Continental Roof Systems, Inc.

Plain-English summary

OSHA cited Continental Roof Systems for sixteen alleged roofing, scaffold, fall-protection, equipment, training, and recordkeeping violations, with $139,600 in proposed penalties. The ALJ dismissed the case as moot after Continental went out of business and had no employees. The Commission had since overruled the precedent supporting that dismissal. Because OSHA still sought penalties and Continental continued to contest them, the Commission reversed the dismissal and remanded the case for further proceedings.

Decision snapshot

• Cited standard(s): Multiple standards addressing personal protective equipment, LPG storage, machinery guarding, scaffolds, fall protection, access, ladders, injury records, and training certification.
• Outcome: The jurisdictional dismissal was reversed, and the citation case was remanded to the ALJ.
• Key point: Going out of business does not moot an OSHA enforcement case while proposed penalties remain contested.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 95-1716
CONTINENTAL ROOF SYSTEMS, INC. ,
Respondent.

                            DECISION AND ORDER

Before: WEISBERG, Chairman; GUTTMAN, Commissioner.
BY THE COMMISSION:
At issue is whether Administrative Law Judge John H. Frye, III erred in dismissing
this case on jurisdictional grounds. Judge Frye dismissed this case under the then controlling
precedent established by the Commission’s decision (Chairman Weisberg, dissenting) in
Jacksonville Shipyards, Inc., 16 BNA OSHC 2053, 1993-95 CCH OSHD ¶ 30,539 (No. 94-
0888, 1994), rev’d, 102 F.3d 1200 (11th Cir. 1997)(“Jacksonville”). The Commission’s
decision in Jacksonville was reversed by the Eleventh Circuit. Thereafter, the Commission
held that it decided Jacksonville wrongly and overruled the decision. Kenny Niles, d/b/a
Kenny Niles Constr. & Trucking Co.,17 BNA OSHC 1940, 1997 CCH OSHD ¶ 31,300 (No.
94-1406, 1997)(“Kenny Niles”). For the reasons discussed below, we reverse the judge and
remand this case for further proceedings.
Continental Roof Systems, Inc., (“Continental”), a roofing contractor, was retained
by the National Park Service to repair the roof and chimneys of Franklin D. Roosevelt’s
home in Hyde Park, New York. The Occupational Safety and Health Administration
(“OSHA”) inspected Continental’s worksite and on October 23, 1995 issued three citations
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for sixteen alleged violations.1 The Secretary proposed a total penalty of $139,600.
Continental contested all the citations and proposed penalties.
During the hearing, Mark Nejmeh, Continental’s president and sole stockholder,
testified that by the end of 1995,2 Continental was out of business, had no employees, and
did not contemplate the resumption of business. In his decision, the judge found that “[t]he
facts presented here are on all fours with the Commission’s holding” in Jacksonville, which
held that an administrative enforcement proceeding under the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-78 (“the Act”), is rendered moot “where the employer
has effectively corrected the alleged violations by terminating its employees and where there
is no reasonable likelihood that the employer will resume the employment relationship.” 16
BNA OSHC at 2055, 1993-95 CCH OSHD at p. 42,229. The judge dismissed the case,
concluding that the proceeding was moot and that, as a consequence, he lacked jurisdiction
to decide the questions raised by the Secretary’s complaint.

1
The citation alleged serious violations of 29 C.F.R. § 1926.95(a) (failure of employees to
wear personal protective equipment); § 1926.153(k)(2) (LPG cylinders stored in the open);
§ 1926.307(c)(2)(i) (failure to guard power transmission shaft); § 1926.451(a)(3) (failure to
have persons competent in scaffold erection erect and use scaffolds); § 1926.451(d)(4) and
(a)(2) (failure to use adequate foundation for scaffold); § 1926.451(y)(3) (failure to fully
deck or secure platform bracket); § 1926.451(y)(9) (failure to provide access ladder on
scaffold); § 1926.501(b)(1) (failure to use fall protection); § 1926.501(b)(6) (failure to install
guardrail on elevated walkway); § 1926.501(b)(10) (failure of employees to use fall
protection); § 1926.1051(a) (failure to provide safe means of traversing distance); and
§ 1926.1053(b)(1) (failure to provide adequate side rails for portable ladders). The citation
alleged willful violations of 29 C.F.R. § 1926.451(d)(7) (failure to secure scaffold to
building); § 1926.451(d)(10) (failure to install guardrails and toeboards); and
§§ 1926.451(y)(11) and (a)(4) (failure to install guardrails). The citation alleged other-than-
serious violations of 29 C.F.R. § 1904.2(a) (failure to enter number of lost workdays on log
of occupational injuries and illnesses); and § 1926.503(b)(1) (failure to prepare a written
certification record for employee training).
2
Nejmeh testified that “December 31st is when I got my last paycheck.”
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   In Kenny Niles, the Commission overruled its decision in Jacksonville. The

Commission found that “it is error to dismiss a case on the ground that it is ‘moot’” if “the
Secretary continues to seek the assessment of penalties, and the employer continues to
defend against them.” 17 BNA OSHC at 1945, 1997 CCH OSHD at pp. 44,000-01. Under
this test, it is clear that the action pending against Continental is not moot.
Order
For the reasons discussed above, we reverse Judge Frye’s decision below and remand
this case to him for further proceedings consistent with this decision.

                                                       /s/
                                                       Stuart E. Weisberg
                                                       Chairman



                                                       /s/
                                                       Daniel Guttman

Dated: June 12, 1997 Commissioner