Burl v. Security Packaging, 2004-STA-10 (ALJ Feb. 5, 2004)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue Date: 05 February 2004

CASE NO.: 2004-STA -10

In the matter of:

PHILLIP BURL
    Complainant

    v.

SECURITY PACKAGING
    Respondent

   This matter arises under the employee protection provisions of section 405 of the Surface and Transportation Assistance Act of 1982, 49 U.S.C. § 31105 (hereinafter the "STAA"), with its implementing regulations found at 29 C.F.R. Part 1978. On March 11, 2002, the Complainant, Mr. Phillip Burl, filed a complaint with the Occupational Safety and Health Administration, alleging that the Respondent, Security Packaging, terminated him because he engaged in protected activity. After investigation, the Secretary determined that the complaint was not timely filed. The Complainant appealed.

   A Pre-Trial Conference was held on December 4, 2003, in Chicago, Illinois. At the hearing, a continuance was granted in order for the Complainant to obtain legal counsel.

   On January 20, 2004, the Complainant submitted a Motion to Withdraw Complaint. The Complainant requests a withdrawal on the grounds that he is unable to secure an attorney.

   The regulations do not permit withdrawal of a complaint. They only allow withdrawal of objections to the Secretary's preliminary findings. 29 C.F.R. § 1978.111(c). Thus, the proper procedure in this circumstance is to construe the Complainant's request to withdraw his complaint as a withdrawal of objections to the Secretary preliminary findings. Mysinger v. Rent-A-Driver, 90-STA-23 (Sec'y Sept. 21, 1990).    When such withdrawal occurs before the ALJ or the Secretary, an order affirming "any portion of the findings or preliminary order with respect to which the objection was withdrawn" must be issued. 29 C.F.R. § 1978.111(c). If the case is before the ALJ, the ALJ's order becomes the final administrative order in the case. Shown v. Wilson Truck Corp., 92-STA-6 (Sec'y Apr. 30, 1992). Consequentially, I reinstate and affirm the Secretary's preliminary findings. Accordingly,

   IT IS HEREBY ORDERED that:

1. Pursuant to 29 C.F.R § 1978.111(c), the Secretary's findings are REINSTATED and AFFIRMED.

2. The above-captioned claim is DISMISSED without prejudice.

      GERALD M. TIERNEY
      Administrative Law Judge