DATE: September 27, 1988
CASE NO. 88-STA-00029

IN THE MATTER OF

FRANKLIN D. CREECH,
   COMPLAINANT,

v.

SALEM CARRIERS, INC.,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).

   On August 23, 1988, Administrative Law Judge (ALJ) Richard E. Huddleston, after written notice by Complainant that he wished to "drop the charges" against Respondent, issued an order Allowing Withdrawal of Complaint. This order has been submitted to me for review.

   Neither the STAA nor the implementing regulations at 29 C.F.R. Part 1978 (1987) provide for the withdrawal of complaints by an individual complainant. The ALJ, therefore, erred in allowing Complainant to withdraw his complaint and in ordering dismissal of the complaint.

   Section 1987.111(c) of 29 C.F.R., however, 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. When such withdrawal occurs before the ALJ or the Secretary, it is required that an order be issued affirming "any portion of the findings or preliminary order with respect to which the objection was withdrawn." 29 C.F.R. § 1978.111(c).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, and there is no need for review of the ALJ's order by the Secretary. Underwood v. Blue Springs Hatchery, Case No. 87-STA-21, Order to Show Cause, issued September 23, 1987.

   Here, Complainant Creech had filed objections to the Secretary's

preliminary findings, which found that Respondent was not in violation of the STAA. Complainant's notice to the effect that he was dropping his charges against Respondent, therefore, constitutes a withdrawal of his objections to the preliminary findings. The ALJ, consequently, should have issued an order affirming the preliminary findings.

   Rather than remand the case to the ALJ, I treat Complainant's withdrawal as occurring before me. See Underwood. Accordingly, I adopt, and append hereto, the Secretary's Findings, issued by Karen L. Mann, Acting Regional Administrator, U.S. Department of Labor, Occupational Safety and Health Administration, on May 31, 1988, finding that Respondent Salem Carriers, Inc., did not violate Section 2305 of the STAA by discharging Complainant.

   SO ORDERED.

         Ann McLaughlin
         Secretary of Labor

Washington, D.C.