2000), Complainant argued that the ALJ's
recommended decision should not be adopted, in part, because Respondent had relied first, on a
theory that it did not terminate Complainant's employment, and alternatively, that even if such
termination occurred, the discharge was for a legitimate, non-discriminatory reason. The ARB
discounted Complainant's argument, finding that Respondent's having presented alternative theories to be of no decisional significance.
[STAA Digest III J]
EVIDENCE; PROBATIVE VALUE OF TESTIMONY OF EXPERT IN SLEEP
DISORDERS
The ALJ found that the testimony of an expert in sleep disorders not to be particularly
probative where there was no evidence that Complainant had a sleep disorder. Stauffer
v. Walmart Stores, Inc., 1999-STA-21 (ALJ June 14, 2000).
[STAA Digest III J]
EVIDENCE; QUALIFICATION OF WITNESS
In Korolev v. Rocor
International, 1998-STA-27 (ALJ Oct. 29, 1999), Respondent moved to strike
testimony and evidence presented by a witness identified as a sleep technician, objecting that the
testimony was not relevant. Respondent also objected to the witness's qualifications based on lack of
personal knowledge or testing of the Complainant (relying on 29 C.F.R. § 18.701). In response,
Complainant argued that one factor of his case was whether or not ability and alertness were impaired
due to fatigue, and that the witness was uniquely qualified to testify, due to his experience at sleep labs
to testify about the effects of fatigue and sleep deprivation. The ALJ questioned the probative value of
the testimony, but found it to be admissible because the witness had more than eight years of
experience as a "polysomnographer," and in his position, was personally involved in
hundreds of sleep studies, a few specifically involving long-haul truck drivers. The ALJ also considered
that the witness testified that he reviewed the Complainant's driving logs prior to the hearing.
[STAA Digest III J]
EVIDENCE; ADMISSIBILITY OF SLEEP STUDY ARTICLE
In Korolev v. Rocor
International, 1998-STA-27 (ALJ Oct. 29, 1999), Respondent objected to the
admission of, and testimony referring to, an article titled "The Sleep of Long Haul Truck
Drivers" on hearsay, qualifications, and relevancy grounds. Respondent also argued that under
Fed.R.Evid. 803, even if admitted, the statements may be read into evidence but not received as
exhibits. The ALJ, however, was not convinced by Respondent's objections, finding that the
proceeding was not bound by the federal rules of evidence. The ALJ noted, however, that the article
had little probative value in assessing the particular circumstances of Complainant's claim.
[STAA Digest III J]
EVIDENCE; PASSIONATE ARGUMENT AND IMPORTANCE OF UNDERLYING
SAFETY CONCERN ALONE IS INSUFFICIENT TO ESTABLISH CASE; FACTS MUST BE
PROVED TO SUPPORT THE ARGUMENT
In Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11 (ALJ
Feb. 18, 1999), the ARB observed that one of the Complainants, who represented himself and a
co-Complainant, was zealous in his concern for driver fatigue and motor vehicle safety, and that
it did not doubt his sincerity nor the important of these public safety issues. Nonetheless, the
ARB wrote:
[S]uccess in a whistleblower complaint requires more than passionate
argument. Even the most forceful argument will collapse if the complainant fails to
develop strong factual underpinnings; assertion, conjecture and argument, by themselves,
are insufficient. Although the Complainants have raised interesting and novel theories
with regard to the issue of driver fatigue, it ultimately is their failure to introduce
sufficient facts to prove their individual claims that compels us to reject their complaints.
Id. @ 3.
[STAA Digest III J]
ADMISSIBILITY OF TAPE RECORDING
In Pittman v. Goggin Truck Line, Inc., 96-STA-25 (ALJ June 16,
1997),
Complainant offered into evidence a tape recording and transcription of
conversation he had
surreptitiously made of a conversation between himself and one of Respondent's
managers.
Respondent objected based on hearsay, lack of certification by the court
reporter, and danger of
unfair prejudice.
The ALJ applied 29 C.F.R. § 18.801(d)(2)(iv) to find that the statements
by the manger on
the tape were not hearsay. That section provides that a statement is not
hearsay if it is offered
against a party and is a statement by the party's agent or servant concerning
a matter within the
scope of agency or employment, made during the existence of the relationship.
In addition, the
ALJ found that such evidence should be admitted, and then considered according
to factors
relevant to the reliability and probative value of contested evidence.
The ALJ found that the court reporter had, in fact, certified the
transcription.
The ALJ, applying 29 C.F.R. § 18.403 which provides that evidence,
although relevant,
may be excluded if its probative value is substantially outweighed by danger
of confusion of
issues or misleading the judge as trier of fact found that this section
still favors the
admissibility of relevant evidence, that the burden is on the objecting party,
and that exclusion is
employed sparingly as it is an extraordinary remedy. The ALJ found that
Respondent had not
met its burden of showing that inaudible portions of the tape caused the
transcribed portions to
be so misleading and prejudicial as to outweigh its relevancy.
[STAA Digest III J]
HEARSAY; PROPER FOR ALJ TO ADMIT, BUT THEN DECLINE TO RELY ON
HEARSAY TESTIMONY
In Dutkiewicz v. Clean Harbors Environmental Services, Inc.,
95-STA-34
(ARB June 11, 1997), Respondent argued in support of a motion for stay of the
ALJ's
recommended order of reinstatement that it was likely to prevail on the merits
because the ALJ
had ruled that certain testimony was hearsay and could not be considered to
refute Complainant's
claim that he was discharged for engaging in protected activity.
The Board found that the ALJ had properly admitted the testimony and judged
the weight it was
due. While the Board reserved further review on the matter, it concluded that
the ALJ's
reasoning -- declining to rely on hearsay -- was sound on its face and was not
an adequate basis
for finding that Respondent would prevail on the merits.
EVIDENCE; LESSENED SIGNIFICANCE OF TECHNICAL RULES ON
ADMISSIBILITY IN NON-JURY PROCEEDINGS [STAA Digest III J]
In Caimano v. Brink's, Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), the Secretary held that the ALJ properly
followed a general rule that evidence should not be ruled
inadmissible on technical grounds in non-jury proceedings.
Rather than refuse admission of such evidence, the ALJ should
consider factors relevant to the reliability and probative value
of contested evidence in determining the weight to be accorded
such evidence." Slip op. at 4 n.3 (citations omitted).
EVIDENCE; MOTIVE; RELEVANCE OF EVIDENCE OF TENSION BETWEEN
SAFETY AND PROFITS [STAA Digest III J]
In Caimano v. Brink's, Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), the ALJ questioned various witnesses about
the tension between "safety and profits," and noted the
existence of the tension in the recommended decision. The
Secretary found that the ALJ missed the significance of this
evidence in regard to the analysis of retaliatory animus toward
the Complainant. The Secretary indicated that the existence of
the tension was indicative of hostility resulting from the
Complainant's persistent safety complaints.
EVIDENCE; RELEVANCE OF EVIDENCE OF IMPROVEMENTS OCCURRING
AFTER ADVERSE EMPLOYMENT ACTION [STAA Digest III J]
In Caimano v. Brink's, Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), it was error for the ALJ to rely on
evidence of improvements in truck maintenance that occurred after
the Complainant's employment had been terminated in determining
whether there had been a violation under the STAA.
EVIDENCE; ELECTION NOT TO CALL REBUTTAL WITNESS; ADVERSE
INFERENCE [STAA Digest III J]
In Tanguay v. Westside Transport, Inc.,
95-STA-2
(Sec'y Nov. 22, 1995), the Secretary noted with apparent
approval the ALJ's drawing of an adverse inference from the
respondent's election not to call its field representative
as a rebuttal witness.
III J Hearsay; inadmissible to prove condition of
truck but may be used to prove complainant's
protected activity or good faith and reasonable
basis for action
In Ass't Sec'y & Mulanax & Andersen v. Red Label
Express, 95-STA-14 and 15 (ALJ July 7, 1995), the
Respondent proffered a hearsay objection to the admission of out-
of-court statements of mechanics and policy officers that
concerned the mechanical condition of Respondent's trucks. The
ALJ held:
Under decisions and regulations promulgated by the
Secretary of Labor, out-of-court statements are generally
not admissible in proceedings under the STAA to prove the
truth of the matters asserted in such statements unless the
statements fall within one or more of the specific
exceptions set forth at 29 C.F.R. § 18.803-804.
SeeHadley v. Southeast Coop. Service Co., 86-
STA-24 (June 28, 1991); 29 C.F.R. §1978.106; 29 C.F.R.
§18.101. Although these exceptions are more extensive
than the various exceptions to the hearsay rule set forth in
the Federal Rules of Evidence and common law evidence
treatises, they are not so extensive that they would
ordinarily permit out-of-court statements of mechanics or
police officers to be admitted for the purpose of proving
that a particular vehicle was unsafe to operate. Hence,
such statements cannot be regarded as probative evidence
concerning the mechanical condition of the various trucks
drive by the Complainants. However, it is also important to
recognize that such statements can be admitted into evidence
for other purposes, such as showing that a Complainant
engaged in a protected activity or that a Complainant had a
reasonable and good faith basis for a particular action.
Thus, to the extent that such hearsay statements have been
admitted into evidence in this proceeding, they have been
admitted solely for such purposes and have not been treated
as probative in any other respect. . . .
Slip op. at 3-4 n. 4.
[Editor's note: The general rules of practice and
procedure at 29 C.F.R. Part 18 apply to STAA whistleblower
complaints. 29 C.F.R. § 1978.106(a). The nuclear and
environmental whistleblower complaints adjudicated under 29
C.F.R. Part 24, however, do not incorporate the rules of evidence
in Part 18, although "rules or principles designed to assure
production of the most probative evidence available shall be
applied." 29 C.F.R. § 18.5(e).]
III J Summary of testimony does not substitute for
findings of fact
In Clifton v. United Parcel Service, 94-STA-16
(Sec'y May 9, 1995), the Secretary noted that the ALJ had
thoroughly summarized the testimony in his recommended decision,
but had made few findings of fact. In the "Background"
section of the Secretary's decision, a subheading appears
"Findings of Fact." Review of other decisions of the
Secretary issued in May 1995 reveals no other decision in which a
"Findings of Fact" subheading appears. Thus, it may be
inferred that the Secretary is making a not-too-subtle statement
that merely summarizing the testimony is not considered an
adequate analysis of the evidence.
III J No adverse inference drawn where witnesses are
outside subpoena range
In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17,
1995), the Secretary declined to drawn "any adverse
inference from the fact that [the Respondent] did not call as
witnesses some of its former managers who resided outside the
subpoena range of the hearing, nor from the non-production of a
"log-checker" program or records that [the Respondent]
no longer uses."
[Editor's note: Query whether this ruling suggests
that if within subpoena range, witnesses could have been
subpoenaed? CompareMalpass v. General Electric
Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994) (dicta indicating
that the Department of Labor does not have subpoena power in ERA
proceedings).]
III. J. Miscellaneous
In Yellow Freight System, Inc. v. Reich, No. 93-
3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585), the Secretary did not err by considering the claims of
section 405 violations that occurred outside the limitations
period. Such evidence may be considered to "shed light on
the true character of the matters occurring within the
limitations period." NLRB v. Oberle-Jordre Co., 777
F.2d 1119, 1120 (6th Cir. 1985) (quoting Local Lodge No. 1424
v. NLRB, 362 U.S. 411, 415, 80 S. Ct. 822, 4 L. Ed. 2d 832
(1960)).
III.J. Regulatory interpretation; reference to
Federal procedure
Absent an express regulatory time frame, Federal procedure offers
appropriate guidance. See United States Dep't of Labor v.
Bergen County, New Jersey, CETA, 82-CTA-334 (Sec'y Aug. 31,
1992).
Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y
Oct. 27, 1992) (Order Denying Motion to Reconsider), slip op. at
1 (Secretary applied Fed. Rule Civ. Proc. 59(e) to motion to
reconsider).
III. J. Miscellaneous
In Yellow Freight System, Inc. v. Reich, No. 93-
3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585), the Secretary did not err by considering the claims of
section 405 violations that occurred outside the limitations
period. Such evidence may be considered to "shed light on
the true character of the matters occurring within the
limitations period." NLRB v. Oberle-Jordre Co., 777
F.2d 1119, 1120 (6th Cir. 1985) (quoting Local Lodge No. 1424
v. NLRB, 362 U.S. 411, 415, 80 S. Ct. 822, 4 L. Ed. 2d 832
(1960)).
III.J. Judicial notice of existing law
A court can always take notice of existing law, whether in
statutes or regulations. Nothing in the Federal Rules of
Evidence requires a motion before it can do so. Nix v.
Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13,
1984) (Respondent contended that a regulation indicating that
certain safety regulations apply to private carriers, should not
be taken notice of by the Secretary because government counsel
had not moved for notice to be taken).
[STAA Whistleblower Digest III J]
ALJ'S ERROR IN DESCRIBING LEGAL ANALYSIS NOT REVERSIBLE ERROR IF
FINDINGS MEET STANDARDS OF PROPER ANALYSIS
In Germann v. Calmat Co., ARB No. 99-114,
ALJ No. 1999-STA-15 (ARB Aug. 1, 2002), Respondent argued that the ALJ erred in applying
the dual motive analysis instead of the pretext analysis, thereby improperly placing the ultimate
burden of proof on the Respondent. The ARB, however, found that although the ALJ made
references to the dual motive analysis, she did not, in fact, apply it. Rather, the ARB
determined that the ALJ actually analyzed the evidence under the "pretext"
framework and concluded that Complainant's protected activity was the more likely reason for
the suspension. The ARB also noted that even if the ALJ had applied the dual motive analysis,
such would be harmless error if the analysis included an express finding of pretext. Citing
Francis v. Bogan, Inc., No. 6-ERA-8, slip op. 5 n.1 (Sec'y April 1, 1988).
