ARB CASE NO. 07-064
ALJ CASE NO. 2007-STA-007
DATE: August 23, 2007
In the Matter of:
DWIGHT TOLAND,
COMPLAINANT,
v.
CAVALIER COACH CORP.,
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 March 30, 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, Dwight E.
Toland, and the Respondent, Cavalier Coach 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]
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When the parties
reached a settlement the case was pending before the ALJ. Therefore, the ALJ
appropriately reviewed the settlement agreement. On April 2, 2007, the ALJ
issued a Recommended Order Approving Settlement Agreement and Dismissing
Complaint. According to the STAA’s implementing regulations, the
Administrative Review 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.[5]
Neither party responded to the Board’s notice. We therefore deem settlement
unopposed under the terms of the Recommended Order Approving Settlement
Agreement and Dismissing Complaint.
Review of the
agreement reveals that it may encompass the settlement of matters under laws
other than the STAA and reference cases other than ARB No. 07-064, 2007-STA-007,
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. 07-064, 2007-STA-007.[7]
The Agreement
provides that the parties shall keep the terms of the settlement confidential,
with certain specified exceptions.[8]
The Board notes that the parties’ submissions, including the Agreement,
become part of the record of the case and are subject to the Freedom of
Information Act (FOIA).[9]
FOIA requires Federal agencies to disclose requested records unless they are
exempt from disclosure under the Act.[10]
Department of Labor regulations provide specific procedures for responding to FOIA
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requests, for appeals by requestors from denials of such
requests, and for protecting the interests of submitters of confidential
commercial information.[11]
Furthermore, if
the provisions in section 9 of the Settlement Agreement were to preclude Toland
from communicating with federal or state enforcement agencies concerning
alleged violations of law, they would violate public policy and therefore,
constitute unacceptable “gag” provisions.[12]
As construed, the
Board finds that the settlement is fair, adequate, reasonable, and in the
public interest. Accordingly, with the reservations noted above limiting our
approval to the settlement of Toland’s STAA claim, we APPROVE the
agreement and DISMISS the complaint with prejudice.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (West 2007).
[2] 29 C.F.R. § 1978.111(d)(2) (2006).
[3] Id.
[4] 29 C.F.R. § 1978.109(c)(2); Monroe v.
Cumberland Transp. Corp., ARB No. 01-101, ALJ No. 2000-STA-050 (ARB Sept.
26, 2001); Cook v. Shaffer Trucking Inc., ARB No. 01-051, ALJ No. 2000-STA-017
(ARB May 30, 2001).
[5] 29 C.F.R. § 1978.109(c)(2).
[6] Settlement Agreement and Mutual Release §§
2, 3, 5, 6.
[7] Fish v. H & R Transfer, ARB No.
01-071, ALJ No.20 00-STA-056, slip op. at 2 (ARB Apr. 30, 2003).
[8] Settlement Agreement and Mutual Release, §
9.
[9] 5 U.S.C.A. § 552 (West 2006).
[10] Coffman v. Alyeska Pipeline Serv. Co. &
Arctic Slope Inspection Serv., ARB No. 96-141, ALJ Nos. 96-TSC-005, 6, slip
op. at 2 (ARB June 24, 1996).
[11] 29 C.F.R. § 70 et seq. (2006).
[12] 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).
