U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-103
(ALJ CASE NO. 97-STA-00030)
DATE: July 8, 1998
In the Matter of:
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
ANTHONY CIOTTI,
COMPLAINANT,
v.
SYSCO FOODS OF PHILADELPHIA,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), as amended, 49 U.S.C. §31105 (1994).
The
Assistant Secretary for Occupational Safety and Health alleged that Sysco Foods of Philadelphia
[Page 2]
(Sysco) suspended Anthony Ciotti (Ciotti) because of his refusal to drive in violation of STAA
§31105(a)(1)(B). Following a hearing on the merits, the Administrative Law Judge (ALJ)
issued a Recommended Decision and Order (R. D. & O.) finding that Ciotti had established a
STAA
violation and granting relief. We note that the ALJ's findings of fact are supported by substantial
evidence on the record considered as a whole and are therefore conclusive. R. D. & O. at 3-5; 29
C.F.R. §1978.109(c)(3) (1997). We also accept the ALJ's credibility determinations, and
agree that Sysco violated STAA by suspending Ciotti.
BACKGROUND
I. Procedural History
Ciotti filed a STAA complaint with the Occupational Safety and Health
Administration (OSHA) on May 14, 1997. OSHA investigated the complaint, and on July 18,
1997,
issued the Secretary's Findings and Preliminary Order indicating that there was reasonable cause
to
believe that the complaint had merit. R. D. & O. at 2; ALJ Ex. 1. By letter dated August 14,
1997,
Sysco requested a hearing. ALJ Ex. 2. After one continuance, the matter was tried on January
12,
1998, in Philadelphia, Pennsylvania, and post-hearing briefs were filed by February 27, 1998. R.
D. & O. at 2. In his March 10, 1998, recommended decision, the ALJ ruled that Sysco violated
the
antiretaliation provisions of STAA and ordered the company to pay Ciotti one day's lost wages
plus
interest. R. D. & O. at 9.
II. Facts
Sysco, a food distribution company in Philadelphia, Pennsylvania, hired
Ciotti
as a truck driver and delivery person in August 1991. In this capacity, Ciotti regularly drove
commercial straight trucks and commercial tractor-trailer combinations with gross vehicle
weights
approximating 30,000 pounds. These trucks were filled with product in Pennsylvania and then
were
emptied through deliveries in Delaware or New Jersey. Ciotti's job required him to work
between
10 and 12 hours per day, five days per week. R. D. & O. at 3.
1 Citations to the hearing
transcript (T.) include the page number and the name of the person testifying.
2 According to Charles Munn,
Sysco's Vice President of Employee Relations, the attendance policy applied to Ciotti (set out
in Government Exhibit 2) was in effect until July 1997. T. at 84, 89-90 (Munn).
3 Sysco's attendance policy
applied to the 12 calendar months immediately preceding the date of the last incident. Gov.
Ex. 2.
4 Sysco does not raise before
us the issue whether the Assistant Secretary for OSHA timely issued his determination that
Sysco had violated STAA. We note, however, our agreement with the ALJ's conclusion that
the Assistant Secretary's failure to complete the Preliminary Findings and Order within 60
days did not invalidate the litigation based upon those findings. R. D. & O. at 5-6.
See 29 C.F.R. §1978.114 (1997); Roadway Express, Inc. v.
Secretary of Labor, 929 F. 2d 1060, 1066-67 (5th Cir. 1991).
5 The Assistant Secretary
offered documentary evidence of Ciotti's visit to his doctor, her diagnosis, and her orders, but
the ALJ excluded this evidence as hearsay. T. at 40. An appellate court will ordinarily not
reverse a judgment in a nonjury case because of the admission of incompetent evidence. On
the other hand, a trial judge who, in the hearing of a non-jury case, attempts to make strict
rulings on the admissibility of evidence, risks reversal by excluding evidence which is objected
to, but which, on review, the appellate body believes should have been admitted.
Builders Steel Co. v. Commissioner of Internal Rev., 179 F.2d 377,
379 (8th Cir. 1950); National Labor Relations Board v. Philadelphia Iron
Works, Inc., 211 F.2d 937, 943 (3d Cir. 1954). Thus, in a non-jury hearing, it is more
efficient for the trier of fact to take under advisement questions regarding the admissibility of
evidence than it is to consider arguments concerning the admissibility of evidence at the time
such questions are raised. He or she is then able to sift through that evidence after it has been
received to determine what is admissible.
We disagree with the ALJ's exclusion, as hearsay, of the documentary
medical evidence in this case. However, in light of our ultimate conclusion, it is unnecessary
to remand the case for the inclusion of that evidence in the record.
6 Sysco argues that Ciotti
feigned illness in the past. This contention is not supported by the record. Specifically, Sysco
argues that Ciotti's absences in July and December 1996 were not due to illness or fatigue, but
instead were concocted by Ciotti to produce long weekends away from work. Res. Br. at 11-12.
However, no evidence on the issue was produced. In fact, Sysco admitted that it never
questioned Ciotti about these absences or the conditions which made them necessary. Tr. at 108-
109 (Munn). Ciotti, on the other hand, testified that the July 1996 absences were due to his
asthma condition and those in December 1996 were due to exhaustion resulting from his
transition from working nights to working days. Tr. at 51-52 (Ciotti); Gov. Ex. 1.
7 We emphasize that a refusal
to drive because of illness is not necessarily protected activity under STAA; it must be a
refusal to drive because the illness impairs the driver's ability to drive safely. See
49 C.F.R. §392.3 (1997).
8 STAA does not preclude an
employer from establishing reasonable methods or mechanisms for assuring that a claimed
illness is legitimate and serious enough to warrant a protected refusal to drive.