USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION III -- WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY

In Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Oct. 21, 1993), the Secretary addressed how to interpret employee protection provisions:

Statutory provisions which protect employees for participating in agency proceedings are accorded "exceptionally" broad application. [citations omitted] The purpose of employee protection provisions is to protect all forms of access to respective agencies at all stages of administrative process and thus to prevent agencies' channels of information from "being dried up by employer intimidation . . . ." NLRB v. Scrivener, 405 U.S. 117, 121-124 (1972) (equal and consistent protection at all stages of investigation and litigation essential to preserving integrity of the process in its entirety); DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983). [additional citations omitted] * * *

[STAA Digest III A]
WHERE CASELAW WAS IN A STATE OF FLUX, APPLICATION OF REGULATIONS IN EFFECT AT TIME OF DECISION DID NOT CREATE RETROACTIVE EFFECTS

In Strohl v. YRC, Inc. , ARB No. 10-116, ALJ No. 2012-STA-35 (ARB May 7, 2012), the ARB had remanded the matter to the ALJ based on its finding that under the new STAA regulations, a warning letter can be an adverse action and that previous STAA case law did not bind the ARB where those cases were issued before the August 2010 STAA regulations were promulgated. The Employer filed a motion for reconsideration on the ground that the ARB applied the regulations retroactively. The ARB denied the motion finding that it had applied the regulations in force at the time of the decision. The ARB stated that "Prior to the issuance of the August 2010 regulations, the issue of whether a warning letter could be an adverse action was in a state of flux depending on the facts of particular cases. Accordingly, the application of the STAA's regulations to Strohl's complaint did not create retroactive effects." USDOL/OALJ Reporter at 2 (cititation omitted).

[STAA Whistleblower Digest III A]
STATUTORY CONSTRUCTION; OBLIGATION OF ALJ NOT TO ACCEPT AS STARE DECISIS APPELLATE RULINGS WHERE OSHA DID NOT ACTIVELY PARTICIPATE IN PRIOR CASE

In Ass't Sec'y & Bates v. West Bank Containers , ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the ALJ ruled as a matter of law that Complainant engaged in protected activity when he made internal safety complaints of an overweight load. Respondent had argued that safety complaints are not protected activity within the meaning of §405(a)(1)(A) unless (a) they relate to an actual violation of a commercial motor vehicle regulation, standard or order and (b) the regulation, standard or order in question is a safety law. OSHA argued that it makes no difference whether a commercial motor vehicle regulation was actually violated or whether the regulation purportedly violated is a safety law -- rather, OSHA contended that all that is required by §405(a)(1)(A) is that the employee have a reasonable belief that the events in question violate a motor vehicle safety regulation. The ALJ treated the meaning of §405(a)(1)(A) as a matter previously resolved in Yellow Freight Sys., Inc. v. artin , 954 F.2d 353, 356-57 (6th Cir. 1992) -- in which the Sixth Circuit held that protection under §405(a)(1)(A) is not dependent on an actual violation and Ex rel Galvin v. Munson Trans., Inc. , 1991-STA-41 (Sec'y Aug. 31, 1992) -- in which the Secretary of Labor stated that it was undisputed that the driver refused to operate an overweight truck and that his refusal was based on the potential violation of federal regulations and a safety concern for himself and the public.

The ARB found that it was error for the ALJ to have relied on these prior decisions and not to have resolved the statutory construction issue presented by Respondent's and OSHA's interpretations of section 405(a)(1)(A). The ARB wrote:

In this case, the ALJ should have resolved the interpretive dispute between OSHA and West Bank, which was a dispute over the meaning of statutory text, by applying the traditional tools of statutory construction. The first step in that process is to determine whether Congress' intention is clear. If Congress' intentions are clear, they must be given effect. If it is not clear how Congress intended the statute to apply to the matter in issue, the adjudicator must determine whether the agency's clarifying interpretation is rational and consistent with the statute. If the adjudicator concludes that the agency's interpretation is reasonably consonant with the statutory structure and purpose, the adjudicator should defer to it. PBGC v. LTV Corp ., 496 U.S. 633, 650, 110 S.Ct. 2668, 2678 (1990); Chevron, U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837, 842, 104 S.Ct. 2778, 2781 (1984); OFCCP v. Keebler Co. , No. 97-127 (ARB, Dec. 21, 1999).

We assume, for purposes of this discussion, that Congress was silent on the question whether §405(a)(1)(A) requires proof that the related safety law was actually violated, and that OSHA's interpretive views on that question would therefore have to be evaluated for reasonableness. If that is so, it necessarily follows that OSHA would have to have made clear to the ALJ what its reasons were for construing §405(a)(1)(A) as not requiring evidence of an actual violation. These reasons would certainly include policy choices and OSHA's experience and expertise in administering §405(a)(1)(A) and other, similar, statutes. Without a clear explanation from OSHA for the view it has taken, the ALJ has no basis on which to evaluate the reasonableness of OSHA's ultimate conclusion. "[I]f the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, 'We must know what a decision means before the duty becomes ours to say whether it is right or wrong.'" SEC v. Chenery Corp ., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577 (1947) (internal citation omitted).

Equally important, without a clear explanation from OSHA, the ALJ lacks a legal basis for accepting OSHA's ultimate conclusion. This is because "an agency's order must be upheld, if at all, 'on the same basis articulated in the order by the agency itself.'" FPC v. Texaco, Inc ., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326 (1974), quoting Burlington Truck Lines, Inc. v. United States , 371 U.S. 156, 168-169, 83 S.Ct. 239, 245-246 (1962). "[A] simple but fundamental rule of administrative law" is "that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action. . . ." Chenery, supra .

The ARB acknowledged the principle of stare decisis , but held that where the agency itself is a litigant in a case which presents an interpretation issue previously decided without the agency's input "it makes no sense for the agency to 'rely' on the earlier decision as if it were stare decisis concerning the meaning of the unclear text." The ARB held that in the instant proceeding, "[n]o prior decisional rulings existed that represented a meaningful statutory construction analysis, replete with consideration of OSHA's policy and experiential reasoning." Applying statutory interpretation, the ARB held that §405(a)(1)(A) requires a link to a motor vehicle safety law.

In regard to the Sixth Circuit holding that protection under §405(a)(1)(A) is not dependent on an actual violation, the ARB found that "the Sixth Circuit's deference to OSHA's appellate argument about the meaning of §405(a)(1)(A) cannot be taken at face value" because OSHA had not participated in the litigation of the case before the ALJ or the Secretary of Labor, and the Solicitor's role in Respondent's appeal to the Sixth Circuit was to defend the Secretary's ruling in favor of the complainant. The ARB stated that "[w]hether the court of appeals fully appreciated that the views expressed in the Department's brief to the court were not views that OSHA had expressed in the administrative litigation is impossible to know."

The ARB then reviewed the caselaw in the area, and without deciding the issue, concluded that it was "inconsistent, replete with conclusory statements, short on analysis, and virtually bereft of OSHA input."

One member of the ARB dissented from the part of the decision rejecting the ALJ's and OSHA's analysis of the protected activity issue under Section 405(a), finding that "[o]pinions issued by the Secretary, the ARB, and the courts provide well reasoned analyses interpreting the 'complaint clause' of the STAA, and thus provide us with an adequate standard against which to gauge the Assistant Secretary's interpretation of Section 405(a)."

III. A. Broad application of statutory provisions protecting whistleblowers

Statutory provisions which protect employees for participating in agency proceedings are accorded "exceptionally" broad application. The impetus is to protect all forms of access to respective agencies at all stages of administrative process and thus to prevent agencies' channels of information from "being dried up by employer intimidation . . . ." Information and testimony obtained in related proceedings in turn may precipitate or otherwise bear on STAA complaints or investigations. Citations omitted. Gay v. Burlington otor Carriers, 92-STA-5 (Sec'y May 20, 1992).

III.B. Reference to NLRA and Title VII authority

In Lajoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct. 27, 1992), the Secretary referred to National Labor Relations Act and Title VII of the Civil Rights Act of 1964 precedent in regard to a complainant's intemperate language and impulsive behavior associated with the exercise of STAA rights.

[STAA Digest III B]
APPLICABILITY OF STATE MOTOR VEHICLE LAWS

Where a complaint would be driving a commercial vehicle on state roads, the state's motor vehicle laws are subsumed and incorporated into STAA as a "regulation" of the United States by reason of the FHA regulation at 49 C.F.R. §392.2 (1998). Thus, in Ass'y Sec'y & Cotes v. Double R Trucking, Inc. , ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999), Complainant's refusal to drive a truck that would be illegally overweight under state law was protected activity and the Company's termination of him for that protected activity constituted a violation of STAA.

III.B. Relationship to other whistleblower acts

In Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y July 13, 1984) (the first STAA complaint), the Secretary held that cases arising under the employee protection provision of the STAA will be reviewed in accordance with the same prescription for allocating burdens of proof and burdens of production or going forward with the evidence as he had applied to analogous employee protection laws under 29 C.F.R. Part 24. See, e.g., Dartey v. Zack Co. of Chicago , 82-ERA-2 (Sec'y Apr. 25, 1983) (applying Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) and NLRB v. Transportation anagement Corp., 103 S. Ct. 2469 (1983)).

III. B. Relationship to other act

In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the Respondent contended that the trigger date for the 180 limitation period for filing a STAA whistleblower complaint is the date an employee receives warning letters rather than the date of actual discharge. The Respondent relied on Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 415, 80 S. Ct. 822, 4 L. Ed. 2d 832 (1960) (six month statute of limitations under § 10(b) of the NLRA prevents attacking legitimacy of time-barred violations) and NLRB v. McCready and Sons, Inc., 482 F.2d 872, 875 (6th Cir. 1973) (same).

Observing that the Supreme Court noted in Local Lodge No. 1424 that its decision "has drawn on [the National Labor Relations Act's] purpose and history, and we do not assert the universal applicability of our resolution of the particular question presented for decision." 362 U.S. at 424 n.15, the Sixth Circuit cited with approval the Secretary adoption of the following ALJ finding:

Unlike the NLRA, which has the overall purpose of securing industrial peace through the balance of competing interests . . . the "whistleblower" provisions of the Surface Transportation Assistance Act were enacted specifically to encourage employee reporting of noncompliance with safety regulations and to protect such employees against retaliation [*23] for reporting these violations. Moon v. Transport Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987).

The Sixth Circuit concluded that the NLRA and STAA have different "purposes and histories," and there is no reason to believe that the Supreme Court intended the rationale of Local Lodge No. 1424 to apply here.

The Sixth Circuit found more to the point English v. Whitfield , 858 F.2d 957, 961 (4th Cir. 1988), in which the Fourth Circuit determined that the statute of limitations begins to run only upon receipt of "final and unequivocal notice" of discharge. Until an employee is notified of termination "there is the possibility that the discriminatory decision itself will be revoked, and the contemplated action not taken, thereby preserving the pre-decision status quo." Id.

The Sixth Circuit found this language to aptly describes the situation in this case. It also noted that the Respondent's argument would require employees to file protective STAA complaints each time they are disciplined, regardless of the nature of the discipline, or risk being discharged 181 days later without recourse. The three letters all advised of more severe discipline if Smith failed to follow company rules; none even hinted that he would be discharged for events that had already occurred.

III.C. Weight and effect of Assistant Secretary's findings in STAA case; effect of objection to order but not findings

In a proceeding under STAA, 49 U.S.C. app. § 2305, a party may explicitly object to the Assistant Secretary's preliminary "order," without placing the preliminary "findings" at issue before the administrative law judge. See 49 U.S.C. app. § 2305(c)(2)(A); 29 C.F.R. § 1978.105(a). Generally speaking, the Assistant Secretary's preliminary findings are deemed final and not subject to review where the parties fail to object to the findings within thirty days.

Where an objection to the findings or preliminary order is filed, a hearing is conducted de novo by an administrative law judge. 20 C.F.R. § 1978.106(a). Thus, the investigative findings have effect only if unchallenged. In the event that a hearing is requested, they are not accorded weight in any decision in the case.

Where, however, it appeared that the employer had accepted the terms of the preliminary findings and order only as a matter of expediency (intending those terms to act as a settlement offer), it was unclear whether the Employer was actually notified of the complainant's objection to the order (which did not require reinstatement), it was not clear that the pro se employer was advised that complainant's objection did not place the entire case at issue until just prior to the hearing, any attempt to press the administrative law judge to expand the hearing issues would probably have been futile, and none of the administrative law judge's pre-hearing orders directly required or solicited employer's position on this precise issue. The Secretary found that, under these precise circumstances, the employer had not been offered proper notice and meaningful opportunity to respond to the Assistant Secretary's preliminary decision, and remanded the case for a de novo hearing on the merits. Smith v. Specialized Transp. Servs., 91-STA-22 (Sec'y Nov. 20, 1991).

III C Once a hearing is requested, the adequacy of the OSHA investigation is not relevant

In White v. "Q" Trucking Co., 93-STA-28 (Sec'y June 9, 1995), the Complainant requested reconsideration, alleging, inter alia, that the investigation by OSHA was inadequate. The Secretary denied the motion, holding that the extent of the OSHA investigation was not at issue -- once the Complainant objected to the investigative findings, he was accorded the opportunity for a de novo hearing and assumed the burden of proving unlawful discrimination.

III.C. Binding effect of Assistant Secretary's findings on issues to be heard by ALJ

The Assistant Secretary's preliminary resolution is not binding or determinative of the precise issues to be heard before the ALJ. Nevertheless, where is was not clear from the record that the respondent had adequate notice of all the issues and theories to be heard before the ALJ, that is relevant to the overall inquiry. Brame v. Consolidated Freightways, 90- STA-20 (Sec'y June 17, 1990) (the Secretary did not state what should be done about inadequate notice, but simply affirmed the ALJ's conclusion that the addition incidents did not permit the complainant to prevail).

III.C. Weight accorded to Assistant Secretary's findings - STAA

The Assistant Secretary's investigation findings become final only in the absence of timely objection. 29 C.F.R. § 1978.105(b)(2). A hearing in the matter, which may be obtained by filing an objection to the Assistant Secretary's findings or preliminary order, is conducted de novo by an ALJ, 29 C.F.R. § 1978.106(a), and the ALJ's factual findings are conclusive if supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3). Thus, the investigation findings of the Assistant Secretary have effect only if unchallenged. In the event that a hearing is requested, they are not accorded weight in any decision in the case. Holloway and Murray v. Lewis Grocer Co., 87-STA-16 (Sec'y Jan. 25, 1988), slip op. at 2 n.2, aff'd in relevant part, 874 F.2d 1008 (5th Cir 1989).

Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21,1989), aff'd in part and rev'd in part sub nom. on the ground that the Secretary must provide sufficient notice of the raising of an issue to provide procedural due process, Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

To the same effect, see Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992) (Assistant Secretary's preliminary investigation findings do not supplant the Secretary's final decision in review of findings issued by an ALJ after according the parties an opportunity for full hearing).

III.C. Preclusive effect of Assistant Secretary's findings

It is well settled that, once a hearing is requested, the ALJ conducts a de novo hearing and the investigative findings of the Assistant Secretary are not accorded any weight. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992).

III.C. Weight given to preliminary findings

In Holloway & Murray v. Lewis Grocer Co., 87- STA-16 (Sec'y Jan. 25, 1988), Complainants refused to drive vehicle they believed Respondent had failed to repair. Pursuant to a complaint filed with the Department of Labor by Complainants, a preliminary investigation was conducted. The Secretary's findings resulting from that investigation concluded that there was not reasonable cause to believe that Respondent had violated Section 405 of STAA.

Noting that the ALJ accepted or modified findings issued by the Supervisory Investigator of OSHA in reaching his conclusions, the Secretary determined that such findings are preliminary findings and, even where made part of the record, carry no weight once a hearing had been requested. Hearings under Section 2305 must be conducted as hearings de novo .

[STAA Whistleblower Digest III D]
DEFERRAL TO ARBITRATION UNDER A COLLECTIVE BARGAINING AGREEMENT; NO DEFERRAL WHERE ARBITRATOR DID NOT ADDRESS ELEMENTS OF STAA WHISTLEBLOWER PROTECTION COMPLAINT

In Lachica v. Trans-Bridge Lines , ARB No. 10-088, ALJ No. 2010-STA-27 (ARB Feb. 1, 2012), under the STAA regulations in effect when the ALJ conducted the hearing, the Secretary of Labor was permitted to defer to the outcome of arbitration proceedings under an applicable collective bargaining agreement when the arbitration �dealt adequately with all factual issues,� the proceedings were �fair, regular, and free of procedural infirmities,� and the outcome of the proceedings �was not repugnant to the purpose and policy of the Act.� 29 C.F.R. 1978.112(c). The regulations were amended in 2010 to delete this provision. In Lachica , the Complainant had been discharged for unprofessional behavior following a grievance hearing, and under the CBA the discharge went to arbitration and was denied. The ALJ reviewed the transcript of the arbitration hearing and the arbitrator's decision, and deferred to it. The arbitrator had concluded that the Complainant had been fired for just cause in that he engaged in unprofessional behavior toward passengers.

On appeal, the ARB reviewed the record of the arbitration and concluded that neither the subject matter of the hearing nor the arbitrator's decision addressed the whistleblower protections of the STAA. The arbitrator, for example, did not determine whether the Complainant engaged in protected activity under the STAA or whether such activity contributed to the Complainant's lay-off and eventual discharge. Thus, the ARB vacated the ALJ's dismissal and remanded for further proceedings. The ARB did not decide whether it was appropriate to defer to the arbitration proceedings under a regulation that was later removed.

III.D.1. Weight accorded grievance proceeding

The ALJ's decision to afford no weight to a grievance proceeding concerning the same circumstances relating to complainant's STAA action was appropriate where the only information concerning that proceeding was a limited two-page summary, and the record gave no indication that the grievance committee considered the case as a matter involving discriminatory retaliation by respondent based on complainant's alleged safety-related protected activity. See 29 C.F.R. § 1978.112(a)(1) and (c). See also cDonald v. City of West Branch Michigan, 466 U.S. 284, 289, 292 n.12 (1984).

Mecus v. Consolidated Freightways, 91-STA-37 (Sec'y Jan. 23, 1992).

[STAA DIGEST III D]
DEFERENCE TO FINDINGS OF ANOTHER GOVERNMENT AGENCY

In STAA whistleblower cases, deference is paid to the findings of another government agency made in proceedings brought under different statutes only in limited circumstances. 29 C.F.R. § 1978.112. Nichols v. Gordon Trucking, Inc. , 97-STA-2 (ARB July 17, 1997).

III.D.1. Weight accorded grievance proceeding

Noting that arbitration is a favored method of grievance resolution, and that the decision of a joint employer-union committee may have a conclusive effect if the contract so provides, the ALJ held that any deference to such a decision must be limited to the factual findings and have little or no conclusive effect on conclusions of law in STAA proceedings. Overton v. Consolidated Freightways, Inc. , 86-STA-2 (ALJ ar. 25, 1986).

[Editor's note: The Secretary affirmed the ALJ's dismissal in Overton v. Consolidated Freightways, Inc. , (Sec'y June 26, 1986).]

III.D.1. EEOC investigation; state referee

In Judd v. Helena Truck Lines, Inc., 91-STA-48 (ALJ Dec. 24, 1992), the administrative law judge noted that the Supreme Court has liberalized the applicability of the doctrine of equitable estoppel, or issue preclusion, and therefore other courts will continue to do so. University of Tennessee v. Elliott, 478 U.S. 788 (1986); United States v. Utah Construction & Mining Co., 384 U.S. 394 (1966). Such an approach has been endorsed under the STAA since the regulations promulgated thereunder authorize the Secretary of Labor to afford deference to the determinations of other jurisdictions on issues related to the Act. See 29 C.F.R. § 1978.112.

The ALJ concluded, however, that collateral estoppel should not be applied where the determination relied on was made by the Area Director of the Equal Employment Opportunity Commission based on evidence obtained from an agency investigation rather than through a judicial process. In making this determination, the ALJ stated that if an agency, whether federal or state, is "acting in a judicial capacity" and "the proceedings were fair, regular and free of procedural infirmities" with both parties having "a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings," then the determination should be controlling on another agency which is addressing the same factual issue. Elliott, 788 U.S. at 799; 29 C.F.R. § 1978.112(c); Utah Construction & Mining Co., 394 U.S. at 422.

A closer question was presented by the decision of an appeals referee of the Tennessee Department of Employment Security. That referee conducted a hearing, the decision was appealed to the Board of Review of the state agency, and that decision was then appealable to the Chancery Court of Tennessee. The record before the ALJ, however, did not reveal whether the proceeding of the state agency was of a judicial nature with the parties being afforded a fair and reasonable opportunity to present credible evidence. Specifically, the record did not reveal the procedural or evidentiary aspects of the referee hearing. Moreover, the ALJ noted that acceptance of the state proceeding would serve little purpose since collateral estoppel generally is applied to avoid duplicative litigation, and the parties in the instant case had already developed extensive evidence and the only matter remaining was the issuance of the ALJ's decision based on that evidence.

III.D.1. Deferral to grievance committee

Where the record included only the form on which a grievance with the New York State Joint Area Grievance Committee was filed, and the decision of the committee which read, "Unanimous-based on the facts, claim of the grievant denied, discharge is upheld," the ALJ held that it was not possible to evaluate the adequacy and fairness of the grievance proceeding on such a record, and gave no weight to the committee's findings. Thom v. Yellow Freight System, Inc., 93-STA-2 (ALJ July 20, 1993), adopted (Sec'y Nov. 19, 1993).

III.D.2. Deferral to NLRB proceeding

The Secretary approved the ALJ's recommendation to dismiss a STAA complaint based on the outcome of an NLRB proceeding where the Department had used diligence in affording complainants the opportunity to state whether NLRB proceeding afforded them full relief. In 1988, the Solicitor had informed the ALJ that complainant had received full relief in the NLRB proceeding. The ALJ issued two orders to show cause why the case should not be dismissed. Only the Solicitor responded. The Secretary issued an order permitting the parties to submit briefs, but no parties took advantage of that order. Hence, the Secretary adopted the ALJ's finding that the NLRB's decision was fair and just and does no disservice to the purposes or policies of the STAA. Combs v. Mash Transportation Services, Inc., 86- STA-14 (Sec'y July 24, 1992).

III.D.2 Deferral to NLRB proceeding

In Assistant Secretary of Labor for Occupational Safety and Health and Leidigh v. Freightway Corporation, 88-STA-13, (Sec'y June 10, 1991), the Secretary held that deferral to the outcome of proceeding initiated by an STAA complainant in other forums was acceptable "if those proceedings (1) dealt adequately with all factual issues; (2) were fair, regular and free of procedural infirmities; and (3) produced an outcome that is not repugnant to the purpose and policy of the STAA."

III.D.3. Assistant's Sec'y's deferral not binding on ALJ

The Assistant Secretary's deferral to an arbitral ruling in favor of the respondent does not prevent the complainant from seeking a hearing before an administrative law judge.

Yellow Freight System, Inc. v. Martin, No. 92-4074 (2d Cir. Jan. 25, 1993), aff'g, Spinner v. Yellow Freight System, Inc., 90-STA-17 (ALJ Jan. 17, 1992), aff'd , (Sec'y May 6, 1992).

III.D.3. Collective bargaining does not preempt STAA

The Secretary rejected an employer's argument that a collective bargaining forum in any manner preempts an STAA claim or that it is a more appropriate forum for resolution. Self v. Carolina Freight Carriers Corp. , 89-STA-9 (Sec'y Jan. 12, 1990).

II.D.3.a. Evidence; transcript of arbitration proceeding

When the parties to a retaliatory discharge case under 49 U.S.C. § 2305 of the Surface Transportation Assistance Act, have previously submitted to arbitration pursuant to a collective bargaining agreement, the Secretary should admit the arbitration into evidence, review the proceedings and then decided what weight the arbitration proceedings merit. Thus the Secretary lacked the discretion to accept the administrative law judge's decision to refuse to admit into evidence the transcript of a arbitration proceeding because of incompetent advocacy by the complainant's union representative; however the Secretary's decision finding a violation of 49 U.S.C. § 2305 was affirmed because, upon review of the transcript of the arbitration proceeding and the hearing before the administrative law judge, the court determined that the arbitration proceedings failed to give full consideration to the complainant's rights and were therefore unworthy of weight. Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987).

III.D.3.a. Deferral to arbitration; requirement that ALJ examine proceeding to determine whether it is entitled to consideration

Although an ALJ is not required to defer to the outcome of an arbitration proceeding, 29 C.F.R. § 1978.112(c), it is error to reject the arbitration decision without examining the evidence of the proceedings. An arbitration decision is not entitled to weight when it does not give full consideration to the parties' rights under the STAA. Brame v. Consolidated Freightways, 90- STA-20 (Sec'y June 17, 1990).

III.D.3.a. Arbitration proceedings as evidence

Employee, discharged line-haul and road driver, filed complaint with Secretary in which he alleged his discharge violated whistleblower provision of STAA. The Secretary adopted the ALJ's findings which did not include the transcript of employee's arbitration proceeding. The court stated that courts cannot assert such a strong, pro-arbitration policy and then allow the Secretary to ignore arbitral proceedings without even examining the proceedings in question. However, the court did not adopt any standards as to the weight to be accorded an arbitral decision, since this must be determined in the court's or Secretary's discretion with regard to the facts and circumstances of each case. Roadway Express, Inc. v. Brock, 830 F.2d 179, 181 (11th Cir. 1987).

III.D.3.a. Deference to arbitration proceedings

When the parties to labor dispute over retaliatory employment action submit to arbitration pursuant to the collective bargaining agreement, and the employee files a subsequent STAA complaint with the Secretary of Labor, the Secretary should admit the arbitration into evidence, review the proceedings, and then decide what weight the arbitration proceedings merit. Whether those proceedings were adequate necessarily varies on a case-by- case basis; it must be sufficient to inspire confidence in its fairness and regularity. Where such proceedings give full consideration to an employee's statutory rights, the Secretary may properly accord it great weight. Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987).

[Editor's Note: Compare Seymour v. Preston Trucking Co., 85-STA-9 (ALJ Oct. 16, 1985), adopted (Sec'y Feb. 6, 1986), in which the ALJ recommended whole-hearted deference to a arbitration panel's decision. The Secretary adopted the ALJ's decision without discussion, whereas there was extended discussion by the Secretary in Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), the administrative case overruled in Roadway Express. ]

III.D.3.b. Weight of arbitration decision

The Administrative Law Judge applied an erroneous standard when he found that "complainant failed to rebut the presumption of no discrimination arising from the resolution of complainant's grievance in respondent's favor." The Secretary found that the record did not support deferral to the outcome of the arbitration. Curless v. Thomas Sysco Food Serv., 91-STA-12 (Sec'y Sept. 3, 1991).

III.D.3.b. Preclusive effect of arbitration award - STAA

In Spinner v. Yellow Freight System, Inc., 90-STA- 17 (Sec'y May 6, 1992), an arbitration award denying complainant's contract grievance was found not to be entitled to preclusive effect in an STAA proceeding. The Secretary noted that the complainant was not represented by personal counsel and did not call his own witnesses or cross-examine respondent's witnesses; the union attorney conducted no meaningful cross- examination and permitted introduction of extensive hearsay; the hearing focused exclusively on the events surrounding the particular incident resulting in discharge; the parties never agreed on the issues; the arbitrator made factual findings contrary to the Secretary's view of the circumstances (knowledge of safety of the tractor, whether complainant was directed to violate safety regulations; voluntary resignation v. discharge); order confirming the award by a New York Supreme Court acting justice was granted on default and contained no opinion.

The Secretary found that the issues raised in the arbitration proceeding and the STAA hearing were not congruent and that the arbitrator did not consider complainant's STAA rights adequately.

Twenty nine C.F.R. § 1978.112(c) provides that "[a] determination to defer to the outcome of other proceedings . . . must necessarily be made on a case-by-case basis, after careful scrutiny of all available information." Deferral may be appropriate if it is "clear that those proceedings dealt adequately with all factual issues, that the proceedings were fair, regular, and free of procedural infirmities, and that the outcome of the proceedings was not repugnant to the purpose and policy of the [STAA]." See Leidigh v. Freightway Corp., 88-STA- 13 (Sec'y June 10, 1991) (deferral to outcome of labor board proceeding appropriate).

III.D.3.b Preclusive effect of arbitration award - STAA

An arbitration award, though affirmed by the state appellate court, does not have a preclusive effect on the finding of the ALJ in an STAA proceeding. Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992), citing N.L.R.B. v. Yellow Freight Systems, Inc., 930 F.2d 316, 320 (3d Cir.), cert. denied, 112 S. Ct. 78 (1991).

III.D.3.b. Deferral not required

In Yellow Freight Systems, Inc. v. Reich, No. 93- 1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS 28378), the Fourth Circuit agreed with the ALJ and the Secretary that it was appropriate not to defer to a five-word decision of an arbitration panel. See Roadway Express, Inc. v. Brock, 830 F.2d 179, 182 (11th Cir. 1987).

III.E. CBA does not diminish STAA rights

The terms of collective bargaining agreements do not diminish any rights afforded employees under the STAA. Brame v. Consolidated Freightways, 90-STA-20 (Sec'y June 17, 1990).

III.E. IF CBA conflicts with STAA, statute governs

If a collective bargaining agreement conflicts with the Surface Transportation Assistance Act, then the statute supersedes the agreement because labor contracts cannot operate to deprive employees of rights specifically protected by federal statutes. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1064 (5th Cir. 1991).

III.E. STAA supersedes CBA

Four employees refused to drive the company's trucks during a hazardous ice storm. Employer paid the drivers their regularcompensation for the trip, but refused to pay for their overnight layover. Employees filed complaints with the Secretary of Labor arguing that Employer violated section 405(b) of STAA. The collective bargaining agreement did not entitle the employees to delay time compensation, but there was substantial evidence that Employer had on past occasions authorized its employees to discontinue their trips and receive delay time compensation. The court held that if the collective bargaining agreement conflicts with the STAA, then the statute supersedes the agreement because labor contracts cannot operate to deprive employees of rights specifically protected by federal statutes. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1064 (5th Cir. 1991).

[STAA Whistleblower Digest III F]
INADMISSIBILITY OF CHARACTER EVIDENCE FOR IMPEACHMENT; FILING OF SUITS OR WHISTLEBLOWER COMPLAINTS AGAINST OTHER EMPLOYERS

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB found that the ALJ did not abuse his discretion in not allowing the Respondent to question the Complainant about whether he had filed suits or OSHA whistleblower complaints against three trucking companies that subsequently employed the Complainant, as a means to impeach the Complainant's credibility.

III.F. Motive of complainant for filing STAA complaint is not relevant

In Moravec v. HC & M Transportation, Inc., 90- STA-44 (Sec'y July 11, 1991) (order of remand), the ALJ erred in finding the complainant's testimony "questionable" simply because his reason for filing his STAA complaint was that respondent opposed his claim for unemployment compensation. It is the respondent's motive in discharging complainant that is under scrutiny. See also Perez v. Guthmiller Trucking Co., 87-STA-13 (Sec'y Dec. 7, 1988), slip op. at 13-15 (rejection of testimony because of alleged motive of witness improper absent supportive evidence); Flener v. Cupp, Inc., 90-STA-42 (Sec'y Apr. 9, 1991).

III.F. Respondent's motive

The record established that the complainant's safety complaints motivated respondent to discharge him where

The complainant had previously sent a letter to respondent's national headquarters which particularly upset the regional officials who discharged complainant because it elicited scrutiny by top management and caused the regional officials who discharged complainant to spend a ten-month period attempting to address complainant's concerns
Respondent monitored complainant in an attempt to document vehicle tampering despite lack of a basis for a tampering charge
The discharge was irregular in that complainant's safety concerns regarding the incident leading to the discharge were given cursory treatment, complainant had threatened renewal of internal complaints and to complain externally where upon he was promised "trouble" if he continued to complain; less than an hour elapsed between complainant's report for dispatch and his discharge; complainant's refusal to depart absent verification was tape-recorded in part. This constitutes compelling evidence that respondent induced complainant's work refusal and seized upon it to rationalize his discharge.

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992).

[STAA Whistleblower Digest III G]
INADMISSIBILITY OF CHARACTER EVIDENCE FOR IMPEACHMENT; FILING OF SUITS OR WHISTLEBLOWER COMPLAINTS AGAINST OTHER EMPLOYERS

III.G. Credibility Determinations

In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), Complainant refused to drive a truck back to Respondent's truck yard after it had been placed out of service for safety violations. Respondents picked up Complainant and took him back to the truck yard. There, Complainant requested another driving assignment but was told by Respondent's dispatcher to wait for a while. After a half hour (during which Respondent's dispatcher criticized Complainant for Complainant's prior mechanical breakdowns) Complainant requested that Respondent's dispatcher either work him or fire him. At that time Respondent's dispatcher fired Complainant. Subsequently, Complainant's discharge was ratified by Respondent, who had the authority to discharge Complainant while the dispatcher did not. Complainant testified at the hearing. Respondent testified as to Respondent's dispatcher's version of the conversation. The dispatcher did not testify at the hearing and when given the opportunity, Respondent declined to depose the dispatcher after the hearing. The ALJ credited Respondent's version of Complainant's conversation with the dispatcher over Complainant's version.

The Secretary rejected the ALJ's credibility findings regarding the conversation that took place between Complainant and Respondent's dispatcher. Specifically, the Secretary noted that the ALJ failed to discuss Complainant's account of the exchange and chose to accept the account of Respondent, who was not even present during the conversation. Finding that the ALJ's conclusions were not supported by substantial evidence, the Secretary accepted Complainant's testimony regarding his exchange with the dispatcher and found that it occurred as he testified.

[STAA Whistleblower Digest III G]
WITNESS CREDIBILITY; DEFERENCE TO ALJ'S CREDIBILITY FINDINGS UNLESS THEY ARE INHERENTLY INCREBILE OR PATENTLY UNREASONABLE

In Johnson v. Rocket City Drywall , ARB No. 05-131, ALJ No. 2005-STA-24 (ARB Jan. 31, 2007), PDF | HTM the Complainant's only allegation on appeal was that the Respondent's witnesses perjured themselves to avoid higher rates on unemployment compensation. The ARB stated that it will uphold an ALJ's credibility findings based on substantial evidence unless they are "inherently incredible or patently unreasonable." In the instant case, the ALJ had found all of Rocket's witnesses to be "highly credible," and found that the Respondent's witnesses were consistent in their testimony as to the reasons for the Complainant's firings. The Board deferred to the ALJ's findings, noting that upon review of the hearing transcript, they had concluded that the ALJ had fairly and throughly analyzed the testimony.

[STAA Whistleblower Digest III G]
CREDIBILITY; SPECIFIC FINDING OF ALJ SUFFICIENT TO WITHSTAND SCRUTINY ON APPEAL

In Poll v. R. J. Vyhnalek Trucking , ARB No. 99-110, ALJ No. 1996-STA-35 (ARB June 28, 2002), the ARB affirmed the ALJ's determination that Respondent's President's testimony as to the reason he fired Complainant was credible, despite a finding that Respondent had a policy of mandating that drivers falsify records. This was because the ALJ's credibility finding was "sufficiently specific to withstand scrutiny." The ARB, however, noted that it was referring the finding of records falsification to the Office of Motor Carriers, Federal Highway Administration, U.S. Department of Transportation.

[STAA Whistleblower Digest III G]
CREDIBILITY; SPECIFIC FINDING OF ALJ SUFFICIENT TO WITHSTAND SCRUTINY ON APPEAL

[STAA Whistleblower Digest III G]
EXPERT TESTIMONY; 29 CFR § 18.702 AND DAUBERT

In Stauffer v. Wal-Mart Stores, Inc. , ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001), the ARB made reference to 29 C.F.R. §18.702 (2000), in explaining when expert testimony is admissible. Under that rule expert testimony is admissible where "scientific, technical, or other specialized knowledge will assist the judge as trier of fact to understand the evidence or to determine a fact in issue" and "a witness [is] qualified as an expert by knowledge, skill, experience, training or education."

The Board cited Daubert v. Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993), for what a trial judge must access when faced with a proffer of expert scientific testimony. The Board quoted the following from Daubert :

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Daubert , 509 U.S. at 592-93.

[STAA Digest III G]
EVIDENCE; CREDIBILITY OF MEDICAL CERTIFICATE PREPARED BY PHYSICIAN WHO WAS ON INDEFINITE PROBATION

In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), Complainant had presented a medical certificate upon returning to work from an illness. Respondent attempted to discredit the medical certificate on the ground that the physician who prepared the report had been placed on indefinite probation by order of a state Medical Licensing Board. The ARB agreed with the ALJ that this information was immaterial to the outcome of the STAA whistleblower case because at the time she treated Complainant, the physician was still licensed to practice medicine.

[STAA Digest III G]
WEIGHING OF EVIDENCE; IMPLAUSIBILITY OF INFERENCE NEEDED TO SUPPORT COMPLAINANT'S THEORY

In Somerson v. Yellow Freight System, Inc. , 1998-STA-9 and 11 (ALJ Feb. 18, 1999), Complainants alleged that Respondent retaliated against them by various acts of sabotage. The ARB found, however, that there was no evidence in the record to support Complainants' supposition of sabotage. In weighing the evidence, the ARB noted that in order to draw an inference of tampering or sabotage, it would be required to drawn several improbable inferences such as, inter alia , that Respondent had no concern for injury to the public, for damage to the freight being carried, or for delay in delivery. As the inferences were implausible, and not supported by any evidence of record, the ARB adopted the ALJ's conclusion that Complainants did not carry their burden of proof.

[STAA Digest III G]
CREDIBILITY; USE OF SATELLITE TRACKING DEVICE TO IMPEACH COMPLAINANT'S TESTIMONY

In Demma v. Landstar Ranger & Scheel Enterprises, Ltd. , 1998-STA-22 (ALJ July 17, 1998), witness credibility was a crucial factor in the ALJ's recommendation. The ALJ was required to carefully review testimony and documentary evidence in the record to resolve conflicts in the testimony. In particular, the ALJ was required to examine data relating to a satellite communications and tracking device installed on Complainant's truck, and Complainant's driver's log, which were proffered to impeach Complainant's testimony about when he was or was not driving.

[STAA Digest III G]
EVIDENCE; EXISTENCE OF FREQUENT SAFETY REPORTS BY COMPLAINANT DOES NOT ESTABLISH, BY ITSELF, RETALIATORY INTENT

In Griffin v. Consolidated Freightways Corp. of Delaware , 96-STA-8 (ARB Feb. 3, 1998), Complainant asserted that Respondent engaged in a pattern of harassment against him for making an internal complaint and filing a union grievance involving the safety of a tractor. Complainant asserted that this harassment consisted of 38 incidents involving the intentional assignment of unsafe equipment to him. The ARB agreed with the ALJ that the nature of Respondent's business necessitated that it rely on drivers to notify it of safety issues relating to equipment; the documents submitted by Complainant simply did not establish that his experience was any different from other drivers or that the frequency of his safety reports was any greater than that prior to the protected activity. In fact, the record indicated that Respondent was responsive, taking prompt action to ensure that equipment was in compliance with federal safety regulations.

PRIOR EMPLOYMENT INFRACTIONS AS EVIDENCE OF SUBSEQUENT NONDISCRIMINATION
[STAA Digest III G]

Where the record was replete with warning letters concerning Complainant's poor work history similar to and consistent with letters issued subsequent to Complainant's protected activity, Complainant did not prove by a preponderance of the evidence that Respondent issued the post-protected activity warning letters for discriminatory reasons.

Complainant admitted the various acts of misconduct in the warning letters at issue, and the record did not support his assertion that they involved incidents for which warning letters where not usually issued by Respondent. Complainant, a driver, did not have sufficient background or expertise for his views on the trucking industry or Respondent's disciplinary practices, whereas management officials testified that the reprimands were consistent with Respondent's policies.

Skelley v. Consolidated Freightways, Corp. , 95-SWD-1 (ARB July 25, 1996).

RETALIATORY INTENT; WITNESS FOR DEFENSE'S MENDACITY AS SUPPORTING INFERENCE OF RETALIATORY INTENT
[STAA Digest III G]

Where a defense witness's testimony was inconsistent and evasive, evincing an intent to obfuscate the facts, it supported a finding of retaliatory intent. Cook v. Guardian Lubricants, Inc. , 95-STA-43 (Sec'y May 1, 1996).

WEIGHING OF EVIDENCE; CONFLICTING TESTIMONY WITH NO DISCERNABLE MEANS OF JUDGING CREDIBILITY
[STAA Digest III G]

In Cook v. Kidimula International, Inc. , 95-STA-44 (Sec'y Mar. 12, 1996), the Secretary approved the ALJ's weighing of the evidence concerning whether the Respondent took adverse action against the Complainant. In Cook , the only evidence on the issue was the conflicting testimony of the Complainant and the Respondent's owner. The Secretary quoted the ALJ:

In view of the lack of evidence to corroborate either man's testimony on this issue and an inability to discern the truth through the demeanor of the witnesses, I cannot conclude that the Complainant's version of events is any more credible [than the Respondent's owner's version]. Thus, there is an insufficient basis for finding that the Complainant has shown the occurrence of an adverse action by a preponderance of the evidence.

Slip op. at 6, quoting R. D. & O at 7.

III G Credibility not undermined by reluctance to discuss psychologic matters

In Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995), the Complainant's reluctance to discuss the psychological component of his SAA disability finding and other difficulties was not found to undermine his credibility regarding his disabilities.

III.G. Fact finders's task to decide who to believe

When a case has been fully tried on the merits, the task of the fact finder is to "decide whether 'the defendant intentionally discriminated against the [employee].' [citation omitted.] . . . In short, [the trier of fact] must decide which party's explanation of the employer's motivation it believes." United States Board of Postal Serv. Bd. of Governors v. Aiken, 460 U.S. 711, 715-16 (1983). Melton v. Morgan Drive-Away, Inc., 90-STA-41 (Sec'y Apr. 26, 1991).

III G Evidence of other wrongs is not admissible to prove character

In Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995), the ALJ did not err in assigning no weight to evidence of the Respondent's misconduct in an entirely different case brought before the NLRB. See 29 C.F.R. § 18.404(b) (1994) (evidence of other wrongs not admissible to prove character in order to show action in conformity therewith). The Secretary noted that the ALJ had independently found most of the Respondent's managers not credible and noted an unflattering picture of Respondent's operations. In the end, however, the ALJ's decision to credit the testimony of the manager who fired the Complainant was well explained.

III.G. Credibility determination

In Palazzolo v. PST Vans, Inc., 92-STA-23 (Sec'y ar. 10, 1993), the Secretary declined to overturn the ALJ's credibility determinations despite the Assistant Secretary's arguments that the Complainant's testimony is reliable and that logic supports an inference contrary to that drawn by the ALJ. The Secretary reviewed the evidence and found that it supported the ALJ's decision to credit the testimony of the Respondent's witnesses over that the Complainant and his girlfriend.

III.G. Credibility determinations

In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993), the ALJ properly attributed greater credibility about the condition of the respondent's truck to the testimony of independent witnesses, a police officer and a person who cleaned the truck, than to the respondent's witness-employee who had reason to agree with his employer about the safe condition of the truck.

III.G. Credibility findings based on demeanor of witnesses

In Perez v. Guthmiller Trucking Company, Inc., 87- STA-13 (Sec'y Dec. 7, 1988), the Complainant's employment with the Respondent was terminated after the Complainant walked off the job. The Complainant testified that he walked off the job because of the unsafe condition of the truck. The ALJ credited the Complainant's testimony over that of the Respondent's witnesses, who stated that the truck was in safe driving condition and furthermore claimed that the Complainant quit his job as he walked off the job site.

The Secretary held that the ALJ's credibility findings, based on the weighing of selective evidence rather than on the demeanor of the witnesses, were not binding on the Secretary.

III.G. Credibility of Witnesses

In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), the Secretary disagreed with the ALJ's credibility finding when the ALJ gave greater weight to Respondent's testimony than Complainant's testimony. The ALJ stated that he took into account the demeanor of the witnesses.

Citing NLRB v. Cutting, Inc., 791 F.2d 659, 663 (7th Cir. 1983), the Secretary noted that credibility findings resting "explicitly on an evaluation of the demeanor of the witnesses" may be accorded exceptional weight by a reviewing court. However, demeanor findings are in direct contrast to credibility findings based on aspects of testimony itself, e.g. discrepancies, impeachment, and witness self-interest. All factual findings, including credibility findings, must be supported by substantial evidence in the record as a whole. Where a factfinder's "theory of credibility is based on inadequate reasons or no reasons at all, his findings cannot be upheld." Id. at 667. All relevant, probative, and available record evidence must be explicitly weighed by the factfinder who must make explicit statement as to what portions of the evidence he has accepted or rejected. Dobrowolsky v. Califano, 606 F.2d 403, 409-410 (3rd Cir. 1979). A full explanation of why specific evidence was rejected is imperative, since a factfinder "cannot reject evidence for no reason or for the wrong reason. Cotter v. Harris, 642 F.2d 700, 706-707 (3rd Cir. 1981).

In this case the Secretary found that although the ALJ stated that he took into account the demeanor of the witnesses, what followed was not a discussion of witness demeanor. Furthermore, the ALJ characterized the Respondent as "straightforward" and "candid" while characterizing the Complainant's testimony as "evasive, vague, inconsistent, and only self-serving." The Secretary noted that in NLRB v. Cutting, Inc., 701 F.2d at 666, the court held that

Given its context and the overall reliance on inferences drawn from the substance of the testimony, we do not believe the statement about the witnesses' lack of candor is the kind of explicit, demeanor- based credibility finding entitled to exceptional weight under Kopack v. NLRB , 668 F.2d 482 (7th Cir. 1982). An ALJ may not make his credibility findings unassailable by simply invoking "the right incantation" to the witnesses' demeanor. Id . at 953-54.

The Secretary determined that the record did not support the ALJ's characterization of Complainant's testimony. Accordingly, the Secretary rejected the ALJ's general credibility characterization to the extent that they could be directed at a wholesale rejection of Complainant's testimony.

III H Statements of counsel are not evidence

Statements of counsel are not competent, sworn evidence. Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Mar. 16, 1995).

III.H. Statements of counsel in brief are not "evidence"

Statements by counsel in a brief do not constitute "evidence." Peoples v. Brigadier Homes, Inc., 87-STA-30 (Sec'y June 16, 1988).

III.I. Pro se complainant's burden of proof

While a pro se complainant may be held to a lesser standard than legal counsel with regard to matters of procedure, the burden of proving the elements necessary to sustain a claim of discrimination is no less. Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).

[STAA Whistleblower Digest III I]
PRO SE LITIGANTS; ALTHOUGH ALJ BEARS A RESPONSIBILITY TO PROVIDE SOME ASSISTANCE, BURDEN OF PROOF ON LITIGANT REMAIN UNCHANGED

In Young v. Schlumberger Oil Field Services , ARB No. 00-075, ALJ No. 2000-STA-28 (ARB Feb. 28, 2003), the ARB interpreted Complainant's brief as arguing that the ALJ breached a duty to assist her due to her pro se status. The ARB wrote: "We agree with the proposition that ALJs have some responsibility for helping pro se litigants. . . . However, 'the burden of proving the elements necessary to sustain a claim of discrimination is no less' for pro se litigants than for litigants represented by counsel. . . . Although the ALJ has some duty to assist pro se litigants, he also has a duty of impartiality. A judge must refrain from becoming an advocate for the pro se litigant. . . . " Slip op. at 9 (citations omitted). The ARB reviewed the record and found that the ALJ had satisfied both his duty to assist the Complainant, while also remaining impartial and fair to both sides.

[STAA Digest III J]
EVIDENCE; DOT FMCSA COMPLIANCE REVIEWS AND REPORTS; CAUSAL CONNECTION BETWEEN PROTECTED ACTIVITY AND ADVERSE EMPLOYMENT ACTION UNDER STAA

In R&B Transportation, LLC v. U.S. Dep't of Labor , No. 09-2148 (1st Cir. Aug. 26, 2010) (case below 2006-STA-12), an employer petitioned for review of an order of the Administrative Review Board finding that the employer's termination of a commercial truck driver violated STAA. The Court of Appeals denied the employer's petition holding that: (1) the Department of Transportation Federal Motor Carrier Safety Administration compliance reviews and reports were admissible under the public records hearsay exception in proceedings on a driver's administrative complaint; (2) reports were admissible as proof of employer's knowledge concerning its history of complying with DOT's hours of service regulation; and (3) substantial evidence supported the ALJ's factual finding that a causal connection existed between the driver's termination and his protected activity in telling the employer that he refused to exceed the hours allotted in the DOT regulation, and that the employer proffered reason for terminating driver was actually a pretext for unlawful retaliation in violation of STAA.

III J Application of preponderance of evidence standard

erely because the ALJ makes several findings in favor of the complainant does not entitle the complainant to prevail under a "preponderance of the evidence" standard. For example, when an ALJ finds for the complainant regarding the timeliness of his complaint and the establishment of a prima facie case, once the respondent articulates a legitimate, nondiscriminatory reason for taking the adverse action, the burden shifts back to the complainant to show by a preponderance of the evidence that the reasons were pretextual. See Reemsnyder v. ayflower Transit, Inc., 93-STA-4 (Sec'y May 19, 1994).

[STAA Digest III J]
EVIDENCE; ADMISSIBILITY OF UNEMPLOYMENT HEARING TRANSCRIPT; STATEMENTS MADE BY AGENTS OF THE EMPLOYER AS PARTY OPPONENT ARE NOT HEARSAY

In Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011), the Respondent argued that the ALJ erred when he admitted an unemployment hearing transcript because using it violated the Respondent's due process right to confrontation, and because it was inadmissible hearsay testimony given in a limited forum held for a different, discrete purpose unrelated to the Complainant's retaliation claim. The ARB noted that STAA administrative hearings are conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings, which substantially follow the Federal Rules of Evidence, and that under those rules hearsay statements are inadmissible unless they are defined as non-hearsay or fall within an exception to the hearsay rule. 29 C.F.R. § 18.802. The Board stated:

Hearsay is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted by the out-of-court declarant. 29 C.F.R. § 18.801(c). A statement is not hearsay if it constitutes an admission by a party opponent. 29 C.F.R. § 18.801(d)(2).

In this matter, the prior statements that Williams sought to introduce as evidence were statements by Domino's' agents concerning matters within the scope of the agency, made during the existence of the relationship and were therefore, admissions by a party-opponent and not hearsay. As such, the ALJ did not err in admitting the evidence. Neither did the admissions violate Domino's' right to confrontation, as the statements were made by Domino's itself. Even if the evidence was admitted incorrectly, the ALJ had cited other reasons that discredited Domino's' articulated reasons for terminating Williams's employment. For example, the printout from the PeopleNet system unequivocally demonstrated that, contrary to Domino's' assertions, Williams took adequate steps to report the accident, even if not exactly according to company policies.

[STAA Digest III J]
HEARSAY; ADMISSION FOUND TO BE HARMLESS ERROR WHERE CASE DID NOT TURN ON THE HEARSAY TESTIMONY

In Litt v. Republic Services of Southern Nevada , ARB No. 08-130, ALJ No. 2007-STA-14 (ARB Aug. 31, 2010), although the ALJ erred in allowing hearsay testimony on the mistaken belief that formal rules of evidence did not apply to STAA whistleblower proceedings, the ARB rejected the Complainant's contention on appeal that the admission of hearsay denied him due process because none of the alleged hearsay was relevant to the elements of the STAA claim on which the case turned, and the complainant did not point to any other relevant evidence that the ALJ may have failed to consider. The ARB noted, moreover, that the ALJ acknowledged the error in the recommended decision and order, and that his decision was supported by substantial evidence. The ARB thus found that the error was harmless.

[STAA DIGEST III J]
HEARSAY INADMISSIBLE IN STAA HEARINGS; ALJ DID NOT ABUSE HER DISCRETION IN ADMITTING DOT ENFORCEMENT REPORTS AND COMPLIANCE REVIEWS FOR THE PURPOSE OF ESTABLISHING RESPONDENT'S KNOWLEDGE OF DOT REGULATIONS

In Ass't Sec'y & Mailloux v. R & B Transportation, LLC , ARB No. 07-084, ALJ No. 2006-STA-12 (ARB June 16, 2009), the ALJ found that the Respondent violated the whistleblower provision of the STAA when it fired the Complainant after the Complainant informed the Respondent's owner that he could not complete his next assigned delivery without exceeding the maximum allowable driving hours prescribed by DOT regulations. In making her determination, the ALJ relied, in part, on DOT enforcement reports and compliance reviews indicating that the Respondent and other trucking companies with which the owner was affiliated had been cited for violations of the hours of service regulations before, during, and after the Complainant's employment with the Respondent. On appeal, the Respondent contended that the DOT enforcement reports and compliance reviews constituted inadmissible hearsay and character evidence.

The ARB noted that the STAA regulations specify that hearings will be conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings, and that under those rules, hearsay evidence is inadmissible. The ARB found that the ALJ did not admit the DOT enforcement reports and compliance reviews indicating past or other violations to show that the Respondent violated the hours of service regulations in this case, but rather considered them only to the extent that they reflected the Respondent's knowledge of its obligations pursuant to the hours of service regulations. Thus, the ARB held that the ALJ did not abuse her discretion in admitting the DOT enforcement reports and compliance reviews.

The Respondent had also argued that the DOT enforcement reports and compliance reviews were not reliable indicators of actual violations. The ARB, however, found that the evidence also indicated that the Respondent paid penalties that the DOT imposed for violations of the regulations, and the terms of the payments specifically indicated that the payments constituted admission of the violation.

[ Editor's note : The STAA is unique among DOL's whistleblower regulations in making a blanket reference to the OALJ Rules of Practice and Procedure at 29 C.F.R. Part 18. The other whistleblower regulations refer only to Subpart A of 29 C.F.R. Part 18. See 29 C.F.R. §§ 24.107(a), 1979.107(a), 1980.107(a) , 1981.107(a). The hearsay rule is in Subpart B. In non-STAA hearings, the Secretary has held that hearsay is not inadmissible in administrative proceedings merely because it is hearsay. Pogue v. United States Dept. of the Navy, 1987-ERA-21, slip op. at 24 n.16 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987).]

[STAA Whistleblower Digest III J]
FORMAL RULES OF EVIDENCE, HEARSAY RULE; APPLICATION TO STAA WHISTLEBLOWER HEARINGS

In Calmat Co. v. USDOL , No. 02-73199 (9th Cir. Apr. 19, 2004) (case below ARB No. 99-114, ALJ No. 1999-STA-15), the 9th Circuit Court of Appeals stated:

STAA administrative hearings are conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings. See 29 C.F.R. § 1978.106(a) (citing 29 C.F.R. § 18). Under these rules, which conform to the Federal Rules of Evidence, hearsay statements are inadmissible unless they are defined as non-hearsay or fall within an exception to the hearsay rule. 29 C.F.R. § 18.802. 5 / "Hearsay" is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted by the out-of-court declarant. 29 C.F.R. § 18.801(c).

________

5 /During the hearing, the ALJ believed that formal rules of evidence do not apply to STAA hearings because they do not apply in administrative hearings for whistleblower complaints under other statutes. However, her decision states that she was "mindful to screen out objected to evidence admitted based on this error."

Slip op. at 5117. The Respondent contended that the ALJ improperly admitted and relied upon hearsay evidence. The court, however, found that much of the objected to testimony was not hearsay (mostly on the ground that the statements were not admitted to establish the truth of the matter asserted, but rather that the statements had been made), and that any hearsay admitted in error had not been prejudicial. The court also observed that prejudice from hearsay is less likely when an ALJ rather than a jury weighs evidence, that the ALJ had expressly stated that she had not relied on hearsay evidence omitted over the Respondent's objections, and that there was other corroborating evidence in the record to support the ALJ's finding of disparate treatment.

[Editor's note: Compare Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 1995-STA-34 (ARB June 11, 1997) (ARB ruling that ALJ had properly admitted hearsay testimony and rendered judgment on the weight it was due )]

[STAA Whistleblower Digest III J]
HEARSAY; NOT ADMISSIBLE IN STAA WHISTLEBLOWER PROCEEDINGS; ERROR IN ADMISSION, HOWEVER, NOT GROUND FOR REVERSAL UNLESS IT AFFECTS A SUBSTANTIAL RIGHT OF A PARTY

In Germann v. Calmat Co. , ARB No. 99-114, ALJ No. 1999-STA-15 (ARB Aug. 1, 2002), the ARB ruled that hearsay evidence is inadmissible in STAA proceedings before an ALJ under 29 C.F.R. § 18.802, as made applicable by 29 C.F.R. § 1978.106(a). The ARB held, however, that the ALJ's erroneous admission of hearsay evidence was not reversible error, applying the "substantial right of a party" standard of 29 C.F.R. § 18.103. The hearsay testimony related to the fact that Respondent had engaged in excess hours violations and how Complainant came to know about them. The parties had already stipulated that the hours violations occurred, so the ARB concluded that the testimony could not be said to have affected a substantial right of the Respondent. Respondent also argued that the testimony prejudiced the ALJ because she could have become more sympathetic to a shop steward concerned about traffic safety. The ARB, however, reviewed the record and found no evidence that the ALJ had become biased. The ARB also reviewed other alleged instances of misuse of hearsay testimony by the ALJ and found either that the ALJ had expressly discounted the testimony, or that it would have not materially contributed to the ALJ's decision.

Compare Pogue v. United States Dept. of the Navy , 1987-ERA-21, slip op. at 24 n.16. (Sec'y May 10, 1990), rev'd on other grounds, Pogue v. United States Dept. of Labor , 940 F.2d 1287 (9th Cir. 1987), holding that hearsay is not inadmissible in administrative proceedings merely because it is hearsay, and citing 29 C.F.R. §§ 18.44(b) and 24.5(e) (1989). (now 24.6(e)).

[STAA Digest III J]
RESPONDENT'S DECISION NOT TO CALL CERTAIN WITNESSES

In Tierney v. Sun-Re Cheese, Inc. , ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001), Complainant argued on appeal to the ARB that because Respondent did not call various witnesses, it failed to disprove that discrimination occurred. The ARB found that such an argument places the burden of proof on its head - it is the complainant who must prove that an adverse action occurred.

But see Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001) (Respondent's failure to produce a witness on issue of whether funding for Complainant's position existed, supported an adverse inference).

[STAA Digest III J]
EVIDENCE; CONFLICT OVER COMPLAINANT'S UNION ACTIVITIES

In Ass't Sec'y & Helgren v. Minnesota Corn Processors , 2000-STA-44 (ALJ Feb. 21, 2001), the ALJ permitted admission into the record evidence showing that contract negotiations and Complainant's union activities were a source of conflict between Complainant and an assistant terminal manager, over the strenuous objection of Respondent. The ALJ admitted the evidence because of its temporal proximity to the events leading to Complainant's termination, and because the ALJ determined that exclusion of this evidence would foreclose a complete and accurate understanding of the relationship between Complainant and Respondent's management at the time of his termination.

The ALJ noted that in Etchason v. Carry Companies of Illinois, Inc. , 1992-STA-12 (Sec'y March 20, 1995), slip op. at 3 n.2., it was held that the ALJ did not err in giving no weight to evidence of respondent's misconduct in an entirely different case brought before the National Labor Relations Board, noting that 29 C.F.R. §18.404(b) provides that evidence of other wrongs is not admissible to prove character in order to show action in conformity therewith.

In the instant case, however, the ALJ viewed the incident which occurred between Complainant and his immediate supervisor a little over a month before his termination as not an entirely different case. The ALJ found that the incident provided, at a minimum, relevant background.

[STAA Digest III.J.]
ALTERNATIVE THEORIES OFFERED BY RESPONDENT NOT PROHIBITED

In Mason v. Potter's Express, Inc. , ARB No. 00-004, ALJ No. 1999-STA-27 (ARB Nov. 21, 2000), Complainant argued that the ALJ's recommended decision should not be adopted, in part, because Respondent had relied first, on a theory that it did not terminate Complainant's employment, and alternatively, that even if such termination occurred, the discharge was for a legitimate, non-discriminatory reason. The ARB discounted Complainant's argument, finding that Respondent's having presented alternative theories to be of no decisional significance.

[STAA Digest III J]
EVIDENCE; PROBATIVE VALUE OF TESTIMONY OF EXPERT IN SLEEP DISORDERS

The ALJ found that the testimony of an expert in sleep disorders not to be particularly probative where there was no evidence that Complainant had a sleep disorder. Stauffer v. Walmart Stores, Inc. , 1999-STA-21 (ALJ June 14, 2000).

[STAA Digest III J]
EVIDENCE; QUALIFICATION OF WITNESS

In Korolev v. Rocor International , 1998-STA-27 (ALJ Oct. 29, 1999), Respondent moved to strike testimony and evidence presented by a witness identified as a sleep technician, objecting that the testimony was not relevant. Respondent also objected to the witness's qualifications based on lack of personal knowledge or testing of the Complainant (relying on 29 C.F.R. § 18.701). In response, Complainant argued that one factor of his case was whether or not ability and alertness were impaired due to fatigue, and that the witness was uniquely qualified to testify, due to his experience at sleep labs to testify about the effects of fatigue and sleep deprivation. The ALJ questioned the probative value of the testimony, but found it to be admissible because the witness had more than eight years of experience as a "polysomnographer," and in his position, was personally involved in hundreds of sleep studies, a few specifically involving long-haul truck drivers. The ALJ also considered that the witness testified that he reviewed the Complainant's driving logs prior to the hearing.

[STAA Digest III J]
EVIDENCE; ADMISSIBILITY OF SLEEP STUDY ARTICLE

In Korolev v. Rocor International , 1998-STA-27 (ALJ Oct. 29, 1999), Respondent objected to the admission of, and testimony referring to, an article titled "The Sleep of Long Haul Truck Drivers" on hearsay, qualifications, and relevancy grounds. Respondent also argued that under Fed.R.Evid. 803, even if admitted, the statements may be read into evidence but not received as exhibits. The ALJ, however, was not convinced by Respondent's objections, finding that the proceeding was not bound by the federal rules of evidence. The ALJ noted, however, that the article had little probative value in assessing the particular circumstances of Complainant's claim.

[STAA Digest III J]
EVIDENCE; PASSIONATE ARGUMENT AND IMPORTANCE OF UNDERLYING SAFETY CONCERN ALONE IS INSUFFICIENT TO ESTABLISH CASE; FACTS MUST BE PROVED TO SUPPORT THE ARGUMENT

In Somerson v. Yellow Freight System, Inc. , 1998-STA-9 and 11 (ALJ Feb. 18, 1999), the ARB observed that one of the Complainants, who represented himself and a co-Complainant, was zealous in his concern for driver fatigue and motor vehicle safety, and that it did not doubt his sincerity nor the important of these public safety issues. Nonetheless, the ARB wrote:

[S]uccess in a whistleblower complaint requires more than passionate argument. Even the most forceful argument will collapse if the complainant fails to develop strong factual underpinnings; assertion, conjecture and argument, by themselves, are insufficient. Although the Complainants have raised interesting and novel theories with regard to the issue of driver fatigue, it ultimately is their failure to introduce sufficient facts to prove their individual claims that compels us to reject their complaints.

Id . @ 3.

[STAA Digest III J]
ADMISSIBILITY OF TAPE RECORDING

In Pittman v. Goggin Truck Line, Inc. , 96-STA-25 (ALJ June 16, 1997), Complainant offered into evidence a tape recording and transcription of conversation he had surreptitiously made of a conversation between himself and one of Respondent's managers. Respondent objected based on hearsay, lack of certification by the court reporter, and danger of unfair prejudice.

The ALJ applied 29 C.F.R. § 18.801(d)(2)(iv) to find that the statements by the manger on the tape were not hearsay. That section provides that a statement is not hearsay if it is offered against a party and is a statement by the party's agent or servant concerning a matter within the scope of agency or employment, made during the existence of the relationship. In addition, the ALJ found that such evidence should be admitted, and then considered according to factors relevant to the reliability and probative value of contested evidence.

The ALJ found that the court reporter had, in fact, certified the transcription.

The ALJ, applying 29 C.F.R. § 18.403 which provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by danger of confusion of issues or misleading the judge as trier of fact found that this section still favors the admissibility of relevant evidence, that the burden is on the objecting party, and that exclusion is employed sparingly as it is an extraordinary remedy. The ALJ found that Respondent had not met its burden of showing that inaudible portions of the tape caused the transcribed portions to be so misleading and prejudicial as to outweigh its relevancy.

[STAA Digest III J]
HEARSAY; PROPER FOR ALJ TO ADMIT, BUT THEN DECLINE TO RELY ON HEARSAY TESTIMONY

In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB June 11, 1997), Respondent argued in support of a motion for stay of the ALJ's recommended order of reinstatement that it was likely to prevail on the merits because the ALJ had ruled that certain testimony was hearsay and could not be considered to refute Complainant's claim that he was discharged for engaging in protected activity.

The Board found that the ALJ had properly admitted the testimony and judged the weight it was due. While the Board reserved further review on the matter, it concluded that the ALJ's reasoning -- declining to rely on hearsay -- was sound on its face and was not an adequate basis for finding that Respondent would prevail on the merits.

EVIDENCE; LESSENED SIGNIFICANCE OF TECHNICAL RULES ON ADMISSIBILITY IN NON-JURY PROCEEDINGS
[STAA Digest III J]

In Caimano v. Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26, 1996), the Secretary held that the ALJ properly followed a general rule that evidence should not be ruled inadmissible on technical grounds in non-jury proceedings. Rather than refuse admission of such evidence, the ALJ should consider factors relevant to the reliability and probative value of contested evidence in determining the weight to be accorded such evidence." Slip op. at 4 n.3 (citations omitted).

EVIDENCE; MOTIVE; RELEVANCE OF EVIDENCE OF TENSION BETWEEN SAFETY AND PROFITS
[STAA Digest III J]

In Caimano v. Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26, 1996), the ALJ questioned various witnesses about the tension between "safety and profits," and noted the existence of the tension in the recommended decision. The Secretary found that the ALJ missed the significance of this evidence in regard to the analysis of retaliatory animus toward the Complainant. The Secretary indicated that the existence of the tension was indicative of hostility resulting from the Complainant's persistent safety complaints.

EVIDENCE; RELEVANCE OF EVIDENCE OF IMPROVEMENTS OCCURRING AFTER ADVERSE EMPLOYMENT ACTION
[STAA Digest III J]

In Caimano v. Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26, 1996), it was error for the ALJ to rely on evidence of improvements in truck maintenance that occurred after the Complainant's employment had been terminated in determining whether there had been a violation under the STAA.

EVIDENCE; ELECTION NOT TO CALL REBUTTAL WITNESS; ADVERSE INFERENCE
[STAA Digest III J]

In Tanguay v. Westside Transport, Inc., 95-STA-2 (Sec'y Nov. 22, 1995), the Secretary noted with apparent approval the ALJ's drawing of an adverse inference from the respondent's election not to call its field representative as a rebuttal witness.

III J Hearsay; inadmissible to prove condition of truck but may be used to prove complainant's protected activity or good faith and reasonable basis for action

In Ass't Sec'y & Mulanax & Andersen v. Red Label Express, 95-STA-14 and 15 (ALJ July 7, 1995), the Respondent proffered a hearsay objection to the admission of out- of-court statements of mechanics and policy officers that concerned the mechanical condition of Respondent's trucks. The ALJ held:

Under decisions and regulations promulgated by the Secretary of Labor, out-of-court statements are generally not admissible in proceedings under the STAA to prove the truth of the matters asserted in such statements unless the statements fall within one or more of the specific exceptions set forth at 29 C.F.R. § 18.803-804. See Hadley v. Southeast Coop. Service Co. , 86- STA-24 (June 28, 1991); 29 C.F.R. §1978.106; 29 C.F.R. §18.101. Although these exceptions are more extensive than the various exceptions to the hearsay rule set forth in the Federal Rules of Evidence and common law evidence treatises, they are not so extensive that they would ordinarily permit out-of-court statements of mechanics or police officers to be admitted for the purpose of proving that a particular vehicle was unsafe to operate. Hence, such statements cannot be regarded as probative evidence concerning the mechanical condition of the various trucks drive by the Complainants. However, it is also important to recognize that such statements can be admitted into evidence for other purposes, such as showing that a Complainant engaged in a protected activity or that a Complainant had a reasonable and good faith basis for a particular action. Thus, to the extent that such hearsay statements have been admitted into evidence in this proceeding, they have been admitted solely for such purposes and have not been treated as probative in any other respect. . . .

Slip op. at 3-4 n. 4.

[ Editor's note: The general rules of practice and procedure at 29 C.F.R. Part 18 apply to STAA whistleblower complaints. 29 C.F.R. § 1978.106(a). The nuclear and environmental whistleblower complaints adjudicated under 29 C.F.R. Part 24, however, do not incorporate the rules of evidence in Part 18, although "rules or principles designed to assure production of the most probative evidence available shall be applied." 29 C.F.R. § 18.5(e).]

III J Summary of testimony does not substitute for findings of fact

In Clifton v. United Parcel Service, 94-STA-16 (Sec'y May 9, 1995), the Secretary noted that the ALJ had thoroughly summarized the testimony in his recommended decision, but had made few findings of fact. In the "Background" section of the Secretary's decision, a subheading appears "Findings of Fact." Review of other decisions of the Secretary issued in May 1995 reveals no other decision in which a "Findings of Fact" subheading appears. Thus, it may be inferred that the Secretary is making a not-too-subtle statement that merely summarizing the testimony is not considered an adequate analysis of the evidence.

III J No adverse inference drawn where witnesses are outside subpoena range

In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), the Secretary declined to drawn "any adverse inference from the fact that [the Respondent] did not call as witnesses some of its former managers who resided outside the subpoena range of the hearing, nor from the non-production of a "log-checker" program or records that [the Respondent] no longer uses."

[ Editor's note: Query whether this ruling suggests that if within subpoena range, witnesses could have been subpoenaed? Compare Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994) (dicta indicating that the Department of Labor does not have subpoena power in ERA proceedings).]

III. J. Miscellaneous

In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the Secretary did not err by considering the claims of section 405 violations that occurred outside the limitations period. Such evidence may be considered to "shed light on the true character of the matters occurring within the limitations period." NLRB v. Oberle-Jordre Co., 777 F.2d 1119, 1120 (6th Cir. 1985) (quoting Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 415, 80 S. Ct. 822, 4 L. Ed. 2d 832 (1960)).

III.J. Regulatory interpretation; reference to Federal procedure

Absent an express regulatory time frame, Federal procedure offers appropriate guidance. See United States Dep't of Labor v. Bergen County, New Jersey, CETA, 82-CTA-334 (Sec'y Aug. 31, 1992).

Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Oct. 27, 1992) (Order Denying Motion to Reconsider), slip op. at 1 (Secretary applied Fed. Rule Civ. Proc. 59(e) to motion to reconsider).

III. J. Miscellaneous

III.J. Judicial notice of existing law

A court can always take notice of existing law, whether in statutes or regulations. Nothing in the Federal Rules of Evidence requires a motion before it can do so. Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984) (Respondent contended that a regulation indicating that certain safety regulations apply to private carriers, should not be taken notice of by the Secretary because government counsel had not moved for notice to be taken).

[STAA Whistleblower Digest III J]
ALJ'S ERROR IN DESCRIBING LEGAL ANALYSIS NOT REVERSIBLE ERROR IF FINDINGS MEET STANDARDS OF PROPER ANALYSIS

In Germann v. Calmat Co. , ARB No. 99-114, ALJ No. 1999-STA-15 (ARB Aug. 1, 2002), Respondent argued that the ALJ erred in applying the dual motive analysis instead of the pretext analysis, thereby improperly placing the ultimate burden of proof on the Respondent. The ARB, however, found that although the ALJ made references to the dual motive analysis, she did not, in fact, apply it. Rather, the ARB determined that the ALJ actually analyzed the evidence under the "pretext" framework and concluded that Complainant's protected activity was the more likely reason for the suspension. The ARB also noted that even if the ALJ had applied the dual motive analysis, such would be harmless error if the analysis included an express finding of pretext. Citing Francis v. Bogan, Inc. , No. 6-ERA-8, slip op. 5 n.1 (Sec'y April 1, 1988).