5-T ENTERPRISES, INC.,
DBA THOMAS BROTHERS GRASS,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Before me for review is the Decision and Order Approving Settlement
(D. and O.) issued, on June 16, 1989, by Administrative Law Judge (ALJ) Steven E. Halpern in
the above-captioned case, which arises under the Surface-Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1982).
The ALJ, after reviewing the settlement agreement and after being
"telephonically advised by counsel for the Department that the Department is satisfied with
the terms of the settlement," D. and O. at 2 n.1, found the settlement to be fair, adequate
and reasonable. The ALJ stated that his decision was to be considered a recommended decision
if such were required pursuant to 29 C.F.R. § 1978.111(d). D. and O. at 2. It appears that
the ALJ was unfamiliar with the procedure for settlement of cases arising under the STAA. The
settlement procedure for STAA cases is set forth in detail in Kidd v. Sharron Motor Lines.
Inc., Case No. 87-STA-2, Sec. Decision and order on Settlements, July 30, 1987. That
decision makes clear that, in accordance with 29 C.F.R. § 1978.111(d), evaluations of
STAA settlements are made by the Assistant Secretary for Occupational Safety and Health, and
are not made by the ALJ nor reviewed by me.
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
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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.
Accordingly, I remand this case to the ALJ with instructions to follow the
procedure set forth in Kidd. Should the Assistant Secretary's approval of the settlement
agreement be communicated to the ALJ through the Assistant Secretary's counsel, that
communication should be in writing and, as required by Kidd, made a part of the
record of the case.
