SECRETARY OF LABOR,
Complainant,
v.
WESTDALE, INC.,
Respondent.
OSHRC DOCKET NO. 83-0601
ORDER
In light of Respondent's failure to respond to the Commission's Order of December 13,
1984, and the Secretary's Motion to Dismiss Direction for Review and Briefing Order of
October 29, 1984, the Commission grants the Secretary's Motion to Dismiss and vacates the
Direction for Review.
FOR THE COMMISSION
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
Dated: JAN 11 1985
SECRETARY OF LABOR, RAYMOND J. DONOVAN,
Complainant,
v.
WESTDALE, INC.,
Respondent.
OSHRC DOCKET No. 83-0601
SECRETARY'S MOTION TO DISMISS
DIRECTION FOR REVIEW AND BRIEFING ORDER
Comes now Raymond J. Donovan Secretary of Labor, United States Department of Labor
("the Secretary"), and respectfully requests that the Occupational Safety and
Health Review Commission ("the Commission") dismiss the direction for review and
briefing order in the above-captioned matter. As grounds therefor the Secretary states the
following:
1. As the result of an inspection of Westdale, Inc.'s ("Westdale") place of
business near Flatonia, Texas on May 24, 1983 through May 31, 1983, Westdale was issued a
citation on June 23, 1983, by the Austin, Texas Area Office of the Occupational Safety and
Health Administration, United States Department of Labor.
2. On June 27, 1983, Westdale filed a notice of contest to the citation, which was duly
transmitted to the Commission by the Secretary's representative in accordance with the
Commission rules of procedure.
3. On July 15, 1983 the Secretary filed a Complaint.
4. On July 19, 1983 Westdale filed an Answer to the Secretary's Complaint.
5. A hearing on this matter was held on November 2, 1983 before Commission Administrative
Law Judge Louis G. LaVecchia. A post-hearing brief in letter form was filed by the
Secretary. Westdale did not file a brief.
6. On March 9, 1984 Judge LaVecchia issued his Decision and Order, affirming the citation.
7. On April 9, 1984 Westdale filed a Petition for Discretionary Review of the Judge's
decision.
8. On April 12, 1984 the Commission granted Westdale's petition and directed review of the
Judge's decision.
9. On August 3, 1984 the Commission issued a Briefing Notice. Westdale has not filed a
brief with the Commission within the forty (40) days permitted under Commission Rule 93.
Nor has Westdale notified the Commission or the Secretary that it did not intend to file a
brief as specifically directed by the Commission's August 3, 1984 briefing order.[[1/]]
10. In light of Westdale's failure to respond to the briefing order, the Commission should
dismiss the direction for review. Cf. Culberson Well Service, No. 82-1162, 1984 CCH OSHD
¶ 26,873 (R.C. 1984).
Conclusion
For the above-noted reasons, the Secretary requests that the Commission vacate the
direction for review and allow the judge's order to become a final order of the
Commission.
Respectfully submitted,
FRANCIS X. LILLY
Solicitor of Labor
FRANK A. WHITE
Associate Solicitor for
Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional Trial
Litigation
MARY REVELL
Attorney
FOOTNOTES:
[[1/]] The undersigned counsel for the Secretary spoke telephonically with Westdale's
counsel, George Carlton, Jr., on two occasions, the last being October 9, 1984. Mr.
Carlton indicated that he was aware of the briefing order but had not yet responded to it.
In the conversation of October 9, 1984, Mr. Carlton also indicated that he would contact
the undersigned after consulting with the company, but to date the undersigned has
received no word from him either in writing or by telephone.