DATE: December 2, 1992
CASE NO. 92-STA-29

IN THE MATTER OF

GRAHAM ELLIS,

          COMPLAINANT,

     v.

RAY A. SCHOPPERT TRUCKING,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL ORDER OF DISMISSAL

     Before me for review is the October 16, 1992, Recommended
Order of Dismissal (R.O.D.) of Administrative Law Judge (ALJ) in
this case arising under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).  Although permitted by
29 C.F.R. § 1978.109(c)(2) (1992), neither party has filed a
brief before me.
     Complainant filed a complaint with the Department of Labor
alleging that Respondent violated the STAA when it discharged him
for refusing to drive a truck with a defective transmission that
posed a danger to the public and to himself.  The Regional
Administrator of the Occupational Safety and Health
Administration found that the complaint was not filed timely[1] 
and Complainant sought a hearing.  The Office of Administrative
Law Judges inadvertently assigned two different case numbers to
the hearing request, and assigned ALJs from different offices to
each of the cases.  In Case No. 92-STA-28, an ALJ from the
Washington office issued a decision on August 7, 1992,
recommending dismissal because the complaint was not timely
[PAGE 2]
filed.  I issued a Final Decision and Order dismissing Case 
No. 92-STA-28 on September 23, 1992.
     Unaware of the existence of Case No. 92-STA-28, an ALJ 
from the San Francisco office proceeded with Case No. 92-STA-29.
Pursuant to a September 21, 1992, Order directing Complainant 
to state whether he intended to pursue Case No. 92-STA-29,
Complainant informed the ALJ about the existence of Case 
No. 92-STA-28 and the final decision in that case.
     In view of the fact that Complainant already has received in
Case No. 92-STA-28 a final determination of the issue of whether
his complaint was timely, I hereby DISMISS this case, which was
opened in error.
     SO ORDERED.
                              LYNN MARTIN
                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1]   The STAA requires a person to file a complaint within 180
days after the alleged violation of the act occurs.  49 U.S.C.
app. § 2305(c)(1); 29 C.F.R. § 1978.102(d)(1).