Joel Yandell, d/b/a Triple L Tower

Plain-English summary

Joel Yandell operated a tower-erection business whose three employees died in a fall while being lowered from a communications tower. He stopped operating the business after the incident, before OSHA issued willful and serious citations. An administrative law judge dismissed the case under prior Commission precedent because Yandell no longer had employees when cited. The Commission overruled that precedent and held that employer status is measured when the alleged violation occurred, not when the citation was issued. It reasoned that citations and penalties still serve deterrence and prospective compliance if a former employer later resumes business. The Commission reinstated the citations and proposed penalties and remanded the case for proceedings on the merits.

Decision snapshot

• Cited standard(s): The underlying citation standards are not identified in the Commission decision.
• Outcome: Dismissal reversed, citations reinstated, and case remanded for proceedings on the merits.
• Key point: OSHA may cite an individual or entity that was an employer when the alleged violation occurred even if it ceased business and had no employees before citation issuance.

Full text (OSHRC public release)

SECRETARY OF LABOR,
              Complainant,
                    v.                           OSHRC Docket No. 94-3080
JOEL YANDELL, d/b/a TRIPLE L
TOWER,
              Respondent.



                                     DECISION

Before: WEISBERG, Chairman; and ROGERS, Commissioner.
BY THE COMMISSION:
The Commission is once again presented with the question of whether the Secretary
of Labor has statutory jurisdiction to issue a citation alleging violations of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the Act”), to an individual who has
gone out of business following the alleged violations and has no employees at the time the
citation is issued.1 In Ralph Taynton, d/b/a Service Specialty Co., 17 BNA OSHC 1205,
1208, 1993-95 CCH OSHD ¶ 30,766, p. 42,760 (No. 92-0498, 1995), appeal withdrawn,
No. 95-4788 (11th Cir. Nov. 9, 1995)(“Taynton”), a divided Commission (Chairman
Weisberg, dissenting) vacated a citation issued to such an individual “on the ground that the
Secretary had no jurisdiction to issue it.” In his decision in the instant case, Commission
Administrative Law Judge Benjamin R. Loye relied on Taynton as controlling authority in
granting a pre-hearing dismissal motion filed by the Respondent, Joel Yandell, doing

1
The issue is also pending before us in Kenny Niles Constr. Co., OSHRC Docket No. 95-
1539, which we also decide on this day.
 2

business as Triple L Tower (“Yandell”).2 For the reasons that follow, we reexamine and
overrule Taynton, reinstate the citations issued to Yandell, and remand this case to Judge
Loye for proceedings on the merits of the contested citation items and proposed penalties.
I. Facts Pertaining to Statutory Jurisdiction3
On March 11, 1994, all three of Yandell’s employees were killed while they and
Yandell were engaged in erecting a cellular communications tower. Just prior to the accident,
Yandell had been operating a base-mounted drum hoist to lower the three employees from
an elevated position on the tower, where they had been working. The hoist was not designed
for personnel lifting, but the employees used it for that purpose by riding the “load block
(ball)” while connecting their safety belts to a choker sling attached to the ball. The hoist was
not equipped with a positive locking device. Indeed, the only safety mechanism on the hoist
was a manual hand brake, which was not designed to hold a load.Yandell lowered the
employees by using the hand brake while the hoist drum was in a free fall mode, with
gearshaft disengaged. At the time the hoist failed, causing the three employees to fall
“between 150 to 400 feet to their deaths,” Yandell was not at the controls and the load block

2
The judge also relied on Jacksonville Shipyards, Inc., 16 BNA OSHC 2053, 1993-95 CCH
OSHD ¶ 30,539 (No. 92-0888, 1994), rev’d, 102 F.3d 1200 (11th Cir. 1997), a case in which
the Commission dismissed, on the ground of mootness, an enforcement action against an
employer that had ceased doing business. However, Jacksonville is no longer controlling
authority. Following the reversal of the Commission’s decision by the Eleventh Circuit, the
Commission itself overruled Jacksonville in Kenny Niles d/b/a Kenny Niles Constr. &
Trucking Co., 17 BNA OSHC 1940, 1995-97 CCH OSHD ¶ 31,300 (No. 94-1406, 1997).
3
The “facts” as set forth herein are derived primarily from the Secretary’s complaint and the
OSHA citations that were incorporated into that complaint. Yandell has denied these “facts”
in its answer. However, as the party opposing a pre-hearing motion to dismiss, the Secretary
is entitled to have the motion decided based on the assumption that the allegations of her
complaint are true. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
2513 (1986); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515-16,
92 S. Ct. 609, 614 (1972). We also rely on affidavits executed by Joel Yandell and by the
OSHA compliance officer who investigated the workplace accident that led to this
proceeding. These affidavits were filed in support of and opposition to the dismissal motion.
 3

was suspended, presumably held in place only by the hand brake. Following the accident,
Joel Yandell “immediately stopped operating as a tower erecting company.” As of December
19, 1995, the day on which he executed an affidavit in support of his motion to dismiss, his
sole proprietorship (Triple L Tower Company) had not engaged in business or had
employees since the day of the accident.
Following an inspection and investigation that began two days after the accident,
OSHA issued Yandell two citations on September 8, 1994: a citation for willful violations
containing three items, and a citation for serious violations containing four items (including
one item that alleged violations of six separate sections of an incorporated American
National Standards Institute (ANSI) code for derricks). Penalties totaling $238,000 were
proposed. All of the alleged willful violations and two of the items alleging serious violations
were based on Yandell’s use of the base-mounted drum hoist as a personnel hoist.
Under the reasoning of the Taynton decision, Judge Loye was required to vacate both
of the contested citations on the ground that, following the accident in which all of its
employees were killed, Yandell was no longer an “employer” as defined at section 3(5) of
the Act and therefore the Secretary had no authority to issue a citation to Yandell under
section 9(a) of the Act. See 17 BNA OSHC at 1206, 1993-95 CCH OSHD at pp. 42,757-58.
II. Taynton Re-examined
In Taynton, the Commission majority determined that the Act’s remedial purposes
would not be served by allowing OSHA to initiate an enforcement action against an
employer such as Yandell because it has ceased doing business. The Commission reasoned,
as follows:
...[P]enalties are intended to coerce the rapid abatement of violations and encourage
prospective compliance, not to punish an employer for misconduct.... That a business
has ceased to exist most certainly removes the presence of any hazards. Moreover,
that employees will never again be exposed by the same employer to the hazard at
issue here eliminates the need for prospective compliance.
 4

17 BNA OSHC at 1206 n.3, 1993-95 CCH OSHD at pp. 42,757-58 n.3.4
Since Taynton, however, the U.S. Court of Appeals for the Eleventh Circuit has
reversed a similar and related Commission holding, i.e., that the post-citation cessation of
an employer’s business renders the civil penalty action moot. Reich v. OSHRC (Jacksonville
Shipyards, Inc.), 102 F.3d 1200 (11th Cir. 1997). See supra note 2. In concluding that the
Act’s purposes would be served by removing the blanket prohibition, announced by the
Commission in its decision in Jacksonville, against penalties in such cases, the court
reasoned as follows:
...[W]e think our decision is consistent with the policies that OSHA was enacted to
advance.... Because of the large number of workplaces which OSHA must regulate,
relying solely on workplace inspections is an impractical means of enforcement. We
accept that OSHA must rely on the threat of money penalties to compel compliance
by employers....

          To let the cessation of business by an employer render a civil penalty
   proceeding moot might greatly diminish the effectiveness of money penalties as a
   deterrence.... We worry about creating an economic incentive to avoid a penalty by
   going out of business and, perhaps, then reincorporating under a different name.

          More importantly, employers who were going out of business for ordinary
   commercial reasons would have little incentive to comply with safety regulations to
   the end if monetary penalties could be evaded once the business quit altogether. As
   long as a business operates, it should feel itself to be effectively under the applicable
   laws and regulations -- even on the last day. And, the continuing potential of penalties
   -- more so than injunctive relief -- makes these feelings real.

102 F.3d at 1203.

4
It is clear from the passage quoted above (“penalties are intended, etc.) that the Taynton
majority confused the availability or advisability of a particular remedy (the assessment of
penalties) with the existence of statutory jurisdiction to initiate an enforcement action under
section 9(a) of the Act. Without deciding the issue here, we note that the cessation of
business activity may be a circumstance that warrants a reduction in the Secretary’s proposed
penalties. It does not follow, however, from the fact that penalties may be inappropriate that
the Secretary therefore lacks jurisdiction to issue a citation.
 5

   We recognize that the mootness issue that was before the Eleventh Circuit in

Jacksonville is different from the issue of statutory jurisdiction that is before us in this case.5
Nevertheless, we conclude that the Eleventh Circuit’s analysis of the role of civil penalties
in achieving the Act’s objectives is fully applicable in this context. We further conclude that
that court’s reasoning is in direct conflict with the reasoning of the Commission in Taynton.6
As the Secretary argues in her review brief, “[g]eneral deterrence, which aims to dissuade
all persons from violating the law, ‘is the foremost and overriding goal of all laws, both civil
and criminal.’ ” Citing and quoting Bae v. Shalala, 44 F.3d 489, 494 (7th Cir. 1995). Yet,
as the Eleventh Circuit correctly reasoned in Jacksonville, the blanket immunization of
employers who cease operations after allegedly violating the OSH Act, from citations and

5
Jacksonville dealt with an employer that was engaged in a business affecting commerce and
that had employees at the time it was cited by OSHA, but that went out of business while its
contest of the citations was still pending before a Commission judge. In contrast, both this
case and Taynton involved individuals who were operating sole proprietorships actively
engaged in business at the time of the alleged violations, but who ceased doing business
prior to the issuance of the contested citations.
6
The Secretary argues that we should re-examine the Taynton decision in this case because
that decision is contrary to “directly relevant” Federal court precedent “and to the purpose
and policy of the OSH Act.” We agree that reconsideration of the statutory jurisdiction issue
common to these two cases is warranted. In “strongly dissent[ing]” from the Commission’s
holding in Taynton, Chairman Weisberg argued that “[t]he practical effect” of that holding
would be “that OSHA does not have jurisdiction to cite, the Commission does not have
jurisdiction to hear, and the Justice Department does not have jurisdiction to prosecute a case
involving an employer who engages even in the most flagrant safety and health violations if
... that company’s work force perishes as a result of those violations ....” 17 BNA OSHC at
1208, 1993-95 CCH OSHD at p. 42,760. If the contested allegations of the Secretary’s
citations are in fact true, see supra note 3, then we would be forced to conclude that the case
that was merely hypothesized by the Chairman four years ago is now actually before us for
a ruling. Thus, this case arises, according to the undisputed affidavit of the OSHA
compliance officer, from a single, catastrophic workplace accident that resulted in the deaths
of Yandell’s entire work force. Moreover, the accident itself, according to the allegations of
the Secretary’s citations, was the result of Yandell’s willful and serious violations of several
occupational safety and health standards.
 6

penalties under the Act, could “greatly diminish the effectiveness of money penalties as a
deterrence” and could “creat[e] an economic incentive to avoid a penalty by going out of
business and, perhaps, then reincorporating under a different name.” 102 F.3d at 1203.7
We realize, of course, that most employers would not and probably could not go out
of business merely to avoid OSHA citations and that this issue is therefore unlikely to arise
often. However, it is precisely in those cases where an employer changes its status, even in
part, to avoid the consequences of violating the OSH Act, that the policies of the Act militate
against the interpretation of section 9(a) that was adopted in Taynton. Moreover, while the
majority in Taynton found that the Secretary’s policy argument was less than compelling

7
Hudson v. U.S., 118 S.Ct. 488 (1997), and S.A. Healy Co. v. OSHRC, 138 F.3d 686 (7th Cir.
1998), also cast doubt on the correctness and continuing vitality of Taynton’s assertion, see
supra, that only remedial objectives are properly served by assessing civil penalties under
the OSH Act. In Taynton, the Commission essentially drew a sharp line of distinction
between “civil” penalties, which are “remedial” because they serve the goals of abatement
and prospective compliance, and “criminal” penalties, which are “punitive” because they
serve the goals of retribution and deterrence. This reasoning closely paralleled the approach
taken in U.S. v. Halper, 490 U.S. 435, 109 S. Ct. 1892 (1989), to the resolution of issues
under the Double Jeopardy Clause of the Fifth Amendment. See Hudson, 118 S.Ct. at 494,
citing Halper, 490 U.S. at 448, 109 S. Ct. at 1902 (“As the Halper Court saw it, the
imposition of ‘punishment’ of any kind was subject to double jeopardy constraints, and
whether a sanction constituted ‘punishment’ depended primarily on whether it served the
traditional ‘goals of punishment,’ namely ‘retribution and deterrence.’”). In Hudson,
however, the Supreme Court expressly repudiated its earlier decision in Halper, holding that
“the Halper Court [had erred because it] bypassed the threshold question” of whether
Congress had designated the sanction in question as “civil” or “criminal.” 118 S.Ct. at 494.
Hudson also criticized Halper for concluding that a sanction should be deemed “criminal,”
notwithstanding its Congressional designation as a “civil” sanction, simply because the
penalty amount “appeared excessive in relation to its nonpunitive purposes.” Id. In S.A.
Healey, the Seventh Circuit reversed an earlier decision in the same case, which had
followed Halper, and consistent with Hudson’s “respect for the legislative designation,” 138
F.3d at 688, held that instance-by-instance penalties assessed under section 17(a) of the OSH
Act, 29 U.S.C. § 660(a), were indeed “civil” penalties, notwithstanding the employer’s claim
that they were so disproportionate to the cited violations as to constitute “punishment.” Thus,
penalties can be permissible civil penalties under the OSH Act even though they also serve
the goal of deterrence.
 7

because that case was “the first time in the Act’s history” that the issue had been presented,
see 17 BNA OSHC at 1208, 1993-95 CCH OSHD at p. 42,759, we note that two cases (this
case and Kenny Niles, see supra note 1) arose within months of the Taynton decision raising
precisely the same issue. Although we enter no finding of bad faith in either of these cases,
we must conclude that their appearance so soon after Taynton certainly indicates that the
Taynton decision has a potential for mischief that the majority in Taynton underestimated.
“While the Commission normally considers itself bound to follow its own precedent,
it has not hesitated to overrule that precedent when further deliberations have led it to
conclude that an earlier case was wrongly decided ....” Kenny Niles, d/b/a Kenny Niles
Constr. & Trucking Co., note 2 supra, 17 BNA OSHC at 1941, 1995-97 CCH OSHD at p.
43,997. For the reasons stated above and below, we conclude that Taynton was wrongly
decided. We therefore overrule Taynton and hold that the Secretary has the authority under
section 9(a) of the Act to issue a citation to an individual or entity that was an “employer”
at the time it allegedly violated the Act, even if it is no longer engaged in business and no
longer has employees at the time the citation is issued. In other words, we hold that “the
critical time for taking the jurisdictional snapshot” in order to determine whether the
Secretary has statutory jurisdiction to initiate a civil enforcement action under the OSH Act
“is when the violation is alleged to have taken place.” See Taynton (dissenting opinion), 17
BNA OSHC at 1208, 1993-95 CCH OSHD at p.42,760.
We conclude that our holding is consistent with the statutory language set forth in
sections 3(5) and 9(a) of the Act, 29 U.S.C. §§ 652(5) & 658(a). In reaching their contrary
conclusion in Taynton, the Commission majority relied primarily on its interpretation of
these two statutory provisions. Thus, it noted that section 9(a) provides, in pertinent part: “If,
upon inspection or investigation, the Secretary or his authorized representative believes that
an employer has violated a requirement of section 5 of this Act, of any standard, rule or order
promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to
this Act, he shall with reasonable promptness issue a citation to the employer” (emphasis
 8

supplied in Taynton). It also pointed out that section 3(5) defines “employer” as “a person
engaged in a business affecting commerce who has employees....” (emphasis again supplied
in Taynton). Under the “plain language” of these two provisions, the Taynton majority
concluded, Ralph Taynton was not an “employer” within the meaning of section 3(5) at the
time he received the disputed citation and therefore “no employer was ever properly issued
a citation under section 9(a).” Taynton, 17 BNA OSHC at 1206, 1993-95 CCH OSHD at pp.
42,757-58.
In reexamining Taynton, we are guided by the principles of statutory construction set
forth by the Supreme Court in Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843
(1997). In Robinson, a unanimous Court overturned an appellate court holding that the term
“employee” as used in the retaliatory discrimination provision (§ 704(a)) of Title VII of the
Civil Rights Act of 1964 does not include former employees. The Court stated that its “first
step” in interpreting the disputed statutory provision was “to determine whether the language
at issue has a plain and unambiguous meaning with regard to the particular dispute in the
case.” 519 U.S. at 340, 117 S.Ct. at 846. It then explained that “[t]he plainness or ambiguity
of statutory language is determined by reference to the language itself, the specific context
in which that language is used, and the broader context of the statute as a whole.” 519 U.S.
at 341, 117 S.Ct. at 846 (emphasis added). Applying these principles to the issue before it,
the Court acknowledged that, “[a]t first blush,” the term “employees” seemed to be used in
section 704(a) “to refer to those having an existing employment relationship with the
employer in question.” Id. Nevertheless, after examining the provision in its “context,” the
Court concluded that its “initial impression...does not withstand scrutiny.” Id. Accordingly,
the Court interpreted section 704(a) as including former employees within its coverage,
concluding that this interpretation was “more consistent with the broader context of Title VII
and the primary purpose of § 704(a).” 519 U.S. at 346, 117 S. Ct. at 849. Cf. U.S. v.Pitt-Des
Moines, Inc., No. 98-1767, slip op. at 9 (7th Cir. Feb. 18, 1999) (“In the absence of
guidance” in the legislative history of the OSH Act on a question of statutory interpretation,
 9

the court adopts the interpretation that is “more consistent with the Act’s broadly remedial
purpose”).
Applying this reasoning to the language of sections 3(5) and 9(a), as quoted above,
we conclude that the Taynton majority was clearly mistaken in characterizing that language
as plain and unambiguous. Taynton’s interpretation of sections 3(5) and 9(a) is by no means
the only reasonable construction of the statutory language at issue. The Secretary’s
interpretation of section 9(a) is just as compatible, if not more compatible, with the language
of that section as the interpretation given it by the Commission in Taynton. We note that the
key term “employer” is used twice in the first sentence of section 9(a). See supra. Where it
is first used (“an employer”), it unquestionably refers to an individual or enterprise that is
engaged in a business affecting commerce and has employees at the time it allegedly violates
section 5 of the Act or any standard or regulation issued under the Act. As interpreted by the
Commission in Taynton, the term has a different meaning the second time it is used.
Specifically, Taynton construes the phrase “the employer” as referring to an individual or
enterprise that is engaged in a business affecting commerce and has employees at the time
it is cited by the Secretary. We conclude, however, that consistent with common grammatical
usage of the definite article, the phrase “the employer”(emphasis added) is simply a reference
back to the same entity previously described, in the first part of the sentence, as “an
employer” (emphasis added).” This statutory language does not necessarily call for a
reevaluation of that entity’s status at the time the citation is issued. Thus, section 9(a) could
be paraphrased as follows: “If the Secretary determines, upon inspection or investigation, that
a particular individual or enterprise has violated section 5(a)(1), a standard, or a regulation
and further determines that the individual or enterprise in question was an ‘employer’at the
time of the violation, then the Secretary shall with reasonable promptness issue a citation to
that individual or enterprise.”
We find support for this construction of the statutory language in section 11(c)(2) of
the Act, 29 U.S.C. § 660(c)(2). The term “employee” as it is used in the Act, just like the
 10

term “employer,” is defined in the present tense. Thus, section 3(6) defines an “employee”
as “an employee of an employer who is employed in a business of his employer which
affects commerce” (emphasis added). Yet, in section 11(c)(2), Congress clearly used the term
“employee” in a context that could only refer to former employees. In pertinent part, section
11(c)(2) provides that “[a]ny employee who believes that he has been discharged...in
violation of this subsection may, within thirty days after such violation, file a complaint with
the Secretary alleging such discrimination.” Cf. Robinson (interpretation of § 704(a) of Title
VII to include former employees). Since Congress clearly used the term “employee” in a
context where it includes former employees, it is reasonable to conclude that Congress may
also have used the related term “employer” in a context where it includes former employers.
When we view the term “employer” as it is used in the first sentence of section 9(a)
in its “broader context,” and in the light of its “primary purpose,” see Robinson, 519 U.S. at
346, 117 S.Ct. at 849, it becomes clear that the interpretation of section 9(a) we have set
forth above is the construction that is most compatible with the overall structure and
purposes of the Act. Section 9(a) represents merely one part of an integrated and
comprehensive enforcement scheme that is built on the foundation of section 5(a) of the Act,
29 U.S.C. § 654(a). Under sections 5(a)(1) and 5(a)(2), each “employer” is required to
comply with the Act’s “general duty clause” and with “occupational safety and health
standards promulgated” by OSHA. Under section 8(a), OSHA is authorized to enter the
workplace of any “employer” to conduct an inspection for the purpose of determining
whether that employer is complying with, and/or an investigation for the purpose of
determining whether that employer has complied with (e.g., at the time of a workplace
fatality), its duties under sections 5(a)(1) and (2). Under section 9(a), OSHA is authorized
to issue a citation to “the employer” if its inspection or investigation leads it to conclude that
the employer has failed to comply with its duties under section 5(a)(1), an OSHA standard,
or an OSHA regulation “prescribed pursuant to this Act.” Under section 10(a), OSHA is
authorized to issue to “the employer” a notification of proposed penalties to be assessed for
 11

the alleged violations described in the citation. Under section 10, “the employer” that has
been issued such a citation and proposed penalty is given the option of allowing them to
become final orders of the Commission by operation of law or of contesting them in a civil
proceeding before the Commission. Under section 17(e), the Justice Department is
authorized to bring a criminal action against “[a]ny employer who willfully violates” its
duties under section 5 of the the Act if “that violation caused death to any employee.”
There can be little doubt that section 5(a) is the foundation of the Act’s enforcement
scheme and that the critical time element in that scheme is the time at which the “employer”
allegedly violated its duties under section 5(a). Thus, it is well established, under
Commission and federal court case law, that the material time to be examined in resolving
most issues that arise in a Commission proceeding is the time of the alleged violation(s). For
example, compliance issues are resolved based on the circumstances that existed at the time
of the alleged violation, without regard to subsequent events. See, e.g., GAF Corp., 9 BNA
OSHC 1451, 1454 n.13, 1981 CCH OSHD ¶ 25,281, p. 31,244 n.13 (No. 77-1811,
1981)(“[S]ubsequent closure of a plant does not negate a violation that occurred while the
plant was in operation”); Whirlpool Corp., 8 BNA OSHC 2248, 2249, 1980 CCH OSHD ¶
24,957, p. 30,793 (No. 9224, 1980), rev’d and remanded on other grounds, 645 F.2d 1096
(D.C. Cir. 1981) (“Abatement following the issuance of a citation neither negates nor
excuses an employer’s failure to comply with the Act”). Similarly, “liability” for civil
penalties under the OSH Act “attaches at the time the violation occurred.” Jacksonville, 102
F.3d at 1202. Accordingly, “for purposes of civil money penalties,” the Commission and the
courts must “look[] to the employer’s status at the time of the violation, not at the time of
trial.” Id.
Under the approach taken by the Commission in Taynton to interpreting section 9(a),
the potential exists for disruption of this statutory scheme at any stage of the enforcement
proceeding because, at least in theory, the “employer” must continue to engage in a business
 12

affecting commerce and to have employees at each stage of the process.8 Any such adverse
consequences are avoided if we adopt the Secretary’s interpretation of the term “employer”
as it is used in section 9(a) and the Act’s other enforcement provisions to include former
employers that were engaged in a business affecting commerce and that had employees at
the time of the alleged violations. This interpretation, which we in fact adopt herein, is
therefore “more consistent with the broader context of” the OSH Act than the interpretation
that was adopted by the Commission in Taynton. See Robinson, 519 U.S. at 346, 117 S. Ct.
at 849. It is also “more consistent with ... the primary purpose of” section 9(a). Id.
We have already concluded above that our interpretation of section 9(a) contributes
to the goal of general deterrence, which “is the foremost and overriding goal of all laws, both
civil and criminal.” Bae v. Shalala, 44 F.3d at 494. It also contributes to another primary
purpose of the Act’s enforcement provisions, which is to encourage “prospective
compliance” on the part of the cited employer. The Commission in Taynton concluded that
the fact “that employees will never again be exposed by the same employer to the hazards
at issue here eliminates the need for prospective compliance.” 17 BNA OSHC at 1206 n.3,

8
For example, the Taynton decision seems to hold that, in a case such as this one, where the
cited employer ceased doing business prior to filing its notice of contest, the Commission
lacks “subject matter jurisdiction.” Citing and quoting section 10(c) of the Act, 29 U.S.C. §
659(c), the Taynton majority reasoned that the Commission is only required to “afford an
opportunity for a hearing” when an “employer” or an “employee” files a notice of contest;
yet, in circumstances such as these, “no employer ever filed a notice of contest.” See 17 BNA
OSHC at 1205 n.1 & 1206, 1993-95 CCH OSHD at pp. 42,757 n.1 & 42,758 (emphasis
supplied in Taynton). We conclude, however, that the issue before us is indeed, as we stated
at the outset, a question as to whether the Secretary had statutory jurisdiction to issue the
contested citations and not as to whether the Commission has subject matter jurisdiction over
this case. The Commission has jurisdiction over this case under section 10(c) of the Act
because “the Secretary transmit[ted] to the Commission” Yandell’s notice of contest of
citations “purportedly issued by the Secretary under section 9(a) of the Act.” Willamette Iron
& Steel Co., 9 BNA OSHC 1900, 1904, 1981 CCH OSHD ¶ 25,427, p. 31,699 (No. 76-1201,
1981). Also, “it is clear that the Commission has subject matter jurisdiction to determine
whether the Secretary has exceeded [her] authority to issue citations under the Act.” Id., 9
BNA OSHC at 1905, 1981 CCH OSHD at p. 31,700.
 13

1993-95 CCH OSHD at pp. 42,757-58 n.3. However, this conclusion requires a leap which
we decline to take. If indeed a cited “former employer” such as Taynton or Yandell never
again resumes doing business in one form or another, then a final order against it would have
no impact on its future business or employees. However, if that individual (or entity) does
resume business, he will not only be obligated to comply with the Act, as the Taynton
majority noted all employers are, but also, with a final order on his record, he would have
an additional incentive to do so.9
This case, in fact, illustrates why we reject the Taynton majority’s conclusion. The
record does not show that the cited employer in this case “has ceased to exist.” Id. At the
time he filed his motion to dismiss, Joel Yandell still existed, even though he was no longer
an employer doing business as Triple L Tower. He faced no legal bar, as a result of this
proceeding, to the resumption of his business operations at any time he desired. Insofar as
we know, based on the record before us, he may already have re-established his tower
erecting company, under the same name or a different one. Indeed, in contrast to Ralph
Taynton, Joel Yandell has not filed an affidavit in this proceeding claiming that his cessation
of business activities was anything more than a temporary lull. Cf. Taynton, 17 BNA OSHC
at 1207, 1993-95 CCH OSHD at p.42,759 (“According to Mr. Taynton, Service was
irrevocably out of business, an allegation which was left unrebutted by the Secretary”).
In any event, we conclude that, if Joel Yandell does re-enter the tower erection
business (or any other business) in the future, the Act’s purposes would be better served by
requiring him to bring his past history with him, rather than allowing him to restart with a

9
The additional incentive is provided by the fact that future violations, if any, could be
characterized as “repeated” within the meaning of section 17(a). A violation is repeated “if,
at the time of the alleged repeated violation, there was a Commission final order against the
same employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061,
1063, 1979 CCH OSHD ¶ 23,294, p. 28,171 (No. 16183, 1979) (emphasis added). Under the
Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 3101 (1990), the
maximum penalty that could be assessed for a repeated violation is $70,000, while the
maximum penalty for a serious or other than serious violation is only $7000.
 14

“clean slate.” The proceeding on remand will allow the Commission to determine whether
Yandell violated the Act in the manner that is alleged in the two contested citations. This
determination could well have an effect on Joel Yandell’s “prospective compliance,”
including his preliminary decision as to whether to re-enter the tower erection business and
his subsequent decisions as to how to conduct that business if he does decide to become an
“employer” once again. Allowing the Secretary to proceed with this enforcement action
could therefore also have a substantial impact on the safety and health of future employees
of Joel Yandell.
III. Order
For the reasons stated above, we overrule Taynton, reverse Judge Loye’s order
granting Yandell’s motion to dismiss, reinstate the contested citations and proposed
penalties, and remand this case to Judge Loye for further proceedings consistent with this
decision.

                                                    Stuart E. Weisberg
                                                    Chairman




                                                    Thomasina V. Rogers

Date: March 12, 1999 Commissioner
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 North Speer Boulevard, Room 250
Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,

                    Complainant,

                         v.                             OSHRC Docket No. 94-3080

JOEL YANDELL, d/b/a TRIPLE L TOWER,

                    Respondent.


                                            FINAL ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

et seq.; hereafter called the “Act”).
Respondent, Joel Yandell, d/b/a Triple L Tower (Yandell), moves for dismissal of this action based
on the Commission’s holding in Jacksonville Shipyards Inc., 16 BNA OSHC 2053, 1994 CCH OSHD
¶30,539 (No. 94-888), which states that “a proceeding may properly be considered 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.” Id. at 2055. See also;
Taynton d/b/a Service Specialty Co., 17 BNA OSHC 1205, 1995 CCH OSHD ¶30,766 (No. 92-0498,
1995)[the Commission is deprived of jurisdiction where the employer has ceased business and has no
employees prior to the citation being issued.]
Respondent Yandell was issued citations on September 8, 1994, following a March 11, 1994
accident. In his December 19, 1995 affidavit accompanying the motion, Yandell states that following the
accident he immediately ceased business operations and has not resumed or employed workers since that
time.
Yandell’s affidavit is undisputed; the Secretary opposes the motion on the sole ground that
Jacksonville was wrongly decided.
However, Yandell has made the requisite showing for a dismissal under Jacksonville. In the absence
of any factual basis on which to distinguish this case, the undersigned is constrained to following the
holdings in that case and in Taynton.
 Respondent’s motion is GRANTED and this matter is DISMISSED.
So ORDERED.

                                               /S/
                                                  Benjamin R. Loye
                                                    Judge, OSHRC

Dated: March 1, 1996

                                       2