UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Trumble v. Goodway Transport Company, Inc., 95-STA-16 (ALJ June 1, 1995)

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Date: June 1, 1995

Case No.: 95-STA-16

Henry W. Trumble,
     Complainant

v.

Goodway Transport Company, Inc.,
     Respondent

                            ORDER OF DISMISSAL

     This matter arises under Section 405 of the Surface
Transportation Assistance Act (hereinafter referred to as the
"Act"), 49 U.S.C. §2305.  Complainant, Henry W. Trumble,
filed a complaint under the Act on July 13, 1994, alleging that
his employer, Goodway Transport Company, Inc., discriminatorily
discharged him after he voiced repeated concerns about hours of
service violations under Federal Department of Transportation
otor Carrier Safety Regulations.

     On December 2, 1994, Cindy A. Coe, Acting Regional
Administrator for the United States Department of Labor,
Occupational Safety and Health Administration, issued findings
which stated that after a full investigation, the U.S. Department
of Labor had determined that this complaint had no merit.  The
letter transmitting these findings contained an appropriate
explanation of the parties' rights to object to the findings, in
accordance with 29 C.F.R. §1978.104(b). Thereafter, on
January 6, 1995, Complainant filed a timely written objection,
and this case was forwarded to the undersigned for a hearing and
DECISION AND ORDER.

     A Notice of Hearing and Pre-Hearing Order, and then an
amendment of same, were issued on January 19, 1995 and February
8, 1995, respectively.  The Amended Notice of Hearing and Pre- 
Hearing Order set this matter for hearing on Thursday, April 6,
1995 in Portland, Maine.  The parties were ordered to file pre-
hearing reports with the undersigned by March 15, 1995.

     On March 12, 1995, Complainant submitted his pre-hearing
report.  The report contained the following statement:

     Goodway is a large company with legal backup.  I am 
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only one person who probably cannot be vindicated.  Therefore,
unless you feel that I should pursue this, I will drop my
complaint.

(Complainant's Pre-Hearing Report, March 12, 1995).  In response
to this statement, the undersigned sent to all parties in this
matter a copy of Complainant's pre-hearing report, accompanied by
an ORDER, which in pertinent part stated:


     Complainant has asked whether he should pursue this
     matter.  However, I am unable to render an legal advice
     as this is an adversary proceeding.

     Complainant may proceed pro se and I shall see
     that he receives a full and-fair hearing.

(ORDER, March 13, 1995).   Respondent submitted its pre-hearing
report on March 14, 1995.

     Complainant then wrote a letter to the undersigned, in which
he stated, inter alia, that until there is a more complete
investigation in this matter, it should be "considered closed."
(Complainant's Letter to the Court, March 22, 1995).  In an
effort to ascertain whether Complainant was attempting to
withdraw his objection to the Preliminary Findings of the
Secretary of Labor, a letter was written back to him on March 27,
1995, seeking clarification.  Finally, on April 2, 1995,
Complainant sent a letter to this court which stated, in toto:

     I am withdrawing my complaint and seek to have the
     scheduled hearing canceled.

(Complainant's Letter to the Court, April 2, 1995).  As a result
of this letter, the hearing was canceled.

     Neither the Act nor the implementing regulations, 29 C.F.R.
Part 1978, expressly provide for withdrawal of a complaint at
this stage of the proceeding.  However, 29 C.F.R.
§1978.111(c) does permit a party to withdraw objections to
the Secretary's Preliminary Findings at any time before the
Findings become final.  It is required that the Complainant file
a written withdrawal request with the administrative law judge. 
Upon receipt of the withdrawal request, it is incumbent upon the
administrative law judge to affirm any portion of the Findings
with respect to which the objection was withdrawn. 29 C.F.R.
§1978.111(c).

     In the instant case, Claimant has withdrawn his
complaint,
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not, as required, his objection to the Preliminary
Findings.  The proper procedure in this circumstance is to
construe the request as a withdrawal of Complainant's objection
to the Secretary's Preliminary Findings, and to issue an order
reinstating and affirming those findings.  Mysinger v. Rent-A-
Driver, 90-STA-23 (Sec'y Sept. 21, 1990).  Thus, Claimant's
April 2, 1995 letter shall be treated as a withdrawal of his
objection to the Preliminary Findings.

     In view of the above, IT IS ORDERED that the request of
Complainant for withdrawal of his objections is hereby GRANTED,
and the Secretary's Findings, issued on December 2, 1994, and
appended hereto, which found insufficient evidence to conclude
that Complainant's firing was for his activity protected under
Section 405 of the Act, are hereby reinstated and affirmed as
unopposed.  It is also ORDERED that the Complainant's request for
hearing is hereby DISMISSED WITH PREJUDICE.

DAVID W. DI NARDI
Administrative Law Judge