DATE: April 24, 1990
CASE NO: 89-ERA-00042

IN THE MATTER OF

B. R. MCCRUMB
    COMPLAINANT

    v.

WESTINGHOUSE RADIOLOGICAL
SERVICES, INCORPORATED

    and

VIRGINIA POWER
    RESPONDENTS

    Following an adverse determination by the District Director, Wage and Hour Division, Employment Standards Administration, United States Department of Labor, the Complainant, on July 7, 1989, filed a request for a hearing. By letter dated July 10, 1989, he advised that he would need six months to prepare for trial.

    An ORDER was issued on August 18, 1989, scheduling a pre-hearing telephonic conference with the Complainant and counsel for both Respondents.

    By letter dated August 21, 1989, the Complainant advised that he would not be available for the conference as he would be in route to his next job site. He requested a postponement until he could get settled in a new residence and have telephone service. He represented that he would be in contact after the middle of September.

    The Complainant has failed to contact this office. By letter dated February 1, 1990, addressed to Complainant's last known address, he was requested to advise this office of his new address and telephone number. He has failed to respond to that request. The letter has not been returned by the U.S. Post Office, and it is assumed it was forwarded to the Complainant at his new address.

    An ORDER was issued on March 2, 1989, and served by Certified Mail, return receipt attached, advising the Complainant that if he failed to furnish his new address and telephone number by March 22, 1989, his request for hearing would be considered abandoned. The return receipt was signed by a Joyce Kelley, as agent.

    A follow-up ORDER TO SHOW CAUSE was issued on March 29, 1990, ordering the Complainant to furnish his new address and telephone number within 10 days or his claim would be considered abandoned and would be dismissed on that basis and also on the basis of his failure to comply with a lawful order of this administrative law judge. The Order was served by Certified Mail, with return receipt, to the Complainant's last known address. The envelope was returned unopened by the Postal Service stamped with the indication that it was unclaimed.

    It is provided in 29 CFR § 18.39(b) that a request for hearing may be dismissed upon its abandonment by the party who filed it.

    Further, it is provided in 29 CFR § 24.5(e)(4)(B) that an administrative law judge, on his own motion, may dismiss a claim upon the failure of the complainant to comply with a lawful order of the administrative law judge.

    It appears that the Complainant has chosen to place himself beyond the reach of this Office by moving and refusing to advise of his new mailing address or telephone number after two requests, and also refusing to accept letter communication from this Office. Under this circumstance I am helpless to proceed with this case. Accordingly,

    It is the Recommended ORDER, that this case be dismissed on the ground of abandonment and the failure of the Complainant to comply with my lawful Orders.

       W. RALPH MUSGROVE
       Administrative Law Judge