United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW 

COMMISSION 

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

OSHRC Docket No. 22-0122 v. 

R+L CARRIERS SHARED SERVICES, LLC, 

Respondent. 

NOTICE 

Before: ATTWOOD, Chairman; and LAIHOW, Commissioner. 

BY THE COMMISSION: 

Before us is Respondent’s May 2, 2022, petition seeking interlocutory review of an order 

issued by Administrative Law Judge Keith E. Bell denying Respondent’s motion to dismiss. On 

December 8, 2021, the Secretary issued Respondent a citation alleging that a violation of 29 C.F.R. 

§ 1910.178(p)(1) occurred “on or about June 7, 2021.” Respondent timely contested the citation, 

and on March 16, 2022, the Secretary filed the complaint. In his complaint, the Secretary amended 

the citation to allege that the violation occurred “on or about June 8, 2021.” 

Respondent filed a motion to dismiss objecting to the Secretary’s amendment and asserting 

that the citation was time-barred by section 9(c) of the Occupational Safety and Health Act, 

29 U.S.C. § 658(c), which provides that “[n]o citation may be issued under this section after the 

expiration of six months following the occurrence of any violation.” Without explanation, the 

judge denied Respondent’s motion in a two-sentence order. 

Under Commission Rule 73(a), the Commission has the discretion to grant interlocutory 

review where “review involves an important question of law or policy that controls the outcome 

of the case, and that immediate review of the ruling will materially expedite the final disposition 
 

 

 

 

 

of the proceedings . . . .” 29 C.F.R. § 2200.73(a). The petition is denied if not granted within 30 

days. 29 C.F.R. § 2200.73(b). For reasons set out separately below, the two Commission members 

do not agree on the disposition of Respondent’s petition. Chairman Attwood votes not to grant 

the petition. Commissioner Laihow votes to grant the petition. Accordingly, the petition is denied 

pursuant to Rule 73(b). 

The separate opinion of each Commission member follows. 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Amanda Wood Laihow 

Commissioner 

Dated: June 1, 2022 

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Separate Opinion of Chairman Attwood 

ATTWOOD, Chairman. 

I vote not to grant the petition for interlocutory review because it neither “involve[s] an 

important question of law or policy that controls the outcome of the case,” nor would “immediate 

review of the ruling . . . materially expedite the final disposition of the proceedings . . . .” 

29 C.F.R. § 2200.73(a)(1). 

Respondent argues that Commission Rule 34(a)(3), 29 C.F.R. § 2200.34(a)(3), does not 

allow the Secretary to amend an untimely citation issued in violation of section 9(c) of the 

Occupational Safety and Health Act, 29 U.S.C. § 658(c). However, the citation issued to 

Respondent was not in fact untimely. Section 9(c) requires a citation to be issued no more than 

“six months following the occurrence of any violation.” Id. (emphasis added). Here, the Secretary 

issued the citation on December 8, 2021, alleging violative conduct occurring “on or about 6/7/21” 

(emphasis added). The phrase “on or about” means “approximately; at or around the time 

specified.” Black’s Law Dictionary (11th ed. 2019); see also Burton’s Legal Thesaurus 379 (3d 

ed. 1998); Evergreen Constr. Co., No. 12-2385, 26 BNA OSHC 1615, 1624 n.24 (No. 12-2385, 

2017) (separate opinion of Commissioner Attwood). Accordingly, the citation plainly 

encompasses the violative conduct that the Secretary alleges in the complaint occurred on June 8, 

2021.1 For the citation as amended to be upheld, the Secretary must now meet his prima facie 

burden of proving all the necessary elements of his case as they relate only to the violative conduct 

that allegedly occurred within the six-month statute of limitations. 

1 My colleague asserts that my reading of “on or about” is contrary to the Secretary’s litigating 

position. But the Secretary’s litigating position does not govern the timeliness of a citation under 

section 9(c). 29 U.S.C. § 658(c). Thus, although the Secretary chose to amend the citation to 

clarify the date of the alleged violation’s occurrence, doing so was not necessary to “cure” any 

purported defect. On the contrary, the complaint is consistent with a good-faith effort to “amend[] 

the violation date to conform the allegations to the records currently in the Secretary’s possession 

and clarify that a violation allegedly occurred on or about June 8, 2021,” as the Secretary has 

stated. 

I likewise disagree with my colleague’s assertion that the citation failed to “describe with 

particularity the nature of the violation” as required by section 9(a). 29 U.S.C. § 658(a). As 

discussed above, the citation was, in fact, quite particular—it alleges the violation occurred “on or 

about 6/7/21,” which, if that phrase is to have any meaning, surely includes violative conduct 

alleged to have occurred the very next day. 

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For all these reasons, I find that this petition does not raise an “important question of law” 

and review of the judge’s ruling would not “materially expedite” the case’s final disposition. 

Accordingly, I vote not to grant this petition. 

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Separate Opinion of Commissioner Laihow 

LAIHOW, Commissioner. 

I vote to grant Respondent’s Petition for Interlocutory Review because it meets all the 

criteria set forth in Commission Rule 73(a)(1). 29 C.F.R. § 2200.73(a)(1). First, the petition 

“involves an important question of law or policy that controls the outcome of the case.” Id. Section 

9(c) of the Occupational Safety and Health Act establishes a six-month statute of limitations for 

the issuance of any citation and expressly provides that “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). In its petition, Respondent raises the question of whether the Secretary may retroactively 

cure an untimely citation by simply amending it to allege violative conduct on a date that just so 

happens to shift the citation into the Act’s six-month limitations period. This question is of critical 

importance because it implicates the most basic aspect of the Secretary’s enforcement authority 

under the Act—his power to issue citations to employers. 29 U.S.C. § 658(a). It also raises a 

purely legal question not previously addressed by the Commission.2 Second, “immediate review” 

of this question will “materially expedite the final disposition of the proceedings” because, as 

explained below, this untimely citation must be vacated. 29 C.F.R. § 2200.73(a)(1). 

There can be no dispute that the citation issued to Respondent is facially invalid because it 

alleges violative conduct that occurred “on or about 6/7/21,” yet was not issued until December 8, 

2021, one day after the expiration of the Act’s six-month limitations period. The Secretary himself 

recognized this reality by electing to amend the citation in his complaint to allege what is 

essentially a new violation—one that occurred the following day, “on or about 6/8/2021.” 

Nonetheless, the judge—in a two-sentence order that provides no explanation or analysis—denied 

Respondent’s motion to dismiss the citation as untimely. Presumably, the judge concluded the 

Secretary’s amendment was proper because, as the Secretary erroneously claims in his opposition 

to Respondent’s petition, the alleged violative conduct on June 8, 2021 relates back to the conduct 

it alleged occurred in the original citation. See Fed. R. Civ. P. 15(c) (relation back of amendments); 

2 I acknowledge that under Commission and Court of Appeals precedent, the Secretary has 

considerable latitude to amend a citation prior to the hearing. See, e.g., P.A.F. Equip. Co., 7 BNA 

OSHC 1209, 1212 (No. 14315, 1979), aff’d, 637 F.2d 741 (10th Cir. 1980); Otis Elevator Co., 6 

BNA OSHC 2048, 2049 (No. 16057, 1978); Dye Constr. Co. v. Occupational Safety & Health 

Review Comm’n, 698 F.2d 423, 425 (10th Cir. 1983). However, it does not appear that the 

Commission has ever permitted the Secretary to cure an untimely citation by amendment. 

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see also Commission Rule 34(a)(3), 29 C.F.R. § 2200.34(a)(3) (allowing Secretary to seek leave 

to amend the complaint). But any such conclusion is fundamentally flawed. As the Seventh 

Circuit has explained in the context of an untimely filed complaint, “Rule 15(c) of the Federal 

Rules of Civil Procedure does not permit an amended complaint to relate back to an earlier, 

untimely complaint” because the “prior complaint, having been itself filed after the expiration of 

the [] statute of limitations . . . [is] a nullity.” Henderson v. Bolanda, 253 F.3d 928, 933 (7th Cir. 

2001). Put simply, the Secretary cannot use procedural rules “as a life-line” to resurrect a citation 

that was never valid in the first place. Id. 

I respectfully disagree with my colleague that the citation’s inclusion of the phrase “on or 

about” is somehow sufficient to cure its inherent defectiveness. First, such an expansive reading 

of “on or about” to include violative conduct that may have occurred on June 8, 2021, is belied by 

the Secretary’s own litigating position in this case—indeed, if the Secretary intended “on or about” 

to include violative conduct on June 8, 2021, he need not have moved to amend the citation in the 

first place. Second, section 9(a) of the Act requires that the citation “describe with particularity 

the nature of the violation.” 29 U.S.C. § 658(a). The “nature” of any violation, of course, is 

fundamentally related to the date on which the Secretary alleges it occurred. Thus, even if the 

Secretary had intended “on or about” to include conduct occurring on June 8, 2021, the citation 

would run afoul of section 9(a)’s particularity requirement. In short, the Secretary’s boilerplate 

inclusion of “on or about” in any citation cannot provide a free pass from the Act’s six-month 

statute of limitations. One day here, three weeks the next – at what point does this sort of “deadline 

creep” violate the statute? In my view, taking such a position not only violates the Act but creates 

uncertainties for employers that Congress never intended. See AKM, LLC v. Sec’y of Labor, 

675 F.3d 752, 756 (D.C. Cir. 2012) (rejecting notion that “Congress expressly established [section 

9(c)’s] statute of limitations only to implicitly encourage the Secretary to ignore it.”). 

Finally, in voting to grant the petition, I am particularly mindful that section 9(c) provides 

certainty and closure to employers regarding their obligations and potential liability under the Act. 

See AKM, 675 F.3d at 758 (explaining that section 9(c) indicates that Congress intended the 

Secretary to enforce “violations swiftly or else forfeit the chance to do so”). The Secretary’s 

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disregard of the Act’s statute of limitations in this case is fundamentally unfair to Respondent and 

serves to only weaken the integrity of enforcement actions brought by the Secretary in the future.3 

For all these reasons, I vote to grant Respondent’s petition. 

3 Given that Respondent will now have to mount a defense to what is an otherwise invalid citation, 

I note—as does my colleague—that no evidence relating to alleged violative conduct that predates 

June 8, 2021, can be considered by the judge in assessing the merits of the amended citation. 

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