DATE: January 22, 1996
CASE NO. 87-STA-12


IN THE MATTER OF

ROBERT C. LEIDIGH,

          COMPLAINANT,

     v.

FREIGHTWAY CORPORATION,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                              ORDER OF REMAND

     This case arises under the employee protection provision of
the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C.A. § 31105 (West 1994), and its implementing
regulations set forth at 29 C.F.R. Part 1978 (1994).  On July 9,
1990, the Secretary of Labor issued an Order dismissing the
captioned case as the result of an Administrative Law Judge's
(ALJ) approval of the parties' settlement.  Complainant
subsequently requested that the case be reopened.
     Complainant alleged in this case that he had been discharged
in violation of STAA section 31105.  The discharge occurred in
May 1986.  Thereafter, Complainant filed a separate STAA
complaint (Case No. 88-STA-13) alleging that Respondent had
illegally blacklisted him beginning in late 1986.  Complainant
also filed a blacklisting complaint with the National Labor
Relations Board (NLRB).
     On October 29, 1989, the instant case (illegal discharge)
proceeded to hearing before a Department of Labor ALJ.  By that
time, an NLRB ALJ had issued a decision in the blacklisting case
brought in that forum, and exceptions were pending before the 
[PAGE 2]
full Board.  In settlement of the instant illegal discharge
complaint, the parties agreed at the hearing that if Complainant
ultimately prevailed in the NLRB blacklisting case, Respondent
would reinstate Complainant.[1]   Respondent arguably agreed,
then, that if Complainant prevailed before the NLRB, he would
prevail on all extant complaints.[2]   The NLRB affirmed its
ALJ's findings that Respondent illegally refused to rehire
Complainant beginning in November 1986 and illegally blacklisted
him in response to inquiries by prospective employers.[3]  
Freightway Corp. and Kaplan Enterprises, Inc. and Robert C.
Leidigh, 299 NLRB No. 73 (August 23, 1990).
     In summary, Complainant complained (1) that he was
discharged in May 1986 in violation of the STAA, (2) that
Respondent refused to rehire him beginning in November 1986 in
violation of the STAA and the National Labor Relations Act, and
(3) that Respondent blacklisted him in violation of the
referenced statutes.  Respondent settled Complainant's claims
arising out of the May 1986 discharge case by agreeing to
reinstate him.  Complainant prevailed in the NLRB case involving
refusal to rehire and blacklisting, and the Secretary of Labor
deferred to the NLRB outcome in deciding the STAA blacklisting
complaint.  The NLRB remedy included reinstatement to the
position Complainant would have filled had he been rehired in
November 1986.
     The gravamen of Complainant's current complaint in this case
is that he was reinstated as if first hired in November 1986,
i.e., that Respondent declined to restore his 1976
seniority.  Legitimate question arises as to this settlement
term.  In the [Recommended] Order of Dismissal, the ALJ stated: 
"The parties, after full discussion, agreed that this proceeding
would be terminated and that [Complainant] would defer to the
decision of the National Labor Relations Board."  The Secretary
recognized, however, that under the STAA regulations, deferral to
the outcome of the NLRB case was not appropriate here since that
proceeding (failure to rehire and blacklisting) did not deal
adequately with the factual issues raised in the discharge case. 
29 C.F.R. 
§ 1978.112(c).  Accordingly, she construed the agreement to
be an adjudicatory settlement under 29 C.F.R. §
1978.111(d)(2).  
     Reference to the hearing transcript reveals that Complainant
agreed to settle with his seniority restored completely, and
Respondent's counsel agreed to "defer" to the NLRB remedy, even
though he miscontrued that remedy.  Hearing Transcript (T) at 9. 
In reality, the NLRB case contemplated reinstatement to remedy a
refusal to rehire rather than an unlawful discharge, which
resulted in a November 1986 seniority date.[4]   When Complainant
agreed to "defer," however, he clearly did not intend to forfeit
ten years of seniority.  Respondent, on the other hand, 
[PAGE 3]
apparently intended to abide by the actual NLRB result since it
did not reinstate Complainant with the earlier seniority date. 
In these circumstances, I find that the parties failed to agree
on a material term of settlement.  Accordingly, the Secretary's
July 9, 1990, Order IS VACATED, and the case IS REMANDED to the
ALJ for a hearing on the merits of the complaint.  See
Saporito v. Arizona Public Service Co., Arizona Nuclear Power
Group, The Atlantic Group, Inc., Case Nos. 92-ERA-30, 93-ERA-
26/45, Sec. Ord., May 19, 1994 (settlement approval rescinded and
case remanded where confusion existed as to scope of settlement
and claims appeared unresolved).
     SO ORDERED.


                              Robert B. Reich
                             Secretary of Labor

Washington, D.C.







[ENDNOTES]
           
[1] 
  The hearing transcript documents an agreement that
Complainant's remedy would include reinstatement with seniority
from July 1976 -- his date of hire.

[2] 
  The Secretary of Labor deferred to the outcome of the NLRB
proceeding in the parallel STAA blacklisting case (Case No. 88-
STA-13) pursuant to the request of the Assistant Secretary of
Labor for Occupational Safety and Health, the prosecuting party. 
Respondent stated that it had no objection to the request. 
See 29 C.F.R. § 1978.112(c).

[3] 
  For example, in a December 1986 response to an inquiry by a
prospective employer, Respondent stated that it would not rehire
Complainant because he had filed charges with the Occupational
Safety and Health Administration, the NLRB and other government
agencies.  In addition, Respondent's vice president testified
that he did not want to rehire Complainant because of the
referenced charges.

[4] 
  The ALJ also misconstrued the effect of the NLRB order. 
See T. 10-11, 13.