DATE: February 2, 1987
CASE NO.: 86-STA-16

IN THE MATTER OF

KEITH STONE,
    Complainant,

    v.

NU-CAR CARRIERS,
    Respondent.

BEFORE: THE SECRETARY OF LABOR

    This case arises under the employee protection (whistleblower) provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982), which prohibits covered employers from discriminating against employees who have engaged in certain protected activities.

    This case was initiated by a complaint filed by Keith Stone (Complainant) against Nu-Car Carriers (Respondent) alleging that he was discharged by Respondent in violation of the STAA when he refused to drive a load when he was ill. After a hearing, Administrative Law Judge-(ALJ) Anastasia T. Dunau issued on October 8, 1986, a Recommended Decision and Order in which she concluded that Respondent did discriminate against Complainant in violation of the STAA. This decision is now before me for review.

    In determining whether to accept the ALJ's recommendation, I have limited my review to an examination of whether the case record contains substantial evidence to support the ALJ's findings of fact and whether the ALJ's decision is in accordance with law. This is the standard of review which I will apply to all ALJ decisions covered by the newly promulgated regulations implementing Section 2305 of the STAA, 51 Fed. Reg. 42,091 (1986) (to be codified at 29 C.F.R. Part 1978). See § 1978.109(c)(3). These regulations became effective on December 22, 19-16, and thus are applicable to my subsequent review of the ALJ's decision in this case. Because of my ruling below regarding an issue of law, I defer any consideration of whether the factual findings should be sustained.

    On examining the ALJ's conclusion on the law, I agree with her holdings that jurisdiction was clearly established and that the Secretary is not required to defer to the decision of the Joint Arbitration Committee that the discharge was justified. My decision in Hufstetler v. Roadway Express, Inc., 85-STA-8 (August 21, 1986), is not dissimilar to the present case and the ALJ's conclusion is accepted.

    The ALJ found that evidence regarding Complainant's work record should not be admitted on the grounds that these documents would tend to be confusing and greatly extend the time required to try the case. Federal Rule of Evidence 403 provides for the exclusion of relevant evidence if it may induce confusion or waste time. The ALJ concluded that the evidence in question was peripheral to the issue and would require her "to try umpteen personnel actions . . . ." T. at 201. The ALJ did admit the record of one incident where Complainant left work because of illness, an action similar to the one at issue. Her decisions on the work record strike a reasonable balance and will not be disturbed on review.

    The rejection of Respondent's proposed Exhibit 6 was based on the grounds that it was unsworn and unsigned. T. at 160. Respondent had sought to admit it for the purpose of impeaching the credibility of the Complainant, who had acknowledged that he had prepared it. T. at 156-158. Rule 801(d)(2)¹ of the Federal Rules of Evidence provides that a prior statement of a party opponent is not hearsay and may be admitted. Rule 613(a)² specifically contemplates the examination of a witness with the aid of a prior inconsistent statement. There does not appear to

¹ (d) Statements which are not hearsay.

A statement is not hearsay if --

    (2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity . . . .

Fed. R. Evid. 801(d)(2).

² (a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be sown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.