U.S. Department of Labor Office of Administrative Law Judges
Heritage Plaza Bldg, 5th Floor
111 Veteran's Memorial Boulevard
Metairie, LA 70005
DATE: December 12, 1996
CASE NO.: 96-STA-0003
In the matter of
HARRY PETTIT
Complainant
v.
DES MOINES ASPHALT & PAVING CO.
Respondent
RECOMMENDED DECISION AND ORDER
APPROVING SETTLEMENT
In these claims for compensation under the
Surface Transportation Assistance Act (STAA), based upon a
complaint of discrimination in violation of Section 405 of the
STAA the parties have agreed to a settlement. A detailed
settlement agreement signed by the Claimant and all counsel
(designated as Joint Exhibit 1) has been presented to the
undersigned and the parties have requested that the settlement
agreement be approved, as follows:
Pursuant to the Surface Transportation
Assistance Act, 49 U.S.C. 2305(C)(2)(a) hearing was begun upon
the above captioned case on Thursday, November 16, 1996. During
these proceedings and after a full day of testimony, the parties
reached an agreement for amicable resolution of this case. The
terms of this agreement are set forth herewith.
COMPLAINANT'S ALLEGATIONS
1. Complainant, Harry Pettit, is a protected person under
the Surface Transportation Assistance Act of 1982 (49
U.S.C. 31101).
2. That from May of 1993 until June of 1995 Complainant
was an employee of Des Moines Asphalt & Paving Company.
3. That in October of 1994 company changed the truck
assignment which Complainant normally had to that of an
older, non air-conditioned truck and that such was the
result of Complainant's having filed a union grievance
against the company.
4. That Complainant recognized safety problems with the
assigned trucks and expressed these concerns to the
company.
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5. That the company retaliated against and discharged the
Complainant from his employment; that such discharge
was in violation of Section 405 of the Surface
Transportation Assistance Act of 1982 (49 U.S.C.
31105).
COMPANY'S ALLEGATIONS
Des Moines Asphalt & Paving Company asserted the following
in response to Complainant's allegations:
1. That Complainant was not a protected person under the
Surface Transportation Assistance Act of 1982 (49
U.S.C. 31101).
2. That the work assignments which Complainant received
were those which were routinely assigned to all driver-employees of the company.
3. That filing of regular safety/maintenance report on the
company vehicles is a required and expected procedure
and Complainant, nor any employee, received adverse
action as a result of such filings.
4. That when Complainant received a two-week suspension
for hitting and knocking down a high-wire with an
elevated truck box bed was a regular and standard
practice by the company.
5. That Complainant was terminated on July 10, 1995 when
he failed to return to work from his two-week
suspension which suspension had expired on July 3,
1995.
This Agreement by and between the parties is
a compromise settlement of a disputed claim, liability for which
is expressly denied by the parties and the payment of the
consideration herein recited does not constitute an admission of
liability on the part of any person or entity.
In order to amicably settle this matter
Respondent has offered the sum of $8,500.00 to Complainant and
Complainant has accepted such amount in full and complete
settlement for any and all claims relative to Complainant's dates
of employment and pursuant to the Surface Transportation Act.
Complainant further agrees to keep the
contents and the terms, including amounts and the nature of the
settlement strictly confidential and to not disparage, in any
manner or fashion, the company or the company employees.
I have carefully considered the facts
involved in this case and the difficult legal and factual
questions in dispute, as well as the criteria set forth in 49 USC
§2305 etseq. and, upon careful evaluation of
same, I
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conclude that the settlement is fair and in the best interest of
the Complainant. Moreover, I find that the Settlement was
arrived at without duress, and only after full exploration by the
parties of all issues in dispute and the difficult legal and
factual questions involved.
Pursuant to Section 2305 etseq. of the STAA, I RECOMMEND that the Secretary of
Labor APPROVE THE Settlement of the parties.
PAUL H.
TEITLER Administrative Law
Judge
DATED: December 12, 1996
PHT:abr
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Administrative Review Board,
United States Department of Labor, Room S-4309, 200 Constitution
Ave., N.W., Washington, DC 20210 The Administrative Review Board
has the responsibility to advise and assist the Secretary in the
preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).