ARB CASE NO. 07-087
ALJ CASE NO. 2007-STA-29
DATE: August 31, 2007
In the Matter of:
ANDRE CLARK,
COMPLAINANT,
v.
J.H.O.C., INC., D/B/A
PREMIER TRANSPORTATION,
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 of 1982 (STAA)[1]
and its implementing regulations.[2]
The Administrative Law Judge (ALJ) below issued a Recommended Approval of
Settlement Agreement and Dismissal of Case with Prejudice (R. D. & O.) on
June 11, 2007.
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 [ARB
or Board] . . . or
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the ALJ.”[3]
The regulations direct the parties to file a copy of the settlement with the
ALJ, the Board, or United States Department of Labor.
Pursuant to 29
C.F.R. § 1978.109(c)(1), the Board “shall issue a final decision and order
based on the record and the decision and order of the administrative law
judge.” In reviewing the ALJ’s legal conclusions, the Board, as the
Secretary’s designee, acts with “all the powers [the Secretary] would have in
making the initial decision . . ..”[4]
Therefore, the Board reviews the ALJ’s legal conclusions de novo.[5]
The Board
received the R. D. & O. and 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 June 25, 2007. Neither the Complainant,
Andre Clark, nor the Respondent, J.H.O.C., Inc. d/b/a Premier Transportation,
filed a brief with the Board.
The ARB concurs
with the ALJ’s determination that the parties’ settlement agreement is fair,
adequate and reasonable. But, we note that the Agreement encompasses the
settlement of matters under laws other than the STAA.[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.
Our approval is limited to this case, and we understand the settlement terms
relating to release of STAA claims as pertaining only to the facts and
circumstances giving rise to this case. Therefore, we approve only the terms
of the Agreement pertaining to Clark’s STAA claim, ARB No. 07-087, ALJ No. 2007-STA-00029.[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
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disclose requested records unless they are
exempt from disclosure under the Act.[10]
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.[11]
Furthermore, if the
provisions in paragraphs D and G of the Settlement Agreement and Release were
to preclude Clark 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]
Additionally, we
construe paragraph N, the governing 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.[13]
The parties have
agreed to settle Clark’s STAA claim. Accordingly, with the reservations noted
above, we APPROVE the agreement and DISMISS the complaint with
prejudice.
SO ORDERED.
DAVID G. DYE
Administrative Review Board
OLIVER M. TRANSUE
Administrative Review Board
[1] 49 U.S.C.A. § 31105 (West 2007).
[2] 29 C.F.R. Part 1978 (2006).
[3] 29 C.F.R. § 1978.111(d)(2).
[4] 5 U.S.C.A. § 557(b) (West 1996).
[5] See Roadway Express, Inc. v. Dole,
929 F.2d 1060, 1066 (5th Cir. 1991).
[6] See para. B of the Agreement.
[7] Fish v. H & R Transfer, ARB No.
01-071, ALJ No. 00-STA-56, slip op. at 2 (ARB Apr. 30, 2003).
[8] Agreement, para. G.
[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-5, 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-33, 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).
[13] Phillips v. Citizens Ass’n for Sound
Energy, 1991-ERA-25, slip op. at 2 (Sec’y Nov. 4, 1991).
