DATE: July 29, 1987
CASE NO.: 86-STA-16

IN THE MATTER

KEITH STONE,
    COMPLAINANT

    v. NU-CAR CARRFIER
    RESPONDENT

BEFORE: THE SECRETARY OF LABOR

    This case arises under the employee protection (whistleblower) provision of the Surface Transportation Assistant 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, Inc. (Respondent) alleging that Complainant 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 (R.D. and O.) in which she concluded that Respondent did discriminate against Complainant in violation of the STAA. R.D. and O. at 15.

    This recommended decision was forwarded to me. I reviewed the decision and the record and concluded that the ALJ had rejected Respondent's proposed Exhibit 6 without good cause and thereby deprived Respondent of the opportunity to cross examine Complainant with the use of the document. As the credibility of the Complainant was crucial to the case, I remanded the case for an additional hearing limited to the examination and cross-examination of Complainant with the use of Exhibit 6 and such other matters as naturally arose out of the course and during the scope of the examination. Remand Order, February 2, 1987. On April 1, 1987, the ALJ issued a Supplemental Recommended Decision and Order after Remand. A page was missing from the April 1 issuance and a corrected version was issued on April 13, 1987. This corrected, supplemental decision, Supp. R.D. and O., and the October 8, 1986, R.D. and O. are now before me for review.

    The case record has been reviewed to see whether there is substantial evidence to support the ALJ's findings of fact and whether the ALJ's decision is in accordance with law. 51 Ted. Reg. 42,091 (1986) (to be codified at 29 C.P.R. Part 1978); see § 1978.109(c)(3). The ALJ made both findings of fact and supplemental findings of fact. While Respondents have raised a number of peripheral objections, the only major issue of fact is whether Complainant was unable to drive safely because of a flare-up of a previous injury. The record contains evidence pointing in both directions on this issue. However, the ALJ, who is in the best position to judge the credibility of witnesses, has ruled that the Complainant is credible on this issue after hearing extensive evidence on the point. The record contains substantial evidence to support the ALJ's finding that Complainant was impaired on October 1, 1985. R.D. and O. at 13; Supp. R.D. and O. at 6. See citations to transcripts and exhibits in ALJ's discussion: R.D. and O. at 10-14; Supp. R.D. and O. at 3-5. As I noted in Palmer v. Western Truck Manpower, Case No. 85-STA-6, issued January 16, 1987:

Where the standard of review of an ALJ decision is whether the findings of fact are supported by substantial evidence in the record as a whole, the ALJ's credibility determinations will not be

disturbed by the reviewing authority unless they "conflict with a clear preponderance of the evidence" or "are 'inherently incredible and patently unreasonable'." Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1335 (9th Cir. 1978).

Slip op. at 7. Accordingly, I adopt the ALJ's findings of fact on this issue. In addition, I find that the ALJ's factual determinations set out in the R.D. and O. at 2-6, some of which are discussed further at R.D. and O. at 6-9, are also supported by substantial evidence in the hearing record.

    I have previously ruled that the ALJ correctly found that jurisdiction was established and that the Secretary need not defer to the decision of the Joint Arbitration Committee that Complainant's discharge was justified. Remand Order at 2. See Hufstetler v. Roadway Express, Inc., 85-STA-8 (August 21, 1986), appeal docketed, No. 86-8771 (11th Cir. Oct. 20, 1986). I also agreed with the ALJ's decision that the entire work record of Complainant need not be admitted.

    I accept the remaining conclusions of law of the ALJ, but consider that additional findings are necessary to meet various points raised by both parties in briefs submitted following the ALJ's decisions. I therefore make the following additional rulings.

    1. The ALJ accepted in part Respondent's Exhibit 6A. Sop. R.D. and O. at 4. The Assistant Secretary objected to this ruling in his Reply Memorandum of May 21, 1987. Assistant Secretary's Memorandum in Reply to Respondent's May 14, 1978 [sic] Memorandum at 3-4. However, this point was not raised within 30 days of the ALJ's Supplemental R.D. and O. as provided by the regulations, 29 C.F.R. § 1978.109(c)(2); accordingly I will not consider it further.

    2. Respondent's Memorandum in Support of Exceptions to the Supplemental Decision and Order May 14, 1987, contains substantial material unrelated to the ALJ'S supplemental decision. See generally Respondent's May 14, 1987 memorandum at 9-14, 17-19, 24-27. While recognizing that these arguments are not germane to the limited issue under the remand order, they have been received in order to give full consideration to all of Respondent's arguments. However, none of these arguments convinces me that the ALJ's conclusions of law upon remand are incorrect.

    3. The ALJ did not rule that Respondent was required to prove that Complainant was not impaired. She ruled that Complainant was shown to have been impaired on October 1, 1985.

    4. The ALJ held that Respondent was not permitted to establish a policy of discharging employees immediately on a claim of illness with the possibility of reinstatement on presentation of a doctor's certificate. While I agree with the ruling, it is not necessary for the disposition of this case since the ALJ found that Respondent had no clear policy to this effect. The record, including the parts cited by the ALJ, R.D. and O. at 14, provides substantial support for this conclusion.

    5. Respondent raises for the first time, in its May 14 Memorandum in Support of Exceptions, at 24-27, two new reasons why Complainant should not be reinstated. Those arguments were not raised either at the hearing, or in the brief to the ALJ who had no opportunity to consider them. Although these exceptions relate to the ALJ's order that Complainant be reinstated as called for in the October 8, 1986, R.D. and O., these objections were not made when Respondent submitted its initial exceptions on October 27, 1986. Respondent failed to submit an initial brief as permitted by my order of November 18, 1986. Neither did Respondent raise these points in its lengthy Reply Brief submitted December 31, 1986. Accordingly I will not consider them now.¹

    I agree with the ALJ that Respondent discharged Complainant on October 1, 1985, in violation of § 405(e) of the STAA. Accordingly I adopt the ALJ's Recommended Decision and Order of October 8, 1987, as modified by the corrected Supplemental Decision and Order after Remand issued on April 13, 1987, and by the additional rulings above. Therefore it is ordered that:

    The Respondent, Nu-Car Carriers, shall:

1. Forthwith reinstate as of October 1, 1985, Complainant Keith Stone to his former job of truckaway driver with no loss of seniority and/or other rights and privileges Complainant had at the time of his termination or might have accumulated during his unlawful separation from his employment.

2. Pay Complainant what he would have earned but for his unjustified discharge on October 1, 1985.²

3. Pay interest on the back wages ordered paid in § 2 above at the rate specified in 28 U.S.C. § 1961, from the date such wages would have been paid to Complainant from October 1, 1985, to the date such payments are actually made.

4. Within 20 days of the date of this Order post for 30 days a copy of this Order in a prominent position on a bulletin board where notices to Nu-Car employees at the Respondent's Jessup, Maryland, facilities are customarily posted.

5. Expunge from Complainant's personnel record all references to his October 1, 1985, discharge.

It is further ordered that this case is remanded for the receipt of such further evidence on the issue of back wages ordered by § § 2 and 3 above as may be necessary.

    SO ORDERED.

       WILLIAM E. BROCK
       Secretary of Labor

Washington, D.C.

¹The Assistant Secretary's Reply Memorandum aptly notes that Respondent's contention that Complainant is disabled is not established by the record and that Respondent's claim that Complainant violated a Department of Transportation regulation prohibiting possession of a narcotic, 49 C.P.R. § 392.4(a), ignores the subsequent section in the regulations that the prohibition does not apply to a substance prescribed by a physician. 49 C.F.R. § 392(c). Respondent's later filing disputes this interpretation, Opposition to Motion to Strike at 9, n.3. This dispute further illustrates that this issue should have been raised at the hearing before the ALJ.

²As the ALJ noted, R.D. and O. at 15, n.9, the record is lacking in any evidence as to Complainant's income and other information on which damages can be calculated. Nor is there many indication in the record that the parties have responded to the ALJ's suggestion that they come to an amicable settlement of the back wages due. Therefore, my order must provide for remand of the record so that this omission from the record may be corrected. If the parties cannot stipulate to proper back wages as ordered, then a further hearing to resolve the dispute must be held and a recommended decision and order on the amount of damages forwarded for my review.