DATE: June 3, 1988
CASE NO. 87-STA-29

IN THE MATTER OF

WILLIAM J. COOK,
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, and amended on March 22, 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 Bolden v. Distron Inc., Case No. 87-STA-28, 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 Cook's case, the ALJ concluded that, Cook did "not come forward with sufficient proof to raise an inference either that he engaged in a protected activity or that participation in a protected activity was the reason for [Complainant's discharge from his position-as an over-the-road driver for Respondent]." R.D. and O. at 5.. Additionally, the ALJ concluded that Complainant Cook was discharged for the legitimate management reason of falsifying his driver's log, and that Respondent would have discharged Complainant Cook even if he had enagaged in a protected activity.¹

   Upon a thorough review of the record² in this case, I find that the ALJ's factual findings and conclusions relating to Complainant Cook 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.³ Accordingly, the complaint of Complainant is DISMISSED WITH PREJUDICE.

   SO ORDERED.

         Ann McLaughlin
         Secretary of Labor

¹Having found that Complainant had not engaged in a protected activity, it was not necessary for the ALJ to make any findings as to causal connection, as to whether Respondent's stated reason for discharging Complainant was pretextual, or as to whether Respondent would have discharged Complainant for the reason Respondent did even if Complainant had engaged in a protected activity. See McGavock v. Elbar, Inc., Case No. 86-STA-5, Secretary's Final Decision and Order issued July 9, 1986, slip op. at 10-12 for discussion of burdens of proof.

²This record consists of the record before the ALJ, the ALJ's 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.

³Since 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 Complaint at 2.