After the admission into evidence of the Employer's Exhibit 6 the Respondent started to cross-examine Complainant on his state of mind on October 1, 1985 the date of his discharge.

    Complainant admitted that he was upset by the events of that morning, fully set forth in my original Recommended Decision, but maintained that despite his upset he was ready and willing to proceed with taking out the spare truck assigned to him that morning which he had loaded with the many mishaps set forth in my October 8 Decision. He stated (Tr. 375) that his mental state had "not that much" to do with his desire to go home that morning.

    The Employer then started examining Complainant concerning his testimony at the arbitration hearing on November 4, 1995 and sought an admission from Complainant that at that hearing he had testified that his desire to "book off" was caused the combination of his problems with his knee and his mental upset because of the incidents with the spare truck. Complainant denied precise recall of what was said at the arbitration hearing. (Tr. 377-378). The Respondent then sought to cross-examine on the basis of and eventually to introduce into evidence an item which it described tapes and a transcript thereof of the arbitration testimony and identified as Respondent's Exhibit Number 6(a). Counsel for the Secretary objected to this introduction on the ground that it was untimely, was a surprise and that its admission was not within the scope of the Secretary's Remand order. I took this matter under advisement.

    It is elementary that neither the transcript nor the tapes are admissible because they are not properly authenticated. The Respondent presented no witness to identify the tape and to testify to the circumstances of the taping and the fact that there had been no possibility of tampering with the tape while in the custody of its custodian. The affidavit of the alleged custodian, Susan Gindes, an employee of the Eastern Conference Automobile Transporters Joint Committee, located in Bethesda, Maryland, less than 20 miles from the hearing is not sufficient for that purpose. She should have been made available to the parties for cross-examination on the subject of authenticity. No explanation was offered for her unavailability.

    The transcript of the tapes was not prepared until

February 9, 1987. Counsel for the Respondent admitted that he only became aware of the existence of the tapes after the July 1986 hearings. Thus cross-examining Complainant on the basis of the tapes after admission of Respondent's Exhibit 6 could not possibly have naturally arisen during the scope of an examination on July 1, 1986. The Respondent offered no explanation for not producing the tapes earlier.

job that morning. This not inconsistent with his testimony concerning his leaving because of his knee. I will not discredit Complainant because by parsing his statements concerning motivation for leaving on October 1, 1985 some inconsistencies might be revealed. The arbitration committee hearings were informal, Complainant was not under oath and was without counsel and at that hearing as at the hearing before tended volunteer information and to go of on tangents. There is a clear conflict in Complainant's testimony at the hearing before me and at that before the arbitration committee concerning his medical treatment after he left Respondent's premises. Before me he testified that after he had arrived home on the day of his discharge, October 1, 1985 he attempted to get an immediate appointment with his treating physician, Dr. Jaworski, that Dr. Jaworski was unable to see him that day but advised him on hearing his symptoms over the telephone to proceed with the previously prescribed treatment and that an October 15, 1985 appointment was then arranged. (Tr. 86). Complainant stated at the arbitration hearing that he actually saw Dr. Jaworski on October 1, 1985, and that Dr. Jaworski attempted to calm him and told him to proceed with the previously prescribed treatment. (Arbitration Tr. 82-88). I do not believe that this inconsistency warrants my discrediting Complainant's entire testimony. Not only is Complainant's testimony concerning the events leading up to his discharge corroberated, see infra, but the inconsistency in the two statement is not of a nature as to warrant discrediting all of Complainant's sworn testimony. While Complainant did not actually see his physician on October 1, he did talk to him and received the advice he had testified to. Thus the inconsistency is rather minor. Moreover the inconsistency involves a peripheral matter, it does not go to the issue of his capacity to drive a truck on the day in question. Most importantly Complainant's testimony before me was sworn and less to his advantage than his unsworn testimony to the arbitration committee. There is a tendency to be more precisely truthful in statements under oath than in other more causal statements and minor discrepancies between the two types of statements do not brand a witness as a liar in all matters.

    While Complainant's credibility is, of course a major factor in this proceeding my crediting him was largely based on the fact that his physical inability to drive and the circumstances surrounding his discharge are corroberated by the factors set

forth in pages 11 through 13 of my Recommended Decision of October 8, 1986. Nothing ia the record made on March 17, 1987 invalidates any of this corroberative detail. On the contrary Complainant's testimony that the load he was assigned on October 1, 1986 was "a very good load" (Arbitration Tr. 82) corroberates his testimony that he had reasons and wanted to drive that day and was prevented from doing so by his physical state.

    For the reasons set forth above I reiterate my conclusion of October 8, 1986 that Respondent discharged Complainant on October 1, 1985 in violation of § 405(b) of the STAA and must therefor reinstate him to his former position without loss of seniority and must make him whole for any wages he may have lost by reasons of such a discharge.

    My Order of October 8, 1986 remains unchanged.

       ANASTASIA T. DUNAU
       Administrative Law Judge

Washington, D.C.

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