ARB CASE NO. 07-116
ALJ CASE NO. 2007-STA-005
DATE: October 31, 2007
In the Matter of:
PAUL DENAULT,
COMPLAINANT,
v.
KEENAN TRANSIT CO., WILLIAM KEENAN,
JOHN DOE AND MARY ROE,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
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 of 1982 (STAA)[1]
and its implementing regulations.[2]
The Administrative Law Judge (ALJ) below issued a Recommended Decision and
Order Approving Settlement Agreement and Dismissing Complaint (R. D. & O.)
on August 16, 2007.
Under the
regulations implementing the STAA, the parties may settle a case at any time
after filing objections to the Assistant Secretary’s preliminary findings, and
before those findings
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become final, “if the participating parties agree to a
settlement and such settlement is approved by the Administrative Review Board
[Board] . . . or the ALJ.”[3]
The regulations direct the parties to file a copy of the settlement with the
ALJ, the Board, or United States Department of Labor.[4]
Pursuant to 29
C.F.R. § 1978.109(c)(1), the Board “shall issue a final decision and order
based on the record and the decision and order of the administrative law
judge.” In reviewing the ALJ’s legal conclusions, the Board, as the
Secretary’s designee, acts with “all the powers [the Secretary] would have in
making the initial decision . . . .”[5]
The Board reviews the ALJ’s legal conclusions de novo.[6]
The Board
received the R. D. & O. and issued a Notice of Review and Briefing Schedule
apprising the parties of their right to submit briefs supporting or opposing
the ALJ’s recommended decision on September 13, 2007. Neither the Complainant,
Paul Denault, nor the Respondents, Keenan Transit Co., William Keenan, John
Doe, and Mary Roe, filed a brief with the Board.
The ARB concurs
with the ALJ’s determination that the parties’ settlement agreement is fair, adequate
and reasonable. But we note that the Agreement encompasses the settlement of
matters under laws other than the STAA.[7]
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.
Our approval is limited to this case, and we understand the settlement terms
relating to release of STAA claims as pertaining only to the facts and
circumstances giving rise to this case. Therefore, we approve only the terms
of the Agreement pertaining to Denault’s STAA claim ARB No. 07-116, 2007-STA-005.[8]
Furthermore, if
the provisions in paragraphs 2.C of the Settlement Agreement and Release were
to preclude Denault from communicating with federal or state enforcement
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agencies
concerning alleged violations of law, they would violate public policy and
therefore, constitute unacceptable “gag” provisions.[9]
The parties have
agreed to settle Denault’s STAA claim. Accordingly, with the reservations
noted above, we APPROVE the agreement and DISMISS the complaint
with prejudice.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (West 2007). The STAA
has been amended since Denault 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] 29 C.F.R. Part 1978 (2007).
[3] 29 C.F.R. § 1978.111(d)(2).
[4] See id.
[5] 5 U.S.C.A. § 557(b) (West 1996).
[6] See Roadway Express, Inc. v. Dole,
929 F.2d 1060, 1066 (5th Cir. 1991).
[7] See, e.g., para. 2.B of the
Agreement.
[8] Fish v. H & R Transfer, ARB No.
01-071, ALJ No. 2000-STA-056, slip op. at 2 (ARB Apr. 30, 2003).
[9] Ruud v. Westinghouse Hanford Co., ARB No. 96-087, ALJ No. 1988-ERA-033, slip op. at 6 (ARB
Nov. 10, 1997); Conn. 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).
