Date: May 3, 1999

Case No.: 1999-STA-22

File No.: 1082551

IN THE MATTER OF:

Clarence E. Alt and Waunetta Alt,
    Claimants

    v.

Northland Trucking, Inc.,
    Respondent

   This matter arises under Section 405 of the Surface Transportation Assistance Act ("STAA"), 49 U.S.C. § 2305. Complainants, Clarence and Waunetta Alt, filed a complaint with the Secretary of Labor on September 16, 1998, alleging that Respondent, Northland Trucking, Inc., had discriminated against them in violation of 49 U.S.C. § 31105(a)(1)(A).

   On February 9, 1999, the Regional Administrator for the United States Department of Labor, Occupational Safety and Health Administration, issued "Findings" stating that the Complainants' refusal to accept a certain dispatch assignment to Houston, Texas, was not justified nor was it a protected activity under the Act. The "Findings" concluded that Respondent's termination of the Complainants did not appear to be in violation of 49 U.S.C. § 31105. Complainants objected to the "Findings" on February 12, 1999, and requested a hearing before an Administrative Law Judge.

   A hearing was scheduled before the undersigned Administrative Law Judge on May 10, 1999, in Phoenix, Arizona. By letter dated April 24, 1999, the parties submitted a Stipulation for Dismissal of Claims With Prejudice, stating that Complainants withdrew all of their claims and requested dismissal with prejudice of all claims they have against Respondent. The parties further agreed that each party shall bear their own costs and expenses incurred herein.

   Rule 41(a) of the Federal Rules of Civil Procedure governs the voluntary dismissal requests of complaints under the Surface Transportation Assistance Act ("STAA") because the Office of Administrative Law Judge ("OALJ") Rules of Practice and Procedure do not provide for such at this stage of the proceeding. Rule 41(a)(1) states, "Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court... (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice..." FRCP Rule 41.

   The OALJ Rules provide only for dismissals of requests for hearings, which leaves in effect the preliminary order and does not result in an automatic dismissal of the complaint. 29 C.F.R. § 18.39(b) Rather, a complainant's motion for voluntary dismissal of an STAA complaint in effect constitutes a withdrawal under the provisions of 29 C.F.R. § 1978.112(c), which provides for the complainant's withdrawal of his objections to and the Administrative Law Judge's affirmance of the findings of the Regional Administrator. Slaughter v. Pie Nationwide, 89-STA-13 (Sec'y Feb. 23, 1990).

   Accordingly, IT IS ORDERED that the Stipulation for Dismissal of Claims with Prejudice is hereby APPROVED. The Secretary's "Findings", issued on February 9, 1999, finding Complainants' firing was not in violation of Section 405 of the STAA, are hereby AFFIRMED. Furthermore, the Complainants' claims under the STAA are hereby DISMISSED WITH PREJUDICE.

      DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts

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