United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104 

Secretary of Labor,

 Complainant

 v. OSHRC Docket No. 17-0980

Masis Multi Services, Inc.,

 Respondent.

DECISION AND ORDER OF DEFAULT

This matter is before the Occupational Safety and Health Review Commission on a 

timely Notice of Contest filed by Respondent, Masis Multi Services, Inc. (Masis), May 23, 2017, 

relating to the issuance of a Citation and Notification of Penalty on March 27, 2017, from 

Inspection No. 1216944. For the reasons that follow, Masis is declared in DEFAULT, its Notice 

of Contest is DISMISSED, and the citation issued to Respondent on March 27, 2017, pursuant 

to Inspection No. 1216944 is AFFIRMED in its entirety and penalties ASSESSED. 

Background 

This proceeding is before the Occupational Safety and Health Review Commission 

pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 (the 

Act). On March 9, 2017, a Compliance Safety and Health Officer from the Fort Lauderdale Area 

Office of the Occupational Safety and Health Administration (OSHA) conducted Inspection No. 

1216944 at a Masis worksite at 4854 N.W. 55th Place, Tamarac, Florida. Following the 

inspection, the Secretary issued a Citation and Notification of Penalty on March 27, 2017, 

alleging a serious violation of 29 C.F.R. § 1926.453(b)(2)(v). The Secretary proposed a total 

penalty of $3,622.00 for the Citation.

The Secretary mailed the Citation to Masis at the company’s address at 1010 10th Avenue 

North #1, Lake Worth, Florida, 33460. Upon receipt of the Citation, Masis filed a timely Notice 

of Contest. The Fort Lauderdale OSHA Office received the Notice of Contest May 23, 2017. 

The Commission docketed the matter June 5, 2017. Chief Judge Covette Rooney designated the 

matter for the Commission’s Simplified Proceedings and assigned it to me by Order of June 16, 

2017. 
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On June 27, 2017, I issued a Scheduling Order. Commission Rule 207 requires the judge 

to hold a prehearing conference in matters designated for Simplified Proceedings. The June 27, 

2017, Scheduling Order set the prehearing conference, to be conducted telephonically, for 

August 28, 2017, at 11:00 a.m. (E.S.T.), and provided the information necessary to call into the 

Commission’s conference line. Counsel for the Secretary appeared at the prehearing conference. 

No representative for Masis appeared. 

On September 8, 2017, this office received a Motion to Continue Hearing from the 

Secretary. In it, the Secretary represented, despite counsel’s best efforts, she had no contact with

a Masis representative. On September 15, 2017, I granted the Secretary’s Motion and 

rescheduled the hearing to commence on November 14, 2017. I further ordered a second

prehearing telephone conference to be held on November 3, 2017, at 11:00 a.m. (E.S.T.). This 

order was sent to the address at which Masis received the Citation and on its Notice of Contest. 

It was not returned to this office as undeliverable. Despite being on notice of the scheduled 

prehearing telephone conference, Masis again failed to appear. 

On November 3, 2017, I issued an Order to Show Cause to Masis. That order was sent 

via certified mail to the address on Masis’s Notice of Contest and listed with the Florida 

Secretary of State for the company. On December 13, 2017, this order was returned to this office 

indicating Masis had failed to claim it.

To ensure Masis was in receipt of this order and was given the opportunity to comply 

with Commission rules and orders, I issued a Second Order to Show Cause December 28, 2017. 

This Second Order to Show Cause was sent via first class and certified mail. Masis again failed 

to claim the certified mail. The order sent via first class mail was not returned as undeliverable. 

As of today’s date, this office has not received any response from Masis.

Discussion

Commission Rule 64(a) provides: “The failure of a party to appear at a hearing may 

result in a decision against the party.” Under Commission Rule 101(a), a judge may declare a 

party in default for failure to “proceed as provided by [Commission] rules or as required by the 

Commission or Judge,” after having been afforded an opportunity to show cause why he should 

not be declared in default. The Commission “follows the policy in law that favors deciding cases 

on their merits.” DHL Express, Inc., 21 BNA OSCH 2179, 2180 (No. 07-0478, 2007). 

However, the Commission has limited resources and a “strong interest in preserving the integrity 
3

of its orders as well as deterring future misconduct.” Carson Concrete Corp. and Carco Constr. 

Corp., 21 BNA OSHC 1206 (No. 03-2229, 2005); Trinity Indus., Inc., 15 BNA OSHC 1579, 

1583 (No. 88-1545, 1991) (consolidated) (citing Pittsburgh Forgings Co., 10 BNA OSHC 1512, 

1514 (No. 78-1361, 1982)). Thus, Rule 101(a) permits the harsh sanction of dismissal of a 

Notice of Contest where a party has displayed a “pattern of disregard” of Commission 

proceedings. Philadelphia Constr. Equip., Inc., 16 BNA SOHC 1128, 1131 (No. 92-899, 1993); 

Architectural Glass & Metal Co., 19 BNA OSHC 1546, 1547 (No. 00-0389, 2001). 

Masis’s conduct displays a pattern of disregard of Commission proceedings. All orders 

throughout this proceeding were sent to Masis at the address provided by Masis and listed with 

the Florida Secretary of State for it. Orders sent from this office via first class mail, including 

both Scheduling Orders and the Second Order to Show Cause, were not returned as 

undeliverable. In Crude Oil Corp. v. Commissioner, 161 F.2d 809 (10th Cir.1947), the Court 

stated that “[w]hen mail matter is properly addressed and deposited in the United States mail, 

with postage duly prepaid thereon, there is a rebuttable presumption of fact that it was received 

by the addressee in the ordinary course of mail.” Id. at 810. See also Arkansas Motor Coaches, 

Ltd., Inc. v. C.I.R., 198 F.2d 189, 191 (8th Cir. 1952); Central Paper Co. v. C.I.R., 199 F. 902, 

904 (6th Cir. 1952); Legille v. Dann, 544 F.2d 1 (D.C. Cir. 1976). Having received the notices 

regarding its obligations to appear for a prehearing conference, Masis has failed or refused to do 

so. Masis received notice of the prehearing date, time, and call-in information, but chose not to 

appear. When this office and the counsel for the Secretary repeatedly attempted to reach out to 

Masis to afford it the opportunity to show cause why it failed to appear, Masis failed to respond.

1

Masis has failed to take advantage of the opportunity to advise the Court or opposing 

counsel it has not abandoned its case before the Commission. Every indication is that Masis has 

walked away from its contest. Under these circumstances, I see no worthwhile purpose in 

allowing this case to proceed to a hearing when there is no basis to believe that Masis will fulfill 

its pre-trial obligations or appear at the trial. See Twin Pines Constr. Inc./Teles Constr., 24 BNA 

OSHC 1500, 1504 (No. 12-1328, 2012) (No worthwhile purpose in proceeding to a hearing 

where a party has abandoned the case). 

 

1 Also assigned to me is Docket No. 17-1073, in which Masis filed an untimely notice of contest to a citation issued 

April 4, 2017. Masis has also failed to respond all pleadings in that matter, including an Order to Show Cause. 
4

By its inaction, Masis has displayed disregard for Commission proceedings. Its conduct 

has been prejudicial to the administration of justice and to the Secretary’s enforcement 

responsibility under the Act, and cannot be permitted to continue. Dismissal of Masis’s Notice 

of Contest is necessary and appropriate to remedy its continuing prejudicial conduct.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that Respondent is declared in DEFAULT and its Notice of Contest is DISMISSED. The 

citation issued to Respondent on March 27, 2017, pursuant to Inspection No. 1216944 is 

AFFIRMED in its entirety and penalties ASSESSED. 

SO ORDERED. 

 /s/ 

 

Date: February 7, 2018 Judge Heather A. Joys

 1924 Building, Suite 2R90

 100 Alabama Street, S.W.

 Atlanta, Georgia 30303-3104 

 Phone: (404) 562-1640 Fax: (404) 562-1650