U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: September 27, 1988
CASE NO. 88-STA-00029
IN THE MATTER OF
FRANKLIN D. CREECH,
COMPLAINANT,
v.
SALEM CARRIERS, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This proceeding arises under the employee protection provision of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).
On August 23, 1988, Administrative Law Judge (ALJ) Richard E.
Huddleston, after written notice by Complainant that he wished to "drop the charges"
against Respondent, issued an order Allowing Withdrawal of Complaint. This order has been
submitted to me for review.
Neither the STAA nor the implementing regulations at 29 C.F.R. Part
1978 (1987) provide for the withdrawal of complaints by an individual complainant. The ALJ,
therefore, erred in allowing Complainant to withdraw his complaint and in ordering dismissal of
the complaint.
Section 1987.111(c) of 29 C.F.R., however, permits a party to
withdraw objections to the Secretary's preliminary findings or preliminary order at any time
before the findings or order become final. When such withdrawal occurs before the ALJ or the
Secretary, it is required that an order be issued affirming "any portion of the findings or
preliminary order with respect to which the objection was withdrawn." 29 C.F.R. §
1978.111(c). If the case is before the ALJ, the ALJ's order becomes the final administrative order
in the case, and there is no need for review of the ALJ's order by the Secretary. Underwood
v. Blue Springs Hatchery, Case No. 87-STA-21, Order to Show Cause, issued September
23, 1987.
Here, Complainant Creech had filed objections to the Secretary's
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preliminary findings, which found that Respondent was not in violation of the STAA.
Complainant's notice to the effect that he was dropping his charges against Respondent,
therefore, constitutes a withdrawal of his objections to the preliminary findings. The ALJ,
consequently, should have issued an order affirming the preliminary findings.
Rather than remand the case to the ALJ, I treat Complainant's
withdrawal as occurring before me. SeeUnderwood. Accordingly, I adopt,
and append hereto, the Secretary's Findings, issued by Karen L. Mann, Acting Regional
Administrator, U.S. Department of Labor, Occupational Safety and Health Administration, on
May 31, 1988, finding that Respondent Salem Carriers, Inc., did not violate Section 2305 of the
STAA by discharging Complainant.