SECRETARY OF LABOR,
Complainant,

v.

OTIS ELEVATOR COMPANY,
Respondent.

UNITED AUTO WORKERS,
Local Union 1818,
Authorized Employee

Representative.

OSHRC Docket No. 79-1625

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

A decision of Administrative Law Judge Paul L. Brady 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. 651-78 ("the Act").  Judge Brady vacated a citation alleging that Otis Elevator Company ("Otis") violated the occupational noise standard at 29 C.F.R. 1910.95(b)(1). [[1/]]  The threshold issue before the Commission is whether the judge abused his discretion in denying the Secretary of Labor ("Secretary") a continuance of the hearing in order that an expert retained by the Secretary could conduct a discovery inspection of Otis's plant.   We conclude that the judge did abuse his discretion and remand for further proceedings

I
In January, 1979, the Secretary conducted an eight-day inspection of Otis's foundry in London, Ohio.  Numerous citations for alleged safety and health violations were subsequently issued over a period ranging from March 7 to April 26, 1979.  Following extensive settlement negotiations, a hearing was convened on January 31, 1980, at which time the judge was informed that the parties had settled all but two issues, one of which was later withdrawn by the Secretary.  The only issue that remains in dispute concerns the citation alleging that Otis violated 29 C.F.R. 1910.95(b)(1) by failing to reduce noise by administrative or engineering controls at 15 named locations in its plant.

At the January 31 hearing, the parties discussed the Secretary's need to have a noise expert inspect the areas of Otis's plant involved in the section 1910.95(b)(1) citation.  The parties agreed that the Secretary's expert would conduct a discovery inspection of Otis's plant within four weeks.  The parties also agreed that four weeks after the expert conducted his inspection would be sufficient time to prepare for the hearing.  At the January 31 hearing, the date of the future hearing on the merits was left open.

On March 3, the judge set the case for a hearing on April 8.  Earlier, on February 19, the Secretary's expert had inspected Otis's worksite.  Following that inspection, the expert "determined that further, in-depth studying would be necessary to arrive at professional opinions and conclusions."  On or about March 14, the Secretary's attorney requested permission from Otis's attorney for the expert to reenter the plant to complete his inspection.  Otis's attorney refused because the company would not then have ample time to evaluate the expert's findings before the April 8 hearing.

On March 18, the Secretary filed with Otis a written request for permission to enter land, with a copy to the judge.  He simultaneously filed with the judge a motion for a continuance of the hearing, noting that Otis would object to the request for further entry without an adequate continuance to prepare for trial after the entry.   On March 21, the judge denied the motion for continuance, stating that provision had previously been made for a discovery inspection and such an inspection had been conducted.

On March 31, the Secretary filed a motion to compel entry on land so that his expert could reenter Otis's plant.  The memorandum accompanying the motion again noted that Otis's only concern was that the company have adequate time after the reentry to prepare for the hearing, that the parties agreed that an inspection could be conducted the week of April 7, and that the granting of the motion would necessitate a continuance.

The hearing convened on April 8 as scheduled.  The judge denied the outstanding motion to compel entry, noting that the motion required a continuance and he would not grant a continuance for the reasons he had previously stated.  The Secretary then called as a witness the industrial hygienist who had conducted the inspection of Otis's plant that preceded the issuance of the citation.  This witness testified that he had measured noise exposures exceeding the limits permitted by the standard, and Otis stipulated to the accuracy of his measurements.  The industrial hygienist also testified that Otis had previously been cited for a violation of the noise standard in 1974.[[2/]]  The witness did not testify concerning specific administrative or engineering controls that might have been feasible to reduce the noise levels.  At the close of the industrial hygienist's testimony, the Secretary again renewed his request for a discovery inspection to gather evidence regarding feasible controls.  Otis opposed the request and moved to dismiss the citation for the Secretary's failure to establish a prima facie case.  The Secretary conceded he had not proven the feasibility of controls, asserting he could not meet his burden of proof on that issue without the further discovery he sought.  Judge Brady denied the Secretary's discovery request and granted Otis's motion to dismiss.  The judge noted that the Secretary had cited Otis for violating the noise standard in 1974 and concluded that, when the Secretary issued the repeat citation in this case, he must necessarily have known what Otis was required to do to comply with the standard.  Further noting that the Secretary had already obtained some discovery, the judge determined that a delay in the hearing for the Secretary to obtain additional discovery was unjustified.

The Secretary petitioned for review of the judge's rulings denying his requests for discovery and granting Otis's motion to dismiss. Commissioner Cottine directed that the judge's decision be reviewed pursuant to 29 U.S.C. 661(i).

II
The Commission has held that the decision whether to allow discovery is within the judge's sound discretion.  In exercising that discretion, the judge "should be guided by the objective of providing a fair and prompt hearing to the parties."  Del Monte Corp., 81 OSAHRC 78/A2, 9 BNA OSHC 2136, 2140, 1981 CCH OSHD 25,586 at p. 31,915 (No. 11865, 1981).  The judge must "consider the need of the moving party for the information sought, any undue burden to the party from whom discovery is sought, and, on balance, any undue delay in the proceedings that may occur."  Id.

In this case, the Secretary sought to have his expert enter Otis's plant to gather information relevant to the feasibility of engineering controls to reduce excessive noise.   In a case where the Secretary alleges that an employer violated section 1910.95(b)(1), such information is critical to the Secretary's proof of a violation.   See Sun Ship, Inc., 82 OSAHRC 69/A2, 11 BNA OSHC 1028, 1983 CCH OSHD 26,353 (No. 16118, 1982), appeal filed, No. 83-3081 (3d Cir. Feb. 14, 1983).  Thus, the Commission has held that the Secretary should ordinarily be permitted discovery inspections in noise cases, and that it is an abuse of discretion for the judge to deny such discovery even if some delay in the proceedings will result.  Del Monte Corp., supra; Samsonite Corp., 82 OSAHRC 26/A2, 10 BNA OSHC 1583, 1982 CCH OSHD 26,054 (No. 79-5649, 1982); Federated Metals, Inc., 81 OSAHRC 58/A2, 9 BNA OSHC 1906, 1981 CCH OSHD 25,425 (No. 79-2255, 1981); Ralston Purina Co., 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1979 CCH OSHD 23,897 (No. 78-145, 1979).  Only if the Secretary has been excessively dilatory or otherwise contumacious should his discovery request be denied.  Samsonite Corp., supra; Federated Metals, Inc., supra.

Judge Brady did grant the Secretary's initial request for a discovery inspection but would not grant the Secretary a continuance of the hearing to permit further discovery after the initial one-day entry by the Secretary's expert.  The judge reasoned that the Secretary had already conducted a discovery inspection and apparently concluded that the need for further discovery did not outweigh the delay in the hearing that would result.

We do not agree.  The delay in the hearing that would have resulted from granting the Secretary's request was approximately 30 days.  Otis did not contend that this nominal delay would have been burdensome or prejudicial.  It only opposed the Secretary's request because, without a continuance, it would not have had sufficient time before the hearing to review the expert's findings.
Thus, the continuance sought by the Secretary would, if granted, have alleviated Otis's only concern arising out of the discovery request.  Moreover, the judge erred in giving substantial weight to the fact that the Secretary's expert had been able to conduct a discovery inspection of one day's duration.  This case involves the feasibility of noise reduction controls at fifteen different locations in Otis's plant, and the expert's view that he would require more than a single day to arrive at conclusions concerning the feasibility of controls is not contradicted on the record.

The judge also erred in relying on any familiarity with noise controls in Otis's plant the Secretary acquired as a result of the 1974 citation.  That citation was not contested and was therefore not the subject of a proceeding before the Commission.   Thus, the Secretary did not have the opportunity to conduct discovery regarding feasible noise controls with respect to that citation. Furthermore, the record provides no reason to believe that the sources of excessive noise and possible means of noise reduction in Otis's foundry were the same in 1979, when the citation in this case was issued, as in 1974.  Most of the areas of excessive noise involved in this case were not even mentioned in the 1974 citation.

Finally, we note that the Secretary acted with reasonable diligence in pursuing discovery.  Although approximately a year elapsed between the issuance of the citation and the scheduled hearing, most of that time was occupied by settlement negotiations that concerned both the noise citation and numerous other citations alleging various safety and health violations.  That the settlement negotiations were conducted in good faith is evidenced by the fact that the parties were able to amicably resolve most of the issues originally presented.  A delay in pursuing discovery pending the outcome of good faith settlement negotiations is justified.  See Ralston Purina Co., supra.  Moreover, the Secretary diligently pursued discovery after it became clear that the noise citation could not be settled.  The initial discovery inspection was conducted less than three weeks after the parties agreed to the inspection at the January 31, 1980 hearing.  When the Secretary thereafter determined that further discovery was needed, he proceeded diligently to seek the continuance of the hearing that would be necessary and to obtain permission for the inspection first from Otis and then from the judge.

Because the Secretary's need for a further discovery inspection clearly outweighed the short delay in the hearing that would have resulted, and the Secretary acted with diligence to pursue his discovery request, the judge abused his discretion in denying a continuance for that purpose.  Accordingly, the judge's decision is set aside and the case is remanded for further proceedings consistent with this opinion.

SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 27 1983


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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 Table G-16, feasible administrative or engineering controls shall be utilized. . . . "

[[2/]] The 1974 citation was introduced into evidence as Exhibit C-1.   The citation alleged that Otis violated 29 C.F.R. 1910.95 by failing to limit employee exposure to permissible sound levels at six named locations, some of which are the same as are listed in the citation now under review.  The 1974 citation was not contested and became a final order of the Commission pursuant to 29 U.S.C. 659(a).  The citation now at issue alleges a repeat violation based on the 1974 final order.