Accordingly, on December 5, 2005, the Board issued a Notice of Review and Briefing Schedule permitting the parties to submit briefs in support of or in opposition to the ALJ's order. Neither party responded to the notice.
Under the STAA, the ARB is bound by the ALJ's findings of fact if they are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ No. 01-STA-38, slip op. at 2 (ARB Feb. 19, 2004). In reviewing the ALJ's conclusions of law, the ARB, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C.A. § 557(b) (West 2005). Therefore, we review the ALJ's conclusions of law de novo. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991); Monde v. Roadway Express, Inc., ARB No. 02-071, ALJ Nos. 01-STA-22, 01-STA-29, slip op. at 2 (ARB Oct. 31, 2003).
Having reviewed the record, we find that substantial evidence on the record as a whole supports the ALJ's finding of fact that Cool Express hired Howard for one assignment and was not obligated to hire him again. The ALJ's ruling of law – that Howard's failure to prove that Cool Express took an adverse action against him requires dismissal of the complaint – is correct as a matter of law. Bergman, slip op. at 2.
Therefore, we accept the ALJ's recommendation and DISMISS Howard's complaint.
SO ORDERED.
DAVID G. DYE
Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2007), and implementing regulations, 29 C.F.R. Part 1978 (2006).
2 29 C.F.R. § 1978.109(c).