“Docket No. 83-0509 SECRETARY OF LABOR, complainant, v. SALEM-GRAVURE, DIVISION OF WORLD COLOR PRESS, INC., Respondent. GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 554, Authorized Employee Representative.OSHRC DOCKET NO. 83-0509REMAND ORDERBefore: BUCKLEY, Chairman; AREY, Commissioner. BY THE COMMISSION:This case is before the Commission on remand from the UnitedStates Court of Appeals for the District of Columbia Circuit. Graphic CommunicationsInternational Union. Local 554 v. World Color Press, 943 F.2d 1490 (D.C. Cir. 1988), cert,denied, No. 88-0788 (Feb. 21, 1989). When the case was first here, the Commission deniedthe Secretary’s motion to permit a non-federal expert to conduct a discovery inspection ofSalem-Gravure’s plant. Salem-Gravure Division of World Color Press, 12 BNA OSHC 2143,1986-87 CCH OSHD ? 27,697 (1986). Concluding that an inspection by a private expert mightendanger the company’s trade secrets and that a protective order issued by the Commission,and sanctions for the violation of such an order, would not be adequate to protect thosetrade secrets, the Commission held that such an inspection could only be conductedpursuant to a search warrant or other order issued by a federal court with contemptauthority. The Commission overruled an earlier decision, Owens-Illinois, Inc., 78 OSAHRC105\/C8, 6 BNA OSHC 2162, 1978 CCH OSHD ? 23,218 (No. 77-648, 1978), which held that if adiscovery inspection by a non-federal expert would endanger an employer’s trade secrets,the inspection should be permitted subject to a protective order containing certainspecified provisions. After the Commission issued its ruling, the secretary declined toseek a court order and notified the Commission that she would not proceed to a hearingunder the circumstances. Accordingly, Administrative Law Judge James A. Cronin, Jr.,granted Salem-Gravure’s motion to dismiss and vacated the citation and notification ofproposed penalty.The D.C. Circuit set aside the involuntary dismissal order. Thecourt concluded that the Commission had not set forth a sufficient basis for determiningthat the type of protective order contemplated by Owens-Illinois was inadequate to protectan employer’s trade secrets.[[1\/]] The court therefore held that the Commission’s actionin overruling Owens-Illinois was arbitrary and capricious, and it set aside theCommission’s ruling denying the Secretary’s discovery motion and remanded forreconsideration of that ruling. 843 F.2d at 1494.The case is hereby remanded to the administrative law judge forfurther proceedings consistent with the D.C. Circuit’s decision.FOR THE COMMISSION Ray Darling, Jr. EXECUTIVE SECRETARY DATED: 8 MAR 1989\u00a0FOOTNOTES:[[1\/]] In fact, in an earlier matter in which the Commission was faced with anestablished violation of a protective order (see E.I. duPont De Nemours & Co., 12 BNAOSHC 1994 (No. 80-4785, 1986)), the Commission concluded that its sanction authority wasineffective and, in an unpublished order, disposed of the matter by accepting an apologyfrom the persons involved.”