Neither party submitted a brief.
Although the ALJ's R. D. & O. did not strictly comply with the applicable STAA regulations because he did not respond to Thompson's request to withdraw his appeal as provided in 29 C.F.R. § 1978.111(c), Thompson has not objected to the ALJ's R. D. & O. and in any event, the ALJ's error ultimately is harmless since the Board has de novo review of the ALJ's legal conclusions and issues the final decisions for the Secretary.
[Page 3]
Accordingly, we GRANT Thompson's request to withdraw his appeal of OSHA's findings and we 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
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 1997). Pursuant to the STAA's whistleblower provision, a person may not retaliate against an employee because:
(A) 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 regulation, standard, or order, or has testified or will testify in such a proceeding; or
(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 or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
49 U.S.C.A. § 31105 (A), (B).
2 See 29 C.F.R. § 1978.105(a)(2006).
3 A handwritten note in the ALJ's file indicates that counsel for Inland was contacted and faxed a copy of Thompson's withdrawal request. The note further indicates that counsel would submit a statement of non-opposition to the withdrawal by fax, but there is no such fax in the record.
4 29 C.F.R. § 1978.111(c).
5 R. D. & O. at 2.
6 See 49 U.S.C.A. § 31105(b)(2)(C); 29 C.F.R. § 1978.109(c)(1).
7 Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
8 29 C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. U.S. Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995).
9 5 U.S.C.A. § 557(b) (West 1996).
10 See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
11 See 29 C.F.R. § 1978.109(a).