DATE: December 12, 1996

CASE NO.: 96-STA-0003

In the matter of

HARRY PETTIT
    Complainant

    v.

DES MOINES ASPHALT & PAVING CO.
    Respondent

    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.

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.

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).

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 et seq. and, upon careful evaluation of same, I

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 et seq. 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).