On June 26, 1987, Administrative Law Judge (ALJ) Parlen L. McKenna
issued an Order of Dismissal Pursuant To Settlement in the above-captioned case which arises
under the employee protection provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1982). On that same date, the ALJ submitted for my
consideration his order accompanied by a Stipulation and Joint Motion setting forth the terms of
the settlement agreement signed by the Complainant, counsel for Respondent and attorneys of
the Department of Labor.
This is one of the first settlement agreements submitted for my review
which Is subject to the regulations implementing section 2305 of the STAA. 51 Fed. Reg.
42,091 (1986) (to be codified at 29 C.F.R. Part 1978). These regulations became effective on
December 22, 1986, and thus are applicable to all settlements entered into on or after that date.
The procedures established for agreements entered into prior to December
22, 1986, required that I review all settlement agreements and determine whether the terms of
each agreement were fair, adequate and reasonable. SeeMcGavock v. Elbar,
Inc., Case No. 86-STA-51 Secretary's Order, issued November 25, 1986. Thus, when a
case before the ALJ was settled the ALJ's order of dismissal pursuant to the settlement
constituted merely a recommendation for a dismissal, and a final order of dismissal by me was
required in order to dispose of the case.
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By virtue of section 1978.111(d) of the STAA regulations, however,
neither my review of a settlement agreement nor a decision by me is required for final disposition
of cases settled at the ALJ level. Section 1978.111(d) provides that, before the findings or
preliminary order of the Assistant Secretary for Occupational Safety and Health (OSHA) have
become final, "the case may be settled if the Assistant Secretary, the complainant and the
named person [respondent) agree to the settlement." Thus, where the Assistant Secretary is
a signatory to the settlement agreement or has indicated his specific approval of the terms of the
agreement, section 1978.111(d) does not require further evaluation of such terms by either the
ALJ or by me. SeeConrad v. Johns, Case No. 86-STA-17, Secretary's Order
issued June 8, 1987. Section 1978.111(d) simply requires that "notice of the settlement
shall be filed with the administrative law judge or the Secretary, as the case may be." The
purpose of the notice requirement is so that disposition of the case may be accomplished.
Henceforth, therefore whenever a case under the STAA which is
before the ALJ is settled, and the Assistant Secretary for OSHA or his designee is a signatory to
the agreement or has indicated in writing that he approves of the settlement, the ALJ may issue a
final order dismissing the case pursuant to the settlement, and does not need to forward the
record of the case and his decision to me. If the settlement agreement presented to the ALJ does
not indicate the Assistant Secretary's approval of the settlement, the ALJ shall prior to dismissal
of the case, direct the Assistant Secretary to review the settlement and to determine whether, in
the Assistant Secretary's view, the settlement is fair, adequate and reasonable. See Secretary's
Order In Conrad v. Johns, Case No. 86-STA-17, issued June 8, 1987, directing the
Assistant Secretary to review the agreement of settlement. The Assistant Secretary's
determination shall become part of the record of the case.
In the case before me, Department of Labor attorneys representing the
Assistant Secretary have signed the settlement agreement. Accordingly, the ALJ's Order of
Dismissal Pursuant to Settlement is the final administrative order, and no further action is
necessary for dismissal of this proceeding.
