OSHRC Docket No. 77-1550

Occupational Safety and Health Review Commission

February 28, 1979


Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Robert W. Rasch, Ralston Purina Company, for the employer

Stephen A. Bokat, National Chamber Litigation Center, Inc., for the employer




CLEARY, Chairman:

This case is before the Commission pursuant to the Secretary of Labor's interlocutory appeal of Administrative Law Judge Henry Martin's order granting the Secretary's motion to enter Ralston's Oklahoma City plant for the purposes of discovery but limiting the Secretary to the use of experts who are employees of the federal government.

The citation alleges that employees in Ralston's extruding room were exposed to excessive noise levels and that feasible engineering or administrative controls were not utilized to reduce noise. The Secretary made a motion to compel entry upon respondent's premises so that a qualified acoustical engineering expert could inspect the extruder room to evaluate the feasibility of engineering controls. Ralston opposed this motion, arguing, inter alia, that, if the discovery inspection were conducted by inspectors who were not federal [*2] employees subject to the provisions of 18 U.S.C. 1905, it would endanger the confidentkiality of Ralston's trade secrets. A hearing was held and Judge Martin found that Ralston had trade secrets which deserved protection and that they might be revealed if the discovery inspection was conducted by an outside expert. Judge Martin held that the Secretary was entitled to conduct a discovery inspection but would be restricted to the use of federal experts to conduct the examination. The judge relied on Reynolds Metals Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975), disclosed.

On August 11, 1978, the Secretary was granted an interlocutory appeal from the judge's order. He argues that a protective order would adequately safeguard Ralstons trade secrets from disclosure by an expert who is not a federal employee.

We find that the issues presented here are governed by our recent decision in Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 1978-79 CCH OSHD P23,218 (No. 77-648, 1978) ("Owens"). In that case we held that the possibility of disclosure of trade secrets to an expert who is not a federal employee does not preclude granting [*3] a motion for entry upon respondent's land for discovery purposes so long as the respondent's trade secrets are adequately protected. We concluded in Owens that trade secrets could be adequately protected by appropriate protective orders and a provision in the Secretary's contract with the outside expert that would allow the employer an enforceable third-party beneficiary interest. Owens described the manner in which a trade secrets claim should be raised by an employer. It also set forth the procedure to be followed when an employer's trade secrets claim is disputed by the Secretary, as well as the minimum requirements of an acceptable protective order. To the extent that Reynolds Metals is inconsistent with Owens it was overruled.

Accordingly, the judge's order is vacated and this case is remanded for further proceedings consistent with the Commission decision in Owens. So ORDERED.



BARANKO, Commissioner, Dissenting:

For the reasons stated in my dissenting opinion in Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 197879 CCH OSHD P23,218 (No. 77-648, 1978), I would adhere to the view expressed in Reynolds Metals Co., 78 OSAHRC 51/F1, [*4] 3 BNA OSHC 1749, 1975-76, CCH OSHD P20,214 (No. 4385, 1975) and with the Commission's subsequent decision in the same case. 78 OSAHRC 41/D4, 6 BNA OSHC 1667, 1978 CCH OSHD P22,806 (1978). Accordingly, absent a showing of good cause by the Secretary why it is necessary to use outside experts, only Federal employees can be used to conduct a discovery entry onto an employer's property in which trade secrets are likely to be discovered.

The Secretary has not taken exception to the judge's finding that Ralston's facility contained trade secrets which a discovery entry might reveal. Further, the judge found that the Secretary had not undertaken a proper search for a qualified Federal expert to conduct the entry. He therefore, concluded that the Secretary had not demonstrated "good cause". I agree with the judge's conclusion for the reasons stated in his order and would limit the Secretary to the use of a Federal expert. I would therefore remand for further proceedings consistent with this opinion.