Westdale, Inc.

Plain-English summary

An administrative law judge affirmed a citation against Westdale after a hearing. Westdale petitioned for Commission review, and the Commission granted review and ordered briefing. The company did not file a brief, did not state that it would decline briefing, and did not respond to a later Commission order. The Commission granted the Secretary’s motion to dismiss and vacated the direction for review, allowing the judge’s affirmed citation to become final. The release does not identify the cited standard, underlying condition, classification, or penalty.

Decision snapshot

• Cited standard(s): None identified in the release.
• Outcome: Commission review dismissed, leaving the judge’s citation affirmance as the final order.
• Key point: A party that obtains discretionary review must comply with briefing and response orders or risk losing review.

Full text (OSHRC public release)

Docket No. 83-0601

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 of December 13,
1984, and the Secretary's Motion to Dismiss Direction for Review and Briefing Order of
October 29, 1984, the Commission grants the Secretary's Motion to Dismiss and vacates the
Direction for Review.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

Dated: JAN 11 1985

SECRETARY OF LABOR, RAYMOND J. DONOVAN,

Complainant,

v.

WESTDALE, INC.,

Respondent.

OSHRC DOCKET No. 83-0601

SECRETARY'S MOTION TO DISMISS

DIRECTION FOR REVIEW AND BRIEFING ORDER

Comes now Raymond J. Donovan Secretary of Labor, United States Department of Labor
("the Secretary"), and respectfully requests that the Occupational Safety and
Health Review Commission ("the Commission") dismiss the direction for review and
briefing order in the above-captioned matter. As grounds therefor the Secretary states the
following:

1. As the result of an inspection of Westdale, Inc.'s ("Westdale") place of
   business near Flatonia, Texas on May 24, 1983 through May 31, 1983, Westdale was issued a
   citation on June 23, 1983, by the Austin, Texas Area Office of the Occupational Safety and
   Health Administration, United States 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's representative 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 before Commission Administrative
   Law Judge Louis G. LaVecchia. A post-hearing brief in letter form was filed by the
   Secretary. Westdale did not file a brief.

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 Review of the Judge's
   decision.

8. On April 12, 1984 the Commission granted Westdale's petition and directed review of the
   Judge's decision.

9. On August 3, 1984 the Commission issued a Briefing Notice. Westdale has not filed a
   brief with the Commission within the forty (40) days permitted under Commission Rule 93.
   Nor has Westdale notified the Commission or the Secretary that it did not intend to file a
   brief as specifically directed by the Commission's August 3, 1984 briefing order.[[1/]]

10. In light of Westdale's failure to respond to the briefing order, the Commission should
    dismiss the direction for review. Cf. Culberson Well Service, No. 82-1162, 1984 CCH OSHD
    � 26,873 (R.C. 1984).

Conclusion

For the above-noted reasons, the Secretary requests that the Commission vacate the
direction for review and allow the judge's order to become a final order of the
Commission.

Respectfully submitted,

FRANCIS X. LILLY

Solicitor of Labor

FRANK A. WHITE

Associate Solicitor for

Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional Trial

Litigation

MARY REVELL

Attorney

FOOTNOTES:

[[1/]] The undersigned counsel for the Secretary spoke telephonically with Westdale's
counsel, George Carlton, Jr., on two occasions, the last being October 9, 1984. Mr.
Carlton indicated that he was aware of the briefing order but had not yet responded to it.
In the conversation of October 9, 1984, Mr. Carlton also indicated that he would contact
the undersigned after consulting with the company, but to date the undersigned has
received no word from him either in writing or by telephone.