DATE: February 18, 1993
CASE NO. 92-STA-0008
IN THE MATTER OF
TERRY W. TANKERSLEY,
COMPLAINANT,
v.
TRIPLE CROWN SERVICES, INC., AND
NORTH AMERICAN VAN LINES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
This case arises under the employee protection provision of
the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C. app. § 2305 (1988), and implementing regulations at
29 C.F.R. Part 1978 (1992). Complainant alleged that Respondent
unlawfully terminated his operator agreement because he refused
to drive in violation of Department of Transportation safety
regulations. See 49 U.S.C. app. § 2305(b).
On October 20, 1992, the Administrative Law Judge (ALJ)
issued a [Recommended] Decision and Order Approving Proposed
Adjudicatory Settlement and Dismissing Complaint (R.D. and O.)
pursuant to 29 C.F.R. § 1978.109(a). As permitted by the
regulations, both parties have filed responses to the ALJ's
decision. 29 C.F.R. § 1978.109(c)(2). [1] The Assistant
Secretary for Occupational Safety and Health has not participated
in this proceeding.
Complainant appealed the preliminary finding against him and
the ALJ scheduled a hearing for August 18, 1992. On August 4,
counsel for Respondent notified the ALJ by telephone, that a
settlement had been reached. On August 10, however, counsel for
[PAGE 2]
Complainant moved to withdraw on the basis of a disagreement with
his client. Counsel explained that "[a]lthough Complainant had
authorized [him] to accept such settlement offer, Complainant,
upon further reflection, rejected the settlement offer and
indicated his wish to pursue the claim further." Motion of David
M. Heimos, Attorney for Complainant, To Withdraw.
On August 12 and 13, the ALJ conducted telephonic
conferences with Complainant and both counsel. The ALJ states
that in the second conference of August 13, he granted
Complainant's counsel's request to withdraw and allowed
Complainant a continuance of the hearing for ninety days to
obtain new counsel. R.D. and O. at 4. On that same day,
Respondent moved for approval of the adjudicatory settlement.
In his decision the ALJ stated that although the case was
then under consideration for re-scheduling of the hearing in
January 1993, upon further reflection of the nature of the case
and the events that had transpired, he concluded that
Respondent's motion for approval of the settlement should be
granted. R.D. and O. at 2. Relying on his recollection of the
telephone conferences, counsels' motions with attachments, and an
affidavit by Respondent's counsel, the ALJ found that Complainant
authorized his attorney to settle the case and that Complainant
accepted the offer initially. After finding no illegality,
fraud, duress, undue influence, mistake, or overriding public
policy, the ALJ concluded that Complainant made a binding
agreement although it was never reduced to writing. The ALJ
accepted counsel's averments as to the terms of the settlement.
Before me, Complainant, who now appears prose, contends that his counsel was not authorized to accept
Respondent's offer, and further, Complainant questions the
enforceability of an oral agreement between counsel. Respondent
urges that the oral agreement be approved.
After reviewing the record and the applicable law, I cannot
accept the ALJ's recommendation that a settlement be approved in
this case. [2] The statute provides that STAA proceedings may
be terminated on the basis of a settlement agreement entered into
by the Secretary of Labor, the complainant, and the person
alleged to have committed the violation. 49 U.S.C. app. §
2305(c)(2)(A). In 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. E.g., Davis v. Kimstock,
Inc., Case No. 90-STA-8, Sec. App. of Settlement and Dis. of
Complaint, Nov. 30, 1990, slip op. at 2-3. 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). Because this record
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contains no written settlement signed by all parties, or other
memorialization of an entire agreement to which each party has
consented, Respondent's Motion for Approval of Adjudicatory
Settlement must be denied. Cf. Hasan v. Nuclear Power
Services, Inc., Case No. 86-ERA-24, Sec. Ord. to Show Cause,
Mar. 21, 1991, slip op. at 2-3, Sec. Fin. Dec. and Ord., June 26,
1991, petition denied, No. 91-4642 (5th Cir. May 7,
1992). [3]
Accordingly, this case IS REMANDED for further proceedings
consistent with this opinion, including an evidentiary hearing on
the merits of Complainant's claim, if appropriate. As a
preliminary matter, however, Respondent's Motion for Summary
Judgment remains pending before the ALJ. In remanding this case,
I express no opinion nor should any be inferred as to the merits
of Complainant's allegation.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] As directed by an Order issued on January 13, 1993,
Complainant has submitted a duplicate of his response. The
record shows that Complainant filed his original response,
partially entitled a Motion for Reconsideration, with the ALJ,
who on January 29, 1993, transmitted to the Secretary an Order
Denying Complainant's Motion for Reconsideration. I do not
consider this ruling because subsequent to the ALJ's issuance of
his R.D. and O. on October 20, 1992, jurisdiction in this case
passed to the Secretary. 29 C.F.R. § 1978.109; cf.
McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Ord.
Denying Amendment of Rem. Ord., Mar. 15, 1988, slip op. at 2.
Furthermore, since every ALJ decision issued under 29 C.F.R.
§ 1978.109(a) is automatically reviewed, it was not
necessary for Complainant specifically to request
reconsideration. Additionally, as urged by Respondent, I do not
rely on Complainant's supplemental evidence in deciding this
case. 29 C.F.R. § 1978.109(c)(1).
[2] I agree, however, with the ALJ's ruling to grant
Complainant's counsel's motion for withdrawal. 29 C.F.R. §
18.34(g)(1) (1992), as made applicable by 29 C.F.R. §
1978.100(b).
[3] As explained in Hasan, which arose under an analogous
statutory employee protection provision:
The Secretary has stated several times that she 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.
Hasan, slip op. at 2.
