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Nebolsky v. Vanguard Transportation System, Inc., 1999-STA-19 (ALJ June 8, 1999)
U.S. Department of Labor | Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 Telehpone: (513) 684-3252 | ![]() |
DATE: June 8, 1999
CASE NUMBER: 1999-STA-19
In the Matter of
SCOTT E. NEBOLSKY
Complainant
v.
VANGUARD TRANSPORTATION SYSTEM, 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 [29 C.F.R. Part 1978 (1989)]. The parties, on May 7, 1999, filed a Settlement Agreement and Release in accordance with 29 C.F.R. § 1978.111(d)(2). The Settlement Agreement resolves the controversy arising from the complaint of Scott E. Nebolsky under the pertinent statute. The Settlement Agreement and Release is signed by the complainant, by the President of Respondent and by Respondent's counsel.
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). Kidd v. Sharron Motorlines, Inc., Case No. 87-STA-2, D&O on Settlements (July 30, 1987). 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. ar. 23, 1989, slip op. at 1-2.
I find the overall settlement terms to be reasonable but some clarification is necessary. Paragraph 5 of the Agreement provides that Mr. Nebolsky is not to disclose the existence of the Agreement nor any of 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.
Review of the Agreement reveals that it may encompass the settlement of matters involving laws other than the STAA. One of the preliminary paragraphs makes reference to a settlement of the matter pending before the Department of Labor and "all other claims and disputes" between Complainant and the Respondent. As was stated in Poulos v. Ambassordor Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec. Order, (Nov. 2, 1987):
I have therefore limited my review of this Agreement to determining whether the terms thereof are a fair, adequate and reasonable settlement of Mr. Nebolsky's allegation that Respondent had violated the STAA.
The Agreement also notes at Paragraph 7 that it is governed and interpreted in accordance with the laws of the state of Ohio. That provision is interpreted as not limiting the authority of the Secretary or any U.S. District Court to seek or grant appropriate relief under any applicable federal whistleblower statute or regulation. Phillips v. Citizens Assoc. for Sound Energy, Case No. 91-ERA-25, Sec. Final Order of Dismissal (Nov. 4, 1991).
As so construed, I find the terms of the Agreement to be fair, adequate and reasonable, and therefore approve the Agreement and Release. Accordingly, the complaint filed by Scott E. Nebolsky is hereby dismissed with prejudice.
Rudolf
L. Jansen
Administrative Law Judge