“SECRETARY OF LABOR,Complainant,v.OTIS ELEVATOR COMPANY,Respondent.UNITED AUTO WORKERS,Local Union 1818,Authorized EmployeeRepresentative.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 theCommission for review pursuant to section 12(j), 29 U.S.C. ? 661(i), ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78(\”the Act\”). Judge Brady vacated a citation alleging that Otis ElevatorCompany (\”Otis\”) violated the occupational noise standard at 29 C.F.R. ?1910.95(b)(1). [[1\/]] The threshold issue before the Commission iswhether the judge abused his discretion in denying the Secretary ofLabor (\”Secretary\”) a continuance of the hearing in order that an expertretained by the Secretary could conduct a discovery inspection of Otis’splant. We conclude that the judge did abuse his discretion and remandfor further proceedingsIIn January, 1979, the Secretary conducted an eight-day inspection ofOtis’s foundry in London, Ohio. Numerous citations for alleged safetyand health violations were subsequently issued over a period rangingfrom March 7 to April 26, 1979. Following extensive settlementnegotiations, a hearing was convened on January 31, 1980, at which timethe judge was informed that the parties had settled all but two issues,one of which was later withdrawn by the Secretary. The only issue thatremains in dispute concerns the citation alleging that Otis violated 29C.F.R. ? 1910.95(b)(1) by failing to reduce noise by administrative orengineering controls at 15 named locations in its plant.At the January 31 hearing, the parties discussed the Secretary’s need tohave a noise expert inspect the areas of Otis’s plant involved in thesection 1910.95(b)(1) citation. The parties agreed that the Secretary’sexpert would conduct a discovery inspection of Otis’s plant within fourweeks. The parties also agreed that four weeks after the expertconducted his inspection would be sufficient time to prepare for thehearing. At the January 31 hearing, the date of the future hearing onthe 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-depthstudying would be necessary to arrive at professional opinions andconclusions.\” On or about March 14, the Secretary’s attorney requestedpermission from Otis’s attorney for the expert to reenter the plant tocomplete his inspection. Otis’s attorney refused because the companywould not then have ample time to evaluate the expert’s findings beforethe April 8 hearing.On March 18, the Secretary filed with Otis a written request forpermission to enter land, with a copy to the judge. He simultaneouslyfiled with the judge a motion for a continuance of the hearing, notingthat Otis would object to the request for further entry without anadequate continuance to prepare for trial after the entry. On March21, the judge denied the motion for continuance, stating that provisionhad previously been made for a discovery inspection and such aninspection had been conducted.On March 31, the Secretary filed a motion to compel entry on land sothat his expert could reenter Otis’s plant. The memorandum accompanyingthe motion again noted that Otis’s only concern was that the companyhave adequate time after the reentry to prepare for the hearing, thatthe parties agreed that an inspection could be conducted the week ofApril 7, and that the granting of the motion would necessitate acontinuance.The hearing convened on April 8 as scheduled. The judge denied theoutstanding motion to compel entry, noting that the motion required acontinuance and he would not grant a continuance for the reasons he hadpreviously stated. The Secretary then called as a witness theindustrial hygienist who had conducted the inspection of Otis’s plantthat preceded the issuance of the citation. This witness testified thathe had measured noise exposures exceeding the limits permitted by thestandard, and Otis stipulated to the accuracy of his measurements. Theindustrial hygienist also testified that Otis had previously been citedfor a violation of the noise standard in 1974.[[2\/]] The witness didnot testify concerning specific administrative or engineering controlsthat might have been feasible to reduce the noise levels. At the closeof the industrial hygienist’s testimony, the Secretary again renewed hisrequest for a discovery inspection to gather evidence regarding feasiblecontrols. Otis opposed the request and moved to dismiss the citationfor the Secretary’s failure to establish a prima facie case. TheSecretary conceded he had not proven the feasibility of controls,asserting he could not meet his burden of proof on that issue withoutthe further discovery he sought. Judge Brady denied the Secretary’sdiscovery request and granted Otis’s motion to dismiss. The judge notedthat the Secretary had cited Otis for violating the noise standard in1974 and concluded that, when the Secretary issued the repeat citationin this case, he must necessarily have known what Otis was required todo to comply with the standard. Further noting that the Secretary hadalready obtained some discovery, the judge determined that a delay inthe hearing for the Secretary to obtain additional discovery wasunjustified.The Secretary petitioned for review of the judge’s rulings denying hisrequests for discovery and granting Otis’s motion to dismiss.Commissioner Cottine directed that the judge’s decision be reviewedpursuant to 29 U.S.C. ? 661(i).IIThe Commission has held that the decision whether to allow discovery iswithin the judge’s sound discretion. In exercising that discretion, thejudge \”should be guided by the objective of providing a fair and prompthearing to the parties.\” Del Monte Corp., 81 OSAHRC 78\/A2, 9 BNA OSHC2136, 2140, 1981 CCH OSHD ? 25,586 at p. 31,915 (No. 11865, 1981). Thejudge must \”consider the need of the moving party for the informationsought, 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 plantto gather information relevant to the feasibility of engineeringcontrols to reduce excessive noise. In a case where the Secretaryalleges that an employer violated section 1910.95(b)(1), suchinformation is critical to the Secretary’s proof of a violation. SeeSun 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 shouldordinarily be permitted discovery inspections in noise cases, and thatit is an abuse of discretion for the judge to deny such discovery evenif 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, 9BNA OSHC 1906, 1981 CCH OSHD ? 25,425 (No. 79-2255, 1981); RalstonPurina 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 dilatoryor 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 discoveryinspection but would not grant the Secretary a continuance of thehearing to permit further discovery after the initial one-day entry bythe Secretary’s expert. The judge reasoned that the Secretary hadalready conducted a discovery inspection and apparently concluded thatthe need for further discovery did not outweigh the delay in the hearingthat would result.We do not agree. The delay in the hearing that would have resulted fromgranting the Secretary’s request was approximately 30 days. Otis didnot contend that this nominal delay would have been burdensome orprejudicial. It only opposed the Secretary’s request because, without acontinuance, it would not have had sufficient time before the hearing toreview the expert’s findings.Thus, the continuance sought by the Secretary would, if granted, havealleviated Otis’s only concern arising out of the discovery request. Moreover, the judge erred in giving substantial weight to the fact thatthe Secretary’s expert had been able to conduct a discovery inspectionof one day’s duration. This case involves the feasibility of noisereduction controls at fifteen different locations in Otis’s plant, andthe expert’s view that he would require more than a single day to arriveat conclusions concerning the feasibility of controls is notcontradicted on the record.The judge also erred in relying on any familiarity with noise controlsin Otis’s plant the Secretary acquired as a result of the 1974citation. That citation was not contested and was therefore not thesubject of a proceeding before the Commission. Thus, the Secretary didnot have the opportunity to conduct discovery regarding feasible noisecontrols with respect to that citation. Furthermore, the record providesno reason to believe that the sources of excessive noise and possiblemeans of noise reduction in Otis’s foundry were the same in 1979, whenthe citation in this case was issued, as in 1974. Most of the areas ofexcessive noise involved in this case were not even mentioned in the1974 citation.Finally, we note that the Secretary acted with reasonable diligence inpursuing discovery. Although approximately a year elapsed between theissuance of the citation and the scheduled hearing, most of that timewas occupied by settlement negotiations that concerned both the noisecitation and numerous other citations alleging various safety and healthviolations. That the settlement negotiations were conducted in goodfaith is evidenced by the fact that the parties were able to amicablyresolve most of the issues originally presented. A delay in pursuingdiscovery pending the outcome of good faith settlement negotiations isjustified. See Ralston Purina Co., supra. Moreover, the Secretarydiligently pursued discovery after it became clear that the noisecitation could not be settled. The initial discovery inspection wasconducted less than three weeks after the parties agreed to theinspection at the January 31, 1980 hearing. When the Secretarythereafter determined that further discovery was needed, he proceededdiligently to seek the continuance of the hearing that would benecessary and to obtain permission for the inspection first from Otisand then from the judge.Because the Secretary’s need for a further discovery inspection clearlyoutweighed the short delay in the hearing that would have resulted, andthe Secretary acted with diligence to pursue his discovery request, thejudge abused his discretion in denying a continuance for that purpose. Accordingly, the judge’s decision is set aside and the case is remandedfor further proceedings consistent with this opinion.SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information 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 TableG-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 failingto limit employee exposure to permissible sound levels at six namedlocations, some of which are the same as are listed in the citation nowunder review. The 1974 citation was not contested and became a finalorder of the Commission pursuant to 29 U.S.C. ? 659(a). The citationnow at issue alleges a repeat violation based on the 1974 final order.”