ARB CASE NO. 08-005
ALJ CASE NO. 06-STA-016
DATE: October 31, 2007
In the Matter of:
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND
HEALTH,
PROSECUTING PARTY,
and
FERNANDO WHITE,
COMPLAINANT,
v.
NATURALLY FRESH, INC.,
RESPONDENT,
and
TRUSTEE OF THE BANKRUPTCY ESTATE
OF FERNANDO DEMECO WHITE,
PARTY-IN-INTEREST.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
[Page 2]
This case arises
under Section 405, the employee protection provision, of the Surface
Transportation Assistance Act (STAA) of 1982.[1]
On September 19, 2007, the Assistant Secretary of Labor for Occupational Safety
and Health filed, on behalf of the parties, a Report of Settlement and Motion
to Dismiss (R. & M.), including a copy of the parties’ settlement
agreement, to a Department of Labor Administrative Law Judge (ALJ). The
settlement was signed by the Complainant, Fernando White, the Respondent, Naturally
Fresh, Inc., and the Assistant Secretary of Labor for Occupational Safety and
Health. Under the regulations implementing the STAA, the parties may settle a
case at any time after the filing of objections to the Assistant Secretary’s
preliminary findings “if the participating parties agree to a settlement and
such settlement is approved by the Administrative Review Board . . . or the
ALJ.”[2]
The regulations direct the parties to file a copy of the settlement “with the
ALJ or the Administrative Review Board, United States Department of Labor, as
the case may be.”[3]
When the parties
reached a settlement the case was pending before the ALJ. Therefore, the ALJ
appropriately reviewed the settlement agreement. On September 24, 2007, the
ALJ issued a Recommended Order Approving Settlement. According to the STAA’s
implementing regulations, the Administrative Review Board (ARB or Board) issues
the final decision and order in this case.[4]
The Board 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 October 11, 2007.[5]
On October 22, 2007, the Respondent filed a letter with the Board stating that it
supported the settlement and it would not be filing a brief. The Complainant
did not respond to the Board’s notice. We therefore deem settlement unopposed
under the terms of the Recommended Order Approving Settlement and Dismissing
Complaint.
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. 08-005, ALJ No.
[Page 3]
06-STA-0016,
the case currently before the Board.[6]
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 the Complainant’s STAA claim ARB No. 08-005, ALJ No. 06-STA-0016.[7]
The Board finds
that the settlement is adequate and reasonable. Accordingly, with the
reservations noted above limiting our approval to the settlement of White’s
STAA claim, we APPROVE the agreement and DISMISS the complaint
with prejudice.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (West 2007). The STAA
has been amended since White 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. § 1978.111(d)(2) (2007).
[3] Id.
[4] 29 C.F.R. § 1978.109(c)(2); Monroe v.
Cumberland Transp. Corp., ARB No. 01-101, ALJ No. 2000-STA-050 (ARB Sept.
26, 2001); Cook v. Shaffer Trucking Inc., ARB No. 01-051, ALJ No. 2000-STA-017
(ARB May 30, 2001).
[5] 29 C.F.R. § 1978.109(c)(2).
[6] Settlement and Full and Final Release of All
Claims, para. 5.
[7] Fish v. H & R Transfer, ARB No.
01-071, ALJ No. 2000-STA-056, slip op. at 2 (ARB Apr. 30, 2003).
