DATE: May 24, 1988
CASE NO. 87-STA-14

IN THE MATTER OF

GARY CHAPMAN,
    COMPLAINANT,

    v.

WITT CORRUGATING, INC.,
    RESPONDENT.

    Before me for review is the Recommended Order of Dismissal issued, on May 6, 1988, by Administrative Law Judge (ALJ) Nicodemo, DeGregorio in the above-captioned case, which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982). The record reveals that, prior to a hearing on his complaint, Complainant notified the ALJ in writing that Complainant wished to withdraw his complaint because the United States Department of Transportation had successfully prosecuted Respondent for the violations which formed the basis of Complainant's complaint under Section 2305 of the STAA.

    Section 1978.111(c) of 29 C.F.R. Part 1978, the regulations implementing the STAA, provides that:

At any time before the findings or order become final, a party may withdraw his objections to the findings or order by filing a written withdrawal with the administrative law judge or, if the case is on review, with the Secretary. The judge or the Secretary, as the case may be, shall affirm any portion of the findings or preliminary order with respect to which the objection was withdrawn.

As has already been pointed out,

Section 1978.111(c)..... does not require, when the case is before the ALJ, [the Secretary's] approval of the withdrawal. Rather an ALJ's order issued pursuant to that section becomes the final administrative order in the case, and there is no need for the case record to be submitted for..... review.

Underwood v. Blue Springs Hatchery, Case No. 87-STA-21, order To Show Cause, issued September 23, 1987 at 2.

    Inasmuch as the ALJ did not proceed in accordance with Section 1978.111(c) but transmitted this case for my review, I treat Complainant's withdrawal as occurring before me. I, therefore, adopt as my final decision and order, and append hereto, the Secretary's Findings issued, on March 10, 1987, by Roger A. Clark, Regional Administrator of the Occupational Safety and Health Administration, finding that Respondent's discharge of complainant was not a violation of Section 2305 of the STAA.

    Accordingly, the complaint of Gary Chapman is DISMISSED WITH PREJUDICE.

    SO ORDERED.

       ANN MCLAUGHLIN
       Secretary of Labor

Washington, D.C.