UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Ass't Sec'y & Fitzherbert v. P & P Transport, Inc., 95-STA-45 (ALJ Jan. 29, 1996)

---

DATE:     January 29, 1996  

CASE NO.: 95-STA-45

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
               Prosecuting Party,

and

GORDON FITZHERBERT,
               Complainant,

  v.

P & P TRANSPORT, INC.,
               Respondent.

DECISION AND ORDER APPROVING SETTLEMENT AND DISMISSING THE
                APPEAL OF THE RESPONDENT

     This case arises under the employee protection
provisions of Section 405 of the Surface Transportation Act of
1982 (STAA), 49 U.S.C. § 2305.

     At the hearing in Portland, Maine, on December 13, 1995, the
parties reached a settlement.  The terms of this agreement were
read into the hearing transcript and these include the following:

         The parties to the matter
               entitled Assistant Secretary of
               OSHA, Mr. Fitzherbert, complainant,
               versus P & P Transport and Stephen
               Plummer, the parties have agreed to
               settle that case as well as a
               private Superior Court action,
               docket number CV 95-1979, and CV-95-
               216.  The settlement would involve a
               global settlement of both this
               instant action, the STA action, as
               well as the Superior Court 
[PAGE 2]
               action; to wit, the parties agree that this matter and the civil
               action in Superior Court are settled and withdrawn by the
               parties, contingent upon the payment of $6,000 in the form of a
               bank certified check payable to Gordon Fitzherbert and Susan
               Farnsworth by 5:00 p.m. on Wednesday, December 13, 1995.  Said
               payment will be delivered by Mr. Plummer or his representative,
               will be delivered to the office of Susan Farnsworth, Mr.
               Fitzherbert's private attorney, at 222 Water Street, in
               Hallowell, Maine.  The parties agree and stipulate that should
               this payment of $6,000 not be made in accordance with what the
               stipulation has been entered in the record, that Mr. Plummer and
               P & P Transport will be liable to Mr. Fitzherbert for the sum of
               $9,000 which shall be payable in the following day, December 14,
               1995, by 5:00 p.m.

     The Respondents, Steve Plummer on behalf of P&P Transport,
and Nancy Plummer and Bob Tracy, who were involved in the State
Superior Court action, stated on the record that they agreed to
the provisions of the settlement.

     Attorney's fees were included in the amount of the
settlement.

     I have reviewed the settlement agreement contained in the
hearing transcript and find  it to be fair, adequate and
reasonable pursuant to 29 C.F.R. § 1978.111(d)(2). 
See Davis v. Kimstock, Inc., Case No. 90-STA-98,
Secretary Approval and Dismissal of Complaint, November 30, 1990.

It is, therefore,

     ORDERED that the Settlement Agreement is approved and this
case is hereby Dismissed with prejudice.


                          SO ORDERED



                             RICHARD K. MALAMPHY
                              Administrative Law Judge
RKM/dlh
Newport News, Virginia
                                     

                               SERVICE SHEET

CASE NAME:     Fitzherbert v. P&P Transport       
                                    

[PAGE 3]
CASE NO.:      95-STA-45 

TITLE OF DOCUMENT:  DECISION AND ORDER APPROVING SETTLEMENT
AND
                    DISMISSING THE APPEAL OF THE RESPONDENT

I hereby certify that on January 29, 1996, a copy of the
foregoing document was sent to the parties and their
representatives at their last known addresses listed below.

                                        Diana L. Hinton
                                        Legal Technician
REGULAR MAIL

Linda Christ, Esq.
86 Winthrop Street
Augusta, ME  04330

Kevin Sullivan, Esq.
Office of the Solicitor
U.S. Department of Labor
One Congress Street, 11th Floor
Boston, MA  02114

Regional Solicitor
U.S. Department of Labor
One Congress Street, 11th Floor
Boston, MA  02114

John T. Phillips
Regional Administrator
Division of Occupational
Safety and Health
U.S. Department of Labor-OSSA
133 Portland Street
Boston, MA  02114

Directorate of Compliance
Programs
U.S. Department of Labor
Room N3468, FPB
200 Constitution Avenue, N.W.
Washington, DC  20210

P & P Transport, Inc.
RR 1, Box 3540
Weeks Mills, ME  04361

Gordon G. Fitzherbert
P. O. Box 1612
Saco, ME  04072

REGULAR MAIL

Office of Administrative
Appeals
U.S. Department of Labor
Room S-4309
200 Constitution Avenue
Washington, DC  20210