ADLER & NEILSON COMPANY, INC.

OSHRC Docket No. 13380

Occupational Safety and Health Review Commission

March 15, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Philip B. Neilson, President and David H. Neilson, Vice-President, Adler & Neilson Company, Inc., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Seymour Fier, dated December 2, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). At issue is whether the Judge erred in vacating two items of a citation charging respondent with violating 29 U.S.C. 654(a)(2) for failing to comply with the occupational safety and health regulations codified at 29 C.F.R. 1904.2(a) and 1904.5(a). For the reasons which follow, we affirm the Judge's decision, which is attached hereto as Appendix A. n1

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n1 Chairman Barnako does not agree to this attachment.

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Respondent, a corporation having its central office at Woodside, New York, is in the business of architectural and miscellaneous metal [*2] work. At the time of the alleged violation respondent was engaged in the installation of various metal work as a subcontractor at a construction site in Rego Park, New York. Following an inspection at that worksite, respondent was cited for, inter alia, failing to maintain at the worksite an injury and illness log and an annual summary thereof, in contravention of 29 C.F.R. 1904.2(a) n2 and 1904.5(a). n3

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n2 That regulation provides in pertinent part:

"Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment . . . ."

n3 That regulation provides in pertinent part:

"Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment . . . ."

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The Judge vacated these items of the citation on the ground that complainant failed to rebut respondent's contentions that the log and summary were maintained at its central office in Woodside, which was sufficient according to advice previously given respondent [*3] by the area director for the Occupational Safety and Health Administration. On review, complainant contends that the evidence does not establish that the log and summary were maintained at its central office and that, even if it did, such maintenance would not satisfy the requirements of the regulations. We reject these contentions and affirm the Judge's disposition.

Respondent's vice president, a layman who acted as counsel for respondent, stated at the hearing that respondent maintained the log and summary at its central office and that, pursuant to a demand by complainant, respondent had turned the forms over to complainant. Although the forms were never offered into evidence, the record does contain a written motion by complainant for an order compelling respondent to produce certain documents, including the forms here in question. Furthermore, during the hearing the following exchange took place:

"MR. ZANDY: Your Honor, could the Secretary request a short adjournment? There are some records which the Secretary has subpoenaed that I would need to look at before I could continue with the record-keeping violations.

JUDGE FIER: Those are the 1904.2 and 4?

MR. ZANDY: Yes. [*4] These materials were asked for and discovered."

In view of the foregoing, the conclusion is inescapable that respondent gave the forms in question to complainant. Moreover, since complainant failed to introduce the forms into evidence, we think it is reasonable and just to infer that had the forms been produced they would have been unfavorable to complainant's case. See Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939); Lewis-Simas-Jones Co. v. Southern Co., 283 U.S. 654 (1931); Hoffman v. Commissioner of Internal Revenue, 298 F.2d 784 (3d Cir. 1962); United States v. Johnson. 288 F.2d 40 (5th Cir. 1961); O'Dwyer v. Commissioner of Internal Revenue, 266 F.2d 575 663 (4th Cir. 1959). Cf. Brady v. Maryland, 373 U.S. 83 (1963). Accordingly, we conclude that the forms had in fact been maintained in proper order at respondent's central office in Woodside.

Although 1904.2(a) requires that an employer maintain an injury and illness log at each establishment, an exception to that requirement is provided for employers of employees engaged in physically dispersed operations such as occur in construction or installation work, 29 C.F.R. 1904.14. [*5] For such employers, maintenance of the log at an established central place is sufficient. In this case, since respondent's employees were engaged in installation and construction work at a temporary worksite, we hold that respondent satisfied the regulations by maintaining the log at its central office in Woodside.

Similarly, the item of the citation alleging noncompliance with 29 C.F.R. 1904.5(a) for failing to maintain at the worksite the annual summary of occupational injuries and illnesses should be vacated. That regulation requires only that the summary be compiled for each establishment and not that it be maintained at each establishment. Since the evidence establishes that the summary was in fact compiled and maintained at respondent's central office, respondent was in compliance with the regulation.

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n4 Although the regulation codified at 29 C.F.R. 1904.5(d) requires the posting of the annual summary at each establishment, such posting is only required from February 1 until March 1 of each year. Since the inspection in this case took place in May, it is clear that respondent was not required by this standard to have the summary posted.

[*6]

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Accordingly, the Judge's decision is hereby affirmed.