ARB CASE NO. 07-093
ALJ CASE NO. 2007-STA-033
DATE: September 27, 2007
In the Matter of:
WILLIAM J. BETTNER,
COMPLAINANT,
v.
CRETE CARRIER CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
This case arises under Section 405, the employee
protection provision, of the Surface Transportation Assistance Act (STAA) of
1982.[1]
On May 21, 2007, the parties submitted a request for approval of their
settlement and dismissal of the complaint to a Department of Labor
Administrative Law Judge (ALJ). The settlement was signed by the
Complainant, William J. Bettner, and the Respondent, Crete Carrier Corporation.
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 July 2, 2007, the ALJ issued a Recommended Order
Approving Settlement and Dismissing Complaint.
[Page 2]
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 July 19, 2007.[5]
Neither party responded to the Board’s notice. We therefore deem the 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. 07-093, 2007-STA-033, 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. 07-093, 2007-STA-033.[7]
Under the agreement, Bettner releases Crete
Carrier from, essentially, any claims or causes of action arising out of or
connected with his employment at Crete Carrier.[8]
Thus, we interpret this portion of the agreement as limiting Bettner’s right to
sue on claims or causes of action arising only out of facts, or any set of
facts, occurring before the date of the settlement agreement. Bettner
does not waive claims or causes of action that may accrue after the signing of
the agreement.[9]
Furthermore, if the provisions in paragraph
3(i) of the Settlement Agreement were to preclude Bettner from communicating
with federal or state enforcement agencies concerning alleged violations of
law, they would violate public policy and therefore, constitute unacceptable “gag” provisions.[10]
[Page 3]
The Board finds that the settlement is fair, adequate
and reasonable. Accordingly, with the reservations noted above limiting our
approval to the settlement of Bettner’s STAA claim, we APPROVE the
agreement and DISMISS the complaint with prejudice.[11]
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 Bettner 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. 00-STA-050 (ARB Sept. 26,
2001); Cook v. Shaffer Trucking Inc., ARB No. 01-051, ALJ No. 00-STA-017
(ARB May 30, 2001).
[5] 29 C.F.R. § 1978.109(c)(2).
[6] Settlement Agreement, paras.1, 3(a), 3(c),
6.
[7] Fish v. H & R Transfer, ARB No.
01-071, ALJ No. 00-STA-056, slip op. at 2 (ARB Apr. 30, 2003).
[8] Settlement Agreement, paras. 3(a), 3(c), 4.
[9] See Bittner v. Fuel Econ. Contracting
Co., No. 88-ERA-022, slip op. at 2 (Sec’y June 28, 1990); Johnson v.
Transco Prods., Inc., 85-ERA-007 (Sec’y Aug. 8, 1985).
[10] 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).
[11] The ALJ
states in the R. D. & O. that the settlement was filed “under seal.” In Porter
v. Brown & Root, Inc., 91-ERA-004 (Sec’y Feb. 25, 1994),
the Secretary of Labor refused to approve a settlement in which the parties
had agreed that the settlement of the complainant’s whistleblower complaint
would be maintained under seal and placed in a restricted access potion of the
record. In support of his conclusion, the Secretary cited the Administrative
Law Judge’s determination that, in the absence of regulations in 29 C.F.R. Part
18 permitting the ALJ to place the settlement agreement in a restricted access
portion of the record, he could not do so. The Secretary also noted that he
had consistently held that “once submitted for review, the parties’ submissions
including Settlement Agreements and all related documents become a part of the
public record in the case and are subject to the provisions of the Freedom of
Information Act (FOIA), 5 U.S.C. § 522 (1988), requiring federal agencies to
disclose requested records unless they are exempt from disclosure under the
Act.”
In Brown v. Holmes & Narver,
Inc., 90-ERA-026, (Sec’y May 11, 1994), the
Secretary noted that the respondent had requested pre-disclosure notification
pursuant to 29 C.F.R. § 70.26 should anyone file a FOIA request that included
the agreement. The Secretary ordered the Office of Administrative Law Judges
(OALJ), the custodian of the record, to place a notice prominently displayed in
the case record noting the respondent’s request and directing that OALJ to
follow the procedures in 29 C.F.R. § 70.26 if it received a FOIA request
including the settlement. But the Secretary noted that the ALJ’s statement
that the settlement agreement was considered to be confidential commercial or
financial information was overly broad because no FOIA request had yet been
filed and therefore it was premature for the Secretary to decide if the
settlement contained commercial or financial information that fell within the
FOIA’s trade secrets exemption from disclosure.
Thus, while the Board can agree that the settlement in
this case will be subject to 29 C.F.R. § 70.26’s pre-disclosure notification
prior to release under the FOIA, the ALJ’s statement that the settlement is
filed “under seal” is erroneous as it is not in accordance with law.
