Clark v. MTS Driver Recruiters, Inc., ARB No. 08-018, ALJ No. 2007-STA-33 (ARB Jan. 31, 2008)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 08-018
ALJ CASE NO. 2007-STA-033
DATE: January 31, 2008

In the Matter of:

ANDRE CLARK,

       COMPLAINANT,

    v.

MTS DRIVER RECRUITERS, INC.,

       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 November 15, 2007, the parties submitted a Confidential Settlement Agreement and Release of Claims signed by the Complainant, Andre Clark, and the Respondent, MTS Driver Recruiters, Inc., to a Department of Labor Administrative Law Judge (ALJ). 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 November 21, 2007, the ALJ issued an Order Recommending Approval of Settlement Agreement and Dismissal of Case with Prejudice. 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 December 3, 2007.⁵ Neither party responded to the notice. We therefore deem the settlement unopposed under the terms of the Confidential Settlement Agreement and Release of Claims.

   Review of the agreement reveals that it may encompass the settlement of matters under laws other than the STAA⁶ and reference cases other than ARB No. 08-018, 2007-STA-033, the case currently before the Board.⁷ 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. 08-018, 2007-STA-033.⁸

   Additionally, the agreement provides that the parties shall keep the terms of the settlement confidential, with certain specified exceptions.⁹ 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), 5 U.S.C.A. § 552 (West 2007). 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 requests, for appeals by requestors from denials of

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such requests, and for protecting the interests of submitters of confidential commercial information.¹¹

   Furthermore, if the provisions in paragraph K of the Settlement Agreement 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

   Finally, paragraph M provides that the agreement shall be governed and construed under the laws of the state of Michigan. We construe this 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.¹³

   The Board finds that the settlement is fair, adequate and reasonable. Accordingly, with the reservations noted above limiting our approval to the settlement of Clark’s STAA claim, we APPROVE the agreement and DISMISS the complaint with prejudice.

   SO ORDERED.

            M. CYNTHIA DOUGLASS
            Chief Administrative Appeals Judge

            WAYNE C. BEYER
            Administrative Appeals Judge

[ENDNOTES]

¹ 49 U.S.C.A. § 31105 (West 2007).

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. 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 Confidential Settlement Agreement and Release of Claims para. B 1 - 12.

⁷ Confidential Settlement Agreement and Release of Claims paras. B, C.

⁸ Fish v. H & R Transfer, ARB No. 01-071, ALJ No. 2000-STA-056, slip op. at 2 (ARB Apr. 30, 2003).

⁹ Confidential Settlement Agreement and Release of Claims para. F.

¹⁰ Coffman v. Alyeska Pipeline Serv. Co. & Arctic Slope Inspection Serv., ARB No. 96-141, ALJ Nos. 1996-TSC-005, 6, slip op. at 2 (ARB June 24, 1996).

¹¹ 29 C.F.R. § 70 et seq. (2007).

¹² Ruud v. Westinghouse Hanford Co., ARB No. 96-087, ALJ No. 1988-ERA-033, slip op. at 6 (ARB Nov. 10, 1997); Connecticut 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 See Phillips v. Citizens’ Ass’n for Sound Energy, 1991-ERA-025, slip op. at 2 (Sec’y Nov. 4, 1991).