Date Issued: APR 20 1988
87-ERA-16

In the Matter of

JANET CUMMINGS,
    Complainant

    v.

PINKERTON'S INC.,
    Respondent

    This proceeding arises under the Energy Reorganization Act of 1974, as amended (42 U.S.C. § 5851), hereinafter called the "Act." The implementing regulations are found at 29 C.F.R. Part 24. The procedural regulations are contained at 29 C.F.R. Part 18.

    Pursuant to a notice, the above-captioned matter came on for hearing before the undersigned on August 11, 1987, at Chicago, Illinois. The Respondent was present, represented by counsel and prepared to go forward with its defense. However, the Complainant or any representative thereof failed to appear. Moreover, no timely written request for a continuance was filed as required by the rules of practice and procedure. (29 C.F.R. § 18.28) At the hearing, the Respondent moved to dismiss the proceeding by reason of abandonment. The Respondent further moved that the Complainant be assessed costs in the amount of $900.00, representing transportation costs, witness fees and attorney expenses. An Order to Show Cause was issued to the Complainant on August 13, 1987, to permit the Complainant to explain her failure to appear and also why costs should not be assessed against her pursuant to the demands of the Respondent.

    The Complainant filed an untimely response to the Order to Show Cause on September 4, 1987. In her response, the Complainant

asserts that she had a job interview on the date of the scheduled hearing, and that there was an apparent breakdown in communication between this office and a friend of the Complainant's who was supposed to advise this office of the Complainant's inability to attend the hearing. Further, the Complainant states that she did not have an attorney to represent her at the hearing.

    I find that the Complainant's explanation for the failure to appear at the hearing does not constitute good cause. The Complainant had an affirmative duty to make a timely written request for a continuance of the hearing in order to avoid unnecessary costs and delay to the government and to the Respondent. This she failed to do. Accordingly, the Respondent's motion to dismiss is found to have merit and it is GRANTED.

    With regard to the costs demanded by Respondent, however, I find that the Act at Section 5851(b) (ii) only provides for award of attorney fees and costs to a successful complaint. Furthermore, the implementing regulation at 29 C.F.R. § 24.8(b) (2) only permits a District Court in enforcement proceedings to assess costs to either party within the discretion of the Court. This regulation, relied upon by the Respondent, does not extend to the administrative proceeding prior to enforcement. This is buttressed by the regulation at 29 C.F.R. § 24.6(b) (3) which only allows to the Secretary of Labor to assess fees and costs against a Respondent where a complainant is successful in proving a violation of the Act. Finally, while the Complainant's actions herein may have evidenced some irresponsibility on her part, there is no evidence to show that her underlying complaint was brought in bad faith or was otherwise devoid of merit. Homer v. Mary Institute, 613 F.2d 706 (8th Cir. 1980); Mosby v. Webster College, 56 F.2d 901 (8th Cir. 1977). Accordingly, the Respondent's demand for fees and costs is DENIED.

    It is recommended that the complaint in this matter be dismissed as a result of Complainant's unexcused failure to appear at the hearing. It is further recommended that the Respondent's demand for fees and costs be denied.

       DANIEL J. ROKETENETZ
       Administrative Law Judge