Herzman v. Carolina Southern, Inc., 2002-STA-48 (ALJ Jan. 17, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue Date: 17 January 2003

CASE NO.: 2002-STA-48

In the Matter of:

FREDERICK J. HERZMAN and
SHIRLEY McCONAGHY
    Complainants

    v.

CAROLINA SOUTHERN, INC.
    Respondent.

   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 at 29 C.F.R. Part 1978 (1989). The parties, on January 3, 3003, filed a Settlement Agreement ("Agreement") in accordance with 29 C.F.R. §§ 1978.111(d)(2). The Agreement resolves the controversy arising from the complaint filed by Frederick J. Herzman and Shirley McConaghy. The Settlement Agreement is signed by the complainants and the respondent.

   The Settlement Agreement provides that the complainants release, collectively and individually, the respondent from claims arising under the Surface Transportation Act as well as under various other laws. This review is limited to whether the terms of the settlement are a fair, adequate and reasonable settlement of complainant's allegations that respondent violated the STAA. Kidd v. Sharron Motor Lines, Inc., 87-STA-2 (Sec'y July 30, 1987); Poulos v. Ambassador Fuel Oil Co., Case No. 86-CAA-1, Sec. Ord., Nov. 2, 1987, slip op. at 2. As was stated in Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, (Nov. 2, 1987):

The Secretary's authority over the settlement agreement is limited to such statutes as are within [the Secretary's] jurisdiction and is defined by the applicable statute. See Aurich v. Consolidated Edison Company of New York, Inc., Case No. 86-CAA-2, Secretary's Order Approving Settlement, issued July 29, 1987; Chase v. Buncombe County, N.C., Case No. 85-SWD-4, Secretary's Order on Remand, issued November 3, 1986.

I have therefore limited my review of this Agreement to determining whether the terms thereof are a fair, adequate and reasonable settlement of the complainants' allegations that the respondent had violated the STAA.

   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. This Order approving the settlement is final since all parties have joined in the Agreement. Swischer v. Gerber Childrenswear, Inc., 93-STA-1 (Sec-y Jan. 4, 1993).

   I find the overall settlement terms to be reasonable, however, some clarification is necessary. The Agreement contains a confidentiality provision limiting all disclosures except under certain stated circumstances. 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, et seq. (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. However, the respondent will be provided a pre-disclosure notification giving the respondent the opportunity to challenge any such potential disclosure. In the event the Agreement is disclosed, pursuant to 5 U.S.C. § 552, et seq, the complainants' obligation, under paragraph E, would then be void, leaving the remainder of the Agreement in effect.

   As so construed, I find the terms of the Agreement to be fair, adequate and reasonable, and therefore approve it. Accordingly, the complaint filed by Frederick J. Herzman and Shirley McConaghy, is hereby dismissed with prejudice.

   It is hereby ordered that the complaint filed by Frederick J. Herzman and Shirley McConaghy, is dismissed with prejudice and the hearing scheduled for January 21, 2003 is cancelled.

      RICHARD A. MORGAN
      Administrative Law Judge

RAM:als