Date: December 2, 1996

Case No.: 96-STA-27

Robert B. Covert,
    Complainant

    v.

Transcontinental Refrigerated Lines, et al,
    Respondent

    This matter arises under Section 405 of the Surface Transportation Assistance Act (hereinafter referred to as the "Act"), 49 U.S.C. § 2305. Complainant, Robert Covert, filed a complaint under the Act on September 11, 1995 alleging that his employer, Transcontinental Refrigerated Lines, discriminatorily discharged him after he complained about being required to drive in excess of allowable hours, and to falsify his logs to show legal driving times.

    On June 28, 1996, Emzell Blanton, Jr., Regional Administrator for the United States Department of Labor, Occupational Safety and Health Administration, issued findings which stated that after a full investigation, the U.S. Department of Labor had determined that this complaint had no merit. The letter transmitting these findings contained an appropriate explanation of the parties' rights to object to the findings, in accordance with 29 C.F.R. § 1978.104(b). Thereafter, on July 31, 1996, Complainant filed a timely written objection, and this case was forwarded to the undersigned for a hearing and DECISION AND ORDER.

    A Notice of Hearing and Pre-Hearing Order was issued on August 21, 1996. The Pre-Hearing Order set this matter for hearing on Monday, November 18, 1996 in Dallas, Texas. The parties were ordered to file pre-hearing reports with the undersigned by October 28, 1996.

    On November 15, 1996 the parties submitted a joint request asking this court to dismiss with prejudice the Surface Transportation Claim with prejudice and allow the parties to proceed with all other claims in State Court. In addition, the Claimant, Mr. Covert, sent a letter dated November 18, 1996 which states:

It is my desire to dismiss my Federal administrative claim in order to pursue a claim for wrongful termination in State Court. I have been fully informed by my attorneys of my options and it is still my desire to proceed with my State Court action. (Complainant's letter, November 18, 1996).

    Neither the Act nor the implementing regulations, 29 C.F.R. Part 1978, expressly provide for withdrawal of a complaint at this stage of the proceeding. However, 29 C.F.R. § 1978.111(c) does permit a party to withdraw objections to the Secretary's Preliminary Findings at any time before the Findings become final. It is required that the Complainant file a written withdrawal request with the administrative law judge. Upon receipt of the withdrawal request, it is incumbent upon the administrative law judge to affirm any portion of the Findings with respect to which the objection was withdrawn. 29 C.F.R. § 1978.111(c).

    In the instant case, Claimant has withdrawn his complaint, not, as required, his objection to the Preliminary Findings. The proper procedure in this circumstance is to construe the request as a withdrawal of Complainant's objection to the Secretary's Preliminary Findings, and to issue an order reinstating and affirming those findings. Hall v. Yellow Freight Systems, 93-STA-24 (Sec'y July 1, 1993); Snow v. TNT Redstar Express, Inc. 91-STA-44 (Sec'y Mar. 13, 1992). Thus, Attorney Milne's(Respondent) and Attorney Balido's (Claimant) joint letter of November 15, 1996 and Claimant's November 18, 1996 letter shall be treated as a withdrawal of Claimant's objection to the Preliminary Findings.

    In view of the above, IT IS ORDERED that the request of all parties for withdrawal of Claimant's objections is hereby GRANTED, and that the Complainant's request for hearing is hereby DISMISSED WITH PREJUDICE. It is also ORDERED that the Secretary's Findings, issued on June 28, 1996 and appended hereto, which found insufficient evidence to conclude that Complainant's firing was for his activity protected under Section 405 of the Act, are hereby reinstated and affirmed as unopposed.

      DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts
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