Docket No. 78-5178

SECRETARY OF LABOR,
Complainant,

GENESEE BREWING COMPANY,
Respondent.

OSHRC Docket No. 78-5178

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

Administrative Law Judge Abraham Gold vacated a citation alleging that Genesee Brewing Company violated the noise standard at 29 C.F.R. § 1910.95 (b)(1).[[1]] The judge decided that the Secretary of Labor failed to prove the feasibility of the administrative and engineering controls which the Secretary believed Genesee Brewing should have implemented in its brewery in Rochester, New York. The Secretary filed a petition for review in which he contended that his failure to prove feasibility was caused by his inability to obtain a discovery inspection of the brewery. The Secretary argued that Judge Gold abused his discretion by denying the Secretary's repeated motions to compel the discovery entry. The Secretary therefore argued in his petition for review that the judge's decision should be reversed and the case remanded.

The Secretary's petition for review was granted by Commissioner Cottine pursuant to 29 U.S.C. § 661(i). For the following reasons, we conclude that the judge abused his discretion in denying the Secretary's motion to compel discovery and we remand the case for further proceedings consistent with this opinion.

The Secretary issued the citation in October 1978, following a September 1978 inspection of bottle and can line operations in Genesee Brewing's brewery. Genesee Brewing contested the citation and the parties thereafter attempted to reach a settlement of the issues. In December 1978, after settlement attempts proved unsuccessful, a complaint and answer were filed.[[2]] On January 5, 1979, Judge Gold scheduled a hearing for March 30, 1979.

In February 1979, the parties agreed to conduct discovery by oral, rather than written, requests or motions. At this time, they also agreed to an exchange of documents for discovery purposes. Then, on March 7 or 9, 1979, the Secretary orally requested Genesee Brewing to permit an expert in acoustical engineering or noise control to inspect the company's brewery on March 15 or 16, 1979.[[3]] On March 14, 1979, Genesee Brewing informed the Secretary that the discovery would not be permitted. On March 23, 1979, the Secretary filed motions asking the judge to postpone the hearing and compel Genesee Brewing to permit the discovery inspection. Judge Gold received the motions on March 27, 1979[[4]] and, on March 28, 1979, held a conference call with the parties to consider the motions. After hearing the parties' arguments, Judge Gold denied the Secretary's motions for postponement and discovery. He reasoned that the Secretary had known of the scheduled hearing since January 5, 1979, but did not pursue discovery with reasonable diligence.

The hearing convened on March 30, 1979, as scheduled, and the Secretary presented the evidence he had available in support of the citation.[[5]] The Secretary's case was not completed by the end of the day and the hearing was scheduled to reconvene on April 9 and 10, 1979. At the end of the proceedings on March 30, on April 5 in the interval before the hearing reconvened, on April 9 when the hearing reconvened, and at the close of his case on April 10, the Secretary renewed his motion for the discovery entry. On each occasion, the motion was opposed by Genesee Brewing and denied by Judge Gold. Judge Gold emphasized that the original lack of diligence in pursuing discovery could not be cured later in the proceedings. After the final motion and denial, the Secretary indicated that he did not rest, but that he had no more evidence to present. Believing that the Secretary's case was insufficient, see note 5 supra, Genesee Brewing then chose not to present a case. Thereafter, Judge Gold issued his decision holding that the Secretary failed to establish the feasibility of administrative or engineering controls to reduce noise in Genesee Brewing's brewery. He therefore vacated the citation.

The Secretary argues that Judge Gold abused his discretion in denying the discovery inspection. The Secretary emphasizes that his need for the discovery entry was substantial, he was reasonably diligent in seeking the discovery entry prior to the hearing, and permitting the discovery entry would not have resulted in any significant delay in the proceedings. The Secretary also argues that Genesee Brewing would not have been prejudiced.

Genesee Brewing argues that Judge Gold properly exercised his discretion in denying the discovery. Genesee Brewing contends that, by waiting until March 9, 1979, to make a first request for the discovery, the Secretary was dilatory. The company also contends that discovery was properly denied after the hearing had begun. Emphasizing that its attorneys had prepared evidence and arguments for the hearing as scheduled, Genesee Brewing contends that it would have been prejudiced by a delay in the hearing to permit further discovery.

In Del Monte Corp., 81 OSAHRC 78/A2, 9 BNA OSHC 2136, 1981 CCH OSHD ś 25,586 (No. 11865, 1981), the Commission stated:

The decision whether to allow discovery is within the judge's sound discretion. This sound discretion should be guided by the objective of providing a fair and prompt hearing to the parties. Moreover, the judge should consider the need of the moving party for the 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. Given the judge's broad discretion, a judge's disposition of discovery matters is reversible only if the judge's actions constitute an abuse of discretion resulting in substantial prejudice.

Discovery inspections, however, are ordinarily permissible where a violation of the noise standard is alleged.
. . . In allowing the Secretary discovery in noise cases, the Commission has recognized that the Secretary is authorized to issue a citation on less evidence than he may need to prove the existence of the violation. Further, the Commission is cognizant that discovery by the Secretary in noise cases is critical, particularly to prepare expert testimony, for "[w]ithout expert testimony, it is doubtful that the Secretary can show the feasibility of engineering controls."

9 BNA OSHC at 2141, 1981 CCH OSHD at p. 31,915 (citation sentences omitted throughout the quote). Moreover, the Commission has indicated that some protraction of the proceedings is justified when it occurs to obtain necessary discovery and that, if the Secretary has not been excessively dilatory or otherwise contumacious and needs additional time for such discovery, a denial of discovery can be an abuse of discretion. See Del Monte Corp., supra; Federated Metals, Inc., 81 OSAHRC 58/A2, 9 BNA OSHC 1906, 1981 CCH OSHD ś 25,425 (No. 79-2255, 1981).

In this case, the Secretary sought the discovery inspection to prepare relevant expert testimony about the feasibility of administrative and engineering controls for noise. When the discovery entry was denied, the Secretary was unable to establish his case through expert testimony, see note 5 supra. Therefore, despite the absence of rebuttal evidence, Judge Gold concluded that the Secretary's case was insufficient to establish the feasibility of the controls. The Commission has noted that without expert testimony it is doubtful that the Secretary would be able to satisfy his prima facie burden of establishing feasibility of abatement in noise cases. See Del Monte Corp., supra; Ralston-Purina Co., 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1979 CCH OSHD ś 23,897 (No. 78-145, 1979). Thus, the Secretary's need for the discovery was critical even though he was able to present some evidence, and the denial of discovery was highly prejudicial to the Secretary's case. Accordingly, the discovery should have been permitted unless Genesee Brewing would have suffered actual prejudice from the discovery or the Secretary's conduct throughout the proceedings was marked by excessive dilatoriness rising to the level of contumacy. See Samsonite Corp., 82 OSAHRC 26/A2, 10 BNA OSHC 1583, 1982 CCH OSHD ś 26,054 (No. 79-5649, 1982); Del Monte Corp., supra; Federated Metals, Inc., supra; see also General Motors Corp., Fisher Body Division, 82 OSAHRC 50/A2, 10 BNA OSHC 1953, 1982 CCH OSHD ś 26,210 (No. 79-2212, 1982).

Genesee Brewing does not claim that it has already suffered any prejudice from the Secretary's conduct in seeking the discovery. Also, although Genesee Brewing contends that postponing the hearing in order to permit the discovery would have resulted in prejudice, extra case preparation and similar inconveniences do not amount to legal prejudice. These inconveniences can be cured by a moderate continuance of the hearing date. See Samsonite Corp., supra.

Because the discovery was critical to the Secretary's case and Genesee Brewing would not have been prejudiced, the discovery should not have been denied unless the Secretary's conduct was excessively dilatory or otherwise contumacious. See, e.,g., Samsonite Corp., supra. Judge Gold denied the Secretary's discovery on the basis that the Secretary had not been reasonably diligent in seeking the discovery after the hearing was scheduled. However, the Secretary began discovery during February 1979, within a reasonable time after the hearing had been scheduled. Furthermore, because discovery in health cases can be relatively time-consuming without being unreasonable, the need for discovery can justify moderate postponement of the hearing. See Del Monte Corp., supra; Federated Metals, Inc., supra. Thus, although the Secretary's conduct in this case may not have been a model of diligence and the Secretary might have made a somewhat earlier request for the discovery entry, the delay in this case does not demonstrate excessive dilatoriness rising to the level of contumacy. Accordingly, the judge's denial of the Secretary's motion for an order to compel discovery was an abuse of discretion. We reverse the judge's order denying the discovery and his decision vacating the citation. We remand the case to the Chief Administrative Law Judge[[6]] for further proceedings consistent with this opinion, which may include postponement of the hearing until the Secretary is afforded the opportunity to complete discovery.[[7]]

SO ORDERED

FOR THE COMMISSION

RAY H. DARLING JR.
EXECUTIVE SECRETARY

DATED: APR 27 1983

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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 the hearing on the parties' statements presented in argument in the case, so the extent that the parties were in agreement as to the events. See International Harvester Co., 80 OSAHRC 10/B14, 7 BNA OSHC 2194, 1980 CCH OSHD ś 24,216 (No. 76-4572, 1980). The parties dispute whether settlement negotiations continued after the pleadings were filed and, because there is no evidence in the record showing that the settlement negotiations did continue, we assume for the purpose of deciding this case that settlement negotiations terminated when the pleadings were filed. See also note 3 infra.

[[3]] The Secretary argues that his attorney first made an oral request for this inspection in February 1979 when the parties discussed discovery. Genesee Brewing argues that the Secretary's attorney did not make any request for the inspection until March 1979. Because the Secretary has not presented any evidence in support of his claim that he made an earlier request for discovery, we find that the Secretary's first request for the discovery was in March 1979.

[[4]] Genesee Brewing argues that the Secretary's motion to postpone the hearing was late filed under Commission Rule 61(b), 29 C.F.R. § 2200.61(b), which states that, "[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 writing at least 3 days in advance of the time set for the hearing." Genesee Brewing asserts that the motion was received on March 28, 1979, which was two days in advance of the hearing.

However, the record in this case reveals that the Secretary's motion to postpone the hearing was received on March 27, not March 28, 1979. Thus, the motion was received on the third day before the day of the hearing. It was therefore timely filed under Commission Rule 61(b) and Commission Rule 4(a), 29 C.F.R. § 2200.4(a), which states 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]he last day of the period so computed shall be included...."

[[5]] The Secretary presented the testimony of several industrial hygienists concerning, among other things, engineering controls which they believed were used in bottle and can operations in breweries to control air, mechanical, and bottle or can noise. Their testimony was based on reviews of manufacturers' literature and their telephone calls to various breweries prior to the hearing in this case. The industrial hygienists testified about the amount of noise reduction that might be expected and the costs of implementing the controls, relying almost exclusively upon the manufacturers' representations. The industrial hygienists also recommended some administrative controls, but they did not know if it would actually be possible to implement 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 not decide whether the judge properly vacated the citation on the merits. The issue of whether the Secretary has established the alleged violation of § 1910.95(b)(1) will be decided on the basis of the record developed after any further discovery. The issue of feasibility must be considered under Sun Ship, Inc., 82 OSAHRC , 11 BNA OSHC 1028, 1982 CCH OSHD ś 26,353 (No. 16118, 1982), appeal filed, No. 83-3081 (3rd Cir. Feb. 14, 1983).