ARB CASE NO. 06-113
ALJ CASE NO. 2006-STA-006
DATE: October 21, 2007
In the Matter of:
JOHN NICHOLS,
COMPLAINANT,
v.
ROMA OF DALLAS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondent:
Jonathan C. Wilson, Esq., Haynes and Boone, LLP, Dallas, Texas
FINAL DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
This case arises
under Section 405, the employee protection provision, of the Surface
Transportation Assistance Act (STAA) of 1982.[1]
On June 6, 2006, the parties submitted a Joint Motion to Dismiss with Prejudice
to a Department of Labor Administrative Law Judge (ALJ). Attorneys for
both the Complainant, John Nichols, and the Respondent, Roma of Dallas (A.K.A.
Vistar Corporation), signed the motion. On June 8, 2006, the ALJ issued a
Recommended Order Approving Withdrawal of Objections and Dismissing Claim (R.
O.). The ALJ forwarded his recommended order
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and the administrative record to
the Administrative Review Board to issue a final administrative decision.[2]
On April 19, 2007, in
an effort to determine on what basis the parties had attempted to terminate the
litigation, the Board informed the parties that the regulations provide only
two options for ending litigation short of a merits decision after a party has
filed objections to the Occupational Safety and Health Administration’s (OSHA)
findings or preliminary order. First, “[a]t any time before the findings or
order become final, a party may withdraw his objections to the findings or
order by filing a written withdrawal with the administrative law judge or, if
the case is on review, with the Administrative Review Board, United States
Department of Labor.”[3]
If a party wishes to withdraw objections to the findings or order, the judge or
the Board “shall affirm any portion of the findings or preliminary order with
respect to which the objection was withdrawn.”[4]
Although the parties requested that the case be dismissed with prejudice, the
ALJ instead treated the motion as it if were a request to withdraw objections.
Thus, the case was not in fact, dismissed with prejudice; instead the ALJ
recommended that the OSHA findings become the final findings of the Secretary
of Labor in this case.
Second, parties may
terminate litigation by entering into an adjudicatory settlement “at any time
after the filing of objections to the Assistant Secretary’s findings and/or
order, . . . if the participating parties agree to a settlement and such
settlement is approved by the Administrative Review Board. A copy of the
settlement shall be filed with the ALJ or the Administrative Review
Board . . . as the case may be.”[5]
Although the Complainant filed a Notice to Withdraw Objections with the Board,
the parties, in their joint motion to dismiss, noted that they had resolved
their differences, suggesting the possibility that the parties had entered into
a settlement. Pursuant to well-established precedent, the Board will not
dismiss a complaint, in which there is a settlement between the private
parties, unless the settlement is provided to the Board for its review and
approval.[6]
Accordingly, on April
19, 2007, the Board notified the parties that no later than May 18, 2007, the
parties must inform the Board which method they intended to pursue and that if
they had agreed to a settlement to provide the Board with a copy of the
settlement. Neither party responded to the Board’s request. Because a page of
the April
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19th Order was omitted from the copies served on the parties, the
Board issued a Corrected Order to Show Cause on September 19, 2007, ordering
the parties to show why the Board should not remand the case to the ALJ to be
adjudicated on the merits either affirming or denying Nichols’s STAA complaint.
On September 27, 2007, Roma submitted to the Board a Compromise
Settlement Agreement and Release, signed June 3, 2006. Based on the letter
accompanying the Settlement Agreement, it appears that the parties believed
that they could circumvent the regulation’s requirement that parties submit any
settlement to the Board for approval by simply withdrawing objection to the
Secretary’s findings.[7]
However, “[i]n
keeping with the statute, a settlement under the STAA cannot become effective
until its terms have been reviewed and determined to be fair, adequate, and
reasonable, and in the public interest. . . . Consistent
with that required review, the applicable regulations specifically provide that
‘[a] copy of the settlement shall be filed with the ALJ or the Secretary as the
case may be.’ 29 C.F.R. § 1978.111(d)(2).”[8] Thus had the parties attempted to consummate
a settlement without the Department of Labor’s approval, the settlement would
not have been effective.
Because the parties have submitted the settlement to the Board, although
somewhat belatedly, we will review it. Roma wrote the Board on September 27,
2007, acknowledging its support for the settlement. Nichols did not reply to
the Board’s June 23, 2006 Notice of Review in which the parties were informed
of their right to file a brief in support of or in opposition to the ALJ’s R.
O., nor to our Order to Show Cause. We therefore deem the terms of the
settlement agreement unopposed.
Review of the
agreement reveals that it may encompass the settlement of matters under laws
other than the STAA and references cases other than ARB No. 06-113, 2006-STA-009,
the case currently before the Board.[9]
The Board’s authority over settlement agreements is limited to the statutes
that are within the Board’s jurisdiction as defined by the applicable
statute. Furthermore, it is limited to cases over which we have
jurisdiction. Therefore, we approve only the terms of the agreement pertaining
to Nichols’s current STAA case.[10]
Under the agreement, Nichols releases Roma from, essentially, any claims
or causes of action arising out of or connected with his employment at Roma.[11]
Thus, we
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interpret this portion of the agreement as limiting Nichols’s
right to sue on claims or causes of action arising only out of facts, or any
set of facts, occurring before the date of the settlement agreement. Nichols
does not waive claims or causes of action that may accrue after the signing of
the agreement.[12]
Furthermore, if
the provisions in paragraph 9 of the Settlement Agreement were to preclude Nichols
from communicating with federal or state enforcement agencies concerning
alleged violations of law, they would violate public policy and therefore,
constitute unacceptable “gag” provisions.[13]
Finally, we
construe paragraph 16, “Forum and Construction,” as not limiting the authority of
the Secretary of Labor and any Federal court, which shall be governed in all
respects by the laws and regulations of the United States.[14]
The Board finds
that the settlement is fair, adequate, and reasonable, and in the public interest.
Accordingly, with the reservations noted above limiting our approval to the
settlement of Nichols’s STAA claim, we APPROVE the agreement and DISMISS
the complaint with prejudice.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (West 2007). Congress has amended the STAA since Nichols filed his complaint. See Implementing
Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266
(Aug. 3, 2007). Even if the amendments were applicable to this complaint, they
would not affect our decision.
[2] R. O. at 2, see 29 C.F.R. §
1978.109(a), (c) (2007).
[3] 29 C.F.R. § 1978.111(c).
[4] Id.
[5] 29 C.F.R. § 1978.111(d)(2) (emphasis
added).
[6] See e.g., Macktal v. Sec’y of Labor, 923
F.2d 1150, 1154 (5th Cir. 1991); Kingsbury v. West Wis. Transp., Inc., ARB
No. 07-029, ALJ No. 2006-STA-025 (ARB Jan. 31, 2007).
[7] September 26, 2007 Letter from Jonathan
Wilson to Janet Dunlop.
[8] Tankersley v. Triple Crown Servs., Inc.,
No. 1992-STA-008 (Sec’y Feb. 18, 1993).
[9] Compromise Settlement Agreement and
Release, paras. 4, 5.
[10] Fish v. H & R Transfer, ARB No.
01-071, ALJ No. 2000-STA-056, slip op. at 2 (ARB Apr. 30, 2003).
[11] Compromise Settlement Agreement and Release,
paras. 4, 5.
[12] See Bittner v. Fuel Economy Contracting
Co., No. 1988-ERA-022, slip op. at 2 (Sec’y June 28, 1990); Johnson v.
Transco Prods., Inc., 1985-ERA-007 (Sec’y Aug. 8, 1985).
[13] Ruud v. Westinghouse Hanford Co., ARB No. 96-087, ALJ No. 1988-ERA-033, slip op. at 6 (ARB
Nov. 10, 1997); Connecticut Light & Power Co. v. Sec’y, U.S..
Dep’t of Labor, 85 F.3d 89, 95-96 (2d Cir. 1996) (employer engaged
in unlawful discrimination by restricting complainant’s ability to provide
regulatory agencies with information; improper “gag”
provision constituted adverse employment action).
[14] Phillips v. Citizens’ Ass’n for Sound
Energy, 1991-ERA-025, slip op. at 2 (Sec’y Nov. 4, 1991).
