SECRETARY OF LABOR,
Complainant,

v.

Brand Scaffold Services, Inc., Respondent.

OSHRC Docket No. 88-2768

ORDER

The Commission construes the Respondent's letter as a motion to withdraw the Respondent's Petition for Discretionary Review and to vacate the Direction for Review and grants the motion. Accordingly, Administrative Law Judge Sparks' decision dismissing the Respondent's Notice of Contest and affirming the serious citation becomes the final order of the Commission.

FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary

Dated: March 16, 1989

SECRETARY OF LABOR,
Complainant,

v.

BRAND SCAFFOLD SERVICES, INC.,
Respondent.

OSHRC Docket No. 88-2768

ORDER DISMISSING

NOTICE OF CONTEST

On December 12, 1988, complainant served upon Ron Fowler, President, Brand Scaffold Services, Inc., a motion to dismiss the employer's notice of contest on the ground that it was not timely filed.

In an affidavit, Arnis Andersons, Area Director, Toledo Area Office, Occupational Safety and Health Administration, stated that the citation was issued June 1, 1988. A return receipt for certified mail reflects that the citation was received June 6, 1988. A notice of contest dated September 27, 1988, was received September 29, 1988. No notice of contest was received within 15 working days.

No response to the motion to dismiss has been received from Brand Scaffold Services, Inc.

Section 10(a) of the Act provides that if no notice of contest is received within 15 working days, the citation becomes a final order. It states as follows:
If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

See the decisions of the Review Commission in Louisiana-Pacific Corporation, __ OSAHRC __, __ BNA OSHC __, __ CCH OSHD (P) ____ (Docket No. 86-1266, January 27, 1989); Roy Kay, Inc., __ OSAHRC __, __ BNA OSHC __, __ CCH OSHD (P) __ (Docket No. 88-1748, January 27, 1989).

Accordingly, it is ORDERED:

1. Respondent's notice of contest is dismissed.

2. The citation is affirmed.

Dated this 3rd day of February, 1989.

JOE D. SPARKS
Judge