.............................
.
In the Matter of: .
.
. Date Issued: September 12, 1994
CAREY EARWOOD, .
Complainant, . Case No.: 93-STA-0016
.
v. .
.
DART CONTAINER CORPORATION .
AND J & R SCHUGEL TRUCKING, .
Respondents .
.
.
.............................
Appearances:
For ComplainantFor Dart
Container Corporation
Ronald C. Conner, Esq. Gene A. Major, Esq.
Conyers, Georgia Darryl G. Haynes, Esq.
Fain, Major & Wiley
Atlanta, Georgia
For J & R Schugel
Corporation
Sharon D. Calhoun, Esq. Scott K. Tippett, Esq.
Office of the Solicitor Nelson, Mullins, Riley
U. S. Department of Labor & Scarborough
Atlanta, Georgia Atlanta, Georgia
Before: JULIUS A. JOHNSON
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This complaint arises under Section 405(a) of the Surface
Transportation Assistance Act of 1982 (hereinafter "STAA" or
"Act"), 49 U.S.C. App. § 2305(a). Section
405 of the Act "was enacted to encourage employee reporting of
noncompliance with safety regulations governing commercial motor
vehicles." Brock v. Roadway Express, Inc., ___ U.S. ___,
107 S. Ct. 1740, 1745, 95 L. Ed. 2d 239 (1987). "Congress
recognized that employees in the
[PAGE 2]
transportation industry are often best able to detect safety
violations and yet, because they may be threatened with discharge
for cooperating with enforcement agencies, they need express
protection against retaliation for reporting these violations.
Ibid.
Complainant had filed a previous complaint under the Act
against Dart Container Corporation ("Dart"), respondent in the
instant complaint, for whom he last worked in 1987. The
complaint alleged that the circumstances surrounding his
separation from employment with Dart constituted a violation of
the Act. A decision and order were issued, but the case was
remanded by the Secretary of Labor on March 8, 1991 for further
findings. While the case was pending on remand, the parties
entered a settlement agreement, under which complainant executed
a general release of Dart for any and all liability, including
future claims. The administrative law judge approved the
settlement agreement and dismissed the complaint with prejudice.
(CX 7, 8)
On April 30, 1992, Earwood filed the instant complaint
against Dart. The complaint arises out of two telephone
inquiries made in April 1992, by J & R Schugel Trucking
("Schugel") and Walsh Trucking ("Walsh"), to Dart, requesting an
employer reference for complainant.
Comments by a Dart employee in response to inquiries by a
Walsh agent are alleged by complainant to be in violation of the
Act. Complainant also alleges that Schugel, with whom he sought
employment, was in a "silent conspiracy" with Dart to deny him
employment because of a suspected - and prohibited - negative
reference by the Dart agent in response to a Schugel employment
inquiry about him.
Issues
I. Preliminary
A. Is the instant complaint, as Dart asserts, precluded by
the settlement agreement, which concluded complainant's
previous action against respondent Dart under the Act?
B. Is Dart's challenge to the application of the Act to
[PAGE 3]
former employers and former employees valid against the assertion
that the Act does not prohibit "blacklisting"?
II. Substantive
A. When complainant alleges that Dart made negative
statements during the telephone inquiries by Schugel
and Walsh, in retaliation for his previous complaint
under the Act against Dart, does such conduct violate
Section 405(a) of the Act?
B. Did respondent Schugel conspire with Dart in an attempt
to blacklist complainant by refusing to hire him in
violation of Section 405(a) of the Act?
If no conspiracy is proven and the complaint against
Schugel is found to be without merit, are sanctions
against complainant appropriate for filing such
complaint?
I. Preliminary dispositions
A. Complainant's release of Dart does not bar the
instant complaint.
Dart asserts that complainant relinquished all future
claims against it by signing the agreement which resolved the
previous complaint under the Act. The agreement included a
comprehensive release of past, present and future claims
complainant might have against Dart. The agreement, including
the release, was approved by the administrative law judge in the
previous claim and has not been challenged on the grounds that
complainant entered the agreement for insufficient consideration,
without the advice of counsel, involuntarily or under coercion.
The comprehensive release extinguishing all claims
complainant had or might have against Dart does not preclude the
present claim. In general, such releases do not preclude claims
of which a claimant could not have been aware and did not
contemplate at the time he executed the release. SeeForry, Inc. v. Neumdorfer, Inc., 837 F.2d 259 (6th Cir.
1988); Brae Transport, Inc. v. Coopers & Lybrand, 790 F.2d
1114 (9th Cir. 1986); Scheck v. Burger King Corp., 756 F.
Supp. 543 (S.D. Fla. 1991).
Moreover, the United States Supreme Court has stated that,
[PAGE 4]
[t]he [National Labor Relations Board] has established
as a working rule the principle that it ordinarily will
respect the terms of a settlement agreement approved by
it. It has consistently gone behind such agreements,
however, where subsequent events have demonstrated that
efforts at adjustment have failed to accomplish their
purpose, or where there has been a subsequent unfair
labor practice.
Wallace Corp. v. N.L.R.B., 323 U.S. 248, 254 (1944).[1]
The Secretary of Labor has held that blacklisting is a violation of
the Act. Assistant Secretary of Labor for Occupational Safety
and Health and Robert C. Leidigh v. Freightway Corporation,
Case No. 88-STA-13 (June 10, 1991). The allegation of blacklisting
can be seen to be a subsequent unfair labor practice, which the
Supreme Court in Wallace determined would not be barred
by the comprehensive release executed in settlement of the previous
claim.
In a recent case under the employee protection provision of
the Energy Reorganization Act ("ERA"), the Secretary of
Labor addressed the validity of a job applicant's waiver of any
future claims under the ERA. Doyle v. Hydro Nuclear
Services, 89-ERA-22 (Sec'y Mar. 30, 1994). The Secretary in
Doyle stated that a waiver of a job applicant's rights
under the ERA could not be raised by the employer as a defense to
a claim of discriminatory refusal to hire.
In Doyle, complainant had been asked by respondent,
the prospective employer, to sign a form authorizing prior
employers to release complainant's employment and other records
to respondent. The form contained a provision that would have
released respondent "from any and all liability or claim as
results of [sic] furnishing or receiving such information
pursuant to this authorization." Id. at 2. The form
purported to absolve the furnishers of the information from
liability as well as waiving claims against future instances of
blacklisting.
Complainant in Doyle refused to sign the form for
fear of waiving his rights under the ERA, as a result of which
respondent refused to hire him. The Secretary found that
respondent violated the ERA by refusing to hire complainant for
his refusal to sign the release. The Secretary, in giving the
form a narrow reading, found that complainant would have released
the employer from any future claim that the released information
was used to deny complainant employment because of protected
activity under the ERA.
[PAGE 5]
The Secretary stated that, under such a release, employers
could "nullify the Act and Congressional intent to protect public
health and safety by prohibiting retaliation against those who
report potential safety hazards in the construction and operation
of nuclear power plants." Id. at 6. The Secretary's
decision in Doyle emphasized the purpose of employee
protection statutes, especially those such as the ERA, whose
broad remedial purpose of protecting workers from retaliation
based on their concerns for safety and quality, is analogous to
the purpose of the instant Act.
Given the Secretary's reasoning in Doyle, the instant
universal release cannot be upheld so as to bar the instant
complaint which alleges that blacklisting has occurred. First,
upholding such a release would have the same negative impact on
the Act's purpose as the release in Doyle would have had
on the ERA in protecting workers from retaliation. Second, the
Secretary's decision in Doyle recognized the Supreme
Court's determination that "[t]here can be no prospective waiver
of an employee's rights under Title VII." Alexander v.
Gardner-Denver Co., 415 U.S. 36, 51 (1974). Given that the
employee discrimination analysis in cases arising under the Act
and the ERA follows the framework of Title VII cases, the
treatment of waivers of future claims under the Act could
reasonably follow their treatment under Title VII.
B. The Act prohibits "blacklisting."
Dart challenges the application of the Act to this case
because no present employer-employee relationship exists between
complainant and itself. Complainant has asserted that Dart, his
former employer, provided negative references about him to two
prospective employers, Schugel and Walsh, revealing his previous
protected activity at Dart, and with the intent to prevent his
employment in the trucking industry.
The above-described practice, labeled as "blacklisting," was
addressed in an opinion by an administrative law judge for the
National Labor Relations Board ("NLRB"). Because the claim had
also arisen under the STAA, the Secretary of Labor deferred to
and approved the outcome of the NLRB proceedings.
Assistant Secretary of Labor for Occupational Safety and
Health and Robert C. Leidigh v. Freightway Corporation,
supra.
The statements in Leidigh were made by Leidigh's
former employer, respondent Freightway, to a prospective
employer,
[PAGE 6]
Midway, during an employment reference inquiry. Freightway
represented to Midway that Freightway would not consider hiring
Leidigh because of his previous filings against Freightway under
the NLRB. The Secretary found that the statements "had a
tendency to induce the prospective employer to avoid hiring
Leidigh, and had a tendency to impede and interfere with
Leidigh's employment opportunities." Id. at 2-3.
The Secretary specifically found in her Final Decision and
Order that the adverse employment action constituted
"blacklisting," and further held that blacklisting is prohibited
under the Act. Id. at 3. This rationale applies here.
II. Substantive dispositions
A. Statement of the Case
Complainant, Carey Earwood, has tractor trailer truck
driving experience dating from the early 1970s, and has lived in
Conyers, Georgia since 1976. His experience with refrigerated
truck driving, or "reefer" experience, consists of approximately
one year and 50,000 miles of experience with the Caudell Company
in the early 1970s. (TR 26)[2]
He began working for Dart as a full time driver in 1976. He
transported styrofoam food container products through the
southeastern United States and through the east coast of
Pennsylvania. His employment with Dart ended in 1987. (TR 27)
On September 1, 1987, complainant filed a complaint against
Dart, pursuant to Section 405 of the Act, alleging retaliation
for protected activity under the Act.
The case was heard and decided, but the case was then
remanded by the Secretary of Labor. While on remand, a
settlement of the initial complaint was reached and finalized
between Earwood and Dart, and was approved by the administrative
law judge who dismissed the complaint with prejudice on May 24,
1991. (See CX 7, CX 8)
After leaving Dart in 1987, complainant found employment at
Jet-Corr, Inc., as an "over the road" driver, meaning the runs
extend for weeks at a time. (TR 103) He testified that he has
never wanted to be a team driver because he did not wish to ride
in a truck with another driver for extended periods. (TR 104)
He left Jet-Corr in 1991 because he was dissatisfied with the
waiting times for loading. (TR 106)
[PAGE 7]
He started his own business, C & J Sales, in August 1991,
began dissolving the company in November 1991, and finally
dissolved it in February 1992. (TR 108) Complainant testified
that he prepared his resume between November 1991 and April 1992.
(TR 110) Complainant applied and interviewed for a job at J & R
Schugel Trucking, Inc., ("Schugel") in early to mid-April 1992.
(Tr 112)
Earwood's application at Schugel
Complainant testified that he went to Schugel unaccompanied,
filled out an application, and waited with four or five others to
be interviewed. He disclosed on the application that he was
charged with driving his own car under the influence of alcohol
on October 30, 1982. (CX 11) (SX 2) (TR 112) He also disclosed
that he was not trained in hazardous material handling, or in
"reefer" operation, and that he did not have a long form or
certificate card evidencing a Department of Transportation
physical examination. (SX 2)
He was interviewed by Gary Little, terminal manager of
Schugel's Norcross, Georgia terminal. Mr. Little was hired as
terminal manager in January or February 1992. He testified that,
at that time, Schugel had not had time to formally train him for
the position, and that, at times, he relied on verbal directives
from his superiors. (TR 312-17)
Little testified that he interviewed complainant in the
first week of April 1992. (TR 319) His testimony, that of Kenny
Kohn who was assisting in the hiring process, and that of Jan
Markison, the safety director at headquarters who had ultimate
hiring supervision and authority, establish that Schugel was
interviewing 200 applicants for 25 positions in "reefer"
operation. Mr. Markison testified that due to new client demands
in transporting refrigerated foods, Schugel did not have the
luxury of training new drivers to operate the two types of
refrigerated trucks.
Little testified that he made notations on the application
as he talked to complainant, whom he remembered as having
"presented [himself] well." For his personal ranking system,
Little marked the application with a star. (SX 2) (TR 323)
Little testified that the driving under the influence (DUI)
charge concerned him. He thought at the time that Schugel's
policy prohibited hiring drivers with a DUI charge of ten years
or less. (TR 324-25) He testified to his belief that none of
the Norcross drivers had a DUI on their records. (TR 326) He
[PAGE 8]
has since learned that Schugel's policy was of a total ban on
such hiring, regardless of the date of the charge. (TR 325)
Complainant testified that Little told him he would have a
job if his references worked out. Little testified that he did
not promise him a job, that his main concern was the DUI, and
that because he was unfamiliar with details of the hiring
policies and knew he was not the ultimate decision-maker, he does
not believe that he told complainant that there was "no problem"
with his application. Instead, he testified that he told him
that he liked the history of food warehouse delivery, and that,
barring any unforeseen problems, that "the application looked
pretty good." (TR 326) Little concluded the interview by
telling complainant to call if he had not been contacted in seven
to ten days. (TR 327)
Little's next contact with complainant was from five to
fifteen days later when complainant called, sounding very upset.
Little testified that complainant told him he thought he had been
blacklisted, at which point Little assured him that that was not
the case. Little testified that complainant told him that he
"was well aware that this was happening," but felt no animosity
toward Schugel. (Little: TR 332) Little testified that he was
still unfamiliar with hiring procedures and with the alcohol
policy, so he told complainant his application was still on file.
(TR 333)
Kenneth Kohn testified that Markison, the safety director,
sent him to Norcross to assist in hiring drivers. Mr. Kohn
testified that he conducted the reference check telephone
inquiries on the applications taken at Norcross, including that
of complainant. He testified by deposition that he called Dart
and spoke to John Witherington in conducting a reference check of
complainant. (SX 3)
The reference check form was a deposition exhibit and was
introduced into evidence. (SX 3) The date on the form is either
April 13, 1992 or April 14, 1992. (SX 3, CX 15:16-1) Kohn swore
in an affidavit that the inquiry was routine, that he followed
the reference check form, did not ask any other questions, and
that Witherington volunteered no additional information. In
response to whether Dart would rehire complainant, the response
was "no." Kohn testified that Schugel has hired drivers in the
past whose former employers had said they would not hire them.
Further, Kohn stated and testified that the Dart employee,
Witherington, had not made disparaging or "blacklisting" remarks
about complainant. (CXs 12, 14, 15)
[PAGE 9]
Kohn later swore in an affidavit that he had also called
Jet-Corr for a reference on complainant. He stated that he spoke
to "Rebecca" at Jet-Corr on April 13, 1992, verified employment,
asked for his reason for leaving, which she did not know, asked
about his experience, and accident record. (CX 13: Ex. B-1, Ex.
D)
Kohn testified that he, too, had spoken to complainant since
the interview and phone inquiries. He swore in an affidavit that
complainant called him inquiring as to the status of his
application. He states that complainant "stated that he
suspected that Dart had telephoned me and that Dart had 'made a
bad reference check' about him." Kohn informed complainant that
his allegation and suspicion were untrue.
Kohn stated that he told complainant that his application
met Schugel's standards "in a number of aspects" and would be
kept on file. However, he stated that he also told complainant
that because "Schugel had more than enough applicant drivers who
had experience in driving refrigerated tractor trailers and
delivering refrigerated foods, Mr. Earwood simply was not as
qualified, and thus, was not hired." (CX 1: deposition exhibit
1)
Complainant's application at Walsh
As the circumstances here must be viewed, it appears that
claimant's application for employment at Walsh was arranged to
generate another reference inquiry to Dart in an attempt to
confirm a suspicion that Dart had "blacklisted" him during the
reference inquiry by Schugel.
Mike Stallworth assisted complainant in getting the
interview with the terminal manager at Walsh, Frank Hill. Mr.
Stallworth testified that he and Hill are friends, and that they
were paired as team drivers at another company, Air Products.
Stallworth testified that he had known complainant when they both
worked at Dart, and considers him a friend. (DX 11) Members of
their families know each other, and he and complainant saw each
other every three weeks. Complainant testified that he had known
Stallworth for a number of years. (TR 119) Complainant's
testimony reflects that he helped Stallworth secure employment at
Jet-Corr in that he referred him to a friend at Jet-Corr and then
gave him his road test. (TR 119-200)
Complainant and Stallworth both testified that complainant
expressed his frustration to Stallworth at not having been hired
by Schugel. Stallworth testified that complainant said he felt
[PAGE 10]
he had had a good interview at Schugel. Stallworth testified
that complainant told him that the interviewer had "pretty much
assured him that -- pretty much assured him that he had the job,
and the next thing I know he said it fell through." (DX 11:37)
Complainant felt that the reference check from Dart had prevented
Schugel from hiring him. (DX 11:37) Complainant acknowledged
that, in his deposition, he testified that his comments to
Stallworth were:
A: That day, I was concerned with the first one being
Schugel and he and I were having a conversation where I
told him that I thought I was being blacklisted." (TR
117)
Complainant testified that he did not use the term "blacklisting"
then, but then testified:
A: "That remarks were being said. Basically, about the
first complaint that I thought something was being told
about the first complaint that -- confidential -- that
was deterring me from getting a job. (TR 119)
Complainant testified that Stallworth "conveyed to me to
make me believe that somebody would -- that he knew would give a
job if they had any openings." Stallworth testified that he had
suggested the interview with Hill, having recently seen Hill.
Stallworth accompanied complainant to the Conyers facility,
where Hill was expecting them, Stallworth having called ahead of
time. Complainant testified that he did not know if Stallworth
had told Hill about his suspicions that Dart had blacklisted him
in the inquiry by Schugel. Complainant, Stallworth and Hill
testified that complainant completed the application form in
Hill's office, that the office door was open, that people were
present just outside, and at times entered the office. (TR 127,
DX 11:13-14, TR 253) Complainant said that he did not remember
exactly, but testified that he "didn't tell [Hill] [about his
suspicions] until after the job reference was taken." (TR 126)
Complainant further testified:
(By counsel for respondent Dart)
Q: Mr. Hill informed you that the only positions available
with Walsh were team driver positions?
A: That was [sic] the only openings available, right, were
team driver positions.
[PAGE 11]
Q: And you, of course, understood that?
A: That was the only jobs he had available for employment,
yes.
Q: And as you've already indicated, you did not then and
do not today want to be a team driver?
A: No.
Q: But notwithstanding that, you asked Mr. Hill to go
ahead with the reference check, didn't you?
A: Correct.
Q: And the reason that ya'll went ahead with the reference
check was because of the very suspicions that you've
told us about, isn't that correct?
A: Because I thought someone was saying something about me
at Dart, yes.
Q: That was the reason that ya'll were going through the
exercise that you went through, wasn't it.
A: The exercise of the telephone reference check, correct.
(TR 126-127)
Complainant, Stallworth and Hill testified that they all
remained in Hill's office while complainant completed the
application form and during the interview. The application
contained a section entitled, "Conviction Involving Use of Motor
Vehicle." (CX 4) In response to whether he had ever been
convicted of operating a motor vehicle under the influence of
alcohol, complainant checked the box marked, "No." (CX 4)
Stallworth testified that Hill and complainant had a
conversation which followed the scope of an interview. However,
he testified that Hill then picked up the telephone and placed a
call to Dart for a reference check. Complainant testified:
A: I don't know whether you would call it an interview or
not. I completed the application, and he proceeded
to tell me the team operation was all he had -- if
you'd call it an interview. And I didn't want the team
and I asked him to take the reference check. (TR
129)(Emphasis added)
[PAGE 12]
Complainant testified that he may have asked Hill to
specifically conduct that reference check with Dart, as opposed
to Jet-Corr. (TR 131) The testimony establishes that the only
reference check inquiry Hill conducted was directed to Dart,
despite the inclusion of the more recent four years of experience
at Jet-Corr. He testified that the employer with whom
complainant had worked for twelve years would better know
complainant. (TR 245) Mr. Hill testified that he called Dart
first because it gave him a length of ten years of experience.
(TR 279) Hill testified that he was not certain at that
time of whether the Federal Motor Carrier regulations required a
check of the last ten or the last three years of employment. (TR
250) Hill testified that complainant gave him no input whatsoever
in connection with his choice to call Dart as to his reason for
checking only with Dart.
John Witherington, office manager at Dart's terminal in
Lithonia, Georgia routinely handled telephone reference
inquiries. Mr. Witherington testified that he believed the
reference check by Hill was legitimate. (TR 478)
The complainant's and witnesses' testimony establishes that
Hill repeated some of Witherington's responses aloud while he
wrote on the reference form. The first questions were related to
verifying employment dates, complainant's accident record,
speeding tickets, his manner of keeping and filing paperwork,
whether he followed instructions, and how he related to others.
The reference check form is a series of questions, with space for
notations. (CX 1)
Hill's notes on the form, his testimony and that of
Witherington indicate that, at first, the conversation followed
the pattern of short questions by Hill and "yes" or "no"
responses by Witherington. Hill then asked if complainant was a
"troublemaker." The question appears on the telephone reference
form (CX 1). Witherington testified and Hill conceded he asked
the question. (TR 463, 196)
Hill testified that he disregarded Witherington's request
for confidentiality and that he gave the reference sheet to
complainant at the conclusion of the inquiry. (TR 537-540) Hill
testified as to his understanding that corporations fear
litigation. (TR 537) He stated that his concern was for his own
company, and not for Dart. (TR 538) He testified that he "firmly
believed that complainant had come to his office not to use me
but to actually seek employment opportunities." (TR 544) He
further stated that he felt it was "totally wrong" to use someone
[PAGE 13]
"to set somebody up and to keep somebody from obtaining
employment to support ... their family. (TR 544-45)
Witherington's testimony as to his statements and those of
Hill are consistent with the reference check form and Hill's
written remarks. (CX 1) He testified that the question as to
whether complainant was "a troublemaker," "sort of shook me for a
little bit...." (TR 463) He testified that no one had ever asked
that question before in a reference inquiry. (TR 463)
In response, he testified:
A: I asked the question, would this information ever leave
his office or be given to anybody else, and he told me,
"No, it would not," and then, I started answering the
question. (TR 463)
Witherington testified as to his reason for requesting
confidentiality:
A: Because it was sensitive information, and I tried to
give an honest answer to his question and I'd ever
[sic] been asked to answer that question before and I
just wanted to know if [sic] would be kept in -- you
know -- kept confidential." (TR 464)
He further testified:
Q: How did you feel when you heard him ask if Mr. Earwood
was a troublemaker?
A: I was really uneasy -- I was uneasy about answering
that question, but like I said, I was trying to be
honest with the fellow and he had asked me the question
and I tried to answer it. But I was -- I was uneasy in
answering the question. (TR 464)
He testified that, in answering the question,
I think I made the statement about this was a -- a
leading question, and we went into, you know, "Did he
get along with others?" and I said, "Well, he had a
temper and he had a way of keeping other drivers ---
some of the other drivers riled up sometime [sic] and"
-- (TR 464)
Witherington stated that complainant had lost his temper with him
and with Jack Carney, plant manager at Dart. Further,
[PAGE 14]
Witherington testified:
And I went into the -- I told him that Carey had quit
his job and he went to court -- he took us to court and
the judge ruled in our favor and it was overturned by
the Secretary of Labor.[3] (TR 465)
The testimony of complainant, Stallworth and Witherington
establishes that Hill chuckled, laughed and grinned at
Witherington's responses. Complainant and Stallworth testified
that at the end of the call Hill told them that, based on
Witherington's remarks, he could not hire complainant.
Witherington testified that Hill's tone at the end of the
conversation and "a slight chuckle" made him suspicious that he
had been "set up" or monitored. (TR 467-68) He testified that
he reflected on Hill's repetition of some of Witherington's
remarks, and that he immediately called the corporate personnel
director in Michigan to explain what had happened.
Witherington testified that he never intended to "blacklist"
complainant. (TR 470-471) He admitted that he knew he did not
have to release the information over the phone, and that he could
have requested a written inquiry. (TR 482) He also knew that he
had deviated from normal office procedure by releasing the
information without having the file before him for accuracy. (TR
474) He also knew that the file was at the attorney's office,
but stated that he remembered the requested information from
memory. He also stated that the regulations did not require that
he address the inquiry because complainant's employment with Dart
ended over three years before. (TR 482)
Witherington testified that he told Hill that he "did not
like Carey." (TR 466) He stated he held no grudge against
Earwood and had no intent to prevent Earwood from getting
employment as a truck driver elsewhere; he never had a personal
vendetta against him. (TR 466)
Hill's authority to hire for Walsh and the reference
inquiry
Frank Hill was terminal manager of a facility in Conyers,
Georgia which was owned and operated by National Retail
Transportation, a subsidiary of National Retail Systems.
Although the company is referred to as "Walsh Trucking," evidence
as to its corporate structure indicates the name is not entirely
accurate.
[PAGE 15]
Frank Hill was unfamiliar with the corporate structure of
"Walsh." Hill testified that he had authority to hire drivers
and that he and Tim Pilato worked together. Hill stated he had
"vast duties over the Walsh Trucking Consolidated part of it, the
Mystic Island Transportation part of it, the National Retail
Transportation part of it." (TR 500)
The testimony of two senior officers of National Retail
Systems and National Retail Transportation, Neil Senter and Tim
Pilato, and the evidence are consistent that the Conyers facility
was to close in May 1992. (DX 1 - 5) Messrs. Senter and Pilato
testified that upon Conyers' closing, the operations of Conyers
and Newnan would be consolidated at Newnan. Further, Pilato was
to be in charge of operations, and that Hill would transfer to
Newnan and report to Pilato. (DX 9:34-35)
Senter testified that he was hired by the Walsh brothers in
1978 to work at National Retail Transportation, and that they
started the company. Senter has been executive vice-president of
National Retail Systems in charge of operations in the United
States since 1986. He was previously president of National Retail
Transportation. Senter's testimony is corroborated by that of
Pilato, an officer for National Retail and an executive vice-
president of a subsidiary company, who assisted in the operation
of the facilities in Newnan and Conyers. (TR 394)
While Senter testified that Hill had the authority to
conduct initial interviews and to advertise for positions at
Conyers, Georgia, he unequivocally stated that Hill did not have
immediate, unsupervised authority to hire drivers. (DX 9:17-18)
Hill testified that the drivers he hired through the Conyers
facility were able to go to work at the Newnan facility, but
Senter testified that Hill had absolutely no such authority to
hire drivers for that facility. (TR 192, DX 9:45)
Senter testified that he told Hill in February or March of
1992 about the closing of the facility and about the company's
plan to transfer Hill to Newnan. Hill turned in a letter of
resignation in May of 1992. (DX 6, 7)
The evidence establishes that the positions available at
Conyers would not have been local, but "over the road," positions
complainant had specifically stated he was not interested in.
(DX 9:65) Hill stated that complainant expressed neither interest
nor disinterest in possible positions at Newnan. Hill testified
that his own reasons for leaving Walsh included the round trip
drive to Newnan from Conyers of 160 miles round trip. (TR 298-99)
[PAGE 16]
Further, Senter testified that no Conyers drivers transferred to
Newnan between March 1992 and May 15, 1992. While
the drivers hired for Conyers in March 1992 and April 1992 were
told that they would be moved to Newnan when Conyers closed in
May, they were also told it would be strictly "over the road"
work. (DX 9:65) Fifteen drivers from Conyers transferred to
Newnan after Conyers closed. (DX 9:61)
B. Positions of the Parties
Complainant alleges that respondent Dart made negative
statements during the telephone inquiries by Schugel and Walsh,
in retaliation for his previous complaint under the Act against
Dart. Complainant asserts that Dart's actions violated Section
405(a) of the Act. Dart asserts that the statements made were
not violative of the Act.
Complainant alleges that respondent Schugel conspired with
Dart in an attempt to blacklist complainant by refusing to hire
him in violation of Section 405(a) of the Act. Schugel asserts
that the refusal to hire complainant was nondiscriminatory, and
that it did not know of the protected activity.
C. Discussion and Findings
Complaints under Section 405(a) typically concern
retaliatory discharge or discipline. The primafacie case of such a violation requires a complainant to
prove: 1) that he engaged in protected activity under the Act; 2)
that he was the subject of adverse employment action; and 3) that
there was a causal link between his protected activity and the
adverse action of his employer. SeeMoon v. Transport
Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).
1. The reference check by Walsh to Dart
Complainant's protected activity consists of the previous
filing of a complaint against Dart under the Act. An employee is
protected under Section 405(a) of the Act if he "has filed any
complaint or instituted or caused to be instituted any proceeding
relating to a violation of a commercial motor vehicle safety
rule, regulation, standard, or order . . . ." 49 U.S.C. §
2305(a). SeeDavis v. H.R. Hill, Inc., 86-STA-18
(Sec'y Mar. 18, 1987), slip op. at 3-4 (both internal and
external safety complaints protected). Therefore, complainant
has established one element of a primafacie case
of discriminatory activity by
[PAGE 17]
Dart.
The second element required is that of adverse action.
Under Smith v. Tennessee Valley Authority, 90-ERA-12
(Sec'y Apr. 30, 1992), an allegation of blacklisting must include
some form of detriment to the complainant in order to constitute
the adverse action required for a primafacie case.
In Smith, the respondent's preparation and
dissemination of a status report of ERA whistleblower cases
brought by former and current employees was found to have a
stated legitimate purpose. The complainant did not demonstrate
that the information was used for any improper purpose.
Therefore, the Secretary found that the company's legal counsel
used the information solely to apprise a newly appointed
executive officer of the status of ERA activity, all of which was
public record. Seealso, Howard v. Tennessee
Valley Authority, 90-ERA-24 (Sec'y July 3, 1991).
The blacklisting alleged in Smith and Howard
consisted of merely listing the complainant's name on a report
for no discriminatory purpose. The list of current ERA
complaints against the company was not communicated to a
prospective employer. No further action, proper or improper, was
taken. In finding no proof of adverse action, the decisions also
noted the absence of an "actual job opportunity."
The Secretary addressed whether blacklisting violative of
the Act had occurred during an employment reference check by a
prospective employer to complainant's former employer, as in the
instant case. Assistant Secretary of Labor for Occupational
Safety and Health and Robert C. Leidigh v. Freightway
Corporation, (as previously cited) Case No. 88-STA-13 (June
10, 1991)(arising under the STAA and NLRB) [4] The respondent
in Leidigh represented to a prospective employer that
respondent would not hire complainant because of his NLRB
filings. The Secretary found that the respondent former employer
had violated the Act because the statements regarding the
protected activity "had a tendency to induce the prospective
employer to avoid hiring complainant, and had a tendency to
impede and interfere with his employment opportunities."
Id. at 3. (emphasis added)
In Leidigh, an actual job opportunity was not a
stated requirement in determining whether blacklisting had
occurred. However, prospective employment was evidenced by a
reference inquiry. Here, because the phone inquiry by Hill to
Witherington cannot be viewed as having been made in good faith,
a violation of the Act should not be found. The evidence
establishes that the interview and application at Walsh, and the
reference check by
[PAGE 18]
Hill not only lacked legitimacy, but were orchestrated by
complainant. The events that led to the interview and
application at Walsh, and the manner in which the reference check
was conducted, establish that the inquiry by Walsh was a pretext
to determine the content of the reference Dart had given to
Schugel, by directing another reference check to Dart. For
example, complainant hardly thought that he had even been
"interviewed" by Hill; he hardly completed an application; Hill
immediately conducted the reference check in the presence of
complainant and Stallworth, or within their hearing, deliberately
repeating aloud for their benefit the responses Witherington
gave; and, if that should not be unusual, Hill gave the reference
check sheet to complainant after the conclusion of his call.
Moreover, Hill's reason for calling only Dart, not the most
recent former employer but one of complainant's longer
employments, while seemingly plausible enough, is, rather, quite
unpersuasive. Singly and in isolation these circumstances could
appear innocent. In totality, however, they betray a design
merely to ensnare a victim, known to have certain knowledge, at
an incautious moment.
The Secretary's determination of a violation in
Leidigh involved adverse employment activity. Although no
real job opportunity was evidenced, the Secretary affirmed the
finding that the statements, as to the previous filing under the
NLRB made to the prospective employer during the reference
inquiry "had a tendency to impede and interfere with [the
applicant's] employment opportunities." Id. However, on
the instant facts, the statements could not have affected
prospective employment because no actual employment with Walsh
was sought and no prospective employment of the type complainant
desired actually existed.
No short haul positions, in which complainant is deemed to
have been interested, were available at Conyers. Conyers was
about to shut down its operation, as Hill knew, and consolidate
with the company's facility in Newnan, where no short haul
positions were available either. The evidence also shows that
Hill had no authority to hire drivers for the facilities, despite
his assertions to the contrary.
2. Dart's response to Walsh does not warrant
finding a violation of the Act
A finding that Dart did not violate the Act in the
statements made by Witherington to Hill is established in that
Witherington did not state that he would not rehire complainant,
[PAGE 19]
as the respondent in Leidigh stated. Further, the
statements regarding the protected activity did not violate the
Act because Witherington did not intend to adversely affect
complainant's employment opportunities, as much as he wished to
be factual and candid. While he made negative, personal comments
and referred to a prior legal action by complainant - which may
be viewed, at most, as improper or technically offensive to the
spirit of the Act - those responses were deliberately provoked by
Hill's inquiry about whether complainant was a trouble-maker.
However understandable the objective and legitimacy of such an
inquiry may appear in the usual course of business, the objective
here was not to simply test, but to lure Witherington into saying
something that he likely would not have said in the usual course.
Witherington's testimony that he made the representation as
to protected activity only in an effort to be completely honest
is supported by the truthfulness of all of the preceding
responses. The trier of fact must decide which party's
explanation of the employer's motivation it believes. SeeMelton v. Morgan Drive-Away, Inc., 90-STA-41 (Sec'y Apr.
26, 1991) Cases involving violations of the Act through
blacklisting have involved some showing of intent on the part of
the former employer to hinder the complainant's employment
opportunities. SeeSmith v. Tennessee Valley
Authority, 90-ERA-12 (Sec'y Apr. 30, 1992), Leidigh,
supra. A finding of such intent on the part of
Witherington, in his few, guileless remarks, cannot be justified
under the circumstances here.
Further, the circumstances establishing that the inquiry by
Hill lacked any legitimacy destroy any reasonable inference that
Witherington made the same representations during the inquiry by
Schugel, which occurred before Hill's inquiry.
3. The reference check by Schugel to Dart
Schugel's reference inquiry form constitutes the only direct
evidence of the scope of the telephone conversation between
Schugel and Dart. Unlike the application process at Walsh, the
application process at Schugel began with complainant filling out
an application form and interviewing with Gary Little. The
reference checks were not conducted until another time, by Kenny
Kohn, and not conducted in the applicant's presence as was done
at Walsh. Kohn and Witherington testified as to the
conversation.
[PAGE 20]
The testimony is corroborated by the notations on the
reference form allegedly made in response to the information
Witherington gave to Kohn. The testimony and the notations
support finding that Kohn asked only the questions appearing on
the form, and that Witherington's responses were limited to the
remarks noted on the form.
The evidence establishes that the following remarks were
made by Witherington to Schugel. Witherington stated, in
response to the inquiry as to why complainant left Dart, that "he
got mad and quite [sic]" (SX 3) In response to whether he would
rehire complainant, Witherington stated "no." (SX 3) Kohn
testified that Schugel has hired drivers in the past though a
past employer might state that it would not rehire the applicant.
The record shows that the remaining responses were that
complainant's ability to get along with others was "so so," and
that his general conduct was "fair." The truth of those
statements was corroborated by the testimony, that complainant
was temperamental, by Dart's plant manager, Jack Carney.
No inference can be made that Witherington made
representations to Schugel as to the protected activity.
Witherington spoke to Kohn at Schugel before the
staged inquiry from Walsh occurred. Witherington's testimony is
credible as to the content of his representations and as to his
lack of intent to blacklist complainant in either inquiry. The
credibility of Witherington's explanation of his motivation
vastly outweighs the mere assertions of the complainant that
Witherington intended to impede his employment opportunities.
4. Schugel's refusal to hire complainant did not
violate the Act
Complainant applied for employment with J & R Schugel
Trucking, Inc., in early to mid-April 1992. Gary Little, the
Schugel employee responsible for interviews at the Norcross,
Georgia terminal, allegedly informed complainant during the
course of the interview that his application looked good and
allegedly assured him that, if his references checked out, he
would have a job. (TR 549:5-6)
Schugel employee Kohn stated that he contacted Dart employee
Witherington while conducting a telephone reference check of
complainant. (CX 13, CX 14, CX 15, CX 16) Complainant asserts
that, as a result of the reference check with Dart, Kohn informed
complainant several days later that complainant would not be
[PAGE 21]
employed by Schugel. (TR 549:6-8)
Complainant alleges that Dart's statements during the
telephone inquiry with Schugel amount to "blacklisting," and
evidence Dart's continuing discrimination against complainant,
resulting directly from complainant's protected activity of
having filed a previous complaint under the Act against Dart.
Additionally, complainant asserts that the totality of the
circumstances indicate that Schugel acted in concert with Dart to
discriminate against complainant because of the protected
activity.
Applicants for employment have been found to be entitled to
protection under the whistleblower provisions of the Energy
Reorganization Act, as amended (ERA), 42 U.S.C. § 5851
(1988), and the Solid Waste Disposal Act (SWDA), 42
U.S.C. § 6971. SeeSamodurov v. General Physics
Corp., 89-ERA-20. (Secy Nov. 16, 1993), Flanagan v.
Bechtel Power Corp., et al., Case No. 81-ERA-7, Sec. Dec.,
June 26, 1986, slip op. at 7, 9. Seealso,
Chase v. Buncombe County, N.C., Case No. 85-SWD-4, Dec.
and Order of Rem., Nov. 3, 1986, slip op. at 3 (under analogous
employee protection provisions of the SWDA. Complainant was
clearly an applicant for one of the advertised positions as a
truck driver at Schugel, as conceded by the parties and
established by the evidence of record. Therefore, complainant
was protected under the Act as a job applicant.
The applicable burdens and order of presentation of proof in
cases arising under the Act are identical to those arising under
analogous employee protection statutes covered by 29 C.F.R. Part
24. SeeNix v. Nehi-RC Bottling Company, Inc., 84-
STA-1 (1989). These burdens were analyzed by the Secretary of
Labor in McGavock v. Elbon, Inc., 86-STA-5 (1986), where
the Secretary indicated that:
[T]he employee must initially present a primafacie case consisting of a showing that he
engaged in protected conduct, that the employer was
aware of that conduct and that the employer took some
adverse action against him. In addition, as part of
his primafacie case, "the plaintiff must
present evidence sufficient to raise the inference that
. . . protected activity was the likely reasons for the
adverse action." [Citation omitted]. If the employee
establishes a primafacie case, the
employer has the burden of producing evidence to rebut
the presumption of disparate treatment by presenting
evidence that the alleged disparate treatment was
motivated by legitimate, nondiscriminatory reasons.
Significantly,
[PAGE 22]
the employer bears only a burden of producing evidence at this
point; the ultimate burden of persuasion of the existence of
intentional discrimination rests with the employee. [Citation
omitted]. If the employer successfully rebuts the employee's
primafacie case, the employee still has "the
opportunity to demonstrate that the proffered reason was not the
true reason for the employment decision .... [The employee] may
succeed in this either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation
is unworthy of credence." [Citation omitted]. The trier of fact
may then conclude that the employer's proffered reason for its
conduct is a pretext and rule that the employee has proved
actionable retaliation for protected activity. Conversely, the
trier of fact may conclude that the employer was not motivated,
in whole or in part, by the employee's protected conduct and rule
that the employee has failed to establish his case by a
preponderance of the evidence. [Citation omitted]. Finally, the
trier of fact may decide that the employer was motivated by both
prohibited and legitimate reasons, i.e., that the employer
had "dual motives."
. . . [I]f the trier of fact reaches the latter
conclusion, that the employee has proven by a
preponderance of the evidence that the protected
conduct was a motivating factor in the employer's
action, the employer, in order to avoid liability, has
the burden of proof or persuasion to show by a
preponderance of the evidence that it would have
reached the same decision even in the absence of the
protected conduct. [Citations omitted].
McGavock, at 10-11 (quoting Dartey v. Zack Company,
80-ERA-2, (1983).
As specifically mentioned in Dartey, the Secretary
has adopted the standards established by the Supreme Court in
Title VII discrimination cases. This standard was most recently
addressed by the Supreme Court in St. Mary's Honor Center v.
Hicks, 113 S. Ct. 2742 (1993). The 5-4 majority opinion of
the Court held that once a complainant establishes the elements
of a primafacie case, a respondent need only
produce evidence that the adverse employment actions were taken
"for a legitimate, nondiscriminatory reason." Once respondent
clearly sets forth reasons for its actions which, if believed by
the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action, the
presumption raised by the primafacie case is
rebutted, and "drops from the case."
[PAGE 23]
Importantly, the Court explicitly discredited its own prior
dictum. The Court found the assertion, that a complainant may
succeed in his or her case merely by indirectly showing that
respondents' proffered explanation as to why it discharged or
disciplined the complainant, "unworthy of credence." Id.
at 2754. In sum, under the standards established in
St. Mary's, the complainant must show both that
respondent's proffered reasons are false, and that protected
activity was the real reason for the discharge or discipline.
St. Mary's Honor Center, supra at 2749, n. 4.
The determination of whether a prospective employer's
refusal to hire an applicant violates the Act necessarily follows
a slightly different analysis than in cases involving retaliation
against a present or former employee. The Secretary has found
that, under the ERA, an employer is free not to hire any
individual absent a discriminatory reason proscribed by law.
Samodurov v. General Physics Corp., 89-ERA-20, at 9 (Sec'y
Nov. 16, 1993). Therefore, a failure to hire an applicant does
not necessarily constitute the "adverse action" element of the
traditional retaliation framework, the employer-employee
relationship and its accompanying duties not yet having been
established.
The adverse action element of a primafacie
case is established by an employer's failure to hire when the
applicant-complainant also proves that (1) an opening existed
with the prospective employer, (2) applicant expressed an
interest in the opening, (3) he was qualified for the position,
and (4) he was rejected for consideration for the opening.
Id. at 10. Finally, the complainant has the burden of
producing evidence that, after he was rejected, the employer
continued to seek applicants with similar qualifications.
Id. at 11. Moreover, the Secretary stated that a
primafacie case of refusing to hire violative of
the ERA does not exist without adverse action having been
established. Id. at 11.
Schugel's minimum qualifications for truck drivers, by
necessity, emphasize criteria for safe operation of its trucks.
Schugel's safety department had ultimate authority on hiring
decisions. Jan Markison, safety director with J & R Schugel,
testified that Gary Little was hired as the terminal manager at
the Norcross, Georgia facility with authority to make hiring
decisions within guidelines of the company's minimum requirements
for driver qualifications.
[PAGE 24]
Markison told Little that the qualifications for drivers at
Schugel are,
"first of all, you have to have a good driving record. And
by good, we mean no more than two traffic violations within
the last twelve months. No more than three traffic
violations in the last 36 months. No alcohol related
violations on your driving record. We are looking for
people that have at least two years of recent verifiable
over the road experience. We need people that ... ,
according to the federal regulations, physically are
qualified to drive. People that have the commercial
hazardous materials endorsement. And those are the basic
qualifications." (CX 16:12-13)
Markison stated that these minimum qualifications are written
company policy.
Schugel has asserted that complainant was not offered a
position for several reasons, including the lack of sufficient
and recent experience in driving refrigerated trucks, or "reefer"
experience, no certification in hazardous materials
transportation, and had not had a "long form" physical
examination. Schugel further asserts that the charge of driving
under the influence of alcohol prevented Schugel from hiring him.
Complainant was charged with driving his own car under the
influence of alcohol on October 30, 1982. (CX 11) Complainant
has challenged whether the "DUI" violation, which resulted in a
plea of nolocontendere, is a conviction.
However, whether the plea constituted a conviction does not
negate the fact that the charge raised a safety concern.
The policy at Schugel regarding DUI violations was unclear
to interviewer Little. Little confirms that he was not familiar
with all of Schugel's policies and that he was concerned about
the presence of the charge on the application. The written
company policy effective from January 26, 1989, was of a total
ban on hiring applicants with such violations on their records.
(SX 5) The policy emphasized safety concerns and was a response
to the company's new insurer who recommended immediate
implementation.
Given Little's uncertainty and his soliciting of advice
from superiors, it is unlikely that Little would have promised
complainant a job despite the indications that complainant had
made a favorable impression during the interview. Further, the
[PAGE 25]
charge, which at the time of complainant's application to
Schugel, had occurred nearly ten years before, raised sufficient
doubt in his mind as to complainant's application that he made a
notation prominently on the upper right hand corner of the first
page of the application.
Complaint has not established the required element of
adverse action in Schugel's refusal to hire him for the
additional reason that he has not introduced evidence that any
other applicant with a similar violation was hired. (SX 5) The
Secretary in Samodurov rejected complainant's assertion
that the employer had the burden of establishing that it did not
hire another person with like qualifications for the position
sought by complainant. Samodurov v. General Physics
Corp., 89-ERA-20, at 9 (Sec'y Nov. 16, 1993) In fact, the
Secretary found that complainant had the burden to produce
evidence that such a person was hired. Id. at 11, n. 4.
Complainant has the burden of producing evidence that, after
he was rejected, the employer continued to seek applicants with
similar qualifications. The only applications of record were
introduced by Schugel. (SX 4) Although the Secretary has made it
clear that respondent does not have the burden of production or
of persuasion that it did not hire another person with like
qualifications, Schugel has produced the applications of the
drivers who applied at the time complainant applied, and who were
hired. The applications establish that no drivers hired at that
time had a motor vehicle offense relating to alcohol. (SX 4)
Had a primafacie case been established by a
showing of Schugel's adverse action against complainant, the
prospective employer's knowledge of the previous protected
activity would be necessary to complainant's burden of proving
causation, or that the adverse action occurred due to the
protected activity. Samodurov, 89-ERA-20 (Sec'y
Nov. 16, 1993), at 14. Samodurov found no violation for
two reasons. Adverse action had not been established, and the
prospective employer's knowledge of the protected activity had
not been established. The Secretary stated that, had knowledge
been shown, the temporal proximity between the time the employer
would have learned of the activity and the time the failure to
hire occurred would have been sufficient to infer causation.
The evidence establishes that Kohn's inquiry of Witherington
consisted only of the short questions with "yes" and "no" answers
and remarks which were written on the reference check sheet. The
evidence also supports the finding that once the question of
[PAGE 26]
whether Dart would rehire Earwood was answered in the negative,
no further questions were asked, and no information was
volunteered by Witherington.
Complainant has not established adverse action, the second
required element of his primafacie case, in
Schugel's refusal to hire him. In fact, Schugel has produced
evidence and carried an unnecessary burden of proof that the
reason for its refusal to hire was legitimate. Further,
complainant has the ultimate burden of persuasion that Schugel
refused to hire him due to his protected activity. St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993).
Complainant has neither carried his burden of production nor of
persuasion that Schugel's refusal to hire him was violative of
the Act.
D. Conclusions on the merits of the complaint
Complainant has not established that a violation of the Act
occurred with regard to either reference inquiry to Dart, or that
Schugel violated the Act in refusing to hire him. Even if Dart
had violated the Act in the course of the orchestrated inquiry
from Walsh, no damages could have resulted because no actual
employment opportunity existed at Walsh. Therefore, complainant
is entitled to no relief under the Act.
E. Motion by Schugel for sanctions
Schugel asserts that it is entitled to the relief provided
by Rule 11 of the Federal Rules of Civil Procedure because
complainant has pursued a claim against Schugel which is
frivolous and which has forced Schugel to incur needless legal
fees and expenses.
The rules of practice and procedure before this Office
mandate the application of the Federal Rules in "any situation
not provided for or controlled by these rules. ..." Section
18.1.
The pursuit of the complaint against Schugel, necessitating
great and needless expense, was based on what complainant alleged
to be Schugel's involvement in a conspiracy. No evidence of
Schugel's involvement in a conspiracy was ever presented.
Instead, the evidence strongly suggests that complainant was well
aware of Schugel's lack of wrongdoing in refusing to hire him,
but continued to pursue the complainant against Schugel.
There is inherent authority to impose sanctions for improper
[PAGE 27]
conduct under 29 C.F.R. Part 18. Section 18.1 provides for the
application of the Federal Rules of Civil Procedure for the
District Courts. Further, Section 18.2(a) provides the plenary
power to control the conduct of the parties and their counsel.
The Secretary of Labor has held that Rule 11 of the Federal
Rules of Civil Procedure did not apply to a situation which was
"provided for or controlled by Department of Labor
Regulations." Rex v. Ebasco Service, Inc., 87-ERA-6
(Sec'y March 4, 1994), citing Stack v. Preston Trucking
Co., Case No. 89-STA-15, Sec'y. Dec. and Order of Remand Apr.
18, 1990, slip op. at 9.
However, the relief provided for under Sections 18.34(g)(3)
and 18.36 remedies improper conduct by attorneys and parties by
excluding them from the ongoing proceedings, and by disqualifying
attorneys from appearing in future proceedings. That relief is
not appropriate here. It is proper to consider Rule 11, F. R.
Civ. P.
Rule 11, F.R.Civ.P., provides in pertinent part:
The signature of an attorney or party constitutes a
certificate by the signer that the signer has read the
pleading, motion, or other paper; that to the best of the
signer's knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, and
that it is not interposed for any improper purpose,
such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation. ... If a pleading,
motion, or other paper is signed in violation of this rule,
the court, upon motion or upon its own initiative, shall
impose upon the person who signed it, a represented party,
or both an appropriate sanction, which may include an order
to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the
pleading, motion, or other paper, including a reasonable
attorney's fee. (Emphasis added)
While Rule 11 sanctions could be applicable here where the
complaint against Schugel is meritless and not well grounded in
fact - indeed, it smacks of the frivolous in being pursued on
little more than strong suspicion - it is determined that it has
not been pursued on such inadequate grounds, bad faith, or an
improper purpose as to warrant imposition of those
sanctions.
[PAGE 28]
RECOMMENDED ORDER
It is recommended that the complaint, having established no
violation of Section 405(a) of the Surface Transportation
Assistance Act, be denied.
Julius A. Johnson
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U. S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, D.C. 20210.
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 C.F.R. Parts 24 and 1978. See 55
Fed. Reg. 13250 (1990).
[ENDNOT ES]
[1]
Seealso, N.L.R.B. v. International Union of
Operating Engineers, 460 F.2d 589 (5th Cir. 1972); Gulf
States Manufacturers, Inc. v. N.L.R.B., 598 F.2d 896 (5th Cir.
1979).
[2]
The following abbreviations are used in reference to the record:
CX for complainant's exhibits, DX for Dart's exhibits, SX for
Schugel's exhibits, TR for hearing transcript page and line
numbers.
[3]
Witherington testified that he might have said "the National Labor
Relations Board" or the Secretary of Labor, and that he did not
really know the difference between the two. (TR 465-66)
[4]
The Secretary deferred to the outcome of the NLRB proceeding and
found that the NLRB proceeding met the criteria of 29 C.F.R. §
1978.112(c) of the STAA regulations.
