DATE:  December 7, 1994
CASE NO. 93-STA-0016


IN THE MATTER OF

CAREY EARWOOD,

          COMPLAINANT,

     v.

DART CONTAINER CORPORATION
AND J & R SCHUGEL TRUCKING,

          RESPONDENTS.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     The Administrative Law Judge (ALJ) submitted a Recommended
Decision and Order (R. D. and O.) in this case arising under the
employee protection provision of the Surface Transportation
Assistance Act of 1982 (STAA or the Act), 49 U.S.C.A. §
31105 (West 1994), holding that neither of the Respondents
discriminated against Complainant Carey Earwood.  He also denied
Respondent J & R Schugel Trucking's (Schugel) motion for
sanctions against Complainant under Rule 11 of the Federal Rules
of Civil Procedure.  Complainant filed exceptions to the R. D.
and O. Respondent Dart Container Corporation's (Dart) motion for
leave to file its response brief out of time is GRANTED and the
brief has been considered.
     The facts are set forth in detail in the R. D. and O. at 5-
15.  Briefly, Complainant worked for Dart until 1987 and filed
his first complaint against Dart under the Act at that time which
was settled.  C-(Complainant's Exhibit) 7 and 8.  In April 1992,
Complainant applied for work with Schugel and Walsh Trucking. 
Representatives of those companies each called Dart for
references on Complainant and thereafter neither offered him a
job.  Complainant alleges Dart blacklisted him by making negative
[PAGE 2]
references to his prior employment and to his having filed a
complaint under the STAA.  R. D. and O. at 2.
     The ALJ found the testimony of the Schugel and Dart
representatives about the Schugel reference check on Complainant
credible and corroborated by contemporaneous business records, 
R. D. and O. at 18-19, and held that Dart did not blacklist
Complainant with Schugel.  Id.  In addition, the ALJ found
that Complainant did not carry his burden of proving that Schugel
refused to hire him because of his protected activity, filing the
1987 complaint against Dart.  Id. at 24.  The record in
this case has been reviewed and I find that substantial evidence
in the record supports the ALJ's conclusions on these issues, 29
C.F.R. § 1978.109(c)(3) (1988) and I adopt them.
     I cannot agree, however, that Dart's response to the inquiry
about Complainant from Walsh Trucking "does not warrant finding a
violation of the Act."  R. D. and O. at 17.  The Secretary has
held that the STAA prohibits blacklisting, Assistant Sec'y v.
Freightway Corp., Case No. 88-STA-13, Sec'y. Final Dec. and
Ord. June 10, 1991, slip op. at 3, as do other parallel employee
protection provisions.  See, e.g., Garn v.
Benchmark Technologies, Case No. 88-ERA-21, Sec'y. Remand
Dec. Sep. 25, 1990, slip op. at 10-11 (Energy Reorganization
Act);  Chase v. Buncombe County, Case No. 85-SWD-4, Sec'y.
Dec. and Order of Remand Nov. 3, 1986, slip op. at 3 (Solid Waste
Disposal Act); 29 C.F.R. § 24.2(b) (1993); see also
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 581 (19  )
(blacklisting prohibited under National Labor Relations Act);
Bailey v. USX Corp., 850 F.2d 1506, 15   (11th Cir. 1988)
(blacklisting prohibited under Title VII of the Civil Rights Act
of 1964).  The evidence does not support the ALJ's conclusion
that Dart did not act out of a discriminatory motive when it gave
Walsh Trucking information about Complainant's previous STAA
case.  To the contrary, there is direct evidence that Dart acted
with a retaliatory motive toward Complainant based on the STAA
complaint he filed against them.
     Dart's key witness, John Witherington, the office manager of
Dart's Lithonia, Georgia facility who supervised Complainant when
Complainant worked for Dart, T. (Transcript of hearing) 449-50,
acknowledged providing information about Complainant's previous
STAA case to Walsh Trucking.  T. 465.  When Frank Hill of Walsh
Trucking called Dart for a reference on Complainant, 
Mr. Witherington testified he told Mr. Hill Complainant "took us
to court [filed an STAA complaint]" and the Secretary ruled
against Dart.  Id.  Mr. Witherington conceded he did not
like the fact that Complainant had filed a complaint against
Dart.  T. 477.  T. 465.  Mr. Witherington told Mr. Hill he had no
use for Complainant and admitted he made that comment because
Complainant 
[PAGE 3]
had filed a complaint against Dart.  T. 478-79.
     Contrary to the ALJ's conclusion that "Witherington wished
to be factual and candid," R. D. and O. at 17, I find his
testimony demonstrates retaliatory animus against Complainant.
In similar circumstances, when an employer responded to a request
for a reference by pointing out that the former employee had
filed a Title VII charge against it and conceded it was "not
pleased" by that filing, the Tenth Circuit held the former
employer illegally retaliated against the charging party. 
Rutherford v. American Bank of Commerce, 565 F.2d 1162,
1164 (10th Cir. 1977).
     The ALJ also held that a violation of the Act should not be
found because the inquiry by Mr. Hill to Mr. Witherington was not
made in good faith but was "orchestrated by complainant [as] a
pretext to determine the content of the reference Dart had given
to Schugel."  R. D. and O. at 16.  The record is not entirely
clear about the motivations of Complainant and Mr. Hill when
Complainant applied at Walsh Trucking.  See, e.g.,
T. 44, 46, 47, 126, 132-33, 242, 518, 544, 548, but I will assume
there is substantial evidence to support the ALJ's conclusion
that Walsh Trucking's request for a reference was not made in
good faith. However, Mr. Witherington was not aware of that at
the time he responded to Mr. Hill's questions and answered them
as best he could, T. 470, although he may have suspected right
after the conversation that Walsh Trucking had not made a
legitimate inquiry.  T. 470.  As far as Mr. Witherington knew,
Walsh Trucking was considering Complainant for an immediate or
prospective opening.  But Mr. Witherington's comment revealing
his displeasure with Complainant's protected activity of filing
an STAA complaint had no relationship to Complainant's past job
performance.  The fact that Complainant would not have lost an
employment opportunity due to Dart's improper statement should
not shield Dart from liability because its statement "'had a
tendency to impede and interfere with [Complainant's] employment
opportunities.'"  Ass't Sec'y v. Freightway Corp., slip
op. at 3. [1]  I find that effective enforcement of the Act
requires a prophylactic rule prohibiting improper references to
an employee's protected activity whether or not the employee has
suffered damages or loss of employment opportunities as a result. 
Cf. Precision Electric and Int'l. Bro. of Elec.
Workers, Local Union 441, 1994 NLRB LEXIS 146 at *9
(Threatening to blacklist employees violates the National Labor
Relations Act); Highland Yarn Mills, Inc. and Amalgamated
Clothing and Textile Workers Union, 1993 NLRB LEXIS 473 at
*66, aff'd and mod. on other grounds and enf'd, 313 NLRB
193 (1993) (same).
     In his exceptions to the ALJ's R. D. and O., Complainant did
not seek back pay or other damages.  For the reasons discussed 
[PAGE 4]
above, the complaint against J & R Schugel Trucking, Inc. is
denied.  Respondent Dart Container Corporation is ORDERED to
cease and desist from providing any information about
Complainant's prior complaint under the STAA in response to any
employment reference inquiry.
     SO ORDERED.

                                   ROBERT B. REICH
                                   Secretary of Labor

Washington, D.C.





[ENDNOTES]
              
[1]   Dart asserts that an element of a blacklisting claim is
proof that the complainant lost an employment opportunity, citing
the Secretary's decision in Smith v. Tennessee Valley
Authority, Case No. 90-ERA-12, Sec'y. Dec. Apr. 30, 1992, a
case under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).  Smith v. TVA, however, did not hold that the
complainant must prove he was denied a job or lost some other
employment opportunity.  The Secretary granted summary judgment
for TVA because the alleged blacklist was simply a status list of
pending ERA cases provided by TVA's General Counsel to a new Vice
President.  Id. at 3-4.  The general counsel's memorandum
did not contain "language or instructions detrimental to
Complainant" and was not used for a discriminatory purpose. 
Id. at 4.