Case No. 84-STA-8

In the Matter of

Douglas S. Waters
    Complainant

    v.

Transport, Inc.
   Respondent

    This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. § 2305, which prohibits covered employers from discharging or otherwise discriminating against employees who have engaged in-certain protected activities.

    Complainant Waters, who was employed as a driver by respondent Transport,-alleges that he was suspended-on three occasions and then terminated in violation of section 2305 of STAA. More specifically, he alleges that his termination was in retaliation for refusing to drive unsafe equipment, for refusing to drive in excess of the maximum numbers of hours permitted by Department of Transportation (DOT) regulations, for taking a rest break prior to accepting another dispatch, and because he threatened to complain to DOT about having to drive unsafe equipment. His suspensions, Waters contends, were the result of his complaints about working excessive hours, his refusal to drive unsafe equipment, or because he took the rest break. Transport contends that it did not suspend Waters and that it terminated him because of abuse of equipment and because of Water's participation in a campaign to discredit Transport's terminal manager. On June 26, 1984, after a formal hearing, Administrative Law Judge James W. Kerr, Jr., issued a Recommended Decision and Order. Finding that Transport had not suspended Waters and finding that Water's protected activities were not factors in his termination, the administrative law judge recommended that the complaint in this case be dismissed.

    Subsequently, Waters filed exceptions to Judge Kerr's decision, and Transport replied thereto. In its response, Transport argues that I should reject Water's exceptions as untimely because Judge Kerr's decision is final and the time for appeal therefrom

has run. Transport's objection is not valid. Section 2305(c)(2)(A) of STAA prescribes the time periods within which action upon the complaint must be taken. That section establishes time limits for the filing of exceptions only in the case of exceptions to my preliminary findings and order. There is no specific statutory provision which restricts the time for filing of exceptions after a hearing has been held and a recommended decision issued. Nor is there, at the present time, any regulatory provision to that effect. Thus, inasmuch as Water's objections were received in sufficient time to enable me to comply with the statutory mandate that I issue my final order within one hundred and twenty days after conclusion of the hearing, I have accepted and have considered the exceptions Waters has filed.

    Transport also argues that, assuming that Judge Kerr's decision is not already final, I should accept it. In this connection, Transport, argues that, once an administrative law judge renders a decision, I must accept that decision if it is supported by substantial evidence, is not irrational, and is in accordance with law. In support of this argument, Transport cites to cases arising under other statutes.¹ These cases, however, are inapplicable because they involve the scope of judicial review of an agency's determination rather than the scope of authority of the head of the agency in adjudicating cases. The authority of the agency is governed by the Administrative Procedure Act, 5 U.S.C. 500 et seq. Section 557 of that Act provides that "[o]n appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule". Not having limited the issues by notice or by rule, I conclude that I have the authority to conduct a de novo review of all issues raised in this proceeding.

    On the basis of my review of the entire record in this case, I find that I am in agreement with the administrative law judge's findings of fact and conclusions of law. I, therefore, adopt Judge Kerr's decision in its entirety.

    Accordingly, this case is dismissed.,

       FORD B. FORD
       Under Secretary of Labor

Dated: OCT 24 1984
Washington, D.C.

¹O'Keefe v. Smith, Hinchman and Grylls Associate, Inc., 380 U.S. 359(1965) involving the Longshore and Harbor Workers' Act; Universal Camera v. N.L.R.B., 340 U.S. 474(1951) involving the Taft-Hartley Act; and Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797 (7th Cir. 1977) involving the Black Lung Benefits Act of 1972.