“SECRETARY OF LABOR,Complainant,v.CLEVELAND MARBLE MOSAIC COMPANY,Respondent.OSHRC DOCKET NO. 88-1777Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:_JOINT DIRECTION FOR REVIEW AND COMMISSION ORDER_The Respondent has filed a Petition for Discretionary Review. Pursuantto 29 U.S.C. ? 661(j) and 29 C.F.R. ? 2200.92(a), the report of theAdministrative Law Judge is directed for review, but only for thelimited purpose of correcting an error in the judge’s Order Entered UponSecretary’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 proposedpenalties totaling $1800. Specifically, the Secretary proposed a penaltyof $540 for the violation alleged in item 1 and penalties of $630 eachfor the violations alleged in items 2 and 3. No penalty was proposed forthe single, nonserious violation alleged in Citation 2.The Respondent contested all of the alleged violations and proposedpenalties. 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 proposedpenalty therefore (sic).With this exception, the complaint made no changes in the allegations ofthe two citations. Accordingly, the total penalty proposed in thecomplaint was $1260–that is, $630 each for the violations alleged initems 2 and 3 of Citation 1.The Respondent failed to answer the Secretary’s complaint and alsofailed to respond to the Secretary’s motion for a default judgment under29 C.F.R. ? 2200.41(a). The judge therefore entered his order grantingthe Secretary’s unopposed motion. Specifically, the judge ordered \”thatthe notice of contest is dismissed, the citations are affirmed, andpenalties in the total amount of $1800 are assessed.\”We hereby modify that order as follows. We treat the Secretary’s noticeof withdrawal as a motion to withdraw item 1 of Citation 1 and thecorresponding proposed penalty of $540, and we grant the motion. Wedismiss the notice of contest, affirm the three remaining citationitems, and assess penalties in the total amount of $1260, as proposed inthe Secretary’s complaint.FOR THE COMMISSIONRAY H.DARLING, JR.EXECUTIVE SECRETARYDATED: March 2, 1989————————————————————————SECRETARY OF LABOR,Complainantv.CLEVELAND MARBLE MOSAIC COMPANYRespondentOSHRC Docket No. 88-1777ORDER ENTERED UPON SECRETARY’S MOTION FOR ENTRY OF DEFAULTRespondent, Cleveland Marble Mosaic Company, was cited on June 24, 1988,for alleged serious (citation number 1) and nonserious (citation number2) violations of three construction safety standards, and a recordingrequirement. The Secretary proposed that penalties be assessed forcitation number 1 in the total amount of $1,800. Respondent contestedthe matters.The Secretary served and filed a complaint on October 24, 1988. UnderCommission 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 ofcontest for failure to answer the complaint. Respondent has notresponded to the Secretary’s motion to dismiss. Accordingly, pursuant toCommission Rule 41(a), 29 C.F.R. ? 2200.41(a), it is ORDERED that theSecretary’s unopposed motion to dismiss the notice of contest isgranted. It is further ORDERED that the notice of contest is dismissed,the citations are affirmed, and penalties in the total amount of $1,800are assessed.RICHARD DeBENEDETTOJudge, OSHRCDated: January 26, 1989Boston, Massachusetts”