RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0325p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 ELAINE L. CHAO , Secretary of Labor,               X
                                       Petitioner, -
                                                     -
                                                     -   No. 07-3810
          v.                                         -
                                                      >
                                                     ,
 OCCUPATIONAL SAFETY AND HEALTH REVIEW               -
 COMMISSION , MANGANAS PAINTING CO ., INC.,          -
                                     Respondents. -
                                                     -
                                                    N
                      On Petition for Review of the Final Order of
                 the Occupational Safety & Health Review Commission.
                                Nos. 95-0103; 95-0104.

                                            Argued: July 22, 2008

                                   Decided and Filed: August 29, 2008

              Before: COLE and GRIFFIN, Circuit Judges; SARGUS, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Ronald J. Gottlieb, U.S. DEPARTMENT OF LABOR, Washington, D.C., for
Petitioner. ON BRIEF: Ronald J. Gottlieb, Charles F. James, U.S. DEPARTMENT OF LABOR,
Washington, D.C., for Petitioner.
                                             _________________
                                                 OPINION
                                             _________________
        GRIFFIN, Circuit Judge. The Secretary of Labor petitions this court for review of a final
order of the Occupational Safety and Health Review Commission. The Commission affirmed in
part and reversed in part a decision by an Administrative Law Judge, who affirmed the majority of
citations issued to respondent Manganas Painting Co., Inc. by the Occupational Safety and Health
Administration following a 1994 inspection of a worksite on the southbound structure of the
Jeremiah Morrow Bridge. Although the Commission’s order adjudicated numerous citations issued
to Manganas Painting, the Secretary’s petition appeals only three citations for unguarded scaffolds
that were vacated by the Commission.


        *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.


                                                         1
No. 07-3810               Secretary of Labor v. OSHRC, et al.                                                    Page 2


        In a 2-1 decision, the Commission held that these citations were barred by § 10(b) of the
Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C. § 659(b), because a 1993 citation
for the same unguarded scaffold condition, arising out of an inspection of the northbound structure
of the Morrow Bridge, was pending before the Commission at the time these 1994 citations were
issued for the southbound bridge. Commissioner Rogers dissented on the basis that because the
citations issued in 1993 and 1994 arose at separate worksites and at different times, § 10(b) did not
bar the 1994 unguarded scaffold citations. We agree with the rationale advocated by the dissent and
therefore grant the petition for review, reverse the Commission, and remand for further proceedings
regarding the merits of the citations at issue.
                                                            I.
        Manganas Painting began work removing lead-based paint on the Jeremiah Morrow Bridge
in Lebanon, Ohio in 1993, after it entered into a contract with the Ohio Department of
Transportation. The Morrow Bridge consists of two parallel bridges: one structure running
northbound; the other, southbound. In April 1993, OSHA performed an inspection of the project
while Manganas Painting was working on the northbound bridge. Following the inspection, OSHA
issued several citations to Manganas Painting, including, inter alia, a citation alleging that Manganas
Painting had failed to install guardrails on platforms that were located more than 10 feet above the
ground level, in violation of 29 C.F.R. § 1926.451(a)(4) (repealed). Manganas Painting timely
appealed the citation, and it was ultimately affirmed by the Commission in 2000. Sec’y of Labor v.
Manganas Painting Co., 

(2000), aff’d by Manganas Painting Co. v.
Sec’y of Labor, 

(D.C. Cir. 2001).
        In December 1994, while Manganas Painting was working on the southbound bridge, OSHA
performed another inspection. At the conclusion of this inspection, OSHA issued several new
citations, including, inter alia, three alleged instances of unguarded scaffolds, in violation of 29
C.F.R. § 1926.451(a)(4).1 These citations alleged the following violations:
       Item 13a. Located under and along the east side of the south bound bridge deck,
       approximate panel point between U38-L38, an employee was observed working from
       a pic scaffold spray painting a column and the upper cord or steel area without
       standard guardrails or equivalent, exposing the employee to perimeter exterior falls
       in excess of 100’ and interior falls of approximately 30’.
       Item 13b. Employees were exposed to a fall in excess of 140’ while using the
       scaffold pic adjacent to the ladder suspended over the side of the bridge outside the
       containment area south of pier 4 in that there were no guard rails on the pic.
       Item 13c. Located under and along the east side of the south bound bridge deck
       approximate panel point U34, employees were working from a pick scaffold without
       standard guardrails or equivalent exposing employees to perimeter exterior falls in
       excess of 100’ and interior falls in excess of 30’.




       1
           At the time of the inspection in 1994, the regulation provided in pertinent part:

       (4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than ten
       (10) feet above the ground or floor, except needle beam scaffolds and floats . . . . Scaffolds four (4)
       feet to ten (10) feet in height, having a minimum horizontal dimension in either direction of less than
       45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
No. 07-3810               Secretary of Labor v. OSHRC, et al.                                                 Page 3


Manganas Painting timely appealed, resulting in a decision by an administrative law judge vacating
the citations on the basis that these violations were duplicative of other citations issued during the
1994 inspection of the southbound bridge.2
        On review, the Commission affirmed the ALJ’s decision, but on different grounds. The
Commission majority held that section 10(b) of the Act barred the Secretary from citing Manganas
Painting for failing to guard pick scaffolds at the bridge worksite because a 1993 citation for the
same condition relating to the northbound bridge was pending before the Commission at the time
these alleged violations were cited in December 1994. The Commission reasoned:
         As a result of the April 1993 inspection of the bridge worksite, OSHA cited
         Manganas for a violation of § 1926.451(a)(4), the same scaffolding standard cited
         here. The 1993 citation was based on Manganas’ failure “to install guardrails on a
         painter’s pick.” Manganas Painting Co., 19 BNA OSHC at 1103, 2000 CCH OSHD
         at p. 48,767. It is undisputed that at the time OSHA initiated the 1994 inspection and
         issued the resulting citations, the 1993 citation had been timely contested by
         Manganas and a hearing in the matter had yet to commence. In fact, the judge who
         presided over the 1993 matter did not issue his decision until after a decision was
         issued in the current cases, and his decision did not become a final order of the
         Commission until 2000.
         While the alleged scaffolding violations cited in 1993 and 1994 were observed at
         what we find to be essentially two different worksites, the citations “covered the same
         condition” in that each item was based on Manganas’ failure to guard the same type
         of pick scaffold used throughout the bridge worksite during both painting seasons.
(emphasis added)
       The Secretary timely filed a petition for review with this court, limited to the Commission’s
decision regarding these citations. Neither Manganas Painting nor the Commission has filed a
responsive brief in opposition.
                                                          II.
        In reviewing an agency’s interpretation of a statute that it is charged with administering, we
apply the familiar two-step process announced by the Supreme Court in Chevron U.S.A., Inc. v.
NRDC, 

(1984). “The initial question under step one of the Chevron framework is
‘whether Congress has directly spoken to the precise question at issue’ by employing precise,
unambiguous statutory language.” Alliance for Community Media v. F.C.C., 

, 776-77
(6th Cir. 2008) (citing 

). If the text of the statute is unambiguous and,
therefore, the “intent of Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress.” Jewish Hosp., Inc.
v. Sec’y of Health & Human Servs., 

, 273 (6th Cir. 1994) (citing 

-43). If, however, “we determine that Congress has not directly addressed the precise question
at issue, that is, that the statute is silent or ambiguous on the specific issue, we must determine
‘whether the agency’s answer is based on a permissible construction of the statute.’” Battle Creek
Health Sys. v. Leavitt, 

, 408-09 (6th Cir. 2007) (quoting Jewish Hosp., 

). Where the agency’s interpretation of the statute does not take the form of a regulation issued


         2
           The ALJ also held with respect to Items 13b and 13c that OSHA had “made no showing . . . that the pics were
intended or used for any purpose other than access.” Thus, the ALJ reasoned, the cited pics were not “platforms” within
the definition of the Act.
No. 07-3810              Secretary of Labor v. OSHRC, et al.                                      Page 4


following notice and comment rulemaking, but rather is offered through an informal medium – such
as an opinion letter, policy statement, or agency manual – Chevron-style deference is not warranted,
and we apply the less deferential Skidmore3 review to the agency’s interpretation. 

See
also infra at III.C.
        The threshold issue, then, is whether § 10(b) is ambiguous. Section 10(b) of the Act provides
in pertinent part:
       If the Secretary has reason to believe that an employer has failed to correct a
       violation for which a citation has been issued within the period permitted for its
       correction (which period shall not begin to run until the entry of a final order by the
       Commission in the case of any review proceedings under this section initiated by the
       employer in good faith and not solely for delay or avoidance of penalties), the
       Secretary shall notify the employer by certified mail of such failure and of the penalty
       proposed to be assessed under section 666 of this title by reason of such failure, and
       that the employer has fifteen working days within which to notify the Secretary that
       he wishes to contest the Secretary's notification or the proposed assessment of
       penalty.
29 U.S.C. § 659(b) (emphasis added).
         We conclude that the statute is ambiguous regarding the meaning of “a violation for which
a citation has been issued.” § 659(b). We have explained previously that “[l]anguage is ambiguous
when ‘to give th[e] phrase meaning requires a specific factual scenario that can give rise to two or
more different meanings of the phrase.’” 

(quoting Beck v. City of
Cleveland, 

, 920 (6th Cir. 2004)). Here, there are at least two possible constructions
of the pertinent phrase. It could refer, as the Secretary insists, to each instance in which an OHSA
regulation is breached. The statute’s use of the term “violation” could also be read plausibly,
however, to apply only to the regulation that was allegedly transgressed, rather than to each
individual act. For example, under the former construction of the statute, three separate, individual
violations of 29 C.F.R. § 1926.451(a)(4) occurring at different locations on different days would
result in three “violations for which a citation has been issued.” Under the latter reading, however,
one “violation for which a citation has been issued” would result, as only a single regulation would
have been alleged to have been breached.
        Because § 10(b) permits at least two possible interpretations, we conclude that the statute is
ambiguous regarding the meaning of a “violation for which a citation has been issued.” Accordingly,
under our two-step analysis required by Chevron, we turn to the agency’s interpretation of the statute
for guidance.
                                                        III.
                                                        A.
       Finding “that personal injuries and illnesses arising out of work situations impose a
substantial burden upon . . . interstate commerce in terms of lost production, wage loss, medical
expenses, and disability compensation payments,” Congress enacted the Occupational Safety and
Health Act in order to “provide for the general welfare [by] assur[ing] so far as possible every
working man and woman in the Nation safe and healthful working conditions and to preserve our
human resources,” 29 U.S.C. § 651(a)-(b). To carry out the objectives of the Act, Congress allotted


       3
           Skidmore v. Swift & Co., 

, 140 (1944).
No. 07-3810           Secretary of Labor v. OSHRC, et al.                                       Page 5


responsibility for executing the Act to two administrative actors: the Secretary and the Commission,
a three member board appointed by the President with the advice and consent of the Senate, assigned
to “carry out adjudicatory functions” under the Act. 29 U.S.C. §§ 651(b)(3). See Martin v.
Occupational Safety and Health Review Comm’n, 

, 147-48 (1991) (describing
administrative framework); Chao v. Russell P. Le Frois Builder, Inc., 

, 221-22 (2d Cir.
2002) (same).
        The Secretary is authorized “to set mandatory occupational safety and health standards
applicable to businesses affecting interstate commerce,” § 651(b)(3), and to enforce these standards
by “inspect[ing] and investigat[ing] during regular working hours and at other reasonable times . . .
any such place of employment and . . . question[ing] privately any such employer, owner, operator,
agent or employee.” 29 U.S.C. § 657(a)(2). If, during such an inspection, the Secretary (or his or
her representative) believes that an employer has violated an OSHA regulation, the Secretary is
empowered to issue a citation to the employer, describing “with particularity the nature of the
violation, including a reference to the provision of the [Act] . . . alleged to have been violated.” 

658(a). The employer then has fifteen days, running from the date of receipt of the citation, to
appeal the citation. 

659(a).
        If the employer files a timely notice of its intent to challenge the citation, “the Commission
shall afford an opportunity for a hearing” and “shall thereafter issue an order, based on findings of
fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty . . . ,” 

659(c). The initial report by the ALJ becomes the final order of the Agency unless any member
of the Commission grants discretionary review of the ALJ’s decision. 

661(j). Either party
– the Secretary or the employer charged with citations – may appeal the order of the Commission
to “any United States court of appeals for the circuit in which the violation is alleged to have
occurred” or “in the Court of Appeals for the District of Columbia Circuit,” 

660(a).
                                                  B.
        It is well-settled that appellate courts owe deference to an agency’s interpretation of its
authorizing statute when the statute is ambiguous. Ramirez-Canales v. Mukasey, 

, 907
(6th Cir. 2008) (citing 

). OSHA’s dual-actor framework raises the question
of which OSHA entity – the Secretary or the Commission – is entitled to deference, and, similarly,
how much deference that entity is entitled. In Martin, the Supreme Court considered whether a
reviewing court should defer to the Secretary or the Commission when the two actors provided
“reasonable but conflicting interpretations” of an ambiguous regulation under the Act. 

. Reasoning that because the Act assigns the Secretary the duty to promulgate and
enforce OSHA regulations, while the Commission is delegated “nonpolicy-making adjudicatory
powers,” the Court concluded that the Secretary was in the “better position than is the Commission
to reconstruct the purpose” of OSHA regulations. 

Ultimately, the Court held that
where both the Commission and the Secretary offer competing reasonable interpretations of an
OSHA regulation, “the reviewing court may not prefer the reasonable interpretations of the
Commission to the reasonable interpretations of the Secretary . . . .” 

        Left undecided by Martin, however, is to whom does a reviewing court defer when the
Secretary and Commission offer conflicting interpretations of a provision of the Act. The Second
Circuit Court of Appeals’ opinion in Russell P. Le Frois Builder (“Russell”) is instructive on this
question. In Russell, the Second Circuit faced competing interpretations of the Act concerning the
Commission’s ability to exercise jurisdiction over an employer’s untimely challenge to OSHA
citations. 

. In deciding which agency actor’s interpretation warranted
deference, the Second Circuit observed the Supreme Court’s holding in United States v. Mead
Corporation, 

, 226-27 (2001), that “administrative implementation of a particular
statutory provision qualifies for Chevron deference when it appears that Congress delegated authority
No. 07-3810               Secretary of Labor v. OSHRC, et al.                                                    Page 6


to the agency generally to make rules carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that authority.” 

.
Reasoning that, as explained by the Court in Martin, Congress delegated rule-making authority under
the Act to the Secretary, rather than the Commission, the Russell court held that “the Secretary not
the Commission[] has authority to interpret the statute . . . and we should therefore defer to the views
of the Secretary rather than the Commission.” 

-27.
        We agree with the Second Circuit that the Secretary, rather than the Commission, warrants
deference in her interpretation of the Act. In Martin, the Court pointed out that Congress did not
invest the Commission with the power to make law or 

, and repeatedly
emphasized the Commission’s role as limited to serving as a “neutral arbiter.” 

(quoting
Cuyahoga Valley Ry. Co. v. United Transp. Union, 

, 7 (1985)). In contrast, the Court
observed that the Secretary is empowered with the ability to promulgate OSHA rules and standards.

. Moreover, as the Martin Court noted, because she is empowered to write
and enforce OSHA standards, the Secretary “comes into contact with a much greater number of
regulatory problems than does the Commission” and, as a result, “the Secretary is more likely to
develop the expertise relevant to assessing the effect of a particular regulatory interpretation.” 

-53. Thus, applying the Court’s opinion in Mead and Martin, we choose to follow Russell and
defer to the Secretary, rather than the Commission, in her interpretation of the Act.4
                                                           C.
        Next, we must decide the degree of deference owed the Secretary’s interpretation of § 10(b)
– specifically, whether we should give full Chevron deference or rather the more limited
Skidmore deference. In contrast to the deferential review required by Chevron, under Skidmore, we
give an agency interpretation deference that “depend[s] upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if lacking power to 

.
Because the Secretary’s interpretation of § 10(b) is not the product of notice-and-comment
rulemaking, we conclude that the less-deferential Skidmore level of review is warranted.
         In Christensen v. Harris County, 

, 587 (2000), the Supreme Court explained
that, although Chevron requires a reviewing court to give effect to an agency’s reasonable
interpretation (offered in the form of an agency regulation) of an ambiguous statute, such deference
is not required where the interpretation is offered via an informal medium – such as an opinion letter,
agency manual, policy statement, or enforcement guideline – that lacks the force of law. Here, the
Secretary has offered her interpretation of § 10(b) only in her litigation position; she has not pointed
to any regulation or any other format that carries the force of law which reflects her interpretation




         4
           The Secretary begins her discussion of the standard of review with a citation to the APA, 5 U.S.C. § 706, for
the proposition that the “Commission’s legal conclusions may be set aside if they are ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” The APA provides that the arbitrary and capricious standard of
review is to be applied to “agency action.” 5 U.S.C. § 706(2). Under normal circumstances, where the agency speaks
with a single voice – when the Secretary and the Commission agree on an interpretation of the Act, or where (as is the
case with most agencies) enforcement and adjudicative powers are combined in a single administrative authority – the
arbitrary and capricious standard can be applied consistently. Here, however, there are two administrative actors offering
conflicting “acts,” and the Supreme Court has instructed that the actor to whom deference is owed is the Secretary, rather
than the Commission. 

-53. Thus, it would run counter to both the statutory scheme of the Act
and the Court’s instruction in Martin to apply the deferential, arbitrary, and capricious standard of review to the
Commission’s legal decision, rather than to defer to the Secretary’s interpretation of § 10(b).
No. 07-3810                 Secretary of Labor v. OSHRC, et al.                                                         Page 7


of § 10(b).5 Accordingly, under Christensen, we hold that the Secretary’s interpretation of § 10(b)
is entitled to deference only to the extent that it has the power to persuade.
                                                              IV.
        Although the Secretary is entitled to only Skidmore deference regarding her position, we
conclude that her interpretation of § 10(b) is a compelling, reasonable construction of the statute.
As the administrative actor charged with enforcing the Act, the Secretary is “‘in the best position’
to develop ‘historical familiarity and policymaking expertise’” in applying § 10(b). 

(quoting 

). On this issue, the Secretary has repeatedly advanced
the interpretation that § 10(b) does not prohibit her from alleging multiple violations of the same
regulation where the violations occurred at different places or different times. See, e.g., Sec’y of
Labor v. MJP Constr. Co., Inc., 

(2001) (upholding multiple violations
under same regulation where citation items alleged violations occurring on different dates); Sec’y
of Labor v. J.A. Jones Constr. Co., 

(1993) (holding that the Secretary
may appropriately cite separate violations for each individual instance of improper fall protection
where each alleged instance of violation involves either a different floor or a different location on
each floor). See also Good Samaritan Hosp. v. Shalala, 

, 417 (1993) (“The consistency
of an agency’s position is a factor in assessing the weight that position is due”).
         Most importantly, the Secretary’s position is consistent with the text of the Act. The text of
§ 10(b) speaks in terms of a singular, discrete violation – providing that “[i]f the Secretary has reason
to believe that an employer has failed to correct a violation for which a citation has been issued
. . . . ” § 659(b) (emphasis added). The citations at issue in this case were likewise written in
singular terms, referring to individual violations of 29 C.F.R. § 1926.451(a)(4) by specific Manganas
Painting employees. Had Congress intended for the expansive interpretation of “a violation” that
the Commission applied, it is likely that it would have referred to a “type of violation for which a
citation has been issued” or a “practice for which a citation has been issued.” See Alden Leeds, Inc.
v. Occupational Safety and Health Review Comm’n, 

, 262-63 (3d Cir. 2002)
(distinguishing citations alleging discrete violations and citations alleging violative practices, and
pointing out that Secretary could have cited employer for categorical practices, rather than for
discrete, individual violations). Instead, the statute refers only to “a violation,” and we “must
presume that a legislature says in a statute what it means and means in a statute what it says there.”
Conn. Nat’l Bank v. Germain, 

, 253-54 (1992). Thus, we hold that the Secretary’s
interpretation of § 10(b) is consistent with the text of the statute.
       Finally, we emphasize the limits of our opinion. The Commission found, and substantial
evidence supports the factual finding, that the 1993 and 1994 citations occurred at two separate
worksites, one year apart from each other. In this regard, we review for clear error the factual
findings made by the Commission. Fields Excavating, Inc. v. Sec’y of Labor, 

, 420 (6th
Cir. 2004); CMC Elec., Inc. v. OSHA, 

, 865 (6th Cir. 2000). We conclude the
Commission’s finding of two different worksites is supported by substantial evidence. See Nat’l
Eng’g & Contracting Co. v. Herman, 

, 721 (6th Cir. 1999) (explaining that
“[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”) (internal quotations omitted).
        Thus, we are not called upon to decide, and express no opinion on the question, whether
§ 10(b) bars successive penalties for the same violation at the same worksite. Rather, we decide only


         5
           By contrast, where an OSHA regulation is at issue, rather than a provision of the Act, the Secretary’s
interpretation of the regulation, even if expressed for the first time as a litigation position, is nevertheless entitled to full
Chevron deference. 

.
No. 07-3810           Secretary of Labor v. OSHRC, et al.                                       Page 8


that where an employer challenges a citation issued by the Secretary, the Secretary is not barred by
§ 10(b) from issuing a second citation for a violation of the same regulation that occurs at a different
worksite at a subsequent time.
                                                  V.
        For these reasons, we grant the petition for review, reverse the decision of the Occupational
Safety and Health Review Commission with respect to citation items 13a-13c, and remand for
further proceedings consistent with this opinion.