DATE: September 20, 1989
CASE NO. 89-STA-5

IN THE MATTER OF

LARRY JONES,
   COMPLAINANT,

v.

JUPITER CHEMICALS, INC.,
   RESPONDENT.

BEFORE:    THE SECRETARY OF LABOR

   Before me for review is the Order Dismissing Claim issued by Administrative Law Judge (ALJ) Ben H. Walley on July 18, 1989, in the 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).

   Complainant Larry Jones, an over-the-road driver of commercial motor vehicles, was discharged from his employment by Respondent Jupiter Chemicals, Inc. (Jupiter), on May 27, 1988. Complainant alleges that he was discharged in retaliation for complaining about violations of Department of Transportation safety regulations. In particular, he assertedly charged that Jupiter management unlawfully directed its employees to drive its vehicles in excess of the D.O.T. regulatory hourly limits. Jupiter responds that Complainant and others were discharged because they falsified their driving logs in order fraudulently to claim wages for hours not worked and that any safety complaints supposedly made by Complainant in no manner entered into its decision to discharge him.

   After investigation of Complainant's complaint of unlawful discharge, the Occupational Safety and Health Administration (OSHA) found no reasonable cause to believe that a violation of STAA Section 2305 had occurred, i.e., it found that Jupiter had discharged Complainant exclusively for a legitimate business reason. Accordingly, OSHA ordered dismissal of Complainant's discrimination complaint. Complainant, through his attorney, objected to OSHA's disposition, the matter was assigned to an ALJ, and an April 21, 1989, hearing was scheduled.¹ Although

   By letter of June 9, Complainant advised the ALJ that his attorney had afforded him less than a day's notice that he would decline to represent him at the hearing and that he believed himself incapable of representing himself. On June 16, the ALJ responded, explaining Complainant's right to appear pro se and inquiring whether Complainant requested a hearing on his claim and, if so, whether he would retain counsel or would represent himself.² By letter of June 30, Complainant stated that unless an attorney was appointed to represent him without charge, he would be unable to pursue his claim. On July 18, the ALJ dismissed Complainant's case stating that under 29 C.F.R. § 18.35 (l988), he was not empowered to appoint counsel and construing Complainant's responses to the show cause inquiries to constitute abandonment of his request for a hearing under 29 C.F.R. § 18.39(b).³ Neither Complainant nor Respondent has filed a brief with me in support of or in opposition to the ALJ's order as permitted by 29 C.F.R. § 1978.10g(c)(2).

   Upon consideration of the record in its entirety, I agree with the ALJ that this case should be dismissed. While Complainant briefly was present at the time that the hearing was scheduled to begin, he was unwilling to proceed without his attorney, and after discovering that his attorney would not appear he did not return to enter his appearance and to present his claim. Thereafter, he did not show cause for his failure to appear, and he declined to pursue his objections to OSHA's findings without being represented by appointed counsel, an option which is not available in STAA proceedings. Neither the Complainant nor his representative notified the ALJ prior to the date scheduled for the hearing of any inability on their parts to appear.

   Accordingly, Complainant's objections having been abandoned, this case IS DISMISSED, and the findings and order of the Assistant Secretary for Occupational Safety and Health hereby are deemed unopposed. 29 C.F.R. § 1978.105(b)(2).

¹Under 29 C.F.R. § 1978.105(a)(1988). An objection to OSHA's findings and order is considered a request for a hearing.

²The Complainant stated: "My personal feeling[] is that I would be wasting the court's time as well as your's and mine to try and represent myself against Jupiter's lawyers."

³That regulation provides in relevant part:

A request for hearing may be dismissed upon its abandonment . . . by the party . . . who filed it. A party shall be deemed to have abandoned a request for hearing if neither the party nor his . . . representative appears at the time and place fixed for the hearing and . . . within ten (10) days after the mailing of a notice to him . . . by the administrative law judge to show cause, such party does not show good cause for such failure to appear and fails to notify the administrative law judge prior to the time fixed for hearing that he . . . cannot appear.