“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 ofDecember 13, 1984, and the Secretary’s Motion to Dismiss Direction forReview and Briefing Order of October 29, 1984, the Commission grants theSecretary’s Motion to Dismiss and vacates the Direction for Review.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: JAN 11 1985SECRETARY OF LABOR, RAYMOND J. DONOVAN,Complainant,v.WESTDALE, INC.,Respondent.OSHRC DOCKET No. 83-0601_SECRETARY’S MOTION TO DISMISSDIRECTION FOR REVIEW AND BRIEFING ORDER_Comes now Raymond J. Donovan Secretary of Labor, United StatesDepartment of Labor (\”the Secretary\”), and respectfully requests thatthe Occupational Safety and Health Review Commission (\”the Commission\”)dismiss the direction for review and briefing order in theabove-captioned matter. As grounds therefor the Secretary states thefollowing:1. As the result of an inspection of Westdale, Inc.’s (\”Westdale\”) placeof business near Flatonia, Texas on May 24, 1983 through May 31, 1983,Westdale was issued a citation on June 23, 1983, by the Austin, TexasArea Office of the Occupational Safety and Health Administration, UnitedStates 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’srepresentative 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 beforeCommission Administrative Law Judge Louis G. LaVecchia. A post-hearingbrief in letter form was filed by the Secretary. Westdale did not file abrief.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 Reviewof the Judge’s decision.8. On April 12, 1984 the Commission granted Westdale’s petition anddirected review of the Judge’s decision.9. On August 3, 1984 the Commission issued a Briefing Notice. Westdalehas not filed a brief with the Commission within the forty (40) dayspermitted under Commission Rule 93. Nor has Westdale notified theCommission or the Secretary that it did not intend to file a brief asspecifically directed by the Commission’s August 3, 1984 briefingorder.[[1\/]]10. In light of Westdale’s failure to respond to the briefing order, theCommission should dismiss the direction for review. Cf. Culberson WellService, No. 82-1162, 1984 CCH OSHD ? 26,873 (R.C. 1984)._Conclusion_For the above-noted reasons, the Secretary requests that the Commissionvacate the direction for review and allow the judge’s order to become afinal order of the Commission.Respectfully submitted,FRANCIS X. LILLYSolicitor of LaborFRANK A. WHITEAssociate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for Regional TrialLitigationMARY REVELLAttorney———————————————————————— FOOTNOTES:[[1\/]] The undersigned counsel for the Secretary spoke telephonicallywith Westdale’s counsel, George Carlton, Jr., on two occasions, the lastbeing October 9, 1984. Mr. Carlton indicated that he was aware of thebriefing order but had not yet responded to it. In the conversation ofOctober 9, 1984, Mr. Carlton also indicated that he would contact theundersigned after consulting with the company, but to date theundersigned has received no word from him either in writing or by telephone.”