DATE: June 10, 1991
CASE NO. 88-STA-13

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,
   PROSECUTING PARTY,

AND

ROBERT C. LEIDIGH,
   COMPLAINANT,

v.

FREIGHTWAY CORPORATION,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review, in this case arising under section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), is a Recommended Decision and Order (R.D. and O.) issued March 12, 1991, by Administrative Law Judge (ALJ) W. Ralph Musgrove. The Assistant Secretary for occupational Safety and Health requests that I defer here to the outcome of a National Labor Relations Board (NLRB) proceeding; Respondent Freightway Corporation (Freightway) states that it has no objection to the request; and the ALJ has recommended that deferral is appropriate. Under 2 9 C.F.R. § 1978.112(c)(1990), I may defer to the outcome of proceedings initiated by a STAA complainant in other forums 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. Upon consideration, I adopt the ALJ's recommendation. The R.D. and O. and its Exhibit A are attached hereto.

   The "other proceeding" at issue, initiated by Complainant Leidigh before the NLRB, produced the following factual finding: In a December 4, 1986, written response to an inquiry by Midwest Coast Transport, a prospective employer of

Complainant, Richard Pursel, Respondent Freightway's vice-president, stated that Respondent did not wish to rehire Complainant because it could not "afford the legal expense to defend the charges filed with OSHA,¹ National Labor Relations Board and other government agencies." Exhibit A (attached) at 5-6. In summarizing the testimony the NLRB ALJ noted: "On this point Pursel was asked the question, 'And the reasons that you gave that you wouldn't rehire [Leidigh] was because of the charge he filed with OSHA and the National Labor Relations Board and other government agencies. Is that correct?' To which [Pursel] answered, 'That's correct.'" Id. at 6. The ALJ concluded: "Respondent's representations to Midwest Coast Transport that the Respondent would not hire Leidigh because of his NLRB filings had a tendency to induce Midwest to avoid hiring Leidigh, and had a tendency to impede and interfere with Leidigh's employment opportunities."² Id.The NLRB affirmed this portion of its ALJ'S decision. Freightway Corp. and Kaplan Enterprises, Inc. and Robert C. Leidigh, 299 NLRB No. 73 (August 23, 1990). The NLRB proceeding having met the criteria set forth at 29 C.F.R. § 1978.112(c), R.D. and O. at 3, I defer to the above finding that Respondent blacklisted complainant in part because he had filed a STAA complaint.

   The STAA prohibits adverse employment action, including blacklisting, because an employee has "filed any complaint or instituted..... any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order....... " 49 U.S.C. app. § 2305(a). Cf. 29 C.F.R. § 24.2 (b)(1990); Garn v. Benchmark Technologies and Toledo Edison Co., Case No. 88-ERA-21, Sec. Remand Dec., Sept. 25, 1990, slip op. at 10-11; Bryant v. Ebasco Services, Inc., Case No. 88-ERA-31, Sec. Remand Dec., July 9, 1990, slip op. at 6-7. Respondent violated the STAA as described above. Accordingly, Respondent is ordered to cease and desist from blacklisting Complainant and to expunge from its records any adverse references to Complainant's protected activity. 49 U.S.C. app. § 2305 (c)(2)(B)(Secretary shall order affirmative action to abate violation).

   SO ORDERED.

         Lynn Martin
         Secretary of Labor

Washington, D.C.

¹In a separate STAA proceeding, Complainant had charged Respondent with unlawful discrimination when it terminated him in May 1986. Leidigh v. Freightway Corp., Case No. 87-STA-12, Sec. order, July 9, 1990.

²While the NLRB ALJ focused on activity protected under the National Labor Relations Act, Respondent's blacklisting of Complainant was motivated by all enumerated complaints.