DATE: January 4, 1990
CASE NO. 89-STA-15

IN THE MATTER OF

WALTER STACK,
   COMPLAINANT,

v.

PRESTON TRUCKING COMPANY,
   RESPONDENT.

BEFORE:    THE ACTING SECRETARY OF LABOR¹

   The case before ALJ Schoenfeld consisted of two STAA complaints that, upon investigation by the Assistant Secretary for Occupational Safety and Health, were found to lack merit. On March 11, 1988, Mr. Stack alleged that Preston had ordered him, on September 20 and 21, 1987, to operate an unsafe truck tractor, had falsely accused him of its reckless operation, and had illegally suspended him.² The second complaint, filed on March 29, 1988, focused on a March 2, 1988, warning letter issued to Mr. Stack in reprimand for a delayed freight delivery on February 24 and

25, 1988. Em. Exh. 8 at 6-7. Although ALJ Schoenfeld initially determined that his review was limited to the precise claims addressed in the Assistant Secretary's investigation findings,³ he permitted Mr. Stack to present evidence of other employment actions in order to obtain "a more complete picture, because in questions of retaliations there may be a question of motivation or intent on the part of Respondent, or course of conduct." Em. Exh. 8 at 27-28. Thereafter, it became apparent that Mr. Stack, a pro se complainant, was advancing a case of ongoing harassment. Much of the claimed harassment was effected through letters and memoranda issued by Preston which Mr. Stack alleged lacked foundation or singled him out for unwarranted treatment. Accordingly, the ALJ modified his initial determination limiting the scope of inquiry and afforded Preston an extended opportunity to rebut these charges. To that end, the ALJ held the record open for receipt of additional evidence. Em. Exh. 8 at 93-95. Neither party had complied with the ALJ's order to submit pre-hearing statements delineating issues presented and testimony contemplated.

   During the October 3, 1988, hearing before ALJ Schoenfeld, Complainant Stack presented the August 12 and September 7, 1988, letters in question in this case⁴ as containing "untrue accusation[s]" leveled at him by Preston and as comprising unlawful harassment. Mr. Stack testified in detail about the letters, Em. Exh. 8 at 30-34, 78, 82, and they were received in evidence as hearing exhibits. In his December 12, 1988, R.D. and O., ALJ Schoenfeld determined that the record did not support a finding that Preston "intended to or did in fact harass" Mr. Stack "by sending him letters, some of them certified . . . ." Exh. CX-1 at 7. While the ALJ discussed only some of the letters with specificity and did not mention the August and September, 1988, letters expressly, he considered all of Complainant Stack's proof in rendering his decision. In particular, citations to the hearing transcript referenced in his R.D. and O. identify testimony pertaining to the two letters in gumption. Exh. CX-1 at 6-7. Moreover, had the ALJ limited himself to the issues raised by the OSHA investigation findings, he would not have considered whether the April 10, 1985, memorandum and the February 26, 1987, letter comprised illegal harassment. See CX-1 at 7.

   Because the record in this case now establishes that Complainant previously litigated his STAA claims concerning the letters of August 12 and September 7, 1988, they cannot form a basis for this complaint.

   I recognize that Respondent has requested that I reconsider the Secretary's determination not to adopt one of ALJ Brown's factual findings. Upon consideration of the record in its entirety, including the December 12, 1988, findings of ALJ Schoenfeld, Exh. CX-1 at 7; T. 31-32, I am persuaded that the finding in issue is not supported by substantial evidence, and I decline to disturb this aspect of the Secretary's disposition. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951); NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir. 1983); Kopack v. NLRB, 668 F.2d 946, 951-954 and n.3 (7th Cir. 1982); Cotter v. Harris, 642 F.2d 700, 706-707 (3d Cir. 1981).

   Accordingly, the complaint herein IS DISMISSED.

SO ORDERED.

         Acting Secretary of Labor

Washington, D.C.

¹There is presently a vacancy in the Office of Secretary of Labor. The Deputy Secretary is authorized to "perform the duties of the Secretary until a successor is appointed. . . ." 29 U.S.C. § 552 (1988).

²Although the OSHA complaint apparently was limited to the work order, Mr. Stack advanced the remaining allegations at the hearing.

³The Assistant Secretary's findings become final only in the absence of timely objection. 29 C.F.R. § 1978.105(b)(2). A hearing, which may be obtained by filing an objection to the findings or preliminary order, is conducted de novo by an ALJ. 29 C.F.R. § 1978.106(a). Thus, the investigation findings have effect only if unchallenged. In the event that a hearing is requested, they are not accorded weight in any decision in the case. Holloway and Murray v. Lewis Grocer Co., Case No. 87-STA16, Sec. Dec. and Order issued January 25, 1988, slip op. at 2 n.2, aff'd in relevant part, 874 F.2d 1008 (5th Cir. 1989).

⁴Both letters were transmitted by certified mail.