DATE: November 26, 1996

CASE NO.: 96-STA-16

In the Matter of

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
    Party-in-Interest,

    and

MARY McCLANE,
    Complainant/Prosecuting Party,

    v.

WHEELER TRANSPORTATION SERVICES,
    Respondent.

    This proceeding arises under section 405 of the Surface Transportation Assistance Act of 1982, as amended

(codified at 49 U.S.C. § 31105 [formerly section 2305]) and the implementing regulations appearing at 29 C.F.R. Part 1978. It was initiated by a complaint filed on or about February 15, 1995 with the Secretary of Labor, acting through the Regional Administrator for the Occupational Safety and Health Administration in Region VII.

    This case was set for a hearing before the undersigned administrative law judge on April 8 and 9, 1996 in Omaha, Nebraska, but the hearing was cancelled based upon advice from counsel for the Assistant Secretary that the parties had reached a tentative settlement in the above-captioned matter. Subsequently, the Assistant Secretary filed a notice of withdrawal of representation pursuant to 29 C.F.R.

§ 1978.111(d)(3). Following a conference call held in the above-captioned matter on June 6, 1996, the parties requested 

additional time to discuss settlement. By letter of September 19, 1996, the parties advised that they wished to have a settlement judge appointed, in accordance with 29 C.F.R. § 18.9(e).

On September 27, 1996, Chief Administrative Law Judge John M. Vittone issued an Order Appointing Settlement Judge which appointed Administrative Law Judge Robert Hillyard to act as a settlement judge. Thereafter, the parties reached a settlement that they submitted to Judge Hillyard for approval by letter of November 19, 1996. In accordance with 29 C.F.R. § 18.9(e)(1), Judge Hillyard transferred the executed settlement agreement to me for review and approval as presiding judge.

    The Settlement Agreement is appended hereto as Exhibit A and made a part hereof. The Settlement Agreement has been duly executed by the Complainant and the Respondent, and I have also signed it in lieu of Judge Hillyard. Approval of the Settlement Agreement by the original Prosecuting Party, the Assistant Secretary for Occupational Safety and Health, was unnecessary in view of the Assistant Secretary's withdrawal as the prosecuting party pursuant to 29 C.F.R. § 1978.111(d)(3). I have reviewed the Settlement Agreement and find that it resolves the issues in this proceeding and is fair, adequate, and reasonable. While I note that in several places in the Settlement Agreement, the word "Complaint" appears instead of "Complainant," it is obvious from the context that "Complainant" was intended. I also note that a period appears instead of a comma on line 10 of page 2, but the meaning of the sentence is clear. I therefore find these typographical errors to be of no consequence and to not affect the validity of the Settlement Agreement. Accordingly, I enter the following:

    1. The Settlement Agreement is fair, adequate, and reasonable and is hereby APPROVED, in accordance with 29 C.F.R. § 1978.111(d)(2) and 29 C.F.R. § 18.9.

    2. The entire record on which this Order is based shall consist solely of the Complaint and the Settlement

Agreement.

    3. This Order incorporating the Settlement Agreement shall have the same force and effect as an Order made after a full hearing, and the parties are deemed to have waived any further procedural steps before the undersigned administrative law judge or the right to contest the validity of this Order incorporating the Settlement Agreement, in accordance with 29 C.F.R. § 18.9(b).

    4. The complaint in this case is hereby DISMISSED.

    IT IS SO ORDERED.

       PAMELA LAKES WOOD
       Administrative Law Judge

Washington, D.C.