DATE: October 24, 1990
CASE NO. 90-STA-25

IN THE MATTER OF

TERRY THOMPSON, JR.,¹
   COMPLAINANT,

v.

G & W TRANSPORTATION CO., INC.,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   The ALJ erred in issuing a recommended order of dismissal.² Section 1978.111(d)(2) of the regulations implementing the STAA, 29 C.F.R. Part 1978 provides:

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.

Since the parties settled the case while the complaint was being adjudicated, the ALJ should have reviewed the settlement, determined if it were fair, adequate and reasonable, and, if he so concluded, issued a final order of dismissal. In the interest of judicial economy, I do not remand the case to the ALJ. Rather, upon review of the Settlement Agreement and the record of

¹Since the Assistant Secretary for Occupational Safety and Health (OSHA) prosecuted this case, this case should have been captioned: Assistant Secretary of Labor for Occupational Safety and Health, Prosecuting Party, and Terry Thompson, Jr., Complainant, v. G & W Transportation Co., Inc., Respondent. See 29 C.F.R. § 1978.108(a) (1989).

²The ALJ recommended that the case be dismissed "with prejudice" although neither the settlement agreement nor any other document in the record no provides. Where a case is dismissed because of a settlement, dismissal "with prejudice" has been held inappropriate unless agreed to by the parties. See Thompson v. United States Department of Labor, 885 F.2d 551 (9th Cir. 1989). The Thompson court urged caution when administrative agencies dismiss cases to avoid "add[ing] a material condition to the parties' agreement . . . ." 885 F.2d at 557.