Lehner v. Starlane Tours, 91-STA-2 (Dep. Sec'y Jan. 15, 1991)

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USDOL/OALJ Reporter
Lehner v. Starlane Tours, 91-STA-2 (Dep. Sec'y Jan. 15, 1991)

U.S. DEPARTMENT OF LABOR

DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210

DATE: January 15, 1991
CASE NO. 91-STA-2

IN THE MATTER OF

GARY M. LEHNER,
COMPLAINANT.

STARLANE TOURS,
RESPONDENT.

BEFORE: THE ACTING SECRETARY OF LABOR¹

FINAL ORDER

Before me for review is the [Recommended] Order of Dismissal of Administrative Law Judge Alexander Karst, issued on December 10, 1990, in the above-captioned case, which arises under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). The ALJ recommends that Complainant's objections be dismissed as abandoned. 29 C.F.R. § 18.39(b) (1990).

On the morning of the hearing, Complainant telephoned the ALJ's office to say that he was unable to travel to the hearing site. The ALJ went on the record to conclude the hearing, which had been duly attended by Respondent, and promptly thereafter issued an order directing Complainant to show cause why his objections should not be dismissed as abandoned under 29 C.F.R. § 18.39(b) for failure of Complainant to attend the hearing. Complainant did not respond to the show cause order, and the ALJ issued a recommended order dismissing Complainant's objection. to the Secretary'- preliminary findings, which had concluded that Respondent did not violate the STAA. See 49 U.S.C. § 2305(c).

[Page 2]

Under these circumstances, it is evident that Complainant abandoned his request for a hearing under 29 C.F.R. § 18.39(b). The Secretary's preliminary findings of September 21, 1990, must therefore be reinstated and are deemed the final administrative order. 49 U.S.C. app. § 2305(c)(2)(a); Harper v. Overland Express Inc., Case No. 87-STA-l9, Sec. Order, October 30, 1987, slip op. at 2.

Accordingly, I adopt and append hereto the Secretary's Findings, issued September 21, 1990, by Frank Strasheim, Regional Administrator, U.S. Department of Labor, Occupational Safety and Health Administration, finding that Respondent Starlane Tours did not violate Section 2305 of the STAA in discharging Complainant Lehner.

SO ORDERED.

Acting Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹There is presently a vacancy in the Office of Secretary of Labor. The Deputy Secretary is authorized to "perform the duties of the Secretary until a successor is appointed. . . . " 29 U.S.C. § 552 (1988).

U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
REGION IX

In the matter of: Starlane Tours. Inc. and Gary M. Lehner
Section 405 Complaint, Case File No. 9-1500-90-021/509

SECRETARY'S FINDINGS

Pursuant to Section 405 of the Surface Transportation Assistance Act of 1982 (hereinafter "STAA".)(49 U.S.C. 2305), complainant, Gary M. Lehner, filed a complaint with the Secretary of Labor, alleging that respondent, Starlane Tours, Inc., discriminatorily discharged complainant for refusing to drive a bus he considered to be unsafe due to defective equipment. He felt that operating the vehicle would be in violation of the Federal Motor Carrier Safety Regulations. Respondent denied these allegations. Following an investigation of this matter by a duly authorized investigator, the Secretary , acting through her agent, the Regional Administrator for Occupational Safety and Health Administration, Region IX, pursuant to Section 405 of the STAA and Secretary's Order 1-90, 48 F.R. 35736 (August 5, 1983), and further delegation of authority in Chapter X of the Field Operations Manual, OSHA Instruction CPL 2.45B, finds that there is reasonable cause to believe the following:

1. (a) Respondent, Starlane Tours, Inc., is engaged in intrastate bus operations and maintains a place of business in San Francisco, California.

(b) In the regular course of this business, respondent's employee. operate commercial motor vehicles in intrastate commerce principally to transport passengers in California.

2. (a) On April 1988, Respondent hired complainant, Cary M. Lehner, as a driver of a commercial motor vehicle, to wit, a passenger bus designed to transport 15 or more passengers.

(b) At all times material herein, Cary M. Lehner was an employee in that he was a driver of a commercial motor vehicle, passenger bus, on the highways in intrastate commerce to transport passengers and in that he was employed by a commercial motor carrier and, in the course of his employment directly affected commercial motor vehicle safety (49 U.S.C. 2301(2)(A)).

3. (a) On or about July 17, 1990, complainant filed a complaint with the Secretary of Labor alleging that respondent had discriminated against him in violation of Section 405(b) of the Act (49 U.S.C. 2305). This complaint was timely filed.

(b) The Secretary, acting through her duly authorized agents, thereafter investigated the above complaint in accordance with Section 405(c)(2)(A), (49 U.S.C. 2305(C)(2)(A)), and has determined that there is insufficient evidence to establish reasonable cause to believe that respond- ent violated Section 405(a) of the STAA.

4. There is no evidence substantiating that the complainant engaged in activity protected by the Act (49 U.S.C. 2305). Mr. Lehner refused to drive his assigned bus and make the required "pre-trip inspection report" listing any defects. He then claimed that vehicle No.204 was unsafe to drive because the air conditioner did not work and there were other defects.

5. There is no evidence substantiating animus or retaliation on the part of the Respondent. Consequently, respondent's discharge of Cary M. Lehner on July 2. 1990, does not constitute a violation of Section 405 of the STAA of 1982.

Date September 21, 1990

Christopher Lee for FRANK STRASHEIM
Regional Administrator