United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Atlanta, Georgia 30303-3104 

atlantaoshrcjudges@oshrc.gov

Secretary of Labor,

 Complainant

 v. OSHRC Docket No. 16-0633

Excel Contractors, Inc.,

 Respondent.

ORDER DENEYING MOTION TO DISMISS

This matter is before me on Respondent’s Motion to Dismiss Complaint filed on May 31, 2016. 

In response to the Secretary’s Complaint, Respondent filed this motion arguing the Secretary’s Complaint 

and Citation are time-barred because the Citation was not issued within six months of the alleged 

violations as required under § 9(c) of the Occupational Safety and Health Act, 29 U.S.C. § 651, (the Act). 

Respondent contends although the Citation is dated March 3, 2016, six months after the occurrence of the 

alleged violations, it was not received until March 11, 2016, eight days after the expiration of the sixmonth statute of limitations. Respondent argues the Act’s requirement that citations be issued within six 

months of the alleged violations necessitates those citations be received within that timeframe. The 

Secretary filed his response on June 9, 2016, contending, to the contrary, a citation is issued under the Act 

upon mailing. Therefore, the Citation was timely issued. Respondent filed a Reply on June 15, 2016.1

For the reasons set forth the herein, the Respondent’s Motion to Dismiss is DENIED. 

Background and Facts

 The relevant facts are not in dispute. Respondent is a construction contractor that had been hired 

to rebuild portions of a refinery in Geismar, Louisiana, owned by another company, after a fire in April of 

2015. On September 3, 2015, an accident occurred at the refinery in which some of Respondent’s 

personnel were injured. The Baton Rouge Occupational Safety and Health Administration (OSHA) Area 

 

1 The Secretary filed a motion to strike the Respondent’s reply. Respondent then filed a motion for leave to file its 

reply. Although Commission procedural rules do not allow for the routine filing of replies, in the instant case, I find 

the Respondent’s reply helps to further clarify the issues. The Secretary’s motion to strike is denied and Respondent 

motion for leave to file its reply is granted. I have considered all arguments made by the parties in reaching my 

decision.
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Office was notified of the accident on September 4, 2015, and immediately commenced an investigation. 

That investigation was conducted by Compliance Safety and Health Officer (CSHO) Ivy Diggs of the 

OSHA Baton Rouge Area Office. Based on the investigation, the OSHA Baton Rouge Area Office 

determined Respondent was in violation of the Act and that citations should be issued to Respondent. On 

March 3, 2016, six months following the accident, OSHA mailed the Citation to Respondent at its P.O. 

Box address. Respondent does not dispute the Citation was mailed on March 3, 2016. 

 Respondent alleges, despite holding two closing conferences, OSHA never notified it that it was 

in violation of the Act or citations were forthcoming. Rather, it first heard of citations being issued to it 

when it was contacted by a local newspaper on March 7, 2016. On March 9, 2016, it contacted the OSHA 

Baton Rouge Office Area Director and was notified the Citation had been mailed to it at its P.O. Box 

address. After checking the P.O. Box several times between March 5 and March 10, 2016, Respondent 

ultimately received the Citation on March 11, 2016. The Secretary did not respond, or otherwise dispute, 

any of these facts as alleged by Respondent.

Discussion

 Section 9(c) of the Act states, “No citation may be issued under this section after the expiration of 

six months following the occurrence of any violation.” 29 U.S.C. § 658(c). The Commission has held § 

9(c) is a statute of limitations. General Dynamics, 15 BNA OSHC 2122, 2127, n. 10 (No. 87-1195, 

1993). There is no dispute the Citation was mailed within the six-month statute of limitations. There is 

also no dispute the Citation was not received by Respondent until after the six-month statute of 

limitations. The sole issue in dispute is whether, under § 9(c), the Citation was issued upon mailing or 

upon receipt. 

 The term “issue” is used multiple times in §§ 9 and 10 of the Act to describe actions required by 

the Secretary. The Act does not define the term. These same sections of the Act also use the term 

“receipt” generally as the start of time limits imposed on employers. For example, under § 10(a), the 15-

day period in which an employer must contest a citation begins to run upon receipt of the citation. It is 

well recognized that statutes must be read as a whole, “making every effort not to interpret a provision in 

a manner that renders other provisions of the same statute inconsistent, meaningless, or superfluous.” 

Lake Cumberland Trust, Inc. v. E.P.A., 954 F.2d 1218, 1222 (6th Cir 1992), quoting, Boise Cascade Corp. 

v. U.S. E.P.A., 942 F2d 1427, 1431-32 (9th Cir. 1991)). Had the Congress intended a citation be 

considered issued upon receipt only, there would have been no need to draw the distinction between 

timeframes calculated based on issuance and timeframes calculated based on receipt. In short, to equate 

issuance with receipt would render the use of the two terms superfluous. Proper statutory interpretation 

requires the terms be given different meaning. Because the Act does not require the employer receive a 
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citation before the end of the six-month limitations period, the six-month statute of limitation should not 

be defined or calculated by the date of receipt, but rather upon the Secretary’s act of issuing the citation. 

In this case, the Secretary issued the Citation when his agents dated, signed, and mailed the Citation on 

March 3, 2016. 

 The Commission has never spoken directly regarding the definition of “issued” in § 9(c). In at 

least one case involving amendment of a citation after the notice of contest was filed, but before the 

expiration of the six-month statute of limitations, the Commission has found the amended citation issued 

upon mailing. Bland Construction Co., 15 BNA OSHC 1031, 1042-43 (No. 87-992, 1991). In Bland, the 

Secretary mailed an amended complaint to the employer one day prior to expiration of the six-month 

statute of limitations that reclassified the original citation to a willful violation and alleged an additional 

willful violation. Id. at 1032. The Commission found the amended complaint had been timely filed 

applying Commission Rule 8(d) which provides “Filing is deemed effected at the time of mailing...” Id. 

at 1042 n. 10. In response to the employer’s argument that no citation was issued or notice given within 

the six-month statute of limitations period, the Commission held the amended complaint “operated as a 

citation.” Id. at 1043 n. 11, citing P & Z Co., 7 BNA OSHC 1589, 1591-92 (No. 14822, 1979). 

Although the Commission did not expressly state its opinion regarding the date OSHA issues a citation, 

reading these two holdings together leads to a conclusion the Commission considers a citation “issued” 

upon mailing. 

While the Commission has not spoken directly on the definition of “issued” in § 9(c), 

Commission judges have. In Wean United Inc., 7 BNA OSHC 2086 (No. 77-4350, 1979), Judge Irving 

Sommer held, under § 9(c) “the time a citation is placed into circulation constitutes the date of issuance.” 

In another case, Judge Ken Welsch found no violation of the statute of limitations because “[t]he citation 

was issued as required by § 9(c) on [the date it was mailed.]” Valcourt Building Services of Georgia, 

LLC, 24 BNA OSHC 1872, 1874 (No. 12-0921, 2013). In Valcourt, the Secretary mailed the citation 

prior to the expiration of the six-month statute of limitations, but it was returned to the Secretary because 

the address was incorrect. The Secretary resent the citation, which was not received by the employer until 

five days after the expiration of the statute of limitations. Judge Welsch found the citation was timely 

issued when it was originally mailed. Although not binding authority, I find both these decisions 

instructive. I also note I have found no decisions holding to the contrary. 

In finding a citation is issued upon mailing, I am also instructed by Judge Carol Baumerich’s 

Order Denying Motion to Dismiss in Francis J. Palo, Inc., Docket No. 13-2150, cited by the Secretary. 

In her order, Judge Baumerich found the language of § 9 supports a finding the citation is issued upon 

mailing. I find Judge Baumerich’s order provides a cogent analysis of the issue. Respondent concedes 
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Judge Baumerich’s Order is on point, but simply argues it was wrongly decided. I disagree with 

Respondent and find Judge Baumerich’s rationale persuasive.

 Respondent has cited to no authority, binding or otherwise, that supports its position. Although 

Respondent relies on the Third Circuit’s decision in Bloomfield Mechanical Contracting, Inc. v. OSHRC, 

519 F.2d 1257 (3rd Cir. 1975) and the Commission’s decision in Donald K. Nelson Construction, Inc., 3 

BNA OSHC 1914 (No. 4309, 1976), I disagree either stands for the proposition a citation is issued only 

upon receipt. 

In Bloomfield Mechanical, the Secretary had issued the original citation to the wrong employer. 

After filing the original complaint, but before the six-month statute of limitations had run, the Secretary 

became aware he had named the wrong employer. The Secretary did not file an amended complaint until 

after the statute of limitations had run. And as the court noted, “even then the citation was not amended”

to name the proper employer. Bloomfield Mechanical, 519 F.2d at 1262. The court concluded no citation 

had been issued to the employer. The decision says nothing regarding the definition of “issued” in § 9(c) 

of the Act.

In Nelson Construction, the Commission addressed a case in which the Secretary chose not to 

“notify the employer by certified mail” but rather opted to personally serve the employer. The 

Commission agreed with the Secretary that although § 10(a) provides notice of a penalty assessment may 

be made by certified mail, that is not the exclusive method of service. The Commission held “where 

personal service is substituted for the service requirement of [§ 10(a)]” the requirements of Fed. R. Civ. P. 

4(d) must be met. Nelson Construction, 3 BNA OSHC at 1915. Contrary to Respondent’s contention, the 

Commission did not “reject” the Secretary’s arguments that mailing of the citation constituted service of 

the citation. Respondent’s Reply Brief at pp. 1-2. The Commission explicitly drew a distinction between 

the service requirements of § 10(a) and personal service under Fed. R. Civ. P. 4. Here, the Secretary met 

the service requirements of § 10(a) by mailing, via certified mail, the Citation to Respondent within the 

six-month statute of limitations.

Respondent similarly misreads section XI.A of Chapter 5 of OSHA’s Field Operations Manual 

(FOM) which states, “Accordingly, a citation shall not be issued where any alleged violation last 

occurred six months or more prior to the date on which the citation is actually signed, dated and served by 

certified mail as provided by Section 10(a) of the Act.” Even if this provision were binding on the 

Secretary2

, nothing in its plain language suggests a citation is issued when received. 

 

2 It is well settled the FOM is not binding on the Secretary or the Commission and does not create substantive rights 

for employers. Hackensack Steel Corp., 29 BNA OSHC 1387, 1392-93 (No. 97-0755, 2003) (citations omitted). 
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 It is undisputed the Citation in this matter was signed, dated, and mailed to Respondent by 

certified mail on the last day of the six-month statute of limitations period. Based upon my interpretation 

of the language of the Act, I find the Citation was issued within the statute of limitations period. 

For the foregoing reasons, Respondent’s Motion to Dismiss is DENIED. 

SO ORDERED.

 /s/ 

Date: July 13, 2016 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