UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Krisik v. Latex Construction Co., 95-STA-23 (ALJ July 14, 1995)

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DATE:      July 14, 1995

CASE NO.:  95-STA-00023

In the Matter of

LARRY KRISIK

               Complainant

     v.

LATEX CONSTRUCTION COMPANY

               Respondent

BEFORE:  AINSWORTH H. BROWN
         Administrative Law Judge


 RECOMMENDED ORDER OF DISMISSAL

  This matter arises from a request for hearing appealing
a determination by a Deputy Regional Administrator, OSHA, U.S.
Department of Labor denying relief sought by the Complainant.  By
notice issued on March 20, 1995 a hearing was scheduled in Tampa,
Florida for May 8, 1995 at 1:30 p.m.  The Respondent appeared
but, without notice the Complainant did not appear.

     An order to show cause issued on the next day the
Complainant responded in a brief note.  The envelope was
postmarked May 16 from his new address in Wisconsin.  He wrote
that his failure was "easy to explain" as he now lived 1,700
miles from Florida and could not afford to return to Florida for
the proceeding.  A second order to show cause issued on May 24 to
deal with the question of liability for the costs of the
unsuccessful attempt to hear the case.  The Respondent replied on
June 16 and the Complainant had done so on June 8.

                DISCUSSION AND RECOMMENDATION

     As indicated to the Complainant in my second
order to show cause his response was seemingly without substance. 
r. Krisik's second response is that he has not been employed
since February 1995 and his financial condition did not permit
him to retain 
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legal counsel and that if he attended the hearing "on his own" he
believed that it would be impossible to secure a favorable
ruling.  It was only now that he realized that he should have
notified my office that he would be unable to attend.  Then, he
created another excuse that he thought that there were other
cases to be heard.  The basis for the impression was not
specified.

     The Respondent's reply of June 16 renews its request for
reimbursement for its costs for preparation for hearing and
services incident to the litigation.  The request is reasonable
as to its merits, but if Mr. Krisik is unemployed the
practicality of recovery may not be promising.

     I recommend that the Secretary of Labor provide favorable
consideration to demonstrate the seriousness of the cavalier
treatment by Mr. Krisik of the administrative hearing process. 
In my estimation the shallow and shifting excuses he has provided
do not come close to supporting a finding of good cause for his
failure to appear.  A 32 cent stamped letter to me would have
allowed the opposing party and this Court the opportunity to try
to work something out for the benefit of all concerned.  Further,
there is no indication that Mr. Krisik actually investigated
securing legal representation with the understanding that, if
successful, legal services could be subject to payment by the
Respondent.  His correspondence though basic in tone and brief
did not connote that he is a person of limited native ability or
a person lacking ordinary sophistication in dealing with
governmental agencies or authority figures.

     Therefore, I RECOMMEND that the Secretary of Labor
dismiss the complaint filed in this matter and assess costs as he
sees fit.

     SO ORDERED.



                                   
 
                                   Ainsworth H. Brown
                                   Administrative Law Judge

NOTICE:  This Recommended Order and the administrative file in
the matter will be forwarded for review by the Secretary of
Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, D.C. 20210.  The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final 
[PAGE 3]
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978.  See 55 Fed.
Reg. 13250 (1990).