ARB CASE NO. 07-047
ALJ CASE NO. 06-STA-024
DATE: August 31, 2007
In the Matter of:
BENN C. KINGSBURY,
COMPLAINANT,
v.
GORDON EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER APPROVING SETTLEMENT AND DISMISSING COMPLAINT
This case arises under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1997), and implementing
regulations at 29 C.F.R. Part 1978 (2006). On December 15, 2005, the Complainant,
Benn C. Kingsbury, filed a complaint with the Occupational Safety and Health
Administration (OSHA) alleging that the Respondent, Gordon Express, Inc.,
violated the STAA. OSHA denied Kingsbury’s
STAA complaint on March 15, 2006, and he timely requested a hearing pursuant to
29 C.F.R. § 1978.105. Prior to the scheduled hearing, the parties negotiated
and executed a Settlement Agreement and Dismissal of Claims, which both
Kingsbury and Lyle Gordon, president of Gordon Express, Inc., signed. The
Settlement Agreement was filed with the Administrative Law Judge (ALJ)
along with Kingsbury’s Unopposed Motion to Approve Settlement and Dismiss
Proceeding with Prejudice.
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 become final, “if the participating parties agree to a
settlement and such settlement is approved by the Administrative Review Board
[Board] . . . or the
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ALJ.”[1]
The regulations direct the parties to file a copy of the settlement with the
ALJ, the Board, or United States Department of Labor.[2]
On January 31, 2007, the ALJ issued a Recommended Decision
and Order Approving Settlement and Dismissing Complaint. Although the
Settlement Agreement purported to release Gordon Express from claims under the
STAA, as well as under various other laws, the ALJ noted that the Secretary’s authority
over settlement agreements is limited to such statutes as are within the
Secretary’s jurisdiction and is defined by the applicable statute. The ALJ
determined that the Settlement Agreement constituted a fair, equitable,
adequate and reasonable settlement of Kingsbury’s STAA complaint. Further, the
ALJ found that the confidentiality provision and constraints provided in the
Settlement Agreement are consistent with public policy.
The
case is now before the ARB pursuant to the STAA’s automatic review provisions.[3]
The Board “shall issue the final decision and order based on the
record and the decision and order of the administrative law judge.” 29 C.F.R.
§ 1978.109(c); Monroe v. Cumberland Transp. Corp., ARB No. 01-101, ALJ
No. 00-STA-050 (ARB Sept. 26, 2001). The Board issued a Notice of Review and
Briefing Schedule permitting either party to submit briefs in support of or in
opposition to the ALJ’s order. Kingsbury’s counsel responded, stating that
Kingsbury would not file a brief. Gordon Express did not file a response with
the Board.
The ARB agrees with the ALJ’s determination that the parties’ Settlement
Agreement constitutes a fair, equitable, adequate and
reasonable settlement of Kingsbury’s STAA complaint and none of the parties
allege otherwise. As the ALJ noted, however, the agreement releases Gordon
Express “from all claims of any kind whatsoever.” See Settlement
Agreement at 2, paragraph B. Because the Board’s authority over settlement agreements is limited to such statutes as are within the
Board’s jurisdiction and is defined by the applicable statute, we approve only
the terms of the agreement pertaining to Kingsbury’s STAA
claim. Fish v. H & R Transfer, ARB No. 01-071, ALJ No. 00-STA-056,
slip op. at 2 (ARB Apr. 30, 2003).
Furthermore,
as the ALJ noted, the agreement includes a confidentiality agreement, except,
in part, “(1) as required by process of law, (2) in response to discovery
served pursuant to the Rules of Procedure of any Court or agency,” and it does
not prohibit Kingsbury “from voluntarily communicating with a federal or state
agency concerning his employment with [the Respondent].” See Settlement
Agreement at 4, paragraph G. If the confidentiality agreement were interpreted
to preclude Kingsbury from communicating with federal or state enforcement
agencies concerning alleged
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violations of law, it would violate public policy
and therefore constitute an unacceptable “gag” provision. 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). Additionally, the parties are on notice that the
settlement agreement becomes part of the record of the case and is subject to
the Freedom of Information Act (FOIA). 5 U.S.C.A. § 552 (West 2006). Department
of Labor regulations provide specific procedures for responding to FOIA requests,
for appeals by requestors from denials of such requests, and for protecting the
interests of submitters of confidential commercial information. 29 C.F.R. § 70
et seq. (2006).
Also,
we construe paragraph N, the choice of law provision, as not limiting the
authority of the Secretary of Labor and any Federal court, which shall be
governed in all respects by the laws and regulations of the United States. Phillips v. Citizens’ Ass’n for
Sound Energy, 1991-ERA-025, slip op. at 2 (Sec’y Nov. 4, 1991).
The parties have certified that the agreement constitutes the
entire settlement with respect to Kingsbury’s STAA claim. Accordingly, with
the reservations noted above limiting our approval to the settlement of Kingsbury’s
STAA claim, we APPROVE the ALJ’s order and DISMISS the complaint
with prejudice.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[1] 29 C.F.R. § 1978.111(d)(2).
[2] Id.
[3] See 49 U.S.C.A. § 31105(b)(2)(C), 29
C.F.R. § 1978.109(c)(1).
