DATE:  March 13, 1992
CASE NO. 91-STA-44


IN THE MATTER OF 

ARTHUR N. SNOW,     
          
          COMPLAINANT,

     v.

TNT RED STAR EXPRESS, INC.,
          
          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER
     Before me for review is the [Recommended] Order of
Dismissal, issued by the Administrative Law Judge (ALJ) on
January 21, 1992, in this case which arises under the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 
§ 2305 (1988), and the implementing regulations set forth at

29 C.F.R. Part 1978 (1991). 
     Following the issuance of the Secretary's preliminary
findings, Complainant filed a timely objection and requested a
hearing.  On December 10, 1991, prior to the scheduled hearing,
Complainant filed a letter with the ALJ requesting "that the
charges that [h]e filed against TNT Red Star be dismissed."  Upon
receipt of Complainant's letter, the ALJ's office telephonically
advised Complainant to submit another letter clarifying the
request for dismissal.  Complainant did not respond, and on
January 17, 1992, Respondent moved for dismissal.  On review the
ALJ concluded, relying on 29 C.F.R. § 18.5(b), that the
complaint should be dismissed with prejudice based on
Complainant's failure to respond to the ALJ's directive. 
     By notice dated February 3, 1992, the ALJ's decision was
served on the parties by certified mail, and the parties were 
[PAGE 2]
afforded ten days from receipt within which to respond to the
decision.  In response, Complainant has submitted a copy of the
December 9, 1991, letter that he filed with the ALJ.  TNT Red
Star Express has not filed a response.
     I disagree with the ALJ's resort to regulatory Section
18.5(b) in deciding this case.  Section 18.5(b) is a rule of
general application, 29 C.F.R. § 18.1(a), authorizing an
administrative law judge to find the facts as alleged in the
complaint and to enter an appropriate decision upon the failure
of the respondent to file an answer to that complaint within the
time provided.  Here, Complainant explicitly requested dismissal
of his complaint.  While neither the STAA nor the implementing
regulations expressly provide for dismissal of the complaint at
this juncture, Section 1978.111(c), 29 C.F.R. § 1978.111(c),
permits a party to withdraw objections to the Secretary's
preliminary findings or order at any time before the findings or
order become final.  When such withdrawal occurs, the regulation
requires that an order be issued affirming "any portion of the
findings or preliminary order with respect to which the objection
was withdrawn."  Id.  Consequently, the ALJ should have
construed Complainant's request as a withdrawal of his objections
to the Secretary's preliminary findings and should have issued an
order affirming those findings.  See Mysinger v. Rent-
a-Driver, Case No. 90-STA-23, Sec. Final Dec. and Order,
Sept. 21, 1990, slip op. at 2.
     In the interest of administrative efficiency, I treat
Complainant's withdrawal as occurring before me.  Creech v.
Salem Carriers, Inc., Case No. 88-STA-00029, Sec. Final Dec.
and Order, Sept. 27, 1988, slip op. at 2.  Accordingly, I
reinstate and affirm as unopposed, the Secretary's
Findings, dated August 2, 1991, and issued by John B.
Miles, Jr., Regional Administrator, U.S. Department of Labor,
Occupational Safety and Health Administration, which dismissed
the complaint as without merit pursuant to Section 405 of the
STAA.
     The complaint, therefore, IS DENIED.
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.