Ferguson v. Bomac Lubricant Technologies, Inc., 2002-STA-27 (ALJ Jan. 29, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 (757) 873-3634 (FAX)

Issue Date: 29 January 2004
Case No.: 2002-STA-0027

In the matter of

GLENN T. FERGUSON,
    Complainant,

    v.

BOMAC LUBRICANT TECHNOLOGIES, INC.,
    Respondent.

    This case arises under the Surface Assistance Act of 1982 (STA) 49 U.S.C. 31101 et seq. The Complainant was discharged from employment on December 31, 2001. He then filed a complaint with OSHA, and on March 7, 2002, he was informed that his complaint had not been substantiated. The Complainant appealed that determination and the case was transferred to OALJ and then assigned to the undersigned Administrative Law Judge.

    On May 30, 2002, Paul O. Taylor, Esq., became counsel for the Complainant. A hearing scheduled for November 6, 2002 was continued in view of the Respondent's bankruptcy proceedings. In a July 9, 2003 order, the undersigned directed the parties to provide a status report.

    On July 18, 2003, Respondent's counsel stated, in part

4. Pursuant to an order of the United States Bankruptcy Court dated March 28, 2003, all of the operating assets of the Respondent were sold on or about April 29. 2003. Since that date, the Respondent has not conducted business. The Respondent is informed and believes that all of the proceeds from the sale of the Respondent's assets have been used or will be used to pay secured creditors and administrative expenses in the bankruptcy case. Therefore, the Respondent is further informed and believes that there will be no distribution to unsecured creditors, including the Complainant, in this case.

   On September 9, 2003, Complainant's counsel noted the Respondent's financial status. Counsel also stated that he had been unable to contract the Complainant.

   On October 9, 2003, the undersigned issued an order to show cause directing the Complainant to respond on or before October 31, 2003. There has been no further communication from the Complainant. Contact was made with Complainant's counsel in mid-November and Mr. Taylor reported that there had been no response from Mr. Ferguson.

   In light of the above actions, the undersigned concludes that the Complainant has abandoned the case and that 29 C.F.R. § 18.5(b) should be applied in this case.

   It is hereby recommended that Complainant's appeal be dismissed as abandoned and the determination of OSHA be accepted as the final result in this matter.

      RICHARD K. MALAMPHY
      Administrative Law Judge

RKM/ccb
Newport News, Virginia

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board, U. S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).