Masis Multi Services, Inc. (ALJ decision, March 19, 2018)

Plain-English summary

Masis Multi Services timely contested a serious OSHA citation carrying a proposed $3,622 penalty. The company then failed to appear for two scheduled prehearing conferences and did not respond to repeated communications or two orders to show cause. The judge found that Masis displayed a pattern of disregard for Commission proceedings and appeared to have abandoned its contest. Masis was declared in default, its notice of contest was dismissed, and the citation and penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.453(b)(2)(v)
• Outcome: Respondent declared in default; notice of contest dismissed and $3,622 citation affirmed.
• Key point: Repeated failure to participate or respond to show-cause orders can justify default and dismissal of an otherwise timely contest.

Full text (OSHRC public release)



Masis Multi Services, Inc., Docket No. 17-0980

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 t he 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 I nspection N o. 1216944 at a Masis worksite at 4854 N.W. 55 th Place, Tamarac, Florida . Following the insp ection, the Secretary i ssued 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 m ailed the C itation to
Masis
at the company’s address at
1010 10 th
Avenue North #1, Lake Worth, Florida ,
33460 . Upon receipt of the Citation, Masis filed a timely N otice of C ontest . The Fort Lauderdale OSHA Office received the N otice of C ontest May 23, 2017 . The Commission docketed the matter June 5, 2017 . Chief Judge Covette Rooney designated the matter for the Commission’s S implified P roceedings and assigned it to me by O rder of June 16, 2017 .

On
June 27, 2017 , I issued a
S cheduling
O rder. Commission Rule 207 requires the judge to hold a prehearing conference in matter s designated for S implified P roceedings. The June 27, 2017 , S cheduling O rder set the prehearing conference, to be conducted te lephonically, 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 wa s 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 conferen ce, Masis again failed to appear .

On November 3, 2017, I issued an Order to
Show C ause
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, th is 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
S econd
O rder to
S how
C ause 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 r eceived 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 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 N otice of C ontest 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 S cheduling O rders 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 pre hearing 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).

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 N otice of C ontest 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

"

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.