U.S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
525 Vine Street Suite 900
Cincinnati, Ohio 45202
Date Issued: APR 20 1988
87-ERA-16
In the Matter of
JANET CUMMINGS,
Complainant
v.
PINKERTON'S INC.,
Respondent
RECOMMENDED DECISION AND ORDER
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
[Page 2]
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.
RECOMMENDED ORDER
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.