SITKIN SMELTING & REFINING, INC. �

OSHRC Docket No. 77-3491

Occupational Safety and Health Review Commission

April 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners. �

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Richard S. Friedman, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. � � � 651-678 ("the Act"). � A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review under section 12(j) of the Act, 29 U.S.C. � � 661(i). � Judge Osterman affirmed the two citations issued to Respondent, Sitkin Smelting & Refining, Inc., as well as proposed penalties totalling $11,600. � He dismissed Respondent's notice of contest. � The judge relied on Respondent's failure to file an answer or otherwise respond to an order issued by Administrative Law Judge David H. Harris on February 21, 1978. � Judge Harris had directed Respondent to answer the Secretary of Labor's complaint within 10 days of receipt of his order or suffer default.

Neither party filed a petition for discretionary review of Judge Osterman's decision. � Pursuant to 29 C.F.R. � � 2200.91a(a), n1 Commissioner Cottine directed review of this case sua sponte on the following issues:

1. �� [*2] � Whether the Respondent's Notice of Contest should be treated as a general denial in answer to the complaint.

2. � Whether the failure to comply with a procedural rule warrants the dismissal of the Respondent's Notice of Contest.

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n1 Section 2200.91a has subsequently been redesignated section 2200.92. � See 44 Fed. Reg. 70,106, 70,111 (1979).

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Neither party has filed a brief on review. � Respondent, the party aggrieved by the judge's disposition of the issues directed for review, responded to the direction for review by filing a letter stating that Respondent has "filed for Chapter 11 relief under the Bankruptcy Laws." Respondent took the position that "all proceedings have been stayed." Respondent's letter was treated as a motion to stay Commission proceedings and, as such, was unanimously denied on August 3, 1978. � Neither party has taken further action before the Commission.

We therefore conclude that the parties, in particular Respondent as the aggrieved party, lack any interest in having this case reviewed. � We also [*3] � conclude that the case lacks compelling public interest. � Accordingly, we decline to pass upon the issues directed for review. � We affirm the judge's decision without review. � Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). � See Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD P20,508 (No. 3336, 1976). � The judge's decision is accorded the precedential value of an unreviewed judge's decision. � Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

IT IS SO ORDERED. �