ARB CASE NO. 07-063
ALJ CASE NO. 2007-STA-010
DATE: August 27, 2007
In the Matter of:
BRUCE A. MORGAN,
COMPLAINANT,
v.
HENDRICKS CONSTRUCTION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER GRANTING COMPLAINANT’S
REQUEST TO WITHDRAW HIS OBJECTIONS TO OSHA’S FINDINGS
This case arises under Section 405, the
employee protection provision, of the Surface Transportation Assistance Act of
1982 (STAA).[1] The Complainant, Bruce A.
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Morgan, filed a complaint
with the United States Department of Labor’s Occupational Safety and Health
Administration (OSHA) alleging that his employer, the Respondent, Hendricks
Construction, fired him in retaliation for his refusal to operate a commercial
motor vehicle in violation of a Department of Transportation safety
regulation. After an investigation, OSHA
found that there was “no reasonable cause to believe that Respondent violated the
Complainant’s rights under STAA ….” Morgan objected to OSHA’s finding and requested
a hearing by a Department of Labor Administrative Law Judge.[2]
On February 21, 2007, the Administrative
Law Judge (ALJ) to whom the case had been assigned issued a Notice of Hearing
and Pre-hearing Order. The ALJ set the hearing for April 17, 2007, and ordered
the parties to submit to him, as well as exchange with each other, various
pre-hearing documents. The ALJ ordered that all discovery be concluded by
March 20, 2007. The Respondent submitted its pre-hearing disclosures.
On March 7, 2007, Morgan filed a Request for
Withdrawal with the ALJ. Morgan stated, “I am requesting to withdraw my
complaint filed against Hendricks Construction at this time. I am now at a new
job and do not want to interfere with it. I will not seek a complaint in the
future.” The Respondent filed a response with the ALJ and indicated that it
did not object to Morgan’s “request for dismissal with prejudice of his
complaint.”
The STAA’s implementing regulation at 29 C.F.R.
§ 1978.111(c) provides:
At any time before the findings or order
become final, a party may withdraw his objections to the findings or order by
filing a written withdrawal with the administrative law judge or, if the case
is on review, with the Administrative Review Board, United States Department of
Labor. The judge or the Administrative Review Board, United States Department
of Labor, as the case may be, shall affirm any
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portion of the findings or
preliminary order with respect to which the objection was withdrawn.[[3]]
The ALJ issued his Recommended Order Approving
Withdrawal of Objections and Dismissing Claim on March 26, 2007. The ALJ
accepted Morgan’s unopposed request for withdrawal. Consistent with 29
C.F.R. § 1978.111(c), the ALJ reinstated OSHA’s findings and dismissed Morgan’s
complaint with prejudice. The ALJ also cancelled the hearing.
The case is now before the Administrative
Review Board pursuant to the STAA’s automatic
review provisions.[4]
The Secretary of Labor has delegated to the Board her authority to issue final
agency decisions under the STAA.[5]
When reviewing STAA cases, the ARB is bound by the ALJ’s factual findings if
those findings are supported by substantial evidence in the record considered
as a whole.[6]
In reviewing the ALJ’s legal conclusions, the Board, as the Secretary’s designee,
acts with “all the powers [the Secretary] would have in making the initial
decision . . . .”[7]
Therefore, the Board reviews the ALJ’s legal
conclusions de novo.[8]
On
April 23, 2007, the Board issued a Notice of Review and Briefing Schedule reminding
the parties of their right to file briefs with the Board in support of or in
opposition to the ALJ’s recommended order within thirty days of the date on
which the ALJ issued it.[9]
Neither party submitted a brief.
The
ALJ’s recommended order complies with applicable STAA statutory and regulatory
provisions. Consistent with 29 C.F.R. § 1978.111(c), the ALJ responded to
Morgan’s request to withdraw his complaint by reinstating OSHA’s findings and
dismissing Morgan’s complaint. Morgan has not objected to the ALJ’s recommended
order.
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Accordingly,
we GRANT Morgan’s request to withdraw his objection to OSHA’s findings
and AFFIRM those findings denying his complaint as provided in 29 C.F.R.
§ 1978.111(c).
SO ORDERED.
M. CYNTHIA DOUGLASS Chief Administrative Appeals Judge
DAVID G. DYE Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (Thompson/West 2007). Pursuant to the STAA’s
whistleblower provision, a person may not discharge an employee, or discipline
or discriminate against an employee regarding pay, terms, or privileges of
employment, because:
(A)(i)
the employee, or another person at the employee’s
request, has filed a complaint or begun a proceeding related to a violation of
a commercial motor vehicle safety or security regulation, standard, or order,
or has testified or will testify in such a proceeding; or
(ii)
the person perceives that the employee has filed or is about to file a
complaint or has begun or is about to begin a proceeding related to a violation
of a commercial motor vehicle safety or security regulation, standard, or
order;
(B)
the employee refuses to operate a vehicle because –
(i)
the operation violates a regulation, standard, or order of the United States
related to the commercial motor vehicle safety, health, or security; or
(ii)
the employee has a reasonable apprehension of serious injury to the employee or
the public because of the vehicle’s
hazardous safety or security condition.
