ARB CASE NO. 06-139
ALJ CASE NO. 2005-STA-0057
DATE: February 27, 2007
In the Matter of:
ALLEN DELOACH,
COMPLAINANT,
v.
KANSAS CITY SOUTHERN
RAILWAY COMPANY,
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 August 10, 2006, the parties submitted a Confidential Settlement Agreement and
Release of All Claims signed by the Complainant, Allen DeLoach, and the
Respondent, Kansas City Southern Railway Company (KCSR), 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 August 16, 2006, the ALJ
issued a Recommended Decision and Order Approving Settlement Agreement.
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 August 25, 2006.[5]
Both DeLoach and KCSR replied, separately, on September 18, 2006, via letter,
indicating their intention to not file briefs with the Board. We therefore
deem settlement unopposed under the terms of the Recommended Decision and Order
Approving Settlement Agreement.
Review of the
agreement reveals that it may encompass the settlement of matters under laws
other than the STAA[6]
and reference cases other than ARB No. 06-139, 2005-STA-0057, 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. 06-139, 2005-STA-0057.[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 1996). 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
DeLoach 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 Missouri. 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 DeLoach’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 2006).
[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. 00-STA-50 (ARB Sept. 26,
2001); Cook v. Shaffer Trucking Inc., ARB No. 01-051, ALJ No. 00-STA-17
(ARB May 30, 2001).
[5] 29 C.F.R. § 1978.109(c)(2).
[6] Confidential Settlement Agreement and Release of All Claims para. B.
[7] Confidential Settlement Agreement and Release of All Claims paras.B, C.
[8] Fish v. H & R Transfer, ARB No.
01-071, ALJ No. 00-STA-56, slip op. at 2 (ARB Apr. 30, 2003).
[9] Confidential Settlement Agreement and
Release of All Claims para. F.
[10] Coffman v. Alyeska Pipeline Serv. Co. and
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); 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).
[13] See Phillips v. Citizens’ Ass’n for Sound
Energy, 1991-ERA-25, slip op. at 2 (Sec’y Nov. 4, 1991).
