U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office & Courthouse
Room 507
Boston, Massachusetts
Date: December 2, 1996
Case No.: 96-STA-27
Robert B. Covert,
Complainant
v.
Transcontinental Refrigerated Lines, et al,
Respondent
ORDER OF DISMISSAL
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).
[Page 2]
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.