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 ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).