Office of Administrative Law Judges John W. McCormack Post Office & Courthouse - Room 507 Post Office Square Boston, MA 02109
(617) 223-9355 (617) 223-4254 (FAX)
Issue Date: 21 May 2004
CASE No.: 2004-STAA-00024
In the Matter of
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,
Prosecuting Party,
and
BRUCE WERNIKOFF
Complainant,
v.
ROCKIN EXPRESS, INC.,
and
JOSEPH ERBA,
Respondents.
DECISION AND ORDER APPROVING SETTLEMENT AGREEMENT
This proceeding which arises under the provisions of section 405 of the Surface Transportation Assistance Act, 49 U.S.C. § 31105 (the "STAA") is scheduled for hearing on May 24, 2004. On May 19, 2004, the Complainant, Bruce Wernikoff and the Respondents filed a Settlement Agreement and the Assistant Secretary for the Occupational Safety and Health Administration, as prosecuting party, and the Respondents filed a Joint Motion to Approve Settlement Agreement (attached). The parties entered into the following settlement agreement:
1. Bruce Wernikoff, for and in consideration of the sum of $10,000 paid to him by Respondents, hereby agrees to release and forever discharge Respondents from any and all claims for discrimination and wrongful discharge arising out of his relationship with Respondents during the period of 2003.
2. Beginning on or before June 1, 2004, Respondents shall pay Complainant Wernikoff $4000 and, on or before the 1st day of the following three months (July 1, 2004, August 1, 2004 and September 1, 2004), Respondents shall pay him $2000. Under this installment payment plan, Respondents will have paid Complainant Wernikoff the total sum of $10,000.
3. Respondents agree that their failure to timely pay any installment payment, shall result in any remaining balance due on the installment payment obligation to become immediately due and owing. Any legal and administrative costs incurred in collecting any late payments shall be borne by Respondents.
4. Complainant agrees he will not seek reinstatement as a driver for Respondent.
5. Respondents agree to comply with the provisions of the Surface Transportation Assistance Act in all respects in the future.
6. Respondents agree to purge Complainant's employment/personnel file of any reference that, in any manner, related to or arising from this instant matter and Respondents agree, that in response to any employment reference inquiry made by an employer or prospective employer, Respondents will refrain from making any adverse oral or written references and will provide only the Complainant's dates of employment and job title.
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The STAA and its implementing regulations provide that a proceeding under the STAA may be ended prior to entry of a final order by a settlement agreement between the parties. 49 U.S.C. § 31105(b)(2)(C); 29 C.F.R. § 1978.111(d)(2) (2001). The Administrative Law Judge's role in reviewing the parties' settlement agreement is limited to ascertaining whether the terms of the agreement fairly, adequately and reasonably settle the Complainant's allegations that the Respondent violated the STAA. Ass't Sec'y & Zurenda v. Corporate Express Delivery Systems, Inc., ARB No. 00-041, ALJ No. 1999-STA-30 (ARB March 31, 2000).
Pursuant to the requirements of the STAA and implementing regulations, I have carefully reviewed the terms of the parties' settlement agreement, and I have determined that it constitutes a fair, adequate and reasonable settlement of the complaint. Accordingly, the following order is entered:
(1) the parties' Settlement Agreement is hereby approved;
(2) beginning on or before June 1, 2004, respondents shall pay Complainant Wernikoff $4000 and, on or before the 1st day of the following three months (July 1, 2004, August 1, 2004 and September 1, 2004), Respondents shall pay him $2000 and;
(3) the matter is referred to the Administrative Review Board for issuance of a final decision and order pursuant to 29 C.F.R. § 1978.109(c). SeeHowick v. Experience Hendrix, LLC, ARB No. 02-049, ALJ No. 2000-STA-32 (ARB Sept 26, 2002).
