In the Matter of:
MICHAEL DRAKE, ARB
CASE NO. 05-110
COMPLAINANT, ALJ
CASE NO. 2005-STA-26
v.
DATE: July 18, 2006
YELLOW TRANSPORTATION,
RESPONDENT.
BEFORE: THE
ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondent:
E. Scott Smith,
Esq., Fisher & Phillips LLP, Atlanta, Georgia
FINAL DECISION AND ORDER Approving stipulation
of dismissal without
prejudice
This case arises under Section 405, the employee
protection provision, of the Surface Transportation Assistance Act of 1982 (STAA). On March 3,
2005, Michael Drake filed a complaint alleging that the Respondent, Yellow
Transportation, Inc., violated the STAA when it issued him a written warning
after he refused to drive because he had a back condition that made it unsafe
for him to drive. On March 7, 2005, the Respondent rescinded the warning. Following a "limited investigation" of the
complaint, the Occupational Safety and Health Administration (OSHA) determined
that since the Respondent had rescinded the warning prior to the investigation,
Drake had experienced "no tangible loss."
OSHA also stated that Drake had requested that OSHA
[Page 2]
issue its findings immediately, without further investigation, so that he could request a hearing
before a Department of Labor Administrative Law Judge (ALJ). Therefore OSHA "dismissed"
the case.
The ALJ's decision and the record were forwarded to
the Administrative Review Board for automatic review and to issue a final
decision.
The Board issued a Notice of Review and
Briefing Schedule, notifying the parties of their opportunity to file briefs in
support of or in opposition to the R. D. & O. within thirty days from the date
on which the ALJ issued it.
Drake did not respond to the Board's Notice. Yellow Transportation filed a letter
urging the Board to adopt the ALJ's R. D. & O.
The Board is required to issue a final decision and
order based on the record and the decision and order of the ALJ.
Neither the STAA, nor its regulations address joint stipulations of
dismissal.
Therefore, it is appropriate to look to the Federal Rules of Civil Procedure for
guidance.
[Page 3]
M.
CYNTHIA DOUGLASS
Chief
Administrative Appeals Judge
WAYNE
C. BEYER
Administrative
Appeals Judge
29 C.F.R. § 1978.109(a). Accord Holmes v. Roadway
Express, Inc., ARB No. 05-112, ALJ No. 2005-STA-20 (ARB Apr. 28, 2006); Pardis
v. B & I Auto Supply, ARB No. 05-103, ALJ No. 2005-STA-17 (ARB
Mar. 27, 2006); Palmer v. G.W. Lumber & Mill Work, Inc., ARB No. 04-141,
ALJ No. 2004-STA-45 (ARB Sept. 27, 2005).