Date: August 1, 1995

Case No.:  93-STA-31

Gregory A. Dutile,
     Complainant

     v.

Tighe Trucking, Inc.,
     Respondent

                  FINAL ORDER APPROVING SETTLEMENT 
                  AND DISMISSING COMPLAINT WITH PREJUDICE

     This matter arises under Section 405 of the Surface
Transportation Assistance Act (hereinafter referred to as the
 Act ), 49 U.S.C. § 2305.  The complex procedural history of
this case is set out below for informational purposes, so that
the reader may fully understand the nature of the dismissal
herein.
     On January 4, 1993, Gregory A. Dutile (hereinafter
 Complainant ), filed a complaint under the Act, alleging that
his employer, Tighe Trucking, Inc. (hereinafter  Respondent ),
discriminatorily discharged him  because he refused to drive a
truck that had a broken roof.   On May 6, 1993, the Regional
Administrator for the United States Department of Labor,
Occupational Safety and Health Administration, issued findings
which stated that after a full investigation, the U.S. Department
of Labor had determined that there was no reasonable cause to
believe that Respondent had violated the Act, and the complaint
was dismissed.   Thereafter, on June 7, 1993, Complainant filed a
timely written objection, and this case was forwarded to the
undersigned for a hearing and DECISION AND ORDER.  
     On June 28, 1993, a hearing was held in Providence, Rhode
Island.  Complainant appeared pro se, and
Respondent was represented by counsel.  The parties were afforded
an opportunity to present oral argument, present witnesses, and
submit documentary evidence in support of their positions and in
opposition to their opponent's cases.  On August 12, 1993, this
Administrative Law Judge issued a Recommended Decision and Order,
finding that Complainant had in fact been discriminatorily 
[PAGE 2]
discharged from his employment with Respondent, and that
Respondent was liable for back pay plus interest, and that
Respondent was to expunge all derogatory or negative information
from Complainant's personnel record.  Reference was also made to
lost fringe benefits alleged by Complainant, but it was indicated
that Complainant had failed to meet his burden of establishing
the value of such benefits.
     On November 29, 1993, the Secretary of Labor issued a
Decision and Order affirming the decision below.  However, while
the matter was pending before the Secretary, there was
disagreement between the parties as to the precise amount of back
pay plus interest which was due and owing.  This disagreement was
communicated to the Secretary of Labor by letter of counsel for
Respondent, dated February 1, 1994.  Thereafter, the Secretary
issued an Order of Remand on March 30, 1994, which returned this
case to the undersigned for calculation of the precise amount of
benefits owed to Complainant.
     By Order of this Court, the parties were afforded the
opportunity to submit additional documentary evidence relative to
the amounts due to Complainant relative to back pay, interest and
fringe benefits.  Complainant submitted such documentation, while
Respondent did not do so.  On July 2, 1994, the undersigned
issued a Recommended Decision and Order specifically setting
forth, inter alia, the amounts due and owing to
Complainant in the areas of back pay (plus appropriate interest),
lost medical insurance benefits and lost contributions to
Respondent's 401(k) plan.  Respondent filed a Motion for
Reconsideration on July 6, 1994, discussing numerous aspects of
the July 2, 1994, decision to which it objected.  A Recommended
Decision and Order on Motion for Reconsideration was issued by
the undersigned on August 6, 1994.  
     On October 31, 1994, the Secretary of Labor issued a Final
Decision and Order in this matter.  However, the August 6, 1994,
Recommended Decision and Order on Motion for Reconsideration,
issued by the undersigned, was inadvertently not forwarded to the
Secretary upon its issuance.  Thereafter, on January 13, 1995,
Respondent's new counsel submitted a letter to the Secretary,
noting that it did not appear the October 31, 1994, Final
Decision and Order had taken into consideration the August 6,
1994, Recommended Decision and Order on Motion for
Reconsideration.  In this letter, Respondent requested that an
amended final decision and order be rendered which took into
account the August 6, 1994, decision of the undersigned.  In
response to this request, on March 16, 1995, the Secretary of
Labor issued a Remand Order, which served the dual purposes of 
[PAGE 3]
denying Respondent's January 13, 1995, request for
reconsideration, and returned the case to this office for a
supplemental decision establishing the amount owed to Complainant
in certain fringe benefits.  It is in this posture that the
instant matter has reached the undersigned, and upon which the
parameters of this last proceeding were determined.
     On April 12, 1995, a Notice of Hearing and Pre-Hearing Order
After Remand by Secretary of Labor was issued by the undersigned,
scheduling a hearing in the matter for June 19, 1995, in Boston,
Massachusetts.  The parties were ordered to submit pre-hearing
reports by June 5, 1995.  On May 19, 1995, Complainant wrote a
letter to the undersigned, which stated in pertinent part:

          I have attempted to negotiate with
          [Respondent's] attorney, Gary F. Snerson. 
          After contacting the Roberts & Newman law
          firm I was informed that:

               - He no longer worked for them.
               - He had given up law.
               - He had returned to school.
          
          They were unsure what law firm was
          representing the respondent.

          I have not received notification of another
          change of attorneys for the respondent.  What
          is the proceedure [sic] in this situation?  I
          am anxious to resolve this as I'm sure you
          are.

          Presently I am in Oregon trying to relocate
          in the trucking industry. . . . 

          I am in Oregon and was not expecting a new
          trial.  Therefore my files are unavailable to
          me at this time.

(Complainant's Letter to the Court, May 19, 1995).  It is noted
that Complainant advised he could be reached only by sending
correspondence to his Plainville, Massachusetts, address, which
would then be forwarded to him in Oregon by some undisclosed
method.  
     This court was able to ascertain the identity of
Respondent's new attorney, Ms. Arlene Beth Marcus, Esq., by May 
[PAGE 4]
23, 1995.  Attorney Marcus was advised of Complainant's letter,
and she agreed to attempt to contact Complainant for
negotiations, as had been suggested in the April 1995 Order. 
Attorney Marcus subsequently informed the Court that
correspondence she had sent to Complainant had been returned as
 undeliverable  by the Post Office.  It was determined that she
had sent these items to Complainant at an address which was
reflected on the March 1995 Remand Order of the Secretary, but
which this Court knew to be an older address than
Complainant's post office box, which Complainant had referred to
in his May 19 letter to the Court.  
     The next correspondence to this Court occurred on June 6,
1995, when Respondent filed its Pre-Hearing Report.  A letter
from the law clerk of the undersigned was sent to Complainant on
the same day, advising him of the name and address of
Respondent's new attorney, that the attorney had been sending him
correspondence at an old address, that the Court was still
awaiting Complainant's Pre-Hearing Report (in fact that it was
overdue), and that the undersigned needed to know as soon as
possible whether Complainant would be appearing at the scheduled
hearing.  Thereafter, on June 14, 1995, Complainant requested a
continuance based on the following reasons:  that the parties
were negotiating a settlement; that he would need some time to
travel to Boston to prepare if a hearing were to become
necessary; that notification of Respondent's new attorney had
just been received in his Massachusetts post office box on June
13; and that he had not received any documents or proposed
exhibits from Respondent as of the writing of his letter. 
(Complainant's Letter to the Court, June 14, 1995).  By letter
dated June 14, 1995, Respondent advised the Court as to the
progress of negotiations, as well as stating it had no objection
to the granting of a continuance, as long as interest would be
waived after the original hearing date of June 19, 1995.
     On the morning of June 16, 1995, Complainant was advised by
telephone that a continuance of the June 19 hearing would be
granted if he would agree to waive any interest which might
accrue after June 19.  Complainant agreed to send a statement by
facsimile transmission, indicating he would waive any interest
due after June 19; thus, he was advised that the hearing would be
continued.  Immediately thereafter, by telephone, Respondent was
advised that the hearing was thereby continued.
     At 1:30 p.m. on Friday, June 16, 1995, counsel for
Respondent called this Court.  She informed my law clerk that
Complainant had called her, told her that he had changed his 
[PAGE 5]
mind, and that if agreement was not reached within the next 30
minutes, he would board a plane, come to Boston, and appear at
the June 19 hearing.  A flurry of telephonic activity among this
Court, Complainant in Oregon, and Respondent, followed.  Despite
a Request for Dismissal or, in the Alternative, for Continuance,
filed by Respondent late on the afternoon of June 16, 1995, the
hearing was commenced as scheduled on June 19, 1995.
     At the hearing, preliminary matters were discussed, and a
recess was ordered, during which time the parties reached a
settlement.  When the hearing was reconvened, the parties so
informed the undersigned, and the hearing was concluded with the
understanding that the parties would draw up the necessary
documents to resolve the matter between themselves.   
     On June 23, 1995, this Court received a letter from
Complainant, assented to by Respondent, which stated:

          I hereby withdraw my Complaint [In the Matter
          of Gregory A. Dutile v. Tighe Trucking, Inc.,
          Case No. 93-STA-31], with prejudice.

(Complainant's Letter to the Court, June 19, 1995).  This letter
is incorporated by reference and attached hereto as Appendix A. 
Thereafter, the executed settlement agreement, which is
incorporated by reference and attached hereto as Appendix B, was
submitted to the undersigned.  The agreement refers to
Complainant's letter to the undersigned, detailed supra,
and re-states that Complainant would dismiss his complaint with
prejudice.

     Despite the wording of these documents, neither the Act nor
the implementing regulations, 29 C.F.R. Part 1978, expressly
provide for withdrawal of a complaint at this stage of a
proceeding.  The regulations permit a party to withdraw its
objections to the Preliminary Findings of the Secretary at any
time before the findings become final.  However, in the case at
bar, the Preliminary Findings of the Secretary were that there
was no reasonable cause to believe that Respondent had violated
the Act.  Complainant objected to those findings, and in the
hearing on the merits and subsequent review by the Secretary of
Labor, it was determined that there had in fact been a violation
of the Act.  Withdrawal of an objection to the Preliminary
Findings which found to the contrary would not appear to be the 
appropriate means for this administrative law judge to close this
matter without a hearing.  Therefore, despite the wishes of the
parties for a dismissal, a review of the settlement agreement is
the only remaining alternative for proper disposition of this 
[PAGE 6]
case in the absence of a hearing and further decision.  
     The rules for implementation of section 405 of the Surface
Transportation Assistance Act of 1982, hereinafter "the STAA,"
are contained in 29 C.F.R. § 1978 et seq.  In
pertinent part, these regulations state,

          Adjudicatory settlement.  At any time
          after the filing of objections to the
          Assistant Secretary's findings and/or order,
          the case may be settled if the participating
          parties agree to a settlement and such
          settlement is approved by the Secretary of
          Labor or the ALJ.  A copy of the settlement
          shall be filed with the ALJ or the Secretary
          as the case may be.

29 C.F.R. § 1978.111(d)(2).  A settlement agreement by the
parties in a case governed by the STAA must be fair, adequate and
reasonable.  Moravac v. H. C. & M. Transportation,
Inc., 90-STA-44 (Sec'y Oct. 26, 1992).
     In the case at bar, the provisions of 29 C.F.R.§
1978.111 (d)(2) have been met, and I find the submitted agreement
to be fair, adequate and reasonable.  Therefore, the settlement
agreement is hereby APPROVED, and the complaint is hereby
DISMISSED WITH PREJUDICE.

NOTICE:  This FINAL ORDER APPROVING SETTLEMENT AND
DISMISSING COMPLAINT WITH PREJUDICE and the administrative
file in the matter will be forwarded for review by the Secretary
of Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, D.C.  20210.  The Office of
Administrative Appeals 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).
                         
                                DAVID W. DI NARDI
                                Administrative Law Judge