DATE: July 11, 1989
CASE NO. 89-STA-4

IN THE MATTER OF

ALONZO MONROE,
   COMPLAINANT,

v.

QJ TRANSFER AND STORAGE,
   RESPONDENT.

BEFORE:    THE SECRETARY OF LABOR

   Before me for review is the Recommended Order of Dismissal issued by Administrative Law Judge (ALJ) Theodor P. von Brand, on May 25, 1989, in the above-captioned case, which arises under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).

   The ALJ's recommendation that this case be dismissed is based on the fact that each of the prosecuting parties, the Assistant Secretary for Occupational Safety and Health and the Complainant, withdrew from the case. The record reveals that these withdrawals occurred before commencement of a hearing scheduled as a result of Respondent's objections to the Secretary's Findings, issued by the Regional Administrator on February 16, 1989, finding that Respondent violated the STAA by discharging Complainant.¹

   The ALJ cited no authority for his dismissal of this case. Neither the regulations implementing the STAA, 29 C.F.R. Part 1978 (1988), nor the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 (1988), contemplate the situation presented by this case. The Federal Rules of Civil Procedure are, therefore, applicable. 29 C.F.R. § 1978.306(a); 29 C.F.R. § 18.1(a). Hooks v. Transportation Services. Inc., Case No. 88 STA-7, Secretary's Final Order of Dismissal issued June 24, 1988.

   I find that Rule 41(a)(1)(ii) is applicable here. That rule provides for voluntary dismissal of an action by the "filing of a stipulation of dismissal signed by all

¹Subsequent to the Assistant Secretary's withdrawal, the ALJ directed counsel for the Department of Labor "to file a statement on behalf of the Department, which is responsible for administering that Act, as to whether the Regional Administrators' finding of protected activity is correct." ALJ's Order Continuing Proceeding and Setting Further Procedures at 1. Inasmuch as the Assistant Secretary was represented by counsel for the Department of Labor, such direction was improper. Moreover, it appears that the ALJ's concern was whether the Regional Administrator's finding complied with the requirement in section 2305(b) of the STAA that the employee must have sought and have been unable to obtain correction of the unsafe condition. ALJ's Pre-Hearing Order No.1 at 2 n.1. Since the alleged protected activity was the refusal to drive in violation of a Federal regulation, that requirement is inapplicable. Gohman v. Polar Express. Inc., Case No. 88-STA-14, Secretary's Final Decision and Order issued November 14, 1988, slip op. at 2. Juarez v. Ready Trucking Company, Case No. 86-STA-7, Secretary's Final Decision and Order issued July 7, 1988, slip op. at 3 n.4.