ISSUE DATE: February 3, 1999
CASE NO.: 1998-STA-28

In the Matter of

LARRY E. EASH, SR.,
    Complainant,

    v.

ROADWAY EXPRESS, INC.,
    Respondent.

Appearances:

Paul O. Taylor, Esquire
For the Complainant

John T. Landwehr, Esquire
For the Respondent

Before: GERALD M. TIERNEY
Administrative Law Judge

   This case arises under Section 405 (employee protection provision) of the Surface Transportation Assistance Act of 1982 ("STAA") (codified as amended at 49 U.S.C. § 31105). Congress included Section 405 in the Surface Transportation Assistance Act to insure that employees in the commercial motor transportation industry who make safety

complaints, participate in STAA proceedings, or refuse to commit unsafe acts, do not suffer adverse employment consequences because of their actions. See Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987) (citing 128 Cong. Rec. 29192, 32510 (1982)). The Act prohibits discipline of trucking employees who raise violations of commercial motor vehicle rules on the part of trucking companies, recognizing that drivers are often in the best position to detect when an operation is not running safely but that employees often may not report violations for fear of backlash from their employers. See Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987); Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980 (4th Cir. 1993); Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 356 (6th Cir. 1992); Lewis Grocer Co. v. Holloway, 874 F.2d 1009, 1011 (5th Cir. 1989).

Procedural History

   Complainant, Larry Eash, filed a complaint of discrimination under Section 31106 of the Surface Transportation Assistance Act of 1982 against Roadway Express, Respondent. After an initial investigation of the complaint, the Secretary of the Department of Labor determined that the complaint had no merit. Complainant objected to the Secretary's Findings and requested a hearing. By Order dated October 1, 1998, a hearing on the merits was scheduled for November 17, 1998. On November 4, 1998, Complainant's Counsel, John Tucker, filed a Motion to Withdraw as Counsel, citing irreconcilable differences because of a failed settlement. Thereafter, the hearing on the merits was continued and a hearing on Respondent's Motion to Enforce Settlement and Claimant's Counsel's Motion to Withdraw as Counsel was held on November 17, 1998. At the hearing, John Tucker's Motion to Withdraw as Counsel was granted (TR at 6). Complainant's new attorney, Paul Taylor, filed a notice of entry of appearance on November 16, 1998 and appeared at the hearing on the Complainant's behalf. Testimony was elicited from John Tucker and the Complainant. After the hearing, the parties were permitted to submit post-hearing briefs on the issue of enforcing settlement.

   Respondent argues that a valid settlement had been reached by the parties and is asking that the settlement be enforced and the case dismissed. Complainant argues that the parties have not agreed to the terms of the settlement, that a written settlement agreement is required, the settlement cannot be approved because it is not fair, adequate or reasonable, there was no meeting of the minds and the Motion to Enforce Settlement should be denied.

   Mr. Tucker testified that he and Respondent's counsel, John Landwehr, discussed settlement of the case several times prior to October 29 (TR at 16). Mr. Tucker recalled speaking to the Complainant regarding settlement on three days, October 28 and 29 and November 3 (TR at 61-62).

   On October 28, Mr. Tucker recalled having three or four separate phone conversations with the Complainant during which they discussed the terms of the settlement (TR at 63). The Complainant had authorized Mr. Tucker to discuss settlement with Roadway on October 27. The Complainant told Mr. Tucker that he wanted $5,000 and asked that the warning letters be expunged from his file along with all other disciplines to which he had been subjected because he believed they were in retaliation for his initiation of this case (TR at 63, 65). He also wanted an upcoming disciplinary hearing canceled. With these parameters, Mr. Tucker called Mr. Landwehr and relayed these terms to him (TR at 65). On October 28, Mr. Landwehr informed Mr. Tucker that there could not be any form of a monetary settlement because it was Roadway's policy that if money was exchanged, the Complainant would have to resign (TR at 65-66). Mr. Tucker relayed this information to the Complainant who instructed him to proceed without any monetary consideration but indicated that he still wanted all disciplines removed from his file (TR at 66). Mr. Tucker discussed this with Mr. Landwehr who indicated that the hearing could be canceled but the disciplines would not be able to be removed from the file because of restrictions in the collective bargaining agreement (TR at 66-67). After this conversation, Mr. Tucker called the Complainant back and told him that he could only get the hearing canceled (TR at 67). He also told the Complainant that Mr. Landwehr had represented to him that Roadway would not retaliate against the Complainant in any way and that any settlement would entail the dismissal of the case. According to Mr. Tucker, the Complainant understood the dismissal and cancellation of the hearing and he instructed Mr. Tucker to do whatever he could because he said "I just want out of it" (TR at 67-68).

   On October 29, Mr. Tucker told Mr. Landwehr that the Complainant was willing to accept a settlement where the disciplinary hearing would be canceled, there would be no retaliation by Roadway and the case would be dismissed with prejudice where neither party admitted wrong-doing or liability (TR at 16-18, 68). Mr. Landwehr accepted the terms on behalf of Roadway and indicated he would fax a written settlement agreement on the following day which Mr. Tucker received on October 30 (TR at 16, 68) (settlement agreement attached as Exhibit A). Mr. Tucker thought he had the authority to settle the case upon those terms and testified that he understood that the case was settled based upon those terms (TR at 18). Under this agreement, the warning letters issued remained in Roadway's files (TR at 22).

   In reliance on the agreement, both parties canceled depositions which were scheduled the following day (TR at 18). Mr. Tucker tried to contact the Complainant by phone but could not reach him so he sent a copy of the settlement agreement with a cover letter asking him to call as soon as he received it (TR at 69). Therefore, Mr. Tucker acknowledged that at the time he entered into the oral agreement with Mr. Landwehr to settle, the Complainant had not seen the language suggested by Mr. Landwehr regarding dismissal of the case (TR at 21).

   The next conversation Mr. Tucker had with the Complainant was on November 3 when the Complainant told him the settlement was unacceptable because Roadway

was out to get him and that as soon as he signed the document, he would be fired (TR at 70). Mr. Tucker tried to reassure the Complainant that he was protected from being fired by the anti-retaliation provision but the Complainant said he had been able to generate the funds to litigate the case and he would not sign the document. Mr. Tucker then informed Mr. Landwehr that the Complainant would not sign the agreement.

   The Complainant testified that when he first retained Mr. Tucker, he discussed what settlement terms would be acceptable to him, including money and removal of the warning letters (TR at 56-57). He recalls having a conversation with Mr. Tucker on October 29 when he was told of the terms of the settlement (TR at 29). Complainant stated that he had trouble agreeing to something he could not physically see but was told there would not be a monetary reward, which he accepted (TR at 30). He also stated that he wanted the warning letters removed from his file (TR at 30-31). He recalled Mr. Tucker telling him that a local hearing scheduled as a result of one of the warning letters, would be waived as part of the settlement agreement (TR at 32-33). However, the Complainant stated that he does not remember the word "dismissed" used in the conversation with Mr. Tucker (TR at 36-37).

   The Complainant stated that he thought he had the authority to sign the settlement or refuse to sign it and he refused because it did not contain the wording that Mr. Tucker told him it would contain (TR at 37-38). He understood that the agreement would be no-fault, shake hands, walk away which to him meant that the warning letters would be removed (TR at 38, 44).

   The Complainant remembered having two conversations with Mr. Tucker, one on October 28 and the other on October 29, along with three telephone messages to his house on October 29 (TR at 38-39). On October 28, the Complainant asked for $5,000 and an expungement of his records by certified letter (TR at 43). Mr. Tucker told him there would be no monetary exchange but the Complainant stated that he insisted on a clean work record. As for October 29, the Complainant claims that he had three conversations with Mr. Tucker that day but does not remember the content of any of the conversations because he was awakened three times while he was trying to rest to prepare to go to work (TR at 45-46).

   The next conversation the Complainant had with Mr. Tucker was on November 3 when he told Mr. Tucker he could not sign the agreement because it was not a faceless, neutral, fault-free document (TR at 46- 48). The Complainant testified that he gave Mr. Tucker the authority to negotiate but not to settle (TR at 48). He claims that he said "negotiate whatever you can, I want out" (TR at 72). He also claims that he did not authorize Mr. Tucker to settle because he "knew that it would come down to a signature and I always reserved the fact that I was going to have to put my signature on an agreement" (TR at 77). He also stated that he never told Mr. Tucker that he had the funds to litigate but rather asked him "What if I told you I had the funds to litigate?" (See TR at 72).

   According to 29 C.F.R. §1978.111(d)(2), the case may be settled if the participating parties agree to a settlement and such settlement is approved by the ALJ. It further provides that a copy of the settlement shall be filed with the ALJ. Complainant argues that this regulation requires a written settlement agreement. Oral settlement agreements have been approved as was the case in Tankersly v. Triple Crown Services, Inc., 92-STA-8 (Sec'y October 17, 1994), cited by the Complainant. Here, there is a written settlement agreement as a result of the oral negotiations which is not signed by the parties. In Tankersly, there was no written agreement but there was no dispute that the Complainant authorized his attorney to settle for what he could get (See ALJ Recommended Decision and Order After Remand, June 14, 1994).

   In Hasan v. Nuclear Power Services, Inc., 89-ERA-24, Sec. Ord. To Show Cause (March 21, 1991), slip op. at 2, it was established that the Secretary will not approve a settlement unless it is submitted in writing and signed by all parties, or the record contains an unequivocal declaration by the parties that they have agreed to all the terms of a settlement and stating those terms clearly. Therefore, a signed, written settlement agreement is not necessarily required and oral settlement agreements can be enforced under some circumstances.

   The Complainant and Mr. Tucker agree that they had several conversations regarding a possible settlement. There is some confusion as to the dates and the Complainant's testimony is inconsistent as to what he remembered on what date. The Complainant claims that he does not remember what he discussed with Mr. Tucker on October 29. However, at two other times during his testimony, he stated that he did remember talking to Mr. Tucker on October 29 (See TR at 29 and 35). When first asked about the conversation on October 29, the Complainant said he remembered talking with Mr. Tucker about the terms of the settlement (TR at 29), including the fact that there would be no money exchanged (TR at 30) and there would not be a disciplinary hearing (TR at 32-33). However, he claims that he wanted the letters removed (TR at 31) and does not remember the term "dismissed" being used (TR at 36).

   The fact that the Complainant does not remember the conversations on October 29 is irrelevant because it is clear from Mr. Tucker's testimony that the final settlement terms were negotiated on October 28 and the Complainant agreed to those terms (See TR at 63-68). The Complainant stated that it was important to him that the letters be removed but when asked if, at any time, he told Mr. Tucker it was okay to settle without the removal of the letters, he never directly answered the question (TR at 59). Mr. Tucker's testimony was clear and consistent and very credible. Based on the inconsistencies in the Complainant's testimony and his demeanor at the hearing, I do not find him credible and therefore discount his testimony. Mr. Tucker's credible testimony establishes the terms of the settlement agreement clearly and unequivocally. Based on Mr. Tucker's testimony, I also find that the Complainant agreed to the terms of the settlement as set forth in the written agreement attached as Exhibit A.

   Upon reviewing the testimony and the written settlement agreement, I conclude that the settlement is fair and in the best interests of the Complainant. Moreover, I find that the settlement was arrived at without duress, only after full exploration by the parties of all issues in dispute and the legal and factual questions involved. I find that the settlement is fair, reasonable and adequate.

   Respondent's Motion to Enforce Settlement is hereby GRANTED. It is ORDERED that the settlement agreement, attached hereto and incorporated herein, be and is hereby APPROVED.

      GERALD M. TIERNEY
      Administrative Law Judge

GMT/TLR/dmr

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996)