SECRETARY OF LABOR,
Complainant
v.
HOLMAN STEELWORKS, INC.
Respondent.
OSHRC DOCKET NO. 91-1341

ORDER

Respondent having failed to comply with or otherwise respond to the order entered on December 10, 1991, pursuant to 29 C.F.R. §2200.41(a)*, it is
ORDERED that respondent's notice of contest is dismissed, the April 23, 1991, citation is affirmed, and a penalty of $1,500 is assessed.

RICHARD DeBENEDETTO                                                                                
Judge, OSHRC

Dated: February 12, 1992
Boston, Massachusetts

LYNN MARTIN, SECRETARY OF LABOR,
Complainant,
v.
H0LMAN STEEL COMPANY,                                                                                                                            
Respondent.      

OSHRC Docket No. 91-1341   

DIRECTION FOR REVIEW AND ORDER

The Secretary has filed a petition for review in which she asks that the Commission direct for review the order of Administrative Law Judge Richard DeBenedetto, dismissing the notice of contest, affirming the citation, and assessing a penalty of $1,500. The Secretary also requests that the Commission accept "the settlement agreement being filed herewith." Because the agreement filed is not an original copy, it cannot be approved.
Accordingly, this case is directed for Review pursuant to 29 C.F.R. § 2200.92(a). Upon review, relief is granted pursuant to Commission Rule 41(b) and the case is remanded to Judge DeBenedetto. The parties are hereby requested to submit the original executed settlement agreement to Judge DeBenedetto for his consideration.[[1]]

DATED. 3/23/92

VELMA MONTOYA                                                                                                                                          COMMISSIONER

DONALD G. WISEMAN                                                                                                                                  COMMISSIONER

LYNN MARTIN, SECRETARY OF LABOR,
Complainant,
v.
H0LMAN STEEL COMPANY,                                                                                                                            
Respondent.      

OSHRC Docket No. 91-1341                                                                                                                                                                                                                                                                                                       
SECRETARY'S PETITION FOR DISCRETIONARY REVIEW

Complainant, the Secretary of Labor, moves for direction of this case and acceptance of the settlement agreement being filed herewith. As grounds for this motion the Secretary states as follows:

1. On January 21, 1992, Administrative Law Judge Richard DeBenedetto issued an order dismissing respondent's notice of contest after respondent failed to file an answer to the Secretary's complaint and failed to respond to the judge's order of December 10, 1991, regarding that failure.

2. The undersigned has been advised orally that the procedural mishandling of the case was occasioned by the death of Thomas N. Holman, and a subsequent delay in the appointment of a legal representative to handle the affairs of the estate of Mr. Holman.

3. Both parties are willing to settle all matters raised by respondent's notice of contest and have executed an agreement to that effect.

4. The judge's decision was docketed on February 21, 1992, and the notice states that the decision will become a final order on March 23, 1992, unless directed for review.

5. Review is requested an order that it will be clear that the order dismissing respondent's notice of contest has not become a final order. This case may then be disposed of by the Commission based upon the executed settlement agreement.

Respectfully submitted,

MARSHALL J. BREGER
Solicitor

CYNTHIA L. ATTWOOD
Associated Solicitor for
Occupational Safety and Health

DONALD G. SHALHOUB
Deputy Associate Solicitor for
Occupational Safety and Health

DANIEL J. MICK Counsel for Regional
Trial Litigation

FOOTNOTE

[[1]]Chairman Foulke would vote to direct review of this case, but he would not remand this case to the judge.

* 29 C.F.R. §2200.41 Failure to obey rules.
(a) Sanctions. When any party has failed to plead or otherwise proceed as provided by these rules or as required by the Commission or Judge, he may be declared to be in default either: (1) on the initiative of the Commission or Judge, after having been afforded an opportunity to show cause why he should not be declared to be in default; or (2) on the motion of a party. Thereafter, the Commission or Judge, in their discretion, may enter a decision against the defaulting party or strike any pleading or document not filed in accordance with these rules.