DATE: June 3, 1988
CASE NO. 87-STA-28

IN THE MATTER OF

OLIVER BOLDEN,
   COMPLAINANT,

v.

DISTRON, INC.,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. and O.) issued on March 21, 1988, by Administrative Law Judge (ALJ) James W. Kerr, Jr., 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).

   Although this case and the case of .Cook v. Distron, Inc., Case No. 87-STA-29, have not been consolidated, there is one record for both cases. After a joint hearing, however, the ALJ issued separate recommended decisions on each of the complaints. In Complainant Bolden's case, the ALJ concluded that, while Complainant had engaged in protected conduct, Complainant failed to establish a causal connection between that conduct and his discharge from his position as an over-the-road relief driver for Respondent. The ALJ also concluded that Respondent discharged Complainant for falsifying his trip log, and that this stated reason was not pretextual but was a legitimate management reason. Finally, the ALJ concluded that Respondent would have discharged Complainant even if Complainant had not engaged in protected conduct.¹

   Upon a thorough review of the record² in this case, I find that the ALJ's factual findings³ and conclusions are supported by substantial evidence and are in accordance with law. See 29 C.F.R. § 1978.109(c)(3)

(1987). I, therefore, adopt and append to this order ALJ Kerr's R.D. and O.⁴ Accordingly, the complaint of Complainant Bolden is DISMISSED WITH PREJUDICE.

   SO ORDERED.

         Ann McLaughlin
         Secretary of Labor

Washington, D.C.

U.S. Department of Labor

¹Having found that there was no causal connection between Complainant's protected conduct and his discharge and that Respondent's stated reason for Complainant's discharge was not pretextual, it was not necessary for the ALJ to go on to find that Respondent would have discharged Complainant even if he had not engaged in protected conduct. See McGavock v. Elbar, Inc., Case No. 86-STA-5, Secretary's Final Decision and Order, issued July 9, 1986, slip op. at 12.

²This record consists of the record before the ALJ, the ALJ's recommended decision and order and the briefs and arguments submitted to me by the parties. See 29 C.F.R. § 1978.109 (c)(1) (1987). I have not considered any documents submitted to me by or on behalf of Complainant Bolden or Cook for the purpose of augmenting the record or challenging the veracity of witnesses who testified at the hearing.

³In Respondent's Memorandum In Support Of Recommendation of Administrative Law Judge To Dismiss Complaints at 1-2, Respondent objects to the second sentence of the ALJ's Findings of Fact #8 as being contrary to the actual testimony. That sentence states that "Mr. Holliday testified that he knew only of Complainant Bolden's 1983 complaint. (TR 132)." Respondent points out that page 132 of the hearing transcript reflects that Holliday testified that he knew of no complaint filed by Bolden with the Department of Transportation (DOT). Holliday's actual testimony, however, was that, prior to Bolden's and Cook's discharges, Holliday knew of no safety complaints filed by them other than the "Pensacola grievance". That safety grievance was filed in 1983 by Cook. Transcript at 131, 118. I, therefore, do not read the ALJ's statement as being contrary to the testimony.

⁴Since I find that Respondent did not violate Section 2305, I do not rule on Respondent's motion that this case be dismissed on the ground that the statute provides a right of hearing only where the Secretary concludes, on the basis of the preliminary investigation, that there is reasonable cause to believe that a violation has occurred. See Respondent's Memorandum In Support Of Recommendation of Administrative Law Judge To Dismiss Complaints at 2.