Date: April 24, 1995

Case No. 92-STA-37

In the Matter of:

EMMETT D. NOLAN
     Complainant

v.

AC EXPRESS
     Respondent

RECOMMENDED ORDER APPROVING SETTLEMENT AND DISMISSING COMPLAINT

     On January 17, 1995, the Secretary of Labor issued a deci-
sion in this matter affirming my finding that respondent had
violated the employee protection provisions of the Surface Trans-
portation Act of 1982, 49 U.S.C. §31105 (West 1994) (STA),
remanded the case for further proceedings concerning the proper
remedy, and ordered the holding of further proceedings and issu-
ance of any supplemental recommended decision within 180 days of
the decision.
     I held a hearing in Buffalo, New York, on March 24, 1995,
pursuant to notice.  Respondent AC Express ("ACX") appeared by
counsel.  Complainant appeared pro se.  The parties were
given a full opportunity to present their evidence.  At the
conclusion of the hearing, I established a briefing schedule. 
The parties then filed a settlement agreement dealing with the
remedy portion of this case for my approval.  By order of April
18, 1995, I stayed further proceedings in this matter pending my
review of their agreement.
     The Administrative Law Judge ordinarily issues the final
order of dismissal in adjudicatory settlements pursuant to 29
C.F.R. §1978.111(d)(2). See e.g. Thompson
v. G&W Transportation Co., Inc., 90-STA-25 (Sec'y Oct. 24,
1990).  In view of the prior litigation and Decision and Order of
the Secretary in this case, however, I think it appropriate to
recommend an order here, to enable the Secretary to issue the
final order of dismissal.  I have reviewed the proposed
settlement and, with the limitations noted below, I find that it
is fair, adequate and reasonable and recommend its approval.

1.     At paragraphs 3, pp. 2-3, and 14, p. 10, of the settle-
ment, the parties purport to release each other from claims 
[PAGE 2]
arising under authorities other than the Surface Transportation
Assistance Act ("STAA") and to provide for certain remedies in
the event of breach of the release.  The Department of Labor's
jurisdiction here extends only to Mr. Nolan's STAA claim and to
remedies for violations of the STAA.  Review is therefore con-
fined to a determination of whether the terms of the agreement
within the scope of the Secretary's authority are fair, adequate,
and reasonable.  To the extent that such other provisions regard-
ing release of liability and remedy for breach of the proposed
settlement constitute a private agreement among the parties, they
would have to be enforced contractually under state law in the
appropriate court, rather than by the Department of Labor.  See
Brodeur v. Westinghouse Hanford Co., 92-SWD-3 (Sec'y Oct.
16, 1992); Poulos v. Ambassador Fuel Oil Co., Inc., 86-
CAA-1 (Sec'y Nov. 2, 1987).

2.     At paragraph 3, p. 6, the parties agree that the settle-
ment agreement shall be construed under the laws of the State of
New York.  This provision will be interpreted as not limiting the
authority of the Secretary of Labor or an appropriate United
States District Court under applicable statutes and regulations.
Rondinelli v. Consolidated Edison Co. of New York, Inc.,
91-CAA3, slip op. at 2. (Sec'y Apr. 10, 1992).

3.     At paragraph 4, the parties have incorporated the
following confidentiality provision:

     Employer and Employee agree to keep the terms and the
     fact of this Agreement completely confidential and
     shall not disclose any information concerning the terms
     of this Agreement or provide a copy of this Agreement
     to anyone, except the United States Department of
     Labor, the United States Internal Revenue Service, the
     New York State Tax Commission, his attorney, or his
     lawful spouse.

     Such a provision, which appears to be a broad prohibition of
disclosure under all circumstances, will be interpreted by the
Secretary as not restricting disclosure of the terms of the
agreement where required by law.  Rondinelli, slip op. at
2.
     The parties are advised that the Department of Labor is
subject to the Freedom of Information Act (FOIA), 5 U.S.C. S 552,
and may therefore be required to disclose the settlement if so
requested.  Once a settlement agreement has been submitted for
approval, as here, it becomes a part of the agency record in the
case.  The FOIA requires federal agencies, if requested, to dis-
close documents which are part of agency records unless they are 
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exempt from disclosure under one of the specific exemptions in
the Act.
     Under the Department of Labor regulations implementing the
FOIA at 29 CFR Part 70, the parties may receive pre-disclosure
notification of documents requested under the FOIA in the case of
any specific information in the settlement agreement that they
designate as confidential commercial information pursuant to 20
C.F.R. §70.26. If an FOIA request for such information is
received, the parties will be notified promptly, given a reason-
able period of time to present objections to disclosure, and
given notification of the decision to disclose or of any lawsuit
filed against the Department on a decision not to disclose. See,
e.g., Porter v. Brown & Root, Inc., 91-ERA-4 (Sec'y Feb.
25, 1994); Richter v. Baldwin Associates, 84-ERA-9 (Sec'y
Feb. 22, 1994; DeBose v. Carolina Power & Light Co., 92-
ERA-14 (Sec'y Feb. 7, 1994); McCuistion v. Tennessee Valley
Authority, 90-ERA-44 (Sec'y Aug. 31, 1992).
                             RECOMMENDED ORDER
     The settlement in this case is hereby approved, with the
exceptions noted above, and the case is dismissed with prejudice.


EDITH BARNETT
Administrative Law Judge