“Docket No. 79-1625 SECRETARY OF LABOR,Complainant,v.OTIS ELEVATOR COMPANY,Respondent.UNITED AUTO WORKERS,Local Union 1818,Authorized Employee Representative.OSHRC Docket No. 79-1625DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge Paul L. Brady is before the Commissionfor review pursuant to section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”).\u00a0 Judge Brady vacateda citation alleging that Otis Elevator Company (\”Otis\”) violated theoccupational noise standard at 29 C.F.R. ? 1910.95(b)(1). [[1\/]]\u00a0 The thresholdissue before the Commission is whether the judge abused his discretion in denying theSecretary of Labor (\”Secretary\”) a continuance of the hearing in order that anexpert retained by the Secretary could conduct a discovery inspection of Otis’s plant.\u00a0 We conclude that the judge did abuse his discretion and remand for furtherproceedingsI In January, 1979, the Secretary conducted an eight-day inspection of Otis’s foundry inLondon, Ohio.\u00a0 Numerous citations for alleged safety and health violations weresubsequently issued over a period ranging from March 7 to April 26, 1979.\u00a0 Followingextensive settlement negotiations, a hearing was convened on January 31, 1980, at whichtime the judge was informed that the parties had settled all but two issues, one of whichwas later withdrawn by the Secretary.\u00a0 The only issue that remains in disputeconcerns the citation alleging that Otis violated 29 C.F.R. ? 1910.95(b)(1) by failing toreduce noise by administrative or engineering controls at 15 named locations in its plant.At the January 31 hearing, the parties discussed the Secretary’s need to havea noise expert inspect the areas of Otis’s plant involved in the section 1910.95(b)(1)citation.\u00a0 The parties agreed that the Secretary’s expert would conduct a discoveryinspection of Otis’s plant within four weeks.\u00a0 The parties also agreed that fourweeks after the expert conducted his inspection would be sufficient time to prepare forthe hearing.\u00a0 At the January 31 hearing, the date of the future hearing on the meritswas left open.On March 3, the judge set the case for a hearing on April 8.\u00a0 Earlier,on February 19, the Secretary’s expert had inspected Otis’s worksite.\u00a0 Following thatinspection, the expert \”determined that further, in-depth studying would be necessaryto arrive at professional opinions and conclusions.\”\u00a0 On or about March 14, theSecretary’s attorney requested permission from Otis’s attorney for the expert to reenterthe plant to complete his inspection.\u00a0 Otis’s attorney refused because the companywould not then have ample time to evaluate the expert’s findings before the April 8hearing.On March 18, the Secretary filed with Otis a written request for permissionto enter land, with a copy to the judge.\u00a0 He simultaneously filed with the judge amotion for a continuance of the hearing, noting that Otis would object to the request forfurther entry without an adequate continuance to prepare for trial after the entry. \u00a0On March 21, the judge denied the motion for continuance, stating that provision hadpreviously been made for a discovery inspection and such an inspection had been conducted.On March 31, the Secretary filed a motion to compel entry on land so that hisexpert could reenter Otis’s plant.\u00a0 The memorandum accompanying the motion againnoted that Otis’s only concern was that the company have adequate time after the reentryto prepare for the hearing, that the parties agreed that an inspection could be conductedthe week of April 7, and that the granting of the motion would necessitate a continuance.The hearing convened on April 8 as scheduled.\u00a0 The judge denied theoutstanding motion to compel entry, noting that the motion required a continuance and hewould not grant a continuance for the reasons he had previously stated.\u00a0 TheSecretary then called as a witness the industrial hygienist who had conducted theinspection of Otis’s plant that preceded the issuance of the citation.\u00a0 This witnesstestified that he had measured noise exposures exceeding the limits permitted by thestandard, and Otis stipulated to the accuracy of his measurements.\u00a0 The industrialhygienist also testified that Otis had previously been cited for a violation of the noisestandard in 1974.[[2\/]]\u00a0 The witness did not testify concerning specificadministrative or engineering controls that might have been feasible to reduce the noiselevels.\u00a0 At the close of the industrial hygienist’s testimony, the Secretary againrenewed his request for a discovery inspection to gather evidence regarding feasiblecontrols.\u00a0 Otis opposed the request and moved to dismiss the citation for theSecretary’s failure to establish a prima facie case.\u00a0 The Secretary conceded he hadnot proven the feasibility of controls, asserting he could not meet his burden of proof onthat issue without the further discovery he sought.\u00a0 Judge Brady denied theSecretary’s discovery request and granted Otis’s motion to dismiss.\u00a0 The judge notedthat the Secretary had cited Otis for violating the noise standard in 1974 and concludedthat, when the Secretary issued the repeat citation in this case, he must necessarily haveknown what Otis was required to do to comply with the standard.\u00a0 Further noting thatthe Secretary had already obtained some discovery, the judge determined that a delay inthe hearing for the Secretary to obtain additional discovery was unjustified.The Secretary petitioned for review of the judge’s rulings denying hisrequests for discovery and granting Otis’s motion to dismiss. Commissioner Cottinedirected that the judge’s decision be reviewed pursuant to 29 U.S.C. ? 661(i).IIThe Commission has held that the decision whether to allow discovery is within the judge’ssound discretion.\u00a0 In exercising that discretion, the judge \”should be guided bythe objective of providing a fair and prompt hearing to the parties.\”\u00a0 Del MonteCorp., 81 OSAHRC 78\/A2, 9 BNA OSHC 2136, 2140, 1981 CCH OSHD ? 25,586 at p. 31,915 (No.11865, 1981).\u00a0 The judge must \”consider the need of the moving party for theinformation sought, any undue burden to the party from whom discovery is sought, and, onbalance, any undue delay in the proceedings that may occur.\”\u00a0 Id.In this case, the Secretary sought to have his expert enter Otis’s plant to gatherinformation relevant to the feasibility of engineering controls to reduce excessive noise.\u00a0 In a case where the Secretary alleges that an employer violated section1910.95(b)(1), such information is critical to the Secretary’s proof of a violation.\u00a0 See Sun 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).\u00a0 Thus, theCommission has held that the Secretary should ordinarily be permitted discoveryinspections in noise cases, and that it is an abuse of discretion for the judge to denysuch discovery even if some delay in the proceedings will result.\u00a0 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, 9 BNA OSHC 1906, 1981 CCH OSHD ?25,425 (No. 79-2255, 1981); Ralston Purina Co., 79 OSAHRC 81\/E6, 7 BNA OSHC 1730, 1979 CCHOSHD ? 23,897 (No. 78-145, 1979).\u00a0 Only if the Secretary has been excessivelydilatory or otherwise contumacious should his discovery request be denied.\u00a0 SamsoniteCorp., 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 the hearing to permitfurther discovery after the initial one-day entry by the Secretary’s expert.\u00a0 Thejudge reasoned that the Secretary had already conducted a discovery inspection andapparently concluded that the need for further discovery did not outweigh the delay in thehearing that would result.We do not agree.\u00a0 The delay in the hearing that would have resulted fromgranting the Secretary’s request was approximately 30 days.\u00a0 Otis did not contendthat this nominal delay would have been burdensome or prejudicial.\u00a0 It only opposedthe Secretary’s request because, without a continuance, it would not have had sufficienttime before the hearing to review the expert’s findings.Thus, the continuance sought by the Secretary would, if granted, have alleviated Otis’sonly concern arising out of the discovery request.\u00a0 Moreover, the judge erred ingiving substantial weight to the fact that the Secretary’s expert had been able to conducta discovery inspection of one day’s duration.\u00a0 This case involves the feasibility ofnoise reduction controls at fifteen different locations in Otis’s plant, and the expert’sview that he would require more than a single day to arrive at conclusions concerning thefeasibility of controls is not contradicted on the record.The judge also erred in relying on any familiarity with noise controls inOtis’s plant the Secretary acquired as a result of the 1974 citation.\u00a0 That citationwas not contested and was therefore not the subject of a proceeding before the Commission.\u00a0 Thus, the Secretary did not have the opportunity to conduct discovery regardingfeasible noise controls with respect to that citation. Furthermore, the record provides noreason to believe that the sources of excessive noise and possible means of noisereduction in Otis’s foundry were the same in 1979, when the citation in this case wasissued, as in 1974.\u00a0 Most of the areas of excessive noise involved in this case werenot even mentioned in the 1974 citation. Finally, we note that the Secretary acted with reasonable diligence inpursuing discovery.\u00a0 Although approximately a year elapsed between the issuance ofthe citation and the scheduled hearing, most of that time was occupied by settlementnegotiations that concerned both the noise citation and numerous other citations allegingvarious safety and health violations.\u00a0 That the settlement negotiations wereconducted in good faith is evidenced by the fact that the parties were able to amicablyresolve most of the issues originally presented.\u00a0 A delay in pursuing discoverypending the outcome of good faith settlement negotiations is justified.\u00a0 See RalstonPurina Co., supra.\u00a0 Moreover, the Secretary diligently pursued discovery after itbecame clear that the noise citation could not be settled.\u00a0 The initial discoveryinspection was conducted less than three weeks after the parties agreed to the inspectionat the January 31, 1980 hearing.\u00a0 When the Secretary thereafter determined thatfurther discovery was needed, he proceeded diligently to seek the continuance of thehearing that would be necessary and to obtain permission for the inspection first fromOtis and 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, and the Secretaryacted with diligence to pursue his discovery request, the judge abused his discretion indenying a continuance for that purpose.\u00a0 Accordingly, the judge’s decision is setaside and the case is remanded for further proceedings consistent with this opinion.SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 APR 27 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice 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\/]] The 1974 citation was introduced into evidence as Exhibit C-1.\u00a0 The citation alleged that Otis violated 29 C.F.R. ? 1910.95 by failing to limitemployee exposure to permissible sound levels at six named locations, some of which arethe same as are listed in the citation now under review.\u00a0 The 1974 citation was notcontested and became a final order of the Commission pursuant to 29 U.S.C. ?659(a).\u00a0 The citation now at issue alleges a repeat violation based on the 1974 finalorder.”