Before me for review is the Recommended Order of Dismissal issued, on
May 6, 1988, by Administrative Law Judge (ALJ) Nicodemo, DeGregorio in the above-captioned case, which arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982). The record
reveals that, prior to a hearing on his complaint, Complainant notified the ALJ in writing that
Complainant wished to withdraw his complaint because the United States Department of
Transportation had successfully prosecuted Respondent for the violations which formed the basis
of Complainant's complaint under Section 2305 of the STAA.
Section 1978.111(c) of 29 C.F.R. Part 1978, the regulations
implementing the STAA, provides that:
At any time before the findings or order become final, a party may withdraw
his objections to the findings or order by filing a written withdrawal with the
administrative law judge or, if the case is on review, with the Secretary. The judge or the
Secretary, as the case may be, shall affirm any portion of the findings or preliminary
order with respect to which the objection was withdrawn.
As has already been pointed out,
Section 1978.111(c)..... does not require, when the case is before the ALJ,
[the Secretary's] approval of the withdrawal. Rather an ALJ's order issued pursuant to
that section becomes the final administrative order in the case, and there is no need for
the case record to be submitted for..... review.
[Page 2]
Underwood v. Blue Springs Hatchery, Case No. 87-STA-21, order To Show Cause,
issued September 23, 1987 at 2.
Inasmuch as the ALJ did not proceed in accordance with Section
1978.111(c) but transmitted this case for my review, I treat Complainant's withdrawal as
occurring before me. I, therefore, adopt as my final decision and order, and append hereto, the
Secretary's Findings issued, on March 10, 1987, by Roger A. Clark, Regional Administrator of
the Occupational Safety and Health Administration, finding that Respondent's discharge of
complainant was not a violation of Section 2305 of the STAA.
Accordingly, the complaint of Gary Chapman is DISMISSED WITH
PREJUDICE.