Office of Administrative Law Judges 525 Vine Street, Suite
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Date: May 19, 2000
Case No.: 2000-STA-10
In the Matter of
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
Prosecuting Party
and
DONALD J. BARRETT
Complainant
v.
NEW ALBANY CONCRETE SERVICE, INC.
d/b/a IRVING MATERIALS, INC.
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
FINAL ORDER APPROVING SETTLEMENT AND DISMISSING COMPLAINT
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 May 18, 2000, filed a Joint Stipulation of
Dismissal With Prejudice (hereinafter Stipulation or Agreement) in accordance with 29 C.F.R.
§ 1978.111(d)(2). The Stipulation is attached hereto and incorporated hereby by this reference.
It resolves the controversy arising from the complaint of Donald J. Barrett under the statute. The
Joint Stipulation is signed by the Complainant and his counsel, by Respondent's counsel, and also
by counsel for the Prosecuting Party.
[Page 2]
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 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 cooperating with any investigation by a federal, state or local
administrative agency. It provides that Mr. Barrett is not to disclose the existence of the Agreement
nor the terms of the Agreement with any third party. 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 reveals that it may encompass the settlement of matters
involving laws other than the STAA. The Stipulation makes reference to a settlement of matters
pending in the Kentucky State Court system as well as a case in the U.S. District Court for the
Western District of Kentucky. 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 Mr. Barrett's allegation that Respondent had
violated the STAA.
[Page 3]
As so construed, I find the terms of the Joint Stipulation of Dismissal to be
fair, adequate and reasonable, and therefore approve it. Accordingly, the complaint filed by Donald
J. Barrett is hereby dismissed with prejudice.
