REYNOLDS METALS CO.
OSHRC Docket No. 4385
Occupational Safety and Health Review Commission
June 14, 1978
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Daniel W. Teehan, Reg. Sol., USDOL
John R. Amos, Reynolds Metals Co., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
This case is again before the Commission following Judge Jerry Mitchell's order dismissing a complaint and vacating a citation which charged Reynolds with a failure to utilize feasible engineering or administrative controls to reduce noise levels to within the limits permitted by 29 C.F.R. § 1910.95. Previously, this case was before the Commission on interlocutory appeal of the Judge's order denying the Secretary's motion for discovery through entry upon land. At that time a divided Commission held that although the Secretary was entitled to discovery, he should be restricted to the use of Federal experts to conduct the discovery inspection because Reynolds asserted it had trade secrets which might be revealed if the inspection was conducted by an outside expert and because the Secretary had not shown good cause why it was necessary to use outside experts. Reynolds Metals Co., 3 BNA OSHC 1749, 197576 CCH OSHD para. 20,214 (No. 4385, 1975) ("Reynolds [*2] I"). For the reasons that follow we again remand for further proceedings consistent with this opinion.
This case has had a protracted history involving a dispute over the Secretary's pre-hearing attempt to discover information relevant to the allegedly excessive noise levels at Reynolds' Haywood, California can manufacturing facility. A representative of the Secretary inspected the Haywood plant in July, 1973. In August, 1973, the Secretary issued Reynolds a citation alleging a failure to comply with the noise standard, § 1910.95(b)(1), n1 at five locations in its plant. Following Reynolds' timely notice contesting the citation and its subsequent refusal to allow discovery by entry upon land, the Secretary moved to allow entry by one or more outside experts into Reynolds' plant, for the purpose of discovering facts regarding whether feasible engineering controls exist to reduce noise in the plant. n2 The thrust of the Secretary's motion was that he was entitled to discovery as a matter of right. He argued that Rule 34 of the Federal Rules of Civil Procedure authorized the requested discovery through Commission Rule of Procedure 2200.2(b). Supra note 2. He further contended [*3] that the information sought was relevant to the subject matter of the action and that he was not required to show good cause in order to obtain discovery. The Secretary argued that nothing in the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., "the Act") or in the Fourth Amendment precluded discovery. Next, he alleged that Reynolds failed to specify how the requested discovery would, as it contended, constitute a burdensome and oppressive intrusion. Finally, the Secretary noted that Reynolds had available a remedy under Rule 26(c) of the Federal Rules of Civil Procedure which it had not sought. That is, for good cause shown, it could have sought a protective order against what it considered burdensome or oppressive aspects of any discovery request.
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n1 Section 1910.95(b)(1) states:
When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.
Table G-16 entitled "Permissible Noise Exposures" includes the following:
|
|
Sound level dBA |
|
Duration per day, hours |
slow response |
|
8 |
90 |
|
6 |
92 |
|
4 |
95 |
|
3 |
97 |
|
2 |
100 |
|
1 1/2 |
102 |
|
1 |
105 |
|
1/2 |
110 |
|
1/4 |
115 |
n2 The Commission's Rules of Procedure do not cover discovery by entry upon land, and the discovery rules of the Federal Rules of Civil Procedure therefore apply. 29 C.F.R. § 2200.2(b). See Reynolds Metals Co., 3 BNA OSHC at 1750. Fed. R. Civ. P. 34, in pertinent part, states:
(a) Scope. Any party may serve on any other party a request . . . to permit entry upon designated land or other property in possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon . . .
Fed. R. Civ. P. 37, in pertinent part, states:
(a) Motion for Order Compelling Discovery. . . . (2) Motion. . . . if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested, the discovering party may move for . . . an order compelling inspection in accordance with the request.
[*4]
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Reynolds opposed the motion on the grounds that 1) the discovery request was an unlawful attempt to conduct a post-citation inspection of Reynolds' plant; 2) the Act did not permit witnesses to enter Reynolds' workplace; 3) the Commission's Rules of Procedure did not permit the requested discovery; 4) the discovery request was broad, vague, and ambiguous and accordingly violated the Act; 5) the discovery request established that the citation was improperly issued; and 6) inasmuch as Reynolds has a proprietary interest in its machinery, the discovery request violated Reynolds' rights under § 15 of the Act which provides for protecting the confidentiality of trade secrets. Infra note 4.
Judge Mitchell denied the Secretary's motion in its entirety. He also refused to certify the case for interlocutory appeal. Pursuant to Commission Rule 2(b) the Secretary then petitioned the Commission for special permission to appeal the denial of his discovery request.
In his petition for special permission to appeal the Secretary continued to expend the majority of his efforts maintaining that he had an unbridled [*5] right to the requested discovery. However, he also noted that Reynolds had raised before Judge Mitchell the question of protecting its alleged proprietary interests. The Secretary commented that Reynolds nevertheless did not claim that trade secrets were involved. In addition, the Secretary alleged that Reynolds had not attempted to make any showing by way of affidavit or sworn testimony to the effect that trade secrets were involved.
The Commission granted interlocutory appeal and the proceedings were stayed pending the Commission's disposition of the appeal. In granting the appeal we ordered that Reynolds could have an opportunity to file a statement in opposition to the Secretary's memorandum in support of his request for special permission to appeal. The Secretary filed nothing further and we also denied his subsequent request to respond to Reynolds' statement in opposition.
In its statement in opposition Reynolds continued to argue primarily that the Secretary had no right to the requested discovery. It did submit, however, an affidavit of its vice-president and general manager of Reynolds' can division which stated that Reynolds was a pioneer in the development of aluminum [*6] cans and that its present market position depended on keeping its processes secret.
As noted above, the Commission, in Reynolds I, granted the Secretary's motion subject to his use of Federal employees rather than outside experts to conduct the discovery inspection. In doing so I stated in the lead opinion my belief that the Secretary could locate a qualified Federal expert in noise control who, as a Federal employee, would be subject to the sanctions of 18 U.S.C. § 1905 for the unlawful disclosure of confidential information. n3 The case was then remanded for further proceedings.
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n3 18 U.S.C. § 1905 provides for criminal sanctions for any Federal employee who makes unauthorized disclosures of trade secrets of which he learns in the course of his employment.
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Following the remand the Judge entered an order granting the Secretary's motion for entry upon Reynolds' land but limiting entry to a Federal employee. Pursuant to the Commission decision in Reynolds I and the Judge's order, the Secretary conducted [*7] a search of 26 Federal agencies for a qualified noise expert and reported to Judge Mitchell that he could find no available Federal expert equivalent in education and experience to the average outside expert he had previously used. The Secretary thereupon moved that the Judge permit the use of outside experts to conduct the discovery inspection. The Judge refused to vacate his previous order limiting entry to a Federal employee and dismissed the case upon the Secretary's statement that he was therefore unable to proceed. The Secretary thereafter petitioned for review and review was granted.
In his brief on review of the Judge's order dismissing the citation and complaint the Secretary concedes that Judge Mitchell was bound by Reynolds I and had no alternative but to dismiss the case upon the Secretary's contention that he was unable to proceed under the terms of that decision. However, the thrust of the Secretary's contentions have now shifted from the question of his right to inspect to the issue of the manner of inspection where trade secrets have been alleged. While not questioning the legitimacy of Reynolds' proprietary interest claim, the Secretary now contends that [*8] any restriction on discovery cannot be based upon a mere unsupported assertion that trade secrets exist. He argues that Reynolds, as the party requesting discovery limitations on the grounds of trade secrets, has the burden of establishing their existence. And in order to meet this burden the Secretary contends that Reynolds must introduce specific facts which establish that the information sought actually involves trade secrets. Furthermore, he argues that the Commission erred in requiring the Secretary to show good cause as to why he should not be limited to using a Federal expert to conduct the inspection. The Secretary contends that, assuming trade secrets are intertwined with information sought in discovery, the trade secrets privilege must yield if, on balance, the Commission determines that the competing interests at stake in the litigation do not justify the withholding of information. The protection of workers from excessive noise, the Secretary asserts, outweighs Reynolds' interest in protecting its trade secrets, and the use of the best available expert to conduct the discovery inspection is essential to enable the Secretary to prove a complex noise case and thereby [*9] secure abatement of a noise violation. In any event, the Secretary argues that even if trade secrets exist that warrant protection, the proper safeguard is an order binding an outside expert to confidentiality, not a Federal employee restriction. Finally, the Secretary contends that, even if § 15 of the Act n4 authorized the Commission to impose a Federal employee restriction, such a restriction is unreasonable in this case because a survey of Federal agencies indicates a qualified Federal noise expert is unavailable.
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n4 Section 15 of the Act provides, in part:
. . . In any such proceeding which contains or which might reveal a trade secret the Secretary, the Commission, or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.
Rule 11 of the Commission's Rules of Procedure, 29 C.F.R. § 2200.11(a), in essence parallels § 15 of the Act. Rule 26(c) of the Federal Rules of Civil Procedure, infra note 6, provides the court with authority to order, under certain circumstances, that discovery be conducted with no one present except persons designated by the court. Fed. R. Civ. P. 26(c)(5). This rule applies to the Commission's proceedings. Supra note 2.
[*10]
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Based on the foregoing arguments, the Secretary requests that the case be remanded in order for Reynolds to make a proper showing on its trade secrets claim and, if sustained, for the Judge to then issue an appropriate order allowing the discovery inspection to be conducted by an outside expert but binding the outside expert to confidentiality.
In its review brief urging affirmance Reynolds argues that the only issue is whether, following the Secretary's refusal to proceed, the Judge abused his discretion by dismissing the case. In Reynolds' view it is the law of the case that the Secretary must use a Federal employee to conduct any discovery inspection. Therefore, according to Reynolds, when the Secretary stated he could not proceed under this limitation, the Judge properly dismissed the case. Reynolds also contends that the Secretary cannot now dispute the existence of trade secrets because he failed to raise the issue of their existence either before the Judge or when the case was on interlocutory review before the Commission. Reynolds argues that, in any event, in Reynolds I the Commission [*11] made the required factual findings, including that Reynolds had trade secrets to protect, and properly balanced the competing interests of the parties. Finally, Reynolds alleges that the Secretary did not make a bona fide attempt to locate a qualified Federal expert and therefore did not establish that he was unable to locate such an expert. Reynolds therefore requests that if a second remand is ordered the Commission require the Secretary to prove that he is unable to obtain a qualified Federal employee.
I note initially that the parties disagree as to the issues before the Commission. The Secretary argues that the Commission erred as a matter of law in imposing a Federal employee restriction, but that, assuming such a restriction can ever be proper, it is unjustified in this case because Reynolds has not proven the existence of valid trade secrets and because a diligent search has revealed that a qualified federal expert is unavailable. Reynolds argues that these issues can no longer be litigated and that the only issue is whether the Judge correctly dismissed the complaint upon the Secretary's refusal to proceed in accordance with Reynolds I.
In Reynolds I the Commission [*12] held that, as a matter of law, the Secretary is limited to the use of a Federal employee to conduct a discovery inspection if inspection by an outside expert would endanger the employer's trade secrets and if the Secretary failed to show good cause why it was necessary to use an outside expert. That holding is the law of the case and I therefore reject the Secretary's argument that limiting him to the use of a Federal employee to conduct a discovery inspection can never be proper.
However, contrary to Reynolds' contentions, there are two as yet unresolved issues in this case. The first is whether Reynolds has established the existence of trade secrets.
When Reynolds I was decided, Reynolds had placed in the record the affidavit that it had trade secrets a discovery inspection might reveal, and the Act places on the Commission the duty of protecting trade secrets from disclosure. Supra note 4. Therefore, having decided that the Secretary had the right to a discovery inspection, the Commission could not ignore the issue presented by Reynolds' claim of trade secrets. Since the Secretary did not question the existence of trade secrets at the time of Reynolds I, we issued [*13] a protective order based on the record as it existed at that time.
I agree with the Secretary that, as the party seeking to limit discovery on trade secret grounds, Reynolds has the burden of establishing their existence. Fed. R. Civ. P. 26(c). n5 See, e.g., Davis v. Romney, 55 F.R.D. 337, 340 (E.D. Pa. 1972). However, I reject the Secretary's argument that an affidavit, without more, is an insufficient basis upon which to find that Reynolds possesses trade secrets. Placing this matter in proper perspective, I emphasize that at issue here is a dispute over a pre-hearing discovery motion. And at least at this preliminary stage of the case, it is entirely proper to rely on an uncontroverted affidavit to establish the existence of trade secrets for purposes of a discovery limitation under Rule 26(c). Fed. R. Civ. P. 44(e). See Israel Aircraft Industries, Ltd. v. Standard Precision, 559 F.2d 203 (2nd Cir. 1977); Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir. 1965). Consequently, I would normally find that, based on the record as it now exists, Reynolds possesses the necessary trade secrets and that any objection as to their existence [*14] is untimely because the Secretary failed to raise the argument prior to our decision in Reynolds I.
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n5 Fed. R. Civ. P. 26(c), in part, states:
Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending. . ., the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way: . . . .
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However, this case is unique both in its procedural history and in its establishment of new legal principles. In the beginning, the question of trade secrets was secondary to the Secretary's right to obtain discovery inspections. However our decision in Reynolds I brought the trade secrets issue [*15] to the forefront. By placing on the Secretary the duty of finding qualified Federal experts in order to protect trade secrets, we gave the issue of trade secrets added significance. As a result of that decision, the Secretary may not be able to rely upon orders of confidentiality to protect trade secrets. Moreover, instead of using private experts, he must find Federal experts. Although I expressed the limitation in terms of being "confident" the Secretary could locate a qualified Federal expert, the Secretary claims such a task is impossible. Yet failure in this regard may lead to dismissal. Hence whether trade secrets actually exist may become crucial to the ability of the Secretary to proceed. Accordingly, our decision in Reynolds I placed the entire issue of trade secrets in a different context. Because the effect trade secrets have on a discovery inspection was an issue of first impression before the Commission and the parties did not fully address the issue prior to Reynolds I, I hold that the parties should have the opportunity to relitigate the trade secrets issue and will remand for a hearing on whether Reynolds has the requisite trade secrets. Cf. Grossman [*16] Steel and Aluminum Co., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,690 (No. 12775, 1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976).
The second issue yet to be resolved involves the Federal employee restriction. Again, Reynolds contends that our earlier decision is unequivocal in requiring that the Secretary use only Federal employees to conduct the discovery inspection. As noted above, however, I expressed that limitation in terms of being "confident" the Secretary could locate a qualified Federal expert. Thus, our decision did not go so far as to preclude the Secretary from showing good cause why a nonfederal employee must be used, i.e. that a qualified Federal expert was unavailable.
Even accepting Reynolds' position that Reynolds I unequivocally required a Federal employee to conduct the discovery inspection, I would nevertheless be constrained to also reconsider the discovery limitation issue in light of the intervening circumstance of the Secretary's alleged inability to locate a Federal expert. See Brennan v. OSAHRC (John J. Gordon), 492 F.2d 1027 (2nd Cir. 1974); Faircrest [*17] Site Opposition Committee v. Levi, 418 F. Supp. 1099 (N.D. Ohio 1976); cf. Placid Oil Co. v. FPC, 483 F.2d 880 (5th Cir. 1973), Bookman v. U.S., 453 F.2d 1263 (Ct. Cl. 1972).
Accordingly, I am remanding to the Judge for factual findings on the threshold question of whether Reynolds has trade secrets which a discovery inspection would endanger, and on the secondary question of whether the Secretary has shown good cause for using a nonfederal expert. On the issue of whether Reynolds has the requisite trade secrets, the burden is upon Reynolds to establish their existence. If the Judge, after making specific factual findings on the matter, finds that Reynolds has not shown that trade secrets exist, the Secretary is to be granted permission to conduct discovery using any expert he chooses. The second question therefore need not be reached.
If the Judge finds that trade secrets do exist, and after allowing for the introduction of additional evidence, he is to make specific factual findings on whether the Secretary has established good cause for the use of a nonfederal expert. If the Secretary shows good cause, he shall be permitted to use any expert of his choice. [*18] If he is unable to establish good cause, the Secretary shall be limited to using a Federal employee to conduct any discovery inspection.
Also, in the event the Judge finds that trade secrets exist, he is to protect their confidentiality by issuing any such additional orders as may be appropriate, in accordance with our earlier decision in this case and Rule 11 of the Commission's Rules of Procedure.
Accordingly, the case is remanded for further proceedings consistent with this decision.
Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.
SEPARATE OPINION
As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.
In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority [*19] to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.
Discretion of Commission Members
As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. § 661(e), provides:
For the purposes of carrying out its functions under this chapter, two members of the Commission [*20] shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.
Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.
However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation. 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. [*21] 1965):
The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [Footnotes omitted]
348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.
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n1 A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).
n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 708, 802 n. 14.
[*22]
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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prod., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also LaPeyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without [*23] question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. e.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).
Decision Not to Participate
I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. § 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. § 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that [*24] a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. § 651(b).
I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 10053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. § 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a [*25] more uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.
Conclusion
My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. The full benefit of Commission review is also assured the parties and the public. Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.
CONCURBY: CLEARY
CONCUR:
CLEARY, Chairman, CONCURRING:
This case demonstrates why Reynolds I should be reexamined in the near future. Nevertheless, I concur in the result because Reynolds I is controlling here.