DATE: September 17, 1987
CASE NO. 87-STA-5

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,
    PROSECUTING PARTY,

    and

JAMES A. GASPAR, JR.,
    COMPLAINANT,

    v.

GAMMONS WIRE FEEDER CORPORATION,     RESPONDENT.¹

BEFORE: THE SECRETARY OF LABOR

    This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982), which prohibits covered employers from discharging or otherwise discriminating against employees who have engaged in certain protected activities. The proceeding was commenced by the filing of a complaint by Complainant Gaspar alleging that Respondent Gammons had discharged him in violation of the STAA. On May 21, 1987, prior to any hearing on the complaint, Counsel for the Assistant Secretary for Occupational Safety and Health filed with Administrative Law Judge (ALJ) Richard L. Huddleston a Motion to Accept Findings of Fact of Regional Administrator For occupational Safety and Health, Region V, and Motion For Summary Decision. In these motions, the Assistant Secretary requested, among other things, that the ALJ impose upon Respondent Gammons sanctions pursuant to 29 C.F.R. § 18.6(d)(2) (1986) for failure to comply with the ALJ's discovery orders. on May 28, 1987, the ALJ issued a Recommended Decision and Order (R.D. and O.) apparently granting both of the Assistant Secretary's motions and finding, pursuant to 29 C.F.R. § 18.6(d)(2),² "that all requested evidence would

    I find that the ALJ's recommendation that factual findings adverse to Respondent be made and that Respondent be prohibited from submitting evidence or objecting to Complainant's evidence on matters concerning the disobeyed order is supported by the record evidence³ and is in accordance with law. The instances in which Respondent failed to comply with the ALJ's order and the occasion on which Respondent failed, without explanation, to be available for a scheduled conference are well documented in the record. The record also reveals that Respondent had sufficient warning from the ALJ that failure to comply with the ALJ's order might result in the imposition of adverse findings. ALJ's Order Summarizing Telephone Conference, issued March 6, 1987. Respondent cannot be permitted to thwart or to retard adjudication of Gaspar's complaint by not being responsive to the ALJ's orders. Therefore, "for the purpose of permitting resolution of the relevant issues and disposition of the proceeding! without unnecessary delay despite [Respondent's] failure" to comply with the ALJ's order, 29 C.F.R. § 18.6(d)(2), it was proper for the ALJ to impose the sanctions provided for in 29 C.F.R. § 18.6(d)(2)(i)-(iii). I, therefore, adopt the ALVS finding that "all requested evidence would have been adverse to the Respondent, that all such matters are taken as established adversely to the Respondent, [and] that the Respondent may not now introduce evidence in support of his appeal or object to the Plaintiff's evidence." R.D. and O. at 2.⁴

    On the basis of the material in the record and the factual findings adverse to the Respondent, I find that there is no genuine issue as to any material fact and that Complainant is entitled to prevail as a matter of law. Accordingly, I grant the Assistant Secretary's Motion for Summary Decision⁵ and find that Complainant's discharge by Respondent was in violation of the STAA.

    Since I have granted the Assistant Secretary's Motion For Summary Decision, I do not rule on the Motion to Accept Findings of Fact of Regional Administrator For Occupational Safety and Health, Region V.

    Therefore, Respondent Gammons is Ordered to:

    1. Pay back pay to Complainant from July 8, 1986, to March 24,

¹This case caption, rather than the one used by the Administrative Law Judge, is the correct one, see 51 Fed. Reg. 42,091 (1986) (to be codified at 29 C.F.R. Part 1978, especially 29 C.F.R. § 1978.108(a)), and was used by the parties on their submissions.

²The ALJ erroneously cited to 20 C.F.R. § 18.6(d)(2).

³In his recital of the facts relevant to this recommendation, The ALJ noted that Respondent filed for bankruptcy. R.D. and O. at 2.

⁴Because I grant summary decision in favor of Complainant, I do not decide to strike Respondent's request for a formal hearing.

⁵On June 12, 1987, subsequent to issuance of the ALJ's R.D. and O. and transmittal of the record to me for review, Respondent filed its Opposition To Motion To Accept Findings of Fact of Regional Administrator for Occupational Safety and Opposition To Motion For Summary Decision in which Respondent argues only against the granting of the motion for summary decision. Because this submission was filed out of time, I have not considered the arguments made therein. Oppositions to motions of summary judgment must be filed within 10 days after service of the motion. 29 C.F.R. § 18.40(a)(1986). While I note that the ALJ's decision was issued 3 days before the expiration of this 10 day period, this fact does not affect the timeliness of Respondent's submission since it was filed 12 days late.

Also, on June 22, 1987 and July 13, 1987, Respondent submitted certain affidavits. Counsel for the Assistant Secretary has filed objections to Respondent's belated attempt to introduce this evidence. I have not considered these affidavits since my review of this case must be based on the evidence before the ALJ. See 29 C.F.R. § 1978.109(c).