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

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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.