ARB CASE NO. 06-109
ALJ CASE NO. 2005-STA-00054
DATE: November 30, 2006
In the Matter of:
DWIGHT TOLAND,
COMPLAINANT,
v.
PRO DRIVERS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER
APPROVING SETTLEMENT AND DISMISSING
COMPLAINT
This case arises
under Section 405, the employee protection provision, of the Surface
Transportation Assistance Act of 1982 (STAA)[1]
and implementing regulations.[2]
The Administrative Law Judge (ALJ) issued a Recommended Order Approving Settlement
on May 23, 2006, approving the parties’ general release and settlement
agreement and dismissing the complaint with prejudice.
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 [hereinafter, the
“Board”] . . . or the ALJ.”[3]
The
[Page 2]
regulations direct the parties to file a copy of the settlement with the
ALJ, the Board, or United States Department of Labor.[4]
Pursuant to 29
C.F.R. § 1978.109(c), the Board “shall issue the final decision and order based
on the record and the decision and order of the administrative law judge.” The
Board received the ALJ Recommended Order 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 14, 2006. The
Respondent replied to the Board’s notice on June 22, 2006, indicating that it
would not file a brief with the Board. Toland did not respond to the Board’s
order.
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.[5]
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 the Complainant’s STAA claim ARB No. 06-109,
2005-STA-00054.[6]
Furthermore, if
the confidentiality provisions in paragraph 7 of the release and 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.[7]
Additionally, we
construe paragraph 15, 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.[8]
[Page 3]
Finally, the Respondent’s letter dated May 15, 2005 [sic],
requested that the settlement agreement and release be filed under seal. We
note that the record in this case, including the settlement agreement and release,
is subject to the applicable provisions of the Freedom of Information Act
(FOIA).[9]
The manner in which the Department, as a Federal agency, is required to
respond to FOIA requests is set out in the Department’s regulations.[10]
The parties have
agreed to settle Toland’s STAA claim. 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.
[5]See, e.g.,paras. 5, 8, and 9
of the General Release.
[6]Fish v. H & R Transfer, ARB No.
01-071, ALJ No. 00-STA-56, slip op. at 2 (ARB Apr. 30, 2003).
[7]Ruud v. Westinghouse Hanford Co., ARB No. 96-087, ALJ No. 1988-ERA-33 (ARB Nov. 10, 1997); Connecticut
Light & Power Co. v. Secretary, United States 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).
[8]Phillips v. Citizens’ Ass’n for Sound
Energy, 1991-ERA-25, slip op. at 2 (Sec’y Nov. 4, 1991).
[9] 5 U.S.C.A. § 552 (West 1996). 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)
