DATE: September 11, 1997

CASE NUMBER 95-STA-43

In the Matter of

GALE COOK,
    COMPLAINANT,

    v.

GUARDIAN LUBRICANTS, INC.,
    RESPONDENT.

    This proceeding arises under the provisions of Section 405 of the Surface Transportation Assistance Act, 49 U.S.C. §31105 (hereinafter referred to as "the Act" or "the STAA"). On September 4, 1997 the parties entered into a proposed settlement agreement that, if approved by the undersigned administrative law judge, would resolve all disputed issues and allow for the dismissal of this matter with prejudice.

    As required by the relevant regulations and statutory provisions, I have carefully reviewed the entire agreement to determine if it should be approved.¹ After doing so, I have concluded that the terms of the agreement are, in fact, fair, adequate, and reasonable and that the agreement should therefore be approved.

    It is recognized that under the terms of the agreement the Complainant will receive a substantially smaller amount in damages than was awarded to him in the May 30, 1997 decision of the Administrative Review Board (ARB). However, I find that the Complainant's decision to accept the amount offered by the Respondent is reasonable in view of the risks of continuing this litigation and that the settlement will therefore result in a payment to him that is fair and adequate.²

    Accordingly,

    1. The proposed settlement agreement is hereby approved, and

    2. The above-captioned complaint is hereby dismissed with prejudice.

      Paul A. Mapes
      Administrative Law Judge

¹ In this regard, it is noted that although most administrative law judge decisions under the STAA do not become final until reviewed and approved by the Administrative Review Board (ARB), administrative law judge decisions approving proposed settlement agreements become final without such review or approval. Pettit v. Des Moines Asphalt & Paving Co., 96-STA-3 (ARB Dec. 30, 1996); Perrine v. Packard Elec., Inc., 93-STA-34 (Sec'y March 17, 1994); Cappelluci v. Whaleco Oil Co., 94-STA-15 (Sec'y July 19, 1994); Swisher v. Gerber Childrenswear, Inc., 93-STA-1 (Sec'y Jan. 4, 1993); Arledge v. Scottserve, Inc., 92-STA-25 (Sec'y June 16, 1993).

²There are several reasons for this conclusion. First, there is a possibility that if the Respondent were to appeal the ARB's decisions in this case to the United States Court of Appeals for the Ninth Circuit, that court might conclude that the ARB failed to give appropriate weight to my findings concerning the credibility of the testimony of Carol Guddat and therefore reverse the ARB's holding that the Respondent's termination of the Complainant's employment was in violation of the STAA. See, e.g., Pogue v. United States Department of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991)(reversing a decision of the Secretary of Labor due to a failure to give sufficient weight to an administrative law judge's credibility findings); Loomis Courier Serv., Inc. v. NLRB, 595 F.2d 491, 496 (9th Cir. 1979)(noting that "evidence in the record which, when taken alone, may amount to 'substantial evidence' and therefore support the [National Labor Relations] Board's decision, will often be insufficient when the [administrative law judge] has, on the basis of the witnesses' demeanor, made credibility determinations contrary to the Board's position"). In addition, it is also possible that the Ninth Circuit might find that May Trucking Company's termination of the Complainant in January of 1995 was in retaliation for making safety-related complaints and therefore constituted a superseding tortious event terminating the Respondent's liability for lost wages. See Restatement (Second) of Torts §§440-53. Similarly, the Ninth Circuit might find that the termination of the Complainant's employment by May Trucking was distinct or divisible from the termination of his employment by the Respondent and that therefore the Respondent is not liable for any wage losses following May Trucking's termination of the Complainant. See Restatement (Second) of Torts §433A, §881. As well, the court might also find that there is an insufficient factual basis in the record to support the ARB's decision that Guardian Lubricants can be held vicariously liable for alleged violations of the STAA by Conex and Seattle Freight. Finally, it is noted that, according to the Complainant's August 4, 1997 testimony, he has been employed full time as a security guard since March of 1997.