DECISION AND ORDER ON LIABILITY;
REMAND ORDER ON DAMAGES
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
[Page 2]
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
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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. SeeHufstetler 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.
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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
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.
[ENDNOTES]
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.