Ass't Sec'y & Carr v. Browning-Ferris Industries of Tennessee,, 1998-STA-21 (ALJ Feb. 12, 1999)

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USDOL/OALJ Reporter
Ass't Sec'y & Carr v. Browning-Ferris Industries of Tennessee, 1998-STA-21 (ALJ Feb. 12, 1999)

U.S. Department of Labor
Office of Administrative Law Judges
Commerce Plaza
603 Pilot House Drive, Suite 300
Newport News, VA 23606

DATE: February 12, 1999

CASE NO.: 1998-STA-0021

In the Matter of

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
Prosecuting Party

and

JAMES D. CARR,
Complainant

BROWNING-FERRIS INDUSTRIES OF TENNESSEE,
INC.,
Respondent.

ORDER APPROVING SETTLEMENT AND DISMISSING CLAIM

This proceeding involves the employee protection provisions of the Surface Transportation Act, 49 U.S.C. 2305, et seq. , (1982); and implementing regulations at 29 C.F.R. Part 1978. By motion submitted July 21, 1997, the parties represented that the case had been settled by filing a motion captioned Joint Motion for an Order to Approve Settlement and Specifically Incorporate the Terms of the Settlement Agreement.¹

My review of the settlement agreement is limited to a determination of whether its terms are fair, adequate and reasonable. Fuchkco and Yunker v. Georgia Power Co., 89-ERA-9 and 10 (Sec'y. March 23, 1984). The settlement must adequately protect the whistleblower. Virginia Electric Power and Power Co., 19 FERCS 61, 333 (Federal/Energy/Regulatory Commission, 1982). Furthermore, the settlement must not be contrary to public interest. Heffley v. NCK Metals Corp., 89-SDW-2 (Sec'y, March 6, 1990).

First, I note that Claimant, as well as counsel for the Solicitor of Labor and Respondent participated in the negotiations and signed the agreement. The specific terms of the settlement agreement between the parties are incorporated by reference; however, they are summarized as follows:

[Page 2]

1. Respondent will expunge its records of any reference to Complainant's discharge;

2. Complainant waives his right to future employment of Respondent;

3. Respondent will pay Complainant a total of $21,000.00 in back pay and damages within five (5) days of the Presiding Judge's approval of the settlement;

4. In reaching this agreement, Respondent has not admitted to breaking any law or regulation;

5. Each party will bear its own fees and expenses related to this case; and

6. It is in the public interest to settle this matter.

After consideration of the settlement agreement, I find that none of the terms or conditions are unacceptable. Moreover, I find the agreement to be fair, adequate and reasonable and I believe it is in the public interest to adopt the agreement as a basis for the administrative disposition of this case. Therefore, dismissal of this proceeding with prejudice based upon authority conferred by 29 C.F.R. Section 1978.111.

It is ORDERED that the settlement agreement is APPROVED. It is further ORDERED that complaint is DISMISSED with prejudice.

DANIEL A. SARNO, JR.
Administrative Law Judge

DAS/DLH/dlh
Newport News, Virginia

[ENDNOTES]

¹Pursuant to 29 C.F.R. §1978.111(d)(2), the Presiding Judge has the authority to approve a settlement.