Ass't Sec'y & Shave v. Brisco Bailing Corp., 2002-STA-37 (ALJ Jan. 16, 2004)

U.S. Department of Labor

Office of Administrative Law Judges John W. McCormack Post Office & Courthouse - Room 507 Post Office Square Boston, MA 02109 (617) 223-9355 (617) 223-4254 (FAX)

Issue Date: 09 January 2004
CASE NO.: 2002-STA-00037

In the Matter of

ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
    Prosecuting Party

    and

PRESCOTT B. SHAVE
    Complainant

    v.

BRISCO BAILING CORPORATION d/b/a
BROCKTON IRON & STEEL COMPANY,
PAUL VENTURA and AL CASIELLO
    Respondents

   In this proceeding which arises under the provisions of section 405 of the Surface Transportation Assistance Act, 49 U.S.C. § 31105 (the "STAA"), a decision and order was issued on July 31, 2003, approving a settlement agreement between the parties. On December 19, 2003, the Prosecuting Party moved to vacate the settlement agreement and the decision and order approving same on the ground that the Respondents' attorney had stated that he is unable to obtain payment of $500.00 from his clients to the Complainant as required under the terms of the settlement agreement. The Respondents have not answered the motion.

   Based on the Prosecuting Party's uncontradicted assertion that the Respondents have failed to comply with a material term of the parties' settlement agreement, the July 31, 2003 decision and order approving settlement agreement is VACATED. See Leidigh v. Freightway Corp., USDOL/OALJ Reporter, ALJ No. 1987-STA-12 (Sec'y Jan. 22, 1996). Accordingly, the following order is entered:

   (1) Pursuant to 29 C.F.R. § 1978.106, the parties are hereby notified that a hearing in this matter will be conducted at 9:00 a.m. on Friday, February 13, 2004 in Hearing Room 503, J.W. Post Office & Courthouse Building, Post Office Square, Boston, Massachusetts 02109.

   (2) Not later January 30, 2004, each party shall file with the Court a pre-hearing report, serving a copy on the other parties. The pre-hearing report shall include:

   (a) a brief statement of the issue(s) presented which shall include a statement of the relief or remedy sought;

   (b) the name and address of each witness the party expects to call and a brief summary of the testimony each witness is expected to furnish;

   (c) a list of all documents the party expects to offer in evidence; and

   (d) a realistic estimate as to the time required to present the party's case.

   (3) The parties shall exchange copies of exhibits identified in their pre-hearing reports by the date specified for the filing of pre-hearing reports. Any documentary evidence not timely exchanged will be excluded from the record unless good cause is shown for such failure to produce.

   (4) All motions should be filed as soon as possible to permit the opposing party to comment thereon and to permit a ruling thereon by the Administrative Law Judge in sufficient time prior to the hearing. Rulings on motions not filed at least fourteen (14) days prior to the hearing will be deferred until the opening of the hearing absent compelling circumstances.

   (5) The parties should be prepared at the beginning of the hearing to stipulate the admission of facts and documents about which there is no dispute.

NOTICE: Failure to comply with this Order, without good cause shown, may result in the dismissal of the proceeding or the imposition of other appropriate sanctions against the offending party.

SO ORDERED.

      DANIEL F. SUTTON
      Administrative Law Judge

Boston, Massachusetts