DATE:December 14, 1990
CASE NO. 90-STA-30

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
   PROSECUTING PARTY,

AND

CHARLES SHARP,
   COMPLAINANT,

v.

JAMES HELWIG & SON, INC.,
   RESPONDENT.

BEFORE:   THE ACTING SECRETARY OF LABOR¹

   Examination of the record of this case reveals the following chronology of events. Subsequent to the filing of the complaint by Complainant, the Assistant Secretary for Occupational Safety and Health (Assistant Secretary) issued preliminary findings concluding that Respondent violated the STAA by its discharge of Complainant from its employment and requiring Respondent to reinstate Complainant. Respondent filed its objections to these findings and requested a hearing. Prior to any hearing on the complaint,² Complainant withdrew his complaint by filing a withdrawal form with the Occupational Safety and Health Administration. Thereafter, it appears, Complainant moved from his residence, and his whereabouts became unknown. In an apparent effort to dispose of this case, the Regional Solicitor and Respondent then entered into what purports to be an "adjudicatory settlement", pursuant to 29 C.F.R. §

   The "adjudicatory settlement" agreement approved by the ALJ is signed by an attorney in the office of the Regional Solicitor of Labor, as representative of the Assistant Secretary, and by Respondent. It is not signed by Complainant nor is there anything in the record of this case which indicates Complainant's agreement to its terms. Because of the absence of Complainant's consent, the "adjudicatory" settlement cannot serve as a basis for disposition of this case. SeeSection 2305(c)(2)(A) of the STAA which permits, at any time prior to issuance of a final order, the termination of an STAA proceeding "on the basis of a settlement agreement entered into by the Secretary of Labor, the complainant, and the person alleged to have committed the violation." 49 U.S.C. §2305(c)(2)(A). The ALJ, therefore, erred in approving the "adjudicatory settlement". The circumstances of this case are unusual. Nothing in the statute, in the implementing regula- tions at 29 C.F.R. Part 1978 or in the rules of practice and procedure in 29 C.F.R. Part 18 (which rules are applicable to STM claims by virtue of 29 C.F.R. § 1978.106), contemplates these circumstances.³ Nor are these circum- stances provided for in the Rules of Civil Procedure for the District Courts of the United States which apply in situations not controlled by 29 C.F.R. Part 18. 29 C.F.R. §18.1(a).⁴ Upon consideration of these circumstances, however, I find that the interests of justice require that this case be dismissed. Accordingly, pursuant to 29 C.F.R. §1978.115, the parties are notified that the complaint in this case will be dismissed without prejudice. The parties are permitted to show cause, within ten days of receipt of this order, why the complaint in this case should not be dismissed without prejudice.

SO ORDERED.

¹There is presently a vacancy in the Office of Secretary of Labor. The Deputy Secretary is authorized to "perform the duties of the Secretary until a successor is appointed...." 29 U.S.C. § 552 (1988).

²The record lacks any notice of hearing; consequently, it is unknown whether a hearing was scheduled in this case.

³Although the terms of the "adjudicatory settlement" consist of the provisions which 29 C.F.R. § 18.9(b) requires be included in "[a]ny agreement containing consent findings and an order disposing of a proceeding or any part thereof.... ," Section 18.9 is inapplicable since Complainant is not a Party to the agreement.

⁴Complainant voluntarily withdrew his complaint. Voluntary dismissals are covered by Rule 41. This rule is inapplicable, however, because Complainant withdrew his complaint after Respondent's objections to the preliminary findings, see Hester v. Blue Bell Service, Case No. 86-STA-11, Sec. Dec. and Order of Remand, July 9, 1986, slip op. at 3, n.2, he did not enter into any stipulation with Respondent, and he did not request dismissal from the ALJ.