DATE: November 21,1991
CASE NO. 91-STA-35

IN THE MATTER OF

WALTER STEIGERWALD,
    COMPLAINANT,

    v.

ROBBINS TRANSPORTATION, INCORPORATED,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), and is before me for review of the [Recommended] Decision and Order - Dismissing Request for Hearing of the Administrative Law Judge (ALJ) issued September 9, 1991.

    The record shows that although a notice of hearing was mailed to Complainant at his last known address, neither Complainant nor any representative of Complainant appeared at the hearing, held August 8, 1991. On August 13, 1991, the ALJ issued an Order to Show Cause Why Request for Hearing Should Not Be Dismissed, and Complainant also failed to respond to this order. Relying on 29 C.F.R. § 18.39(b) (1991), the AL] ordered that the case be dismissed on the basis of Complainant's abandonment of his request for a hearing. On September 30, 1991, to assure that the parties had received a copy of the ALJ's recommended decision, a notice, with the ALJ's decision attached, was served on the parties by certified mail. The notice also expressly provided the parties time to respond to the ALJ's recommendation. Although an agent for Complainant received the notice on October 7, 1991, Complainant has filed no response.

    I agree that the record before me supports a finding of abandonment under Section 18.39(b). See 29 C.F.R. §§ 1978.100(b), 1978.106(a); Harper v. Overland Express Inc., Case No. 87-STA-19, Sec. Decision and Order,

October 30, 1987, slip op. at 1-2. I disagree, however, with the ALJ's recommendation that the complaint be dismissed. Pursuant to Section 18.39(b), dismissal of the request for a hearing operates to change the posture of the case to one where no request for a hearing has been filed. Harper, slip op. at 2. Where there is no request for a hearing, the statute decrees that the preliminary findings and order on the merits of the complaint be deemed the final administrative order. 49 U.S.C. app. § 2305(c)(2)(a): see also 29 C.F.R. § 1978.105(b)(2).

    Accordingly, I enter the preliminary findings and order of the Assistant Secretary as the final administrative order in this case. See 49 U.S.C. app. § 2305(c)(2)(a).

    SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.