FRED'S FROZEN FOODS, INC.

OSHRC Docket No. 77-1817

Occupational Safety and Health Review Commission

April 16, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Terrance E. Quinlan, Staff Attorney, Central Soya Company, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The Secretary of Labor cited respondent, Fred's Frozen Foods, Inc., for allegedly violating section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. [hereinafter "the Act"] by failure to comply with the noise standard, 29 CFR 1910.95(b)(1). Respondent contested the citation. To develop further evidence about the feasibility of implementing engineering controls to reduce the allegedly excessive noise levels, the Secretary sought discovery inspection, under Fed. R. Civ. P. 34, of respondent's Carthage, Missouri, production plant. The Secretary proposed that the discovery inspection be conducted by a non-federally employed noise expert. On January 16, 1978, the respondent filed a motion seeking to deny entry into its processing room to non-federal personnel, and alternatively for a protective order requiring the non-federal expert to sign respondent's [*2] non-disclosure agreement. n1 The grounds stated by respondent in support of its motion were that such an inspection would result in the divulgence of trade secrets to the expert, and that a non-federal employee would not be subject to the criminal sanctions against disclosure contained in 18 U.S.C. 1905.

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n1 This motion amended an earlier motion which requested only that the Secretary's witness execute a non-disclosure agreement before entering respondent's premises.

In addition to the alternative relief requested in the respondent's amended motion, respondent also asks that "no sound level readings or photographs be allowed to be taken" and that the discovery inspection be "reasonably limited so as not to unduly interfere or obstruct the normal production. . . ." As Judge Wienman correctly noted in his Order, Rule 34(a) of the Federal Rules of Civil Procedure specifically permits photographing and measuring any designated object or operation, and Rule 34(b) states that the entry and inspection shall be conducted at a reasonable time and in a reasonable manner. Thus, Judge Wienman did not err by ruling that the protective order should conform to Rule 34(a) and (b).

[*3]

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On March 6, 1978, Judge Wienman denied that portion of respondent's motion seeking to bar entry by a non-federal expert, but granted the alternative request of the motion that non-federal personnel participating in the inspection be required to execute respondent's non-disclosure agreement. The case is now before the Commission on respondent's interlocutory appeal as of right.

In a recent decision, Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 1978 CCH OSHD P23,218 (No. 77-648, 1978), we concluded that the Secretary is not confined to the use of federal employees in conducting discovery inspections. Rather than limit discovery inspections to federal employees, we held in Owens-Illinois that the likelihood of disclosure of trade secrets to a non-federal employee does not preclude granting a motion for entry to inspect as long as an adequate protective order is entered. We also set forth minimum criteria that a protective order must satisfy. In this case, further consideration of the issue of whether trade secrets exist is mandated only if the Secretary does not agree to a protective [*4] order. n2 Accordingly this case is remanded with instructions to the judge to reconsider the terms of the protective order in light of the criteria set out in Owens-Illinois or to conduct other proceedings consistent with that decision. n3

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n2 Judge Wienman conducted a hearing on respondent's claim of trade secrets and entered his findings on this issue on March 6, 1978. Respondent takes exception to the judge's findings. However, we do not reach this exception because of our disposition. Under Owens-Illinois, a judicial determination of the existence and scope of trade secrets need not be made if the Secretary consents to entry of a protective order. If such consent is given on remand, the judge's findings concerning the existence of trade secrets would have no effect on the proceedings.

n3 Ordinarily, where intervening decisions have changed the law and the parties did not have the advantage of addressing new positions and policies, the Commission has remanded the case to allow the parties to present arguments in light of the new case law. See, Charles P. Blouin, Inc., 77 OSAHRC 215/E10, 6 BNA OSHC 1236, 1977-78 CCH OSHD P22,428 (No. 13595, 1977); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 and 4409, 1976). In this case, however, respondent has raised the arguments in its brief before the Commission that were resolved by Owens-Illinois. Therefore, there is no need to remand for reconsideration of respondent's contentions.

[*5]

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That part of the judge's order denying respondent's motion to bar entry of non-federal employees attempting to conduct discovery at respondent's plant is AFFIRMED, and the case is remanded for further action consistent with our decision in Owens-Illinois, and this decision.

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

For the reasons stated in my dissenting opinion in Owens-Illinois, Inc. (No. 77-648, December 20, 1978), I do not believe that protective orders are an effective check on the inadvertent disclosure of trade secrets by non-federal experts. As I stated in Owens, I will adhere to the Commission decisions in Reynolds Metals Co. [Reynolds I], 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD 20,214 (No. 4385, 1975) and Reynolds Metals Co. [Reynolds II], 78 OSAHRC 51/D4, 6 BNA OSHC 1667, 1978 CCH OSHD 22,806 (No. 4385, 1978). Pursuant to Reynolds I and Reynolds II, I will agree to the entry of a protective order only if the Secretary shows good cause for the use of non-federal experts.

In the present case, the hearing on Respondent's motion was held more than two [*6] years after the issuance of Reynolds I n1 which required that the Secretary show good cause for the use of non-federal experts. Therefore, the Secretary had notice that he had the burden of showing the unavailability of federal experts.

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n1 Reynolds I was issued on December 10, 1975. The hearing on Respondent's motion was held on February 28, 1978.

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However, the Secretary did not sustain this burden of proof. No direct evidence was presented concerning the unavailability of federal experts. In his closing argument, the Secretary merely referred to the search for federal experts made in connection with the Reynolds cases; he did not place into the record any evidence concerning that search. Moreover, the Secretary made no showing of any effort to either hire or search for federal experts after the Reynolds search. Accordingly, the Secretary has not shown good cause for the use of non-federal experts and I would therefore limit the discovery to inspection by federal experts.