“Docket No. 88-1777 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 ORDERThe 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 theAdministrative Law Judge is directed for review, but only for the limited purpose ofcorrecting an error in the judge’s Order Entered Upon Secretary’s Motion for Entry ofDefault.On June 27, 1988, the Secretary issued two citations to theRespondent. Citation 1 alleged three serious violations of the Act and proposed penaltiestotaling $1800. Specifically, the Secretary proposed a penalty of $540 for the violationalleged 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. Severalmonths later, the Secretary filed her complaint. Paragraph IV of the complaint includedthe following statement:Complainant hereby withdraws Citation No. 1, Item 1, and theproposed penalty therefore (sic).With this exception, the complaint made no changes in theallegations of the two citations. Accordingly, the total penalty proposed in the complaintwas $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 andalso 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 unopposedmotion. Specifically, the judge ordered \”that the notice of contest is dismissed, thecitations are affirmed, and penalties in the total amount of $1800 are assessed.\”We hereby modify that order as follows. We treat theSecretary’s notice of withdrawal as a motion to withdraw item 1 of Citation 1 and thecorresponding proposed penalty of $540, and we grant the motion. We dismiss the notice ofcontest, affirm the three remaining citation items, and assess penalties in the totalamount of $1260, as proposed in the Secretary’s complaint.FOR THE COMMISSION RAY H.DARLING, JR.EXECUTIVE SECRETARY DATED: March 2, 1989SECRETARY 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 June24, 1988, for alleged serious (citation number 1) and nonserious (citation number 2)violations of three construction safety standards, and a recording requirement. TheSecretary 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) and34(d)(1), respondent was required to file an answer by November 27, 1988. To date, theanswer has yet to be filed.On November 8, 1988, the Secretary moved to dismiss the noticeof contest for failure to answer the complaint. Respondent has not responded to theSecretary’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 noticeof contest is granted. It is further ORDERED that the notice of contest is dismissed, thecitations are affirmed, and penalties in the total amount of $1,800 are assessed.RICHARD DeBENEDETTOJudge, OSHRCDated: January 26, 1989 Boston, Massachusetts”