AIRLIFT INTERNATIONAL, INC.

OSHRC Docket No. 12569

Occupational Safety and Health Review Commission

May 18, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

F. V. LaRuffa, Reg. Sol., USDOL

William F. Kasper, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James P. O'Connell is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The judge determined that Respondent, Airlift International, Inc. ("Airlift"), violated section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), by failing to comply with the standard at 29 C.F.R. 1910.132(a). n1 Airlift filed a petition for review, taking exception to both the judge's decision on the merits of the alleged violation and the judge's ruling on Airlift's motion for the production of the compliance officer's notes taken during the inspection. Former Commissioner Barnako granted the petition. n2 We conclude that the judge erred in the procedural ruling to which Airlift takes exception, and that the error requires us to set aside the judge's decision and remand the case for further proceedings.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This standard provides:

1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremeties, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

n2 Former Commissioner Moran also directed review to determine whether the record and the applicable precedent justify the judge's conclusions of law and order. In response to the directions for review, Airlift submitted a brief arguing, as it had in its petition for review, that the judge erred in his disposition of the alleged violation involving 1910.132(a). The Secretary submitted a letter in lieu of a brief relying on the judge's decision.

In addition to his disposition of the 1910.132(a) item, the judge found that Airlift had failed to comply with 29 C.F.R. 1910.157(c)(1)(iv) but vacated the penalty of $50 that the Secretary had proposed for that item. The judge also determined that no penalty should be assessed for a violation of 29 C.F.R. 1904.5(a). Neither party has taken exception to the judge's disposition of these items. In the absence of either party interest or a compelling public interest, we will not review those aspects of the judge's decision. See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

This case was consolidated for hearing with Docket No. 12650 and the judge issued a consolidated decision in the two cases. Docket No. 12650 was not directed for review and has evolved into a final order of the Commission pursuant to 29 U.S.C. 661(i). Accordingly, we hereby sever this case from Docket No. 12650. 29 C.F.R. 2200.10.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On February 5, 1975, Arthur Lind, a compliance officer of the Occupational Safety and Health Administration, inspected Airlift's worksite at John F. Kennedy Airport. At that worksite, Airlift's employees loaded freight onto aircraft. The information gathered during Lind's inspection led the Secretary of Labor ("the Secretary") to cite Airlift for allegedly violating section 1910.132(a). The citation alleged that Airlift's freight handling employees were exposed to foot injuries end were not wearing foot protection.

After Airlift timely contested the citation, a hearing was held before Judge O'Connell. At the hearing, Lind was the only witness presented by the Secretary. Prior to Lind's testimony, Airlift's counsel requested that any "notes, memoranda, or similar written documents" made by Lind during the inspection be turned over to Airlift. Airlift relied on Frazee Construction Co., 73 OSAHRC 34/B5, 1 BNA OSHC 1270, 1973-74 CCH OSHD P16,409 (No. 1343, 1973), as authority requiring the production of the materials requested. Following the Secretary's objection to the request, Judge O'Connell [*3] denied Airlift's motion but permitted Airlift to renew the motion during Lind's testimony or during cross-examination.

On cross-examination, Lind testified that he had taken notes during the inspection. Airlift thereupon moved that those notes be produced. Again, following the Secretary's objection to the motion, the judge denied the request. Thus, at no time during the hearing did Airlift have the opportunity to examine the notes made by Lind during his inspection of Airlift's worksite.

Airlift argues on review that the judge erred in denying it the right to examine Lind's notes and that the error requires reversal of the judge's decision. We agree. We have held that:

[W]hen a witness has completed testifying for the Secretary on direct examination, the Secretary shall, upon motion by a respondent, turn over to it all the witness's prior statements that are in the government's possession and that relate to the subject matter of the witness's testimony.

Massman-Johnson (Luling), 80 OSAHRC 44/B8, 8 BNA OSHC 1369, 1376, 1980 CCH OSHD P24,436 at p. 29,808 (No. 76-1484, 1980), pet. for review filed, No. 80-3413 (5th Cir. June 2, 1980). The failure of a judge [*4] to order the production of a witness's statement normally will be reversible error, for the Commission cannot speculate on the use that a respondent could have made of the material during cross-examination of the witness. Bethlehem Steel Corp., 81 OSAHRC 9 BNA OSHC 1321, 1329-31, 1981 CCH OSHD P25,200 at 31-111-12 (No. 12817, 1981). Only where it is clear that the respondent could not have made any meaningful use of the material will the judge's error be deemed harmless.

The notes made by Lind are not included in the official record of the proceedings in this case, so there is no basis to conclude that Airlift could not have put the notes to meaningful use. Moreover, apart from Lind's testimony there is insufficient independent evidence to affirm a violation. Cf. Blakeslee-Midwest Prestressed Concrete Co., 77 OSAHRC 191/A2, 5 BNA OSHC 2036, 1977-78 CCH OSHD P22,284 (No. 76-2552, 1977) (unavailability of compliance officer's notes for use by employer in cross-examination is harmless error when evidence independent of compliance officer's testimony establishes violation). Accordingly, we must set [*5] aside the judge's decision and remand the case for further proceedings in order to assure Airlift the opportunity for effective presentation of its case. On remand, the Secretary should be provided the opportunity to turn over to Airlift a copy of the notes and other similar documents made by Lind during the inspection. If the Secretary declines to do so, the judge must strike Lind's testimony from the record. However, any material that would reveal the identity of confidential informants need not be disclosed routinely. Pratt & Whitney Aircraft, supra.

Accordingly, the judge's decision is set aside insofar as it found Airlift in violation of 29 C.F.R. 1910.132(a), and the case is remanded for further proceedings consistent with this opinion. SO ORDERED.