DATE:  October 30, 1995
CASE NO: 95-STA-00023

IN THE MATTER OF

LARRY KRISIK,

          COMPLAINANT,

     v. 

LATEX CONSTRUCTION COMPANY,

          RESPONDENT.


BEFORE: THE SECRETARY OF LABOR


                              ORDER OF DISMISSAL

     Before me for review is a Recommended Order of Dismissal in
this case which arises under the employee protection provision of
the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C.A. § 31105 (West 1994).  On February 15, 1995, the
Department of Labor completed its investigation of a complaint
filed by Larry Krisik (Krisik), finding it without merit. 
Complainant was informed of his right to object to the findings
and request a hearing, whereupon he requested a hearing before an
Administrative Law Judge (ALJ).
     A hearing commenced on May 8, 1995, in Tampa, Florida. 
Respondent Latex Construction Company (Latex) was represented at
the hearing by counsel.  However, Krisik did not appear at the
hearing, nor did he provide prior notice that he would be absent.
     On May 9, 1995, the ALJ issued an Order to Show Cause why
Krisik failed to appear at the hearing.  Krisik responded in a
letter dated May 16, 1995, stating that he had moved to Wisconsin
and did not have the funds to travel to Florida for the hearing.
     A second Order to Show Cause was issued on May 24, 1995. 
The ALJ asked Krisik to explain why he should not be held liable 
[PAGE 2]
for costs incurred by the Respondent for transporting counsel and
witnesses to the hearing.  In a letter dated June 2, 1995, Krisik
stated that he had not been employed since February, 1995, and
"[b]ecause of the complex nature of the proceedings, and not
having counsel, I believed it almost impossible to get a
favorable ruling if I were to attend on my own."  On July 14,
1995, the ALJ issued a Recommended Order dismissing the complaint
with prejudice.  The Order also asks that I consider Latex's
request for recovery of costs incurred in transporting counsel
and witnesses to the May 8, 1995 hearing.
     Krisik's failure to appear at the hearing and his subsequent
responses to the Orders to Show Cause demonstrate his desire to
abandon pursuit of his claim, and therefore his case is dismissed
with prejudice.  As to Latex's request for costs, the right to
recover costs usually exists by virtue of a statute or rule. 
See, e.g., Schottle v. State of Florida, Department of
Administration, Division of Retirement, 522 So.2d 962 (Fla.
Dist. Ct. App. 1988), rev. denied, 534 So.2d 399 (Fla.
1988).  There is nothing in the STAA which suggests that a
complainant's abandonment of a claim holds him responsible for a
respondent's costs incurred subsequent to abandonment, but prior
to final dismissal of the complaint.  Further, the Department has
not elected to assert any inherent authority it may have to
impose costs.  Billings v. Tennessee Valley Authority,
Case Nos. 89-ERA-16, 89-ERA-25, 90-ERA-2, 90-ERA-8, 90-ERA-18,
Sec. Dec., July 29, 1995, slip op. at 6.  I therefore find that
it would be inappropriate to require Krisik to pay Respondent's
costs incident to the May 8, 1995 hearing.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.