SECRETARY OF LABOR,
complainant,

v.

SALEM-GRAVURE, DIVISION OF
WORLD COLOR PRESS, INC.,
Respondent.

GRAPHIC COMMUNICATIONS
INTERNATIONAL UNION, LOCAL 554,

Authorized Employee
Representative.

OSHRC DOCKET NO. 83-0509

REMAND ORDER

Before: BUCKLEY, Chairman; AREY, Commissioner.
BY THE COMMISSION:

This case is before the Commission on remand from the United States Court of Appeals for the District of Columbia Circuit. Graphic Communications International Union. Local 554 v. World Color Press, 943 F.2d 1490 (D.C. Cir. 1988), cert, denied, No. 88-0788 (Feb. 21, 1989). When the case was first here, the Commission denied the Secretary's motion to permit a non-federal expert to conduct a discovery inspection of Salem-Gravure's plant. Salem-Gravure Division of World Color Press, 12 BNA OSHC 2143, 1986-87 CCH OSHD 27,697 (1986). Concluding that an inspection by a private expert might endanger the company's trade secrets and that a protective order issued by the Commission, and sanctions for the violation of such an order, would not be adequate to protect those trade secrets, the Commission held that such an inspection could only be conducted pursuant to a search warrant or other order issued by a federal court with contempt authority. The Commission overruled an earlier decision, Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 1978 CCH OSHD 23,218 (No. 77-648, 1978), which held that if a discovery inspection by a non-federal expert would endanger an employer's trade secrets, the inspection should be permitted subject to a protective order containing certain specified provisions. After the Commission issued its ruling, the secretary declined to seek a court order and notified the Commission that she would not proceed to a hearing under the circumstances. Accordingly, Administrative Law Judge James A. Cronin, Jr., granted Salem-Gravure's motion to dismiss and vacated the citation and notification of proposed penalty.

The D.C. Circuit set aside the involuntary dismissal order. The court concluded that the Commission had not set forth a sufficient basis for determining that the type of protective order contemplated by Owens-Illinois was inadequate to protect an employer's trade secrets.[[1/]] The court therefore held that the Commission's action in overruling Owens-Illinois was arbitrary and capricious, and it set aside the Commission's ruling denying the Secretary's discovery motion and remanded for reconsideration of that ruling. 843 F.2d at 1494.

The case is hereby remanded to the administrative law judge for further proceedings consistent with the D.C. Circuit's decision.

FOR THE COMMISSION


Ray Darling, Jr.
EXECUTIVE SECRETARY


DATED: 8 MAR 1989

 

FOOTNOTES:

[[1/]] In fact, in an earlier matter in which the Commission was faced with an established violation of a protective order (see E.I. duPont De Nemours & Co., 12 BNA OSHC 1994 (No. 80-4785, 1986)), the Commission concluded that its sanction authority was ineffective and, in an unpublished order, disposed of the matter by accepting an apology from the persons involved.