Date:  February 11, 1994
CASE NO.:  94-STA-12

In the Matter of

     WILLIAM R. FUGITT 
                    Complainant

          v.

     SLIDELL MOVING & STORAGE
                    Respondent


     RECOMMENDED DECISION AND ORDER

                             Background

     This claim arises under Section 405 of the Surface
Transportation Assistance Act (the Act).  (Pub. L. 97-424, Title
IV, 49 U.S.C. 2301 et seq.)  The Act protects
employees from discharge, discipline or discrimination for filing
a complaint about commercial motor vehicle safety and for refusing
to operate a vehicle when such operation constitutes a violation of
Federal motor vehicle safety regulations or because of the
employee's reasonable apprehension of serious injury to himself or
the public due to the unsafe condition of such equipment.
                         Procedural History
     In this instance, the Complainant filed a complaint on July
26, 1993, with the Secretary of Labor alleging that he was
discriminatorily discharged in violation of the Act.  Following an
investigation of this matter, the Secretary of Labor, acting
through his agent, the Regional Administrator, issued findings on
November 10, 1993, that Complainant's discharge was not in
violation of the Act.  (ALJ EX 1).  On November 25, 1993, the
Complainant requested a formal hearing, and on December 13, 1993,
a hearing was scheduled for December 28, 1993, in Metairie,
Louisiana. (ALJ EX 1).
[PAGE 2]
     At the time and place set for hearing the Respondent and his
Counsel were present, but neither the Complainant nor any
representative on his behalf appeared or contacted this office. 
Respondent moved for dismissal, and on the same day, December 28,
1993, an Order to Show Cause issued granting Complainant 10 days to
show cause why he failed to appear. 
     By typed letter, Complainant responded that he had been out of
town and that by the time he received the Notice of Hearing "I had
less than 12 hours notice that the hearing was set."  He requested
more time, apologized for not appearing, but provided no
explanation as to why he did not call this office or appear on the
day of the hearing to advise of his dilemma.
     In any event the excuse was accepted, the matter was reset for
hearing on January 28, 1994, by Notice dated January 18, 1994, and
subsequently a return receipt bearing Complainant's signature
acknowledging receipt was received by this office. (ALJ EX 2).
     Once again at the time and place set for hearing the
Respondent and his counsel were present, but neither the
Complainant nor a representative on his behalf appeared or
contacted this office.  Again Respondent moved for dismissal.  No
word has been forthcoming from Complainant concerning his failure
to appear.
              Findings of Fact and Conclusions of Law
     29 C.F.R. §18.39(b) provides two occasions upon which a
request for hearing can be dismissed for abandonment by the party
requesting the hearing if:

          (a)  prior to the time for hearing such party
          does not show  good cause as to why neither he
          or she nor his or her representative can
          appear or (b) within ten (10) days after the
          mailing of a notice to him or her 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 or she cannot
          appear.  A default decision, under §
          18.5(b), may be entered against any party
          failing, without good cause, to appear at a
          hearing.
[PAGE 3]
     In this instance, the Complainant had notice of both scheduled
hearings and failed to appear at either or to notify this office
that he would not be present.
     On the first occasion the case was not dismissed, and though
Complainant gave no explanation, until requested post-hearing to do
so.  Again, however, Complainant engaged in the identical conduct
despite the fact he knew of the scheduled hearing.
     The hearing requested by Complainant has twice been set.  The
Court Reporter, the Respondent with counsel and myself convened on
both occasions and waited at least a half hour each time for the
Complainant's appearance.  At the last setting telephone calls were
placed by my staff to Complainant's residence and a message left
with his answering service.  Also, Respondent's counsel informed
the undersigned, on the record, that he personally had had
conversation with the Complainant and he was aware of the scheduled
hearing.  This coupled with the return receipt leads only to the
conclusion Complainant knew of the second hearing and chose not to
explain his absence either before or after the day of the scheduled
hearing.
                             Conclusion
     In sum, I find no excuse for Complainant's conduct in neither
appearing nor informing this office that he could not appear. 
Consequently, I find Complainant's request for hearing should be
dismissed as abandoned and that pursuant to 29 C.F.R. §18.5(b)
the recommended dismissal of the Regional Administrator, copy of
which is attached hereto, should be adopted as the final Decision
in this matter and the complaint dismissed.
                                 ORDER
 It is hereby ORDERED that the complaint of William
Fugitt is hereby DISMISSED.

     Entered this 11th day of February, 1994, at Metairie, Louisiana.


                              C. RICHARD AVERY
                              Administrative Law Judge