DATE:  July 22, 1994

CASE NO.  93-STA-19

In the Matter of

CHESTER C. ROWLAND, JR. 
          Plaintiff

     v.

EASY REST BEDDING, INC.
          Respondent


                     ORDER OF DISMISSAL  

     The Complainant, Chester C. Rowland, Jr., filed a complaint
with the Secretary of Labor, alleging that the Respondent, Easy
Rest Bedding, Inc., discriminated against him in terminating his
employment for refusing to drive in violation of Department of
Transportation regulations.  An investigation was performed, after
which the Secretary of Labor issued findings dated February 1,
1993.  The Secretary determined that Respondent was not in
violation of Section 405 of STAA (49 U.S.C. 2305).  Complainant
filed objections to the Secretary's findings and the case was
transferred to the Office of Administrative Law Judges for formal
hearing.  A hearing was scheduled for May 13, 1993, in Jackson,
Tennessee, but later continued by Order dated May 7, 1993.
     The hearing was rescheduled for October 6, 1994, however, the
Notice to the Respondent, Marion Turner, President of Easy Rest
Bedding, Inc., was returned with the notation "Box closed no
order."  It was determined that Mr. Turner was deceased and Easy
Rest Bedding, Inc. was no longer in business.  The case was
remanded to the Regional Administrator, Occupational Safety and
Health Administration, to investigate the status of Easy Rest
Bedding, Inc. and whether the Complainant wished to pursue his
claim.  The Regional Administrator conducted an additional field
investigation and reported:
     In 1991, Wayne Elam, owner of Elam Mattress Co., sold the
     business to Marion Turner and the business was called 
     
[PAGE 2]
     Easy Rest Bedding, Inc.  Subsequently, Turner's business
     was not successful, resulting in the company reverting to
     Wayne Elam.  Shortly thereafter or prior to the company
     reverting to Elam, Turner committed suicide.  Turner's
     brother-in-law advised that he had helped settle Turner's
     estate and that Turner had not filed bankruptcy.  In
     fact, there were so little assets the uncontested will
     and estate were not even probated.
     
     Complainant Rowland was contacted and advised that when
     Turner took over the business, there were no real changes
     in employees, product or supervision, except that Wayne
     Elam stayed on as a salesman.  Then later, after the
     company reverted to Elam, Elam simply operated the
     company as he had in the past.  It appears that Elam
     Mattress Co., might be considered a successor company in
     view of the above information.  However, we did not
     conduct any further investigation because we considered
     the case closed upon issuing the non-merit determination
     on February 1, 1993.
     
          Accordingly, once we make a non-merit determination,
     if the complaining employee objects, it becomes the
     employee's burden to obtain any evidence to present at
     his requested hearing.
     
     Because the Respondent, Easy Rest Bedding, Inc., is no longer
in business and its past president is deceased, there did not
appear to be a party against which the Complainant could persist
with his action.  A Show Cause Order was issued on June 29, 1994,
ordering Chester C. Rowland, Jr., to show cause, in writing, on or
before, July 14, 1994, why his complaint and request for formal
hearing should not be dismissed due to the fact that Easy Rest
Bedding, Inc., the Respondent, is no longer in business and its
past president is deceased.  The Complainant failed to respond to
the Show Cause Order.  
     Upon consideration of the record and the failure of the
Respondent to respond to the Show Cause Order and pursue his claim,
it is, therefore,
     ORDERED that the complaint of Chester C. Rowland, Jr.
is hereby DISMISSED.
                            Robert L. Hillyard
                              Administrative Law Judge