Galczak v. USF Logistics Services, Inc., 2001-STA-12 (ALJ Sept. 12, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date Issued: Sept. 12, 2001

Case No.: 2001-STA-12

In the Matter of:

MICHAEL J. GALCZAK
    Complainant

    v.

USF LOGISTICS SERVICES, INC.
    Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This proceeding arises under Section 31105 of the Surface Transportation Assistance Act (STAA) of 1982 (49 U.S.C. § 31101) and the regulations promulgated thereunder [29 C.F.R. Part 1978 (1989)]. The parties, on September 20, 2001, by facsimile transmission filed a Settlement Agreement in accordance with 29 C.F.R. § 1978.111(d)(2). The Agreement resolves the controversy arising from the complaint of Michael J. Galczak under the statute. The Settlement Agreement is signed by the Complainant, Michael J. Galczak , and also by Sylvester Garcia, Director, USF Logistics Services, Inc., on behalf of the Respondent.

   Under the STAA and implementing regulations, a proceeding may be terminated on the basis of a settlement provided either the Secretary or the Administrative Law Judge approves the agreement. 49 U.S.C. app. § 2305(c)(2)(A); 29 C.F.R. § 1978.111(d)(2). The parties must submit for review an entire agreement to which each party has consented. Tankersley v. Triple Crown Services, Inc. 92-STA-8 (Sec'y Feb. 18, 1993). The agreement must be reviewed to determine whether the terms are a fair, adequate and reasonable settlement of the complaint. Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991); Thompson v. U.S. Department of Labor, 885 F.2d 551 (9th Cir. 1989); Fuchko and Yunker v. Georgia Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec'y Ord. Mar. 23, 1989, slip op. at 1-2.

   I find the overall settlement terms to be reasonable but some clarification is necessary. The Agreement contains a strict confidentiality provision limiting all disclosures excepting under certain stated circumstances. The Agreement contains a provision that it does not preclude the Complainant from voluntarily communicating with, and providing information to, any state or federal governmental agency concerning his employment with USF Logistics Services, Inc. The Agreement also provides that the Complainant is not to inform directly or indirectly, any person that he has received any sum of money whatsoever and that confidentiality is the essence of the Agreement. It has been held in a number of cases with respect to confidentiality provisions in Settlement Agreements that the Freedom of Information Act, 5 U.S.C. § 552 (1988) (FOIA) requires federal agencies to disclose requested documents unless they are exempt from disclosure. Faust v. Chemical Leaman Tank Lines, Inc., Case Nos. 92-SWD-2 and 93-STA-15, ARB Final Order Approving Settlement and Dismissing Complaint, March 31, 1998. The records in this case are agency records which must be made available for public inspection and copying under the Freedom of Information Act.

   The Agreement also notes at Paragraph Six that it is governed by the laws of the state of Minnesota and shall be construed and enforced thereunder. That provision is interpreted as not limiting the authority of the Secretary or any U.S. District Court to seek or grant appropriate relief under any applicable federal whistleblower statute or regulation. Phillips v. Citizens Assoc. for Sound Energy, Case No. 91-ERA-25, Sec. Final Order of Dismissal (Nov. 4, 1991).

   The Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Part 18 are applicable to these proceedings. 29 C.F.R. § 1978.106(a). Where the parties arrive at an adjudicatory settlement, the Agreement must be approved by the Administrative Law Judge. 29 C.F.R. § 1978.111(d)(2). Thus the procedure to be applied in reviewing the Settlement Agreement is that provided by 29 C.F.R. § 18.9 dealing with the entry of a Consent Order or Settlement. This case involves the review of a Settlement Agreement and Release, and the final disposition is controlled by 29 C.F.R. § 18.9.

   As so construed, I find the terms of the Settlement Agreement and Release to be fair, adequate and reasonable, and therefore approve it. Accordingly, the complaint filed by Michael J. Galczak is hereby dismissed with prejudice. This Order is the final departmental action. Fisher v. ABC Trailer Sales & Rental, Inc., 97-STA-20 (ARB, May 29, 1998); 29 C.F.R. § 1978.111(d)(2). Although the Settlement Agreement itself does not indicate that the parties understand that this case is to be dismissed with prejudice, an accompanying Order of Dismissal prepared for my signature notes that the case should be dismissed "with prejudice." Thus I interpret the settlement package as indicating that it was the intent of the parties that the case be dismissed "with prejudice." See Thompson v. U.S. Department of Labor, 885 F.2d 551 (9th Cir. 1989); Thompson v. G & W Transportation Co., Inc., 90-STA-25 (Secretary, October 24, 1990).

       Rudolf L. Jansen
       Administrative Law Judge