Culberson Well Service

Plain-English summary

A judge found Culberson Well Service in serious violation of three shipyard standards and assessed a $600 penalty. The employer petitioned for review on whether the affected employees were exempt as crew members of a vessel. It then failed to file a brief or respond to the Commission's order asking whether it intended to proceed. The Commission granted the Secretary's motion to dismiss the petition and vacated the direction for review. The judge's decision therefore remained in place without Commission review of the crew-status issue.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.7(a)(1), 29 C.F.R. § 1915.12(c)(1)(ii), and 29 C.F.R. § 1915.152(b)(3)
• Outcome: Review petition dismissed and direction for review vacated; serious violations and $600 penalty left undisturbed.
• Key point: A party that seeks discretionary review must pursue it and respond to Commission orders or risk dismissal.

Full text (OSHRC public release)

Docket No. 82-1166

SECRETARY OF LABOR,

Complainant,

v.

CULBERSON WELL SERVICE,

Respondent.

OSHRC DOCKET NO. 82-1166

ORDER

In light of Respondent's failure to respond to the Commission's Order of
February 13, 1984, and the Secretary's Motion to Dismiss Respondent's Petition for
Discretionary Review of March 9, 1984, the Commission grants the Secretary's Motion to
Dismiss Respondent's Petition for Review and vacates the Direction for Review.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

Dated:  APR 24 1984

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

Complainant,

v.

CULBERSON WELL SERVICE,

Respondent.

OSHRC DOCKET

NO. 82-1166

SECRETARY'S MOTION TO DISMISS RESPONDENT'S

PETITION FOR DISCRETIONARY REVIEW

Raymond J. Donovan, Secretary of Labor, respectfully moves that the
Commission dismiss respondent's petition for discretionary review in the instant case and
affirm the judges decision.

In support of this motion, the Secretary states:

1.  On June 20, 1983, Commission Administrative Law Judge Dee C. Blythe
issued his decision in this matter.  He found respondent in serious violation of
section 5(a)(2) of the Act and the standards at 29 CFR �� 1915.7(a)(1),
1915.12(c)(1)(ii), and 1915.152(b)(3).  A penalty of $600 was assessed.  The
judge specifically found that the employees at issue in this case were not "crew of
the vessel" as that phrase is used in � 1915.4(d) and accordingly such employees
were not exempt from coverage under the Secretary's regulations.

2.  On August 11, 1983, respondent filed a petition for discretionary review with the
Commission.  On August 15, 1983, Chairman Robert A. Rowland directed review of the
following issue:

Whether the judge erred in concluding that the employees at issue in this
case are not members of the crew of a vessel, as those terms are used in 29 CFR �
1915.4(d).

3.  On October 21, 1983, the Commission issued a briefing notice to the
parties.  According to Commission Rule 93, respondent was required to file its brief
on November 30, 1983.

4.  Respondent did not file a brief on November 30, 1983.

5.  On December 20, 1983 the Secretary moved that the Commission allow a
postponement in the filing of the Secretary's brief on the grounds that respondent's
initial brief had not yet been filed.  The Secretary requested that the time for
filing his brief be postponed until respondent filed its brief or until the Commission
directed otherwise.

6.  By order dated February 13, 1984, the Commission ordered respondent
to file a response with the Commission within 20 days advising the Commission whether it
intends to file a brief, and, if so, why a late filed brief should be accepted.  This
order advised respondent that failure to respond could result in dismissal of the case.
 The 20 days expired on March 5, 1984, with no response or brief having been filed by
respondent.

7.  In light of respondent's complete silence, the Commission should conclude that
respondent lacks any continued interest in this case.  In over four months since the
Commission issued its briefing order, respondent has done nothing to further pursue the
case or even apprise the Commission of its intent.  Having invoked the Commission's
jurisdiction with the filing of its petition for discretionary review, it is
incumbent upon respondent to pursue its claim in an expeditious fashion as directed by the
Commission. Because of respondent's evident lack of interest in this matter the Commission
should dismiss the petition.

WHEREFORE, the Secretary respectfully requests that the Commission dismiss
respondent's petition for discretionary review and affirm, without review, the judges
decision below. 

Respectfully submitted,

FRANCIS X. LILLY

Deputy Solicitor of Labor

FRANK A. WHITE

Associate Solicitor for Occupational Safety and Health

DANIEL J. Mick

Counsel for Regional Trial Litigation

LINTON W. HENGERER

Attorney

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).