ARB CASE NO. 08-002
ALJ CASE NO. 2007-STA-025
DATE: October 16, 2007
In the Matter of:
CLYDE MYERS,
COMPLAINANT,
v.
SUNSTONE II LP,
dba SUNSTONE TRUCKING and
GEORGE JACKSON,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND DISMISSAL ORDER
Clyde Myers complained that Sunstone
Trucking violated the employee protection provisions of the Surface
Transportation Assistance Act of 1982 (STAA), as amended and recodified,[1]
and its implementing regulations,[2] when
it constructively discharged and discriminated against him. After a full
investigation, the Occupational Safety and Health Administration (OSHA) found
that there was no reasonable cause to believe that Sunstone violated the STAA.[3]
Myers objected to OSHA's findings and requested a hearing before a Department
of Labor Administrative Law Judge (ALJ).[4]
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The ALJ scheduled the
case for hearing, but on August 16, 2007, Sunstone's counsel filed signed
copies of Complainant's Notice of Withdrawal of Objections to the Secretary's
Findings and Request for Dismissal. On August 27, 2007, the ALJ issued a
Recommended Order Approving Withdrawal of Objections and Dismissing Claim. The
ALJ noted that pursuant to 29 C.F.R. § 1978.111(c), at any time before the Secretary's
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, and the judge shall determine whether to approve the withdrawal. The
ALJ found, "Given that Complainant's request to withdraw his objections to the
Secretary's findings and for dismissal of his case appears voluntary, and that
Respondent does not object, Complainant's request to withdraw his objections
and for dismissal of his case is hereby APPROVED."[5]
Accordingly, the ALJ reinstated the Secretary's findings and dismissed the
complaint with prejudice.
The ALJ forwarded her
recommended decision and the administrative record to the Administrative Review
Board (ARB) and the case is now before us pursuant to the STAA's automatic
review provisions.[6]
The Secretary of Labor has delegated to the Board her authority to issue final
agency decisions under the STAA.[7] 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.[8] 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 . . .."[9] Therefore, the Board reviews the
ALJ's legal conclusions de novo.[10]
The ALJ's recommended order complies with applicable STAA
statutory and regulatory provisions. Consistent with 29 C.F.R. § 1978.111(c),
the ALJ (1) recommended that Myers's claim be dismissed based on his withdrawal
of his objections to OSHA's denial of his STAA complaint,
and (2) reinstated those findings denying his complaint.
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Accordingly, we GRANT Myers's request to withdraw his
objections 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
OLIVER M. TRANSUE
Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (West 1997). Section
405 of the STAA provides protection from discrimination to employees who report
violations of commercial motor vehicle safety rules or who refuse to operate a
vehicle when such operation would violate those rules. Congress has amended
the STAA since Myers filed his complaint. See Implementing
Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266
(Aug. 3, 2007). Even if the amendments were applicable to this complaint, they
would not affect our decision.
[2] 29 C.F.R. Part 1978 (2007).
[3] See 29 C.F.R. § 1978.103.
[4] See 29 C.F.R. § 1978.105.
[5] Myers v. Sunstone II LP,
2007-STA-025, slip op. at 1 (Aug. 27, 2007).
[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).
