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,

v.
            OSHRC Docket No. 22-0122
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
?
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.   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.
      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. 

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


  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.
  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.    
  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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