“SECRETARY OF LABOR,Complainant,v.GENESEE BREWING COMPANY,Respondent.OSHRC Docket No. 78-5178_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:Administrative Law Judge Abraham Gold vacated a citation alleging thatGenesee Brewing Company violated the noise standard at 29 C.F.R. ?1910.95 (b)(1).[[1]] The judge decided that the Secretary of Laborfailed to prove the feasibility of the administrative and engineeringcontrols which the Secretary believed Genesee Brewing should haveimplemented in its brewery in Rochester, New York. The Secretary fileda petition for review in which he contended that his failure to provefeasibility was caused by his inability to obtain a discovery inspectionof the brewery. The Secretary argued that Judge Gold abused hisdiscretion by denying the Secretary’s repeated motions to compel thediscovery entry. The Secretary therefore argued in his petition forreview that the judge’s decision should be reversed and the case remanded.The Secretary’s petition for review was granted by Commissioner Cottinepursuant to 29 U.S.C. ? 661(i). For the following reasons, we concludethat the judge abused his discretion in denying the Secretary’s motionto compel discovery and we remand the case for further proceedingsconsistent with this opinion.IThe Secretary issued the citation in October 1978, following a September1978 inspection of bottle and can line operations in Genesee Brewing’sbrewery. Genesee Brewing contested the citation and the partiesthereafter attempted to reach a settlement of the issues. In December1978, after settlement attempts proved unsuccessful, a complaint andanswer were filed.[[2]] On January 5, 1979, Judge Gold scheduled ahearing for March 30, 1979.In February 1979, the parties agreed to conduct discovery by oral,rather than written, requests or motions. At this time, they alsoagreed to an exchange of documents for discovery purposes. Then, onMarch 7 or 9, 1979, the Secretary orally requested Genesee Brewing topermit an expert in acoustical engineering or noise control to inspectthe company’s brewery on March 15 or 16, 1979.[[3]] On March 14, 1979,Genesee Brewing informed the Secretary that the discovery would not bepermitted. On March 23, 1979, the Secretary filed motions asking thejudge to postpone the hearing and compel Genesee Brewing to permit thediscovery inspection. Judge Gold received the motions on March 27,1979[[4]] and, on March 28, 1979, held a conference call with theparties to consider the motions. After hearing the parties’ arguments,Judge Gold denied the Secretary’s motions for postponement anddiscovery. He reasoned that the Secretary had known of the scheduledhearing since January 5, 1979, but did not pursue discovery withreasonable diligence.The hearing convened on March 30, 1979, as scheduled, and the Secretarypresented the evidence he had available in support of thecitation.[[5]] The Secretary’s case was not completed by the end of theday and the hearing was scheduled to reconvene on April 9 and 10, 1979. At the end of the proceedings on March 30, on April 5 in the intervalbefore the hearing reconvened, on April 9 when the hearing reconvened,and at the close of his case on April 10, the Secretary renewed hismotion for the discovery entry. On each occasion, the motion wasopposed by Genesee Brewing and denied by Judge Gold. Judge Goldemphasized that the original lack of diligence in pursuing discoverycould not be cured later in the proceedings. After the final motion anddenial, the Secretary indicated that he did not rest, but that he had nomore evidence to present. Believing that the Secretary’s case wasinsufficient, see note 5 supra, Genesee Brewing then chose not topresent a case. Thereafter, Judge Gold issued his decision holding thatthe Secretary failed to establish the feasibility of administrative orengineering controls to reduce noise in Genesee Brewing’s brewery. Hetherefore vacated the citation.The Secretary argues that Judge Gold abused his discretion in denyingthe discovery inspection. The Secretary emphasizes that his need forthe discovery entry was substantial, he was reasonably diligent inseeking the discovery entry prior to the hearing, and permitting thediscovery entry would not have resulted in any significant delay in theproceedings. The Secretary also argues that Genesee Brewing would nothave been prejudiced.Genesee Brewing argues that Judge Gold properly exercised his discretionin denying the discovery. Genesee Brewing contends that, by waitinguntil March 9, 1979, to make a first request for the discovery, theSecretary was dilatory. The company also contends that discovery wasproperly denied after the hearing had begun. Emphasizing that itsattorneys had prepared evidence and arguments for the hearing asscheduled, Genesee Brewing contends that it would have been prejudicedby a delay in the hearing to permit further discovery.IIIn Del Monte Corp., 81 OSAHRC 78\/A2, 9 BNA OSHC 2136, 1981 CCH OSHD ?25,586 (No. 11865, 1981), the Commission stated:The decision whether to allow discovery is within the judge’s sounddiscretion. This sound discretion should be guided by the objective ofproviding a fair and prompt hearing to the parties. Moreover, the judgeshould consider the need of the moving party for the information sought,any undue burden to the party from whom discovery is sought, and, onbalance, any undue delay in the proceedings that may occur. Given thejudge’s broad discretion, a judge’s disposition of discovery matters isreversible only if the judge’s actions constitute an abuse of discretionresulting in substantial prejudice.Discovery inspections, however, are ordinarily permissible where aviolation of the noise standard is alleged.. . . In allowing the Secretary discovery in noise cases, the Commissionhas recognized that the Secretary is authorized to issue a citation onless evidence than he may need to prove the existence of the violation. Further, the Commission is cognizant that discovery by the Secretary innoise cases is critical, particularly to prepare expert testimony, for\”[w]ithout expert testimony, it is doubtful that the Secretary can showthe feasibility of engineering controls.\”9 BNA OSHC at 2141, 1981 CCH OSHD at p. 31,915 (citation sentencesomitted throughout the quote). Moreover, the Commission has indicatedthat some protraction of the proceedings is justified when it occurs toobtain necessary discovery and that, if the Secretary has not beenexcessively dilatory or otherwise contumacious and needs additional timefor such discovery, a denial of discovery can be an abuse of discretion. See Del Monte Corp., supra; Federated Metals, Inc., 81 OSAHRC 58\/A2, 9BNA OSHC 1906, 1981 CCH OSHD ? 25,425 (No. 79-2255, 1981).In this case, the Secretary sought the discovery inspection to preparerelevant expert testimony about the feasibility of administrative andengineering controls for noise. When the discovery entry was denied,the Secretary was unable to establish his case through expert testimony,see note 5 supra. Therefore, despite the absence of rebuttal evidence,Judge Gold concluded that the Secretary’s case was insufficient toestablish the feasibility of the controls. The Commission has notedthat without expert testimony it is doubtful that the Secretary would beable to satisfy his prima facie burden of establishing feasibility ofabatement in noise cases. See Del Monte Corp., supra; Ralston-PurinaCo., 79 OSAHRC 81\/E6, 7 BNA OSHC 1730, 1979 CCH OSHD ? 23,897 (No.78-145, 1979). Thus, the Secretary’s need for the discovery wascritical even though he was able to present some evidence, and thedenial of discovery was highly prejudicial to the Secretary’s case. Accordingly, the discovery should have been permitted unless GeneseeBrewing would have suffered actual prejudice from the discovery or theSecretary’s conduct throughout the proceedings was marked by excessivedilatoriness rising to the level of contumacy. See Samsonite Corp., 82OSAHRC 26\/A2, 10 BNA OSHC 1583, 1982 CCH OSHD ? 26,054 (No. 79-5649,1982); Del Monte Corp., supra; Federated Metals, Inc., supra; see alsoGeneral Motors Corp., Fisher Body Division, 82 OSAHRC 50\/A2, 10 BNA OSHC1953, 1982 CCH OSHD ? 26,210 (No. 79-2212, 1982).Genesee Brewing does not claim that it has already suffered anyprejudice from the Secretary’s conduct in seeking the discovery. Also,although Genesee Brewing contends that postponing the hearing in orderto permit the discovery would have resulted in prejudice, extra casepreparation and similar inconveniences do not amount to legalprejudice. These inconveniences can be cured by a moderate continuanceof the hearing date. See Samsonite Corp., supra.Because the discovery was critical to the Secretary’s case and GeneseeBrewing would not have been prejudiced, the discovery should not havebeen denied unless the Secretary’s conduct was excessively dilatory orotherwise contumacious. See, e.,g., Samsonite Corp., supra. Judge Golddenied the Secretary’s discovery on the basis that the Secretary had notbeen reasonably diligent in seeking the discovery after the hearing wasscheduled. However, the Secretary began discovery during February 1979,within a reasonable time after the hearing had been scheduled. Furthermore, because discovery in health cases can be relativelytime-consuming without being unreasonable, the need for discovery canjustify moderate postponement of the hearing. See Del Monte Corp.,supra; Federated Metals, Inc., supra. Thus, although the Secretary’sconduct in this case may not have been a model of diligence and theSecretary might have made a somewhat earlier request for the discoveryentry, the delay in this case does not demonstrate excessivedilatoriness rising to the level of contumacy. Accordingly, thejudge’s denial of the Secretary’s motion for an order to compeldiscovery was an abuse of discretion. We reverse the judge’s orderdenying the discovery and his decision vacating the citation. We remandthe case to the Chief Administrative Law Judge[[6]] for furtherproceedings consistent with this opinion, which may include postponementof the hearing until the Secretary is afforded the opportunity tocomplete discovery.[[7]]SO ORDEREDFOR THE COMMISSIONRAY H. DARLING JR.EXECUTIVE SECRETARYDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] 29 C.F.R. ? 1910.95(b)(1) provides, in pertinent part, that\”[w]hen employees are subjected to sound exceeding those listed in TableG-16, feasible administrative or engineering controls shall be utilized.. . . \”[[2]] Generally, we have based our account of the proceedings prior tothe hearing on the parties’ statements presented in argument in thecase, so the extent that the parties were in agreement as to theevents. See International Harvester Co., 80 OSAHRC 10\/B14, 7 BNA OSHC2194, 1980 CCH OSHD ? 24,216 (No. 76-4572, 1980). The parties disputewhether settlement negotiations continued after the pleadings were filedand, because there is no evidence in the record showing that thesettlement negotiations did continue, we assume for the purpose ofdeciding this case that settlement negotiations terminated when thepleadings were filed. See also note 3 infra.[[3]] The Secretary argues that his attorney first made an oral requestfor this inspection in February 1979 when the parties discusseddiscovery. Genesee Brewing argues that the Secretary’s attorney did notmake any request for the inspection until March 1979. Because theSecretary has not presented any evidence in support of his claim that hemade an earlier request for discovery, we find that the Secretary’sfirst request for the discovery was in March 1979.[[4]] Genesee Brewing argues that the Secretary’s motion to postpone thehearing was late filed under Commission Rule 61(b), 29 C.F.R. ?2200.61(b), which states that, \”[e]xcept in the case of extremeemergency or in unusual circumstances, no…request [for postponement ofa hearing] will be considered unless received in writing at least 3 daysin advance of the time set for the hearing.\” Genesee Brewing assertsthat the motion was received on March 28, 1979, which was two days inadvance of the hearing.However, the record in this case reveals that the Secretary’s motion topostpone the hearing was received on March 27, not March 28, 1979. Thus, the motion was received on the third day before the day of thehearing. It was therefore timely filed under Commission Rule 61(b) andCommission Rule 4(a), 29 C.F.R. ? 2200.4(a), which states that, \”[i]ncomputing any period of time prescribed or allowed in these rules, theday from which the designated period begins to run shall not be included[and] [t]he last day of the period so computed shall be included….\”[[5]] The Secretary presented the testimony of several industrialhygienists concerning, among other things, engineering controls whichthey believed were used in bottle and can operations in breweries tocontrol air, mechanical, and bottle or can noise. Their testimony wasbased on reviews of manufacturers’ literature and their telephone callsto various breweries prior to the hearing in this case. The industrialhygienists testified about the amount of noise reduction that might beexpected and the costs of implementing the controls, relying almostexclusively upon the manufacturers’ representations. The industrialhygienists also recommended some administrative controls, but they didnot know if it would actually be possible to implement administrativecontrols.[[6]] Administrative Law Judge Gold is no longer with the Commission.[[7]] Because we decide that the requested discovery was improperlydenied, we do not decide whether the judge properly vacated the citationon the merits. The issue of whether the Secretary has established thealleged violation of ? 1910.95(b)(1) will be decided on the basis of therecord developed after any further discovery. The issue of feasibilitymust be considered under Sun Ship, Inc., 82 OSAHRC , 11 BNA OSHC 1028,1982 CCH OSHD ? 26,353 (No. 16118, 1982), appeal filed, No. 83-3081 (3rdCir. Feb. 14, 1983). “