“SECRETARY OF LABOR,complainant,v.SALEM-GRAVURE, DIVISION OFWORLD COLOR PRESS, INC.,Respondent.GRAPHIC COMMUNICATIONSINTERNATIONAL UNION, LOCAL 554,Authorized EmployeeRepresentative.OSHRC DOCKET NO. 83-0509_REMAND ORDER_Before: BUCKLEY, Chairman; AREY, Commissioner.BY THE COMMISSION:This case is before the Commission on remand from the United StatesCourt of Appeals for the District of Columbia Circuit. GraphicCommunications International Union. Local 554 v. World Color Press, 943F.2d 1490 (D.C. Cir. 1988), cert, denied, No. 88-0788 (Feb. 21, 1989).When the case was first here, the Commission denied the Secretary’smotion to permit a non-federal expert to conduct a discovery inspectionof Salem-Gravure’s plant. Salem-Gravure Division of World Color Press,12 BNA OSHC 2143, 1986-87 CCH OSHD ? 27,697 (1986). Concluding that aninspection by a private expert might endanger the company’s tradesecrets and that a protective order issued by the Commission, andsanctions for the violation of such an order, would not be adequate toprotect those trade secrets, the Commission held that such an inspectioncould only be conducted pursuant to a search warrant or other orderissued by a federal court with contempt authority. The Commissionoverruled an earlier decision, Owens-Illinois, Inc., 78 OSAHRC 105\/C8, 6BNA OSHC 2162, 1978 CCH OSHD ? 23,218 (No. 77-648, 1978), which heldthat if a discovery inspection by a non-federal expert would endanger anemployer’s trade secrets, the inspection should be permitted subject toa protective order containing certain specified provisions. After theCommission issued its ruling, the secretary declined to seek a courtorder and notified the Commission that she would not proceed to ahearing under the circumstances. Accordingly, Administrative Law JudgeJames A. Cronin, Jr., granted Salem-Gravure’s motion to dismiss andvacated the citation and notification of proposed penalty.The D.C. Circuit set aside the involuntary dismissal order. The courtconcluded that the Commission had not set forth a sufficient basis fordetermining that the type of protective order contemplated byOwens-Illinois was inadequate to protect an employer’s tradesecrets.[[1\/]] The court therefore held that the Commission’s action inoverruling Owens-Illinois was arbitrary and capricious, and it set asidethe Commission’s ruling denying the Secretary’s discovery motion andremanded for reconsideration of that ruling. 843 F.2d at 1494.The case is hereby remanded to the administrative law judge for furtherproceedings consistent with the D.C. Circuit’s decision.FOR THE COMMISSIONRay Darling, Jr.EXECUTIVE SECRETARYDATED: 8 MAR 1989 FOOTNOTES:[[1\/]] In fact, in an earlier matter in which the Commission was facedwith an established violation of a protective order (see E.I. duPont DeNemours & Co., 12 BNA OSHC 1994 (No. 80-4785, 1986)), the Commissionconcluded that its sanction authority was ineffective and, in anunpublished order, disposed of the matter by accepting an apology fromthe persons involved.”