Vollendorf v. Blue Northern Distributing (agency decision, July 30, 2024)

Plain-English summary

Clifton Vollendorf alleged that Blue Northern Distributing retaliated against him in violation of the Surface Transportation Assistance Act. An administrative judge ruled for Vollendorf, and the company petitioned the Board for review before the parties settled. The Board reviewed the agreement only to the extent it resolved the STAA case within the Board's authority. It construed the agreement's non-disparagement clause to preserve Vollendorf's ability to communicate with state and federal enforcement agencies about suspected legal violations. Finding the agreement fair, adequate, reasonable, and consistent with the public interest, the Board approved it and dismissed the complaint with prejudice.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105; 29 C.F.R. §§ 1978.111(d)(2) and 1978.111(e)
• Outcome: Settlement approved and the STAA complaint dismissed with prejudice.
• Key point: A whistleblower settlement's non-disparagement clause cannot prevent voluntary or compelled communications with government enforcement agencies.

Full text (DOL official public release)

U.S. Department of Labor          Administrative Review Board
                                  200 Constitution Ave. NW
                                  Washington, DC 20210-0001

IN THE MATTER OF:


CLIFTON VOLLENDORF,                            ARB CASE NO. 2024-0011

            COMPLAINANT,                       ALJ CASE NO. 2022-STA-00068
                                               ALJ WILLOW EDEN FORT
     v.
                                               DATE: July 30, 2024
BLUE NORTHERN DISTRIBUTING,

            RESPONDENT.

Appearances:

For the Complainant:
Clifton Vollendorf, Pro Se, Eau Claire, Wisconsin

For the Respondent:
Stephen L. Weld, Esq. and Blake Edward Herbison, Esq., Weld Riley,
S.C., Eau Claire, Wisconsin

Before WARREN, THOMPSON, and ROLFE, Administrative Appeals Judges

DECISION AND ORDER APPROVING SETTLEMENT AND DISMISSING
                 CASE WITH PREJUDICE

PER CURIAM:

  This case arises under the employee protection provisions of the Surface

Transportation Assistance Act of 1982 (STAA), and its applicable implementing regulations.1 Clifton Vollendorf (Complainant) filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), alleging that Blue Northern Distributing (Respondent) retaliated against him in violation of the

1 49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2024). 2

STAA.2 On December 20, 2023, the ALJ issued a Decision and Order finding in Complainant’s favor.3 Respondent filed a timely petition for review with the Administrative Review Board (Board).

  On May 29, 2024, the Respondent filed Respondent’s Notice of Settlement

(Notice) in which they notified the Board that the parties reached an agreement to resolve this case and that they intended to file a motion to dismiss.4 On July 24, 2024, Complainant filed the signed Release and Resignation Agreement (Agreement).

  The STAA’s implementing regulations provide that a case may be settled “if

the participating parties agree to a settlement and the settlement is approved . . . by the ARB, if the ARB has accepted the case for review.”5 We review settlements submitted under the STAA to determine if they are fair, adequate, and reasonable, and that they do not contravene the public interest.6

    The Agreement encompasses the settlement of any and all claims

Complainant had or could have had against Respondent up to the date of the settlement arising out of Complainant’s employment with Respondent.7 The Board’s authority over settlement agreements is limited to statutes that are within the Board’s jurisdiction as defined by the applicable delegation of authority.8 Therefore, we have restricted our review of the Agreement to ascertaining whether its terms fairly, adequately, and reasonably settle this STAA case.9

   The Agreement contains a non-disparagement clause.10 If the non-

disparagement clause was interpreted to preclude Complainant from communicating with federal or state enforcement agencies concerning alleged violations of law, it would violate public policy, as it would contain an unacceptable

2 Decision and Order (D. & O.) at 1.
3 Id. at 19-21.
4 Notice at 1.
5 29 C.F.R. § 1978.111(d)(2).
6 Raziano v. Albertsons, LLC, ARB No. 2023-0010, ALJ Nos. 2020-STA-00084, -00085,
-00086, -00088, slip op. at 3 (ARB Feb. 16, 2023) (citations omitted). 7 Agreement at ¶10. 8 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020); see Hendrix v. CSX Transp., Inc., ARB No. 2023-0033, ALJ No. 2020-FRS-00076, slip op. at 2 (ARB July 13, 2023) (citations omitted). 9 See Hendrix, ARB No. 2023-0033, slip op. at 2 (citation omitted). 10 Agreement at ¶7. 3

“gag provision.”11 We construe such language as allowing Complainant, either voluntarily or pursuant to an order or subpoena, to communicate with or provide information to state and federal authorities about suspected violations of law involving Respondent. This is evidenced in the Agreement’s “Agency Cooperation” provision, which specifies that “[n]o part of this Agreement is intended to or shall interfere with [Complainant’s] right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit [Complainant] from cooperating with any such agency in its investigation.”12

   After careful review of the Agreement, the Board concludes the Agreement is

fair, adequate, and reasonable, and does not contravene the public interest. Accordingly, we APPROVE the Agreement, and DISMISS the complaint with prejudice.13

   SO ORDERED.



                                      ____________________________________
                                      IVEY S. WARREN
                                      Administrative Appeals Judge




                                      ____________________________________
                                      ANGELA W. THOMPSON
                                      Administrative Appeals Judge




                                      ____________________________________
                                      JONATHAN ROLFE
                                      Administrative Appeals Judge

11 Hendrix, ARB No. 2023-0033, slip op. at 3 (citations omitted) (applying same public policy consideration to other whistleblower statute settlements). 12 Agreement at ¶13. 13 See 29 C.F.R. 1978.111(e) (“Any settlement approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to 49 U.S.C. 31105(e).”).