DATE: June 28, 1991
CASE NO. 86-ERA-32

IN THE MATTER OF

CAROLYN LARRY,
    COMPLAINANT,

    v.

THE DETROIT EDISON COMPANY
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    On March 7, 1990, Complainant moved to admit three documents into the administrative record in this case arising under Section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1988). All documents purportedly were issued by the Nuclear Regulatory Commission (NRC) on February 12, 1990. As pertaining to this case, these documents purport to show that in November 1985 Wayne Hastings, Respondent's Director of Nuclear Security, "made a deliberate material false statement to an NRC inspector . . . . " In particular, Mr. Hastings

instructed his staff to place safeguards information in a data processing system that was not secure. When questioned by an NRC inspector, (Hastings) stated that he was unaware that the system was, in fact, not secure. Subsequently, an NRC investigation found that [Hastings] had been informed within about two months prior to placing the information on the system, both in writing and [orally] by his staff, that the system was not secure and the data should not be entered on it. One such notification was immediately before the information was entered into the system.

Proposed Complainant's Exh. 20. However, Hastings' knowledge that the computer system actually was not secure and the accuracy of his representations are not central to the substance of Complainant's discrimination complaint.¹ Accordingly, these documents appear to bear predominantly on Hastings' general credibility.

    Several considerations militate against admission of the documents. First, copies are submitted without seal, certification, or other authenticating or identifying device. 29 C.F.R. §§ 18.901, 18.902 (1990). Second, although the documents may come within the hearsay exception for public records and reports, 29 C.F.R. § 18.803(a)(8), they appear, to some extent, to comprise "evaluative" reports which require careful scrutiny prior to admission. See Fed. R. Evid. 803(8), Notes of Advisory Committee on Proposed Rules, Exception 8, par. (c).

    Finally, at the very least, Hastings' representations to the NRC regarding his lack of knowledge should have been a subject of his examination at the hearing before the Administrative Law Judge. 29 C.F.R. § 18.608(b).² Cf. U.S. v. Beros, 833 F.2d 455, 463-464 (3d Cir. 1987); United States v. Sperling, 726 F.2d 69, 75 (2d Cir.), cert. denied, 467 U.S. 1243 (1984); Carter v. Hewitt, 617 F.2d 961, 969-971 (3d Cir. 1980). Although the NRC report postdated the hearing on Complainant's discrimination complaint, Complainant's charge that Respondent provided false information in the course of an NRC investigation preceded the discrimination hearing. complainant was provided ample opportunity to examine Witness Hastings about his November 1985 participation in the NRC investigation, for purposes of attacking his credibility in testifying at the July 1986 hearing about his

motivation for deciding to demote Complainant in March 1986.³

    For the foregoing reasons, Complainant's motion IS DENIED. In issuing this determination, I express no opinion as to Complainant's argument that evidence may be received absent a remand to the ALJ for appropriate proceedings.

    SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.

¹ Pertinent discrimination inquiries center more directly on Hastings' knowledge of Complainant's concerns about processing safeguards information on the computer system and her February 1986 communication with the NRC.

² Modelled on Fed. R. Evid. 608(b), the regulation provides in pertinent part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may not be proved by extrinsic evidence. They may, however . . . if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness, concerning the witness' character for truthfulness or untruthfulness . . . .

³ Question exists as to whether evidence to this effect is altogether "extrinsic," although the NRC investigation of Hastings' conduct appears collateral. Had Hastings knowingly violated NRC regulations and deliberately provided the NRC with false information, he might have been more strongly motivated to retaliate against the whistleblower responsible for reporting this aggravated misconduct. However, this motivation should have been established primarily through examination of witnesses, rather than exclusively through the submission of NRC findings, conclusions, and allegations.