Wallace v. R & L Carriers, 2002-STA-40 (ALJ May 6, 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: 06 May 2004
CASE NO: 2002-STA-40

In the Matter of:

STEVEN C. WALLACE
   Complainant

   v.

R. & L. CARRIERS
   Respondent

   This proceeding arises under the employee protection provisions of 49 U.S.C. § 31105 of the Surface Transportation Assistance Act (STAA), and the applicable regulations issued thereunder at 29 C.F.R. Part 1978. On June 3, 2002, the Area Director, Occupational Safety and Health Administration, U.S. Department of Labor, issued his Findings on a complaint filed by Steven Wallace against R & L Carriers in which he concluded that there was not reasonable cause to believe that respondent violated 49 U.S.C. § 31105.

   In response to the Area Director's Findings, the complainant timely appealed the Findings on or about June 28, 2002. The case was scheduled for hearing before the undersigned on October 16, 2002 in Akron, Ohio. The location of the hearing was subsequently changed to Columbus, Ohio, by order dated August 20, 2002. By agreement of the parties, an order was issued on October 2, 2002 continuing the hearing while a civil case involving the same parties proceeded through state court litigation in Clinton County, Ohio.

   On February 6, 2004, the undersigned was informed by respondent's attorney that the complainant's civil action had been dismissed by the state court and that respondent intended to file a motion for summary judgment in the instant proceeding. Said motion was received by this court on March 29, 2004. By letter dated April 22, 2004, complainant's attorney notified the undersigned that complainant wishes to withdraw his request for a hearing in the instant case, stating that Mr. Wallace is choosing to pursue possible avenues of recovery still available to him at the state court level.

   Twenty-nine C.F.R. § 1978.111(c) permits a party to withdraw objections to the Secretary's Preliminary Findings or Preliminary Order at any time before the Findings or Order become final. Creech v. Salem Carriers, Inc., 88-STA-29 (Sec'y Sept. 27, 1988, slip op. at 2). The regulations provide that if a party files a written withdrawal of his objections, "[t]he judge shall affirm any portion of the findings or preliminary order with respect to which the objection was withdrawn." § 1978.111(c). I treat complainant's counsel's letter as a request to withdraw his objections to the Area Director's findings. See Snow v. TNT Red Star Express, Inc., 1991-STA-44, slip op. at 2-3 (Sec'y Mar. 13, 1992).

   IT IS ORDERED that complainant's request for withdrawal of his request for a hearing is hereby GRANTED pursuant to 29 C.F.R. § 1978.111(c). Accordingly, the June 3, 2002 Secretary's Findings issued by William M. Murphy, Area Director of the Occupational Safety and Health Administration, finding that respondent's discharge of the complainant was not a violation of Section 405 of the Act, is hereby affirmed and reinstated. The complaint, therefore, is hereby DENIED. This Order is the final administrative action and no Secretarial review is required. Underwood v. Blue Springs Hatchery, 1987-STA-21 (Dep. Sec'y Nov. 2, 1987) (Order to Show Cause).

      DANIEL L. LELAND
      Administrative Law Judge