DATE:  February 11, 1992
CASE NO. 91-STA-29



IN THE MATTER OF

DONALD COHEN,

          COMPLAINANT,

     v.

ROBERTS EXPRESS,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
Dismissing Complaint (R.D. and O.) of the Administrative Law
Judge (ALJ) in this case arising under the Surface Transportation
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).  The ALJ
recommends that the case be dismissed for cause for failure to
comply with a lawful order of the ALJ pursuant to 29 C.F.R. 
§ 24.5(e)(4)(i)(B). 
     Upon review of the record in this case, I agree with the
ALJ's conclusion that this complaint should be dismissed.  The
record substantiates that Complainant has failed to accept
certified mail and has not responded to several orders issued 
by the ALJ in this case, and has not responded to telephone
communications from the ALJ.  Under the circumstances, it is
reasonable to assume that Complainant no longer desires to pursue
his claim, and it is unfair to Respondent that the case remain
open.
     I disagree, however, with the ALJ's reliance on the
regulation at 29 C.F.R. § 24.5(e)(4) as the grounds for 
[PAGE 2]
dismissing this complaint for cause.  The regulations at 
29 C.F.R. Part 24 are not applicable to cases arising under 
the STAA, but rather, STAA proceedings are governed by the
regulations at 29 C.F.R. Part 1978 (1991).  When, as here, 
no provision in Part 1978 covers the situation at issue, the
regulations at 29 C.F.R. Part 18 are applicable.  29 C.F.R. 
§ 1978.106(a).  Those regulations provide that where a party
fails to comply with any order of the ALJ: 
     the administrative law judge, for the purpose of
     permitting resolution of the relevant issues and
     disposition of the proceeding without unnecessary delay
     despite such failure, may take such action in regard
     thereto as is just, including but not limited to. . . .
     (v) [ruling] . . . . that a decision of the proceeding
     be rendered against the non-complying party. . . . 

29 C.F.R. § 18.6(d)(2).  The ALJ should have dismissed the
complaint pursuant to 29 C.F.R. § 18.6(d)(2), as discussed
in his Show Cause Order and Order of Continuance, dated October
8, 1991.       Accordingly, relying on the ALJ's findings of
fact, which are supported by substantial evidence in the record
and therefore are conclusive, see 29 C.F.R. §
1978.109(c)(3), and in light of the ALJ's Order to Show Cause why
the case should not be dismissed with prejudice pursuant to 29
C.F.R. § 18.6(d)(2), I  dismiss the complaint with prejudice. 
 See Walters and Strode v. Karmichael Tank Service, 
Case No. 90-STA-12, Acting Sec. Final Dec. and Order, Jan. 22, 1991, 
slip op. at 2-4.   
 
     SO ORDERED.




                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.