DATE:  November 5, 1993

CASE NO:  93-STA-42

In the Matter of

DAVID D. STODDARD

          Complainant

     v.

AIRCO INDUSTRIAL GASES

          Respondent


 RECOMMENDED FINAL ADMINISTRATIVE ORDER

     This case involves the employee protection provision of the
Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C.
2305, and regulations of the Secretary of Labor published at 29
C.F.R. Part 1978.
     This case was docketed on July 27, 1993, and assigned for
hearing on September 24, 1993.
     On July 21, 1993, following an investigation of the matter,
the Regional Administrator, Occupational Safety and Health
Administration, U.S. Department of Labor, in Chicago, Illinois,
issued Secretary's Findings dismissing the complaint in Case No.
5-8120-93-504, "Airco Industrial Gases and David D. Stoddard,"
concluding that Stoddard's employment with Airco was terminated
for reckless operation of a vehicle resulting in an accident,
which is not an activity protected by section 405 of the STAA. 
The Complainant responded to the Secretary's Findings in an
August 2, 1993, letter, expressing disagreement with the find-
ings, but failing to request a hearing.  By letter to the
Complainant dated August 12, 1993, Deputy Chief Judge John M.
Vittone ordered Stoddard "to submit a letter to me within twenty
(20) days specifically stating whether you wish to have a
hearing 
[PAGE 2]
in your case."  No response appears in the case file.
     Apparently, even where no specific request for a hearing is
made, the timely filing of an objection to the Secretary's
Findings is also considered to be a request for a hearing.  29
C.F.R. §1978.105(a).  However, statements in the
Complainant's August 2, 1993, letter suggest that Stoddard does
not wish to pursue his complaint through a formal hearing.  Hence, 
Judge Vittone requested clarification by ordering that a specific
request for a hearing be filed.
     Since the Complainant did not request a hearing in response
to the "[Assistant] Secretary's Findings" dismissing his com-
plaint and did not respond to Deputy Chief Judge Vittone's order
to specifically state in writing whether he wanted to have a
hearing, I issued an Order to Show Cause on October 7, 1993,
requiring him to state on or before October 22, 1993, why his
presumed request for hearing should not be considered abandoned. 
The Complainant has not responded to my Order.
     Therefore, the Complainant's request for hearing should be
considered abandoned and should be dismissed.  29 C.F.R.
§§18.39(b), 1978.106(a).  I recommend that, after the
Secretary of Labor reviews this case and concurs in my finding of
abandon-ment, the preliminary findings and order issued by
Michael G. Connors, Regional Administrator, Occupational Health
and Safety Administration, on July 20, 1993, be entered as the
final admin-isrative order.  See Steigerwald v.
Robbins Transportation, Inc., 91-STA-35 (Sec'y. Nov. 21,
1991); Harper v. Overland Express, Inc., 87-STA-19
(Sec'y. Oct. 30, 1987); Assistant Secretary, OSHA v.
Gamnions Wire Feeder Corp., 87-STA-5 (Sec'y. Sept. 17,
1987).
                                   J. MICHAEL O'NEILL
                                   Administrative Law Judge