SECRETARY OF LABOR,

Complainant,

v.

CLEVELAND MARBLE MOSAIC COMPANY,

Respondent.

OSHRC DOCKET NO. 88-1777

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

JOINT DIRECTION FOR REVIEW AND COMMISSION ORDER

The Respondent has filed a Petition for Discretionary Review. Pursuant to 29 U.S.C. 661(j) and 29 C.F.R. 2200.92(a), the report of the Administrative Law Judge is directed for review, but only for the limited purpose of correcting an error in the judge's Order Entered Upon Secretary's Motion for Entry of Default.

On June 27, 1988, the Secretary issued two citations to the Respondent. Citation 1 alleged three serious violations of the Act and proposed penalties totaling $1800. Specifically, the Secretary proposed a penalty of $540 for the violation alleged in item 1 and penalties of $630 each for the violations alleged in items 2 and 3. No penalty was proposed for the single, nonserious violation alleged in Citation 2.

The Respondent contested all of the alleged violations and proposed penalties. Several months later, the Secretary filed her complaint. Paragraph IV of the complaint included the following statement:

Complainant hereby withdraws Citation No. 1, Item 1, and the proposed penalty therefore (sic).

With this exception, the complaint made no changes in the allegations of the two citations. Accordingly, the total penalty proposed in the complaint was $1260--that is, $630 each for the violations alleged in items 2 and 3 of Citation 1.

The Respondent failed to answer the Secretary's complaint and also failed to respond to the Secretary's motion for a default judgment under 29 C.F.R. 2200.41(a). The judge therefore entered his order granting the Secretary's unopposed motion. Specifically, the judge ordered "that the notice of contest is dismissed, the citations are affirmed, and penalties in the total amount of $1800 are assessed."

We hereby modify that order as follows. We treat the Secretary's notice of withdrawal as a motion to withdraw item 1 of Citation 1 and the corresponding proposed penalty of $540, and we grant the motion. We dismiss the notice of contest, affirm the three remaining citation items, and assess penalties in the total amount of $1260, as proposed in the Secretary's complaint.

FOR THE COMMISSION

RAY H.DARLING, JR.
EXECUTIVE SECRETARY

DATED: March 2, 1989


SECRETARY OF LABOR,

Complainant

v.

CLEVELAND MARBLE MOSAIC COMPANY

Respondent

OSHRC Docket No. 88-1777

ORDER ENTERED UPON SECRETARY'S MOTION FOR ENTRY OF DEFAULT

Respondent, Cleveland Marble Mosaic Company, was cited on June 24, 1988, for alleged serious (citation number 1) and nonserious (citation number 2) violations of three construction safety standards, and a recording requirement. The Secretary proposed that penalties be assessed for citation number 1 in the total amount of $1,800. Respondent contested the matters.

The Secretary served and filed a complaint on October 24, 1988. Under Commission procedural Rules 4(b) and 34(d)(1), 29 C.F.R. 2200.4(b) and 34(d)(1), respondent was required to file an answer by November 27, 1988. To date, the answer has yet to be filed.

On November 8, 1988, the Secretary moved to dismiss the notice of contest for failure to answer the complaint. Respondent has not responded to the Secretary's motion to dismiss. Accordingly, pursuant to Commission Rule 41(a), 29 C.F.R. 2200.41(a), it is ORDERED that the Secretary's unopposed motion to dismiss the notice of contest is granted. It is further ORDERED that the notice of contest is dismissed, the citations are affirmed, and penalties in the total amount of $1,800 are assessed.

RICHARD DeBENEDETTO
Judge, OSHRC

Dated: January 26, 1989
Boston, Massachusetts