“Docket No. 78-5178 SECRETARY OF LABOR, Complainant,v. GENESEE BREWING COMPANY, Respondent.OSHRC Docket No. 78-5178DECISION Before:\u00a0 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]]\u00a0 The judge decided that the Secretary of Labor failed to prove the feasibility ofthe administrative and engineering controls which the Secretary believed Genesee Brewingshould have implemented in its brewery in Rochester, New York.\u00a0 The Secretary filed apetition for review in which he contended that his failure to prove feasibility was causedby his inability to obtain a discovery inspection of the brewery.\u00a0 The Secretaryargued that Judge Gold abused his discretion by denying the Secretary’s repeated motionsto compel the discovery entry.\u00a0 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).\u00a0 For the following reasons, we conclude that thejudge abused his discretion in denying the Secretary’s motion to compel discovery and weremand the case for further proceedings consistent with this opinion.IThe Secretary issued the citation in October 1978, following a September 1978inspection of bottle and can line operations in Genesee Brewing’s brewery.\u00a0 GeneseeBrewing contested the citation and the parties thereafter attempted to reach a settlementof the issues.\u00a0 In December 1978, after settlement attempts proved unsuccessful, acomplaint and answer were filed.[[2]]\u00a0 On January 5, 1979, Judge Gold scheduled ahearing for March 30, 1979.In February 1979, the parties agreed to conduct discovery by oral, ratherthan written, requests or motions.\u00a0 At this time, they also agreed to an exchange ofdocuments for discovery purposes.\u00a0 Then, on March 7 or 9, 1979, the Secretary orallyrequested Genesee Brewing to permit an expert in acoustical engineering or noise controlto inspect the company’s brewery on March 15 or 16, 1979.[[3]]\u00a0 On March 14, 1979,Genesee Brewing informed the Secretary that the discovery would not be permitted.\u00a0 OnMarch 23, 1979, the Secretary filed motions asking the judge to postpone the hearing andcompel Genesee Brewing to permit the discovery inspection.\u00a0 Judge Gold received themotions on March 27, 1979[[4]] and, on March 28, 1979, held a conference call with theparties to consider the motions.\u00a0 After hearing the parties’ arguments, Judge Golddenied the Secretary’s motions for postponement and discovery.\u00a0 He reasoned that theSecretary had known of the scheduled hearing since January 5, 1979, but did not pursuediscovery with reasonable diligence.The hearing convened on March 30, 1979, as scheduled, and the Secretarypresented the evidence he had available in support of the citation.[[5]]\u00a0 TheSecretary’s case was not completed by the end of the day and the hearing was scheduled toreconvene on April 9 and 10, 1979.\u00a0 At the end of the proceedings on March 30, onApril 5 in the interval before the hearing reconvened, on April 9 when the hearingreconvened, and at the close of his case on April 10, the Secretary renewed his motion forthe discovery entry.\u00a0 On each occasion, the motion was opposed by Genesee Brewing anddenied by Judge Gold.\u00a0 Judge Gold emphasized that the original lack of diligence inpursuing discovery could not be cured later in the proceedings.\u00a0 After the finalmotion and denial, the Secretary indicated that he did not rest, but that he had no moreevidence to present.\u00a0 Believing that the Secretary’s case was insufficient, see note5 supra, Genesee Brewing then chose not to present a case.\u00a0 Thereafter, Judge Goldissued his decision holding that the Secretary failed to establish the feasibility ofadministrative or engineering controls to reduce noise in Genesee Brewing’s brewery.\u00a0He therefore vacated the citation.The Secretary argues that Judge Gold abused his discretion in denying thediscovery inspection.\u00a0 The Secretary emphasizes that his need for the discovery entrywas substantial, he was reasonably diligent in seeking the discovery entry prior to thehearing, and permitting the discovery entry would not have resulted in any significantdelay in the proceedings.\u00a0 The Secretary also argues that Genesee Brewing would nothave been prejudiced.Genesee Brewing argues that Judge Gold properly exercised his discretion indenying the discovery.\u00a0 Genesee Brewing contends that, by waiting until March 9,1979, to make a first request for the discovery, the Secretary was dilatory.\u00a0 Thecompany also contends that discovery was properly denied after the hearing had begun.\u00a0 Emphasizing that its attorneys had prepared evidence and arguments for the hearingas scheduled, Genesee Brewing contends that it would have been prejudiced by a delay inthe hearing to permit further discovery.II In 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 sound discretion.\u00a0 Thissound discretion should be guided by the objective of providing a fair and prompt hearingto the parties.\u00a0 Moreover, the judge should consider the need of the moving party forthe 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.\u00a0 Given the judge’sbroad discretion, a judge’s disposition of discovery matters is reversible only if thejudge’s actions constitute an abuse of discretion resulting in substantial prejudice.Discovery inspections, however, are ordinarily permissible where a violationof the noise standard is alleged.. . . In allowing the Secretary discovery in noise cases, the Commission has recognizedthat the Secretary is authorized to issue a citation on less evidence than he may need toprove the existence of the violation.\u00a0 Further, the Commission is cognizant thatdiscovery by the Secretary in noise cases is critical, particularly to prepare experttestimony, for \”[w]ithout expert testimony, it is doubtful that the Secretary canshow the feasibility of engineering controls.\”9 BNA OSHC at 2141, 1981 CCH OSHD at p. 31,915 (citation sentences omittedthroughout the quote).\u00a0 Moreover, the Commission has indicated that some protractionof the proceedings is justified when it occurs to obtain necessary discovery and that, ifthe Secretary has not been excessively dilatory or otherwise contumacious and needsadditional time for such discovery, a denial of discovery can be an abuse of discretion.\u00a0 See Del Monte Corp., supra; Federated Metals, Inc., 81 OSAHRC 58\/A2, 9 BNA OSHC1906, 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 and engineering controlsfor noise.\u00a0 When the discovery entry was denied, the Secretary was unable toestablish his case through expert testimony, see note 5 supra.\u00a0 Therefore, despitethe absence of rebuttal evidence, Judge Gold concluded that the Secretary’s case wasinsufficient to establish the feasibility of the controls.\u00a0 The Commission has notedthat without expert testimony it is doubtful that the Secretary would be able to satisfyhis prima facie burden of establishing feasibility of abatement in noise cases.\u00a0 SeeDel Monte Corp., supra; Ralston-Purina Co., 79 OSAHRC 81\/E6, 7 BNA OSHC 1730, 1979 CCHOSHD ? 23,897 (No. 78-145, 1979).\u00a0 Thus, the Secretary’s need for the discovery wascritical even though he was able to present some evidence, and the denial of discovery washighly prejudicial to the Secretary’s case.\u00a0 Accordingly, the discovery should havebeen permitted unless Genesee Brewing would have suffered actual prejudice from thediscovery or the Secretary’s conduct throughout the proceedings was marked by excessivedilatoriness rising to the level of contumacy.\u00a0 See Samsonite Corp., 82 OSAHRC 26\/A2,10 BNA OSHC 1583, 1982 CCH OSHD ? 26,054 (No. 79-5649, 1982); Del Monte Corp., supra;Federated Metals, Inc., supra; see also General Motors Corp., Fisher Body Division, 82OSAHRC 50\/A2, 10 BNA OSHC 1953, 1982 CCH OSHD ? 26,210 (No. 79-2212, 1982).Genesee Brewing does not claim that it has already suffered any prejudicefrom the Secretary’s conduct in seeking the discovery. Also, although Genesee Brewingcontends that postponing the hearing in order to permit the discovery would have resultedin prejudice, extra case preparation and similar inconveniences do not amount to legalprejudice.\u00a0 These inconveniences can be cured by a moderate continuance of thehearing date.\u00a0 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 have been denied unlessthe Secretary’s conduct was excessively dilatory or otherwise contumacious.\u00a0 See,e.,g., Samsonite Corp., supra.\u00a0 Judge Gold denied the Secretary’s discovery on thebasis that the Secretary had not been reasonably diligent in seeking the discovery afterthe hearing was scheduled.\u00a0 However, the Secretary began discovery during February1979, within a reasonable time after the hearing had been scheduled.\u00a0 Furthermore,because discovery in health cases can be relatively time-consuming without beingunreasonable, the need for discovery can justify moderate postponement of the hearing.\u00a0 See Del Monte Corp., supra; Federated Metals, Inc., supra.\u00a0 Thus, although theSecretary’s conduct in this case may not have been a model of diligence and the Secretarymight have made a somewhat earlier request for the discovery entry, the delay in this casedoes not demonstrate excessive dilatoriness rising to the level of contumacy. \u00a0Accordingly, the judge’s denial of the Secretary’s motion for an order to compel discoverywas an abuse of discretion.\u00a0 We reverse the judge’s order denying the discovery andhis decision vacating the citation.\u00a0 We remand the case to the Chief AdministrativeLaw Judge[[6]] for further proceedings consistent with this opinion, which may includepostponement of the hearing until the Secretary is afforded the opportunity to completediscovery.[[7]] SO ORDEREDFOR THE COMMISSIONRAY H. DARLING JR. EXECUTIVE SECRETARYDATED:\u00a0 APR 27 1983 The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 Table G-16,feasible administrative or engineering controls shall be utilized. . . . \”[[2]] Generally, we have based our account of the proceedings prior to thehearing on the parties’ statements presented in argument in the case, so the extent thatthe parties were in agreement as to the events.\u00a0 See International Harvester Co., 80OSAHRC 10\/B14, 7 BNA OSHC 2194, 1980 CCH OSHD ? 24,216 (No. 76-4572, 1980).\u00a0 Theparties dispute whether settlement negotiations continued after the pleadings were filedand, because there is no evidence in the record showing that the settlement negotiationsdid continue, we assume for the purpose of deciding this case that settlement negotiationsterminated when the pleadings were filed.\u00a0 See also note 3 infra.[[3]] The Secretary argues that his attorney first made an oral request forthis inspection in February 1979 when the parties discussed discovery.\u00a0 GeneseeBrewing argues that the Secretary’s attorney did not make any request for the inspectionuntil March 1979.\u00a0 Because the Secretary has not presented any evidence in support ofhis claim that he made 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 statesthat, \”[e]xcept in the case of extreme emergency or in unusual circumstances,no…request [for postponement of a hearing] will be considered unless received in writingat least 3 days in advance of the time set for the hearing.\” Genesee Brewing assertsthat the motion was received on March 28, 1979, which was two days in advance of thehearing.However, the record in this case reveals that the Secretary’s motion topostpone the hearing was received on March 27, not March 28, 1979.\u00a0 Thus, the motionwas received on the third day before the day of the hearing.\u00a0 It was therefore timelyfiled under Commission Rule 61(b) and Commission Rule 4(a), 29 C.F.R. ? 2200.4(a), whichstates that, \”[i]n computing any period of time prescribed or allowed in these rules,the day from which the designated period begins to run shall not be included [and] [t]helast day of the period so computed shall be included….\” [[5]] The Secretary presented the testimony of several industrial hygienistsconcerning, among other things, engineering controls which they believed were used inbottle and can operations in breweries to control air, mechanical, and bottle or cannoise.\u00a0 Their testimony was based on reviews of manufacturers’ literature and theirtelephone calls to various breweries prior to the hearing in this case.\u00a0 Theindustrial hygienists testified about the amount of noise reduction that might be expectedand the costs of implementing the controls, relying almost exclusively upon themanufacturers’ representations.\u00a0 The industrial hygienists also recommended someadministrative controls, but they did not know if it would actually be possible toimplement administrative controls.[[6]] Administrative Law Judge Gold is no longer with the Commission.[[7]] Because we decide that the requested discovery was improperly denied, we do notdecide whether the judge properly vacated the citation on the merits.\u00a0 The issue ofwhether the Secretary has established the alleged violation of ? 1910.95(b)(1) will bedecided on the basis of the record developed after any further discovery.\u00a0 The issueof feasibility must be considered under Sun Ship, Inc., 82 OSAHRC , 11 BNA OSHC 1028, 1982CCH OSHD ? 26,353 (No. 16118, 1982), appeal filed, No. 83-3081 (3rd Cir. Feb. 14, 1983).\u00a0″