Docket No. 11865

DEL MONTE CORPORATION

OSHRC Docket No. 11865

Occupational Safety and Health Review Commission

July 29, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

John Edward Alley and Robert D. Hall, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John J. Larkin is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). In his decision, Judge Larkin vacated a citation issued by the Secretary of Labor ("the Secretary") to Respondent, Del Monte Corporation ("Del Monte"), alleging that Del Monte had failed to comply with the noise standard at 29 C.F.R. § 1910.95(b)(1). n1 The Secretary had proposed no penalty for this alleged violation and had specified a one-year abatement period.

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n1 This standard provides:

§ 1910.95 Occupational noise exposure.

* * *

(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

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Table G-16 -- PERMISSIBLE NOISE EXPOSURES n1

	Sound level
Duration per day, hours	dBA slow response
8	90
6	92
4	95
3	97
2	100
1 1/2	102
1	105
1/2	110
1/4 or less	115

n1 [footnote omitted]

[*2]

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The Secretary petitioned for review of the judge's decision. Commissioner Cleary granted review on all issues raised in the Secretary's petition, including:

(1) Whether the Administrative Law Judge erred in dismissing the citation on the ground that it failed to provide Respondent with adequate notice of the alleged violation;

(2) Whether the Administrative Law Judge erred in denying the Secretary's motions to conduct discovery and propound interrogatories with respect to the feasibility of implementing noise controls at Respondent's plant.

For the reasons that follow, we reverse the judge's ruling that the citation failed to provide adequate notice of the violation, and we conclude that the citation was sufficiently particular. On the discovery issue, we set aside the judge's rulings denying discovery and remand this case for further proceedings.

The citation in this case was issued following an inspection conducted at Del Monte's food canning plant in Tampa, Florida. The citation referred to the noise standard at 29 C.F.R. § 1910.95(b)(1) and described the alleged violation as follows:

Failure [*3] to reduce sound levels below the values of Table G-16 by use of feasible administrative or engineering controls, thereby exposing employees to the hazard of excessive noise in the following areas:

A. Cannery

1. Cold Sort Area

2. Slicer Oscillator Area

3. Hot Sort Area

4. Filler (Solbern) Area

5. Can Closing (Canco) Area

B. Can Manufacturing

1. Slitters Area

2. Body Maker Area

3. Quality Control Area

4. Seamer Area

5. Palletizer Area

Note 1. Compliance Schedule:

Engineering Compliance Program is to be submitted within 60 days (calendar), from date of receipt of this citation. Also, employer is to submit progress reports every 30 calendar days thereafter. Also, employer is to continue enforced usage of personal protective equipment.

Del Monte filed a timely notice of contest, and the Secretary thereupon filed his complaint. The complaint essentially reiterated the allegations of the citation and additionally asserted that 430 employees were affected by the conditions cited, including general workers, can assembly line maintainers, machine operators, filler operators, attendants, palletizer operators, mechanics and inspectors.

Along with its answer, Del [*4] Monte filed a motion to dismiss and a motion for a more definite statement. In its motion to dismiss, Del Monte alleged that the citation did not comply with section 9(a) of the Act, 29 U.S.C. § 658(a), n2 because, among other things, it did not specify with sufficient particularity the following information: (1) the location of the excessive noise levels within the listed plant areas; (2) the location of the source of the excessive noise; (3) the specific magnitude and duration of the sound levels; (4) the location of the exposed employees; and (5) what feasible engineering or administrative controls would be necessary to lower the noise levels within the limits specified in Table G-16.

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n2 Section 9(a) provides, in pertinent part:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

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Thereafter the parties filed various discovery motions. Both Del [*5] Monte and the Secretary requested the production of various documents as well as requesting certain admissions of facts. n3 The Secretary also moved for an order requiring Del Monte to permit an entry onto Del Monte's premises. n4

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n3 The Secretary requested information relating to Del Monte's canning operation, noise surveys conducted by Del Monte's agents, engineering controls installed or contemplated to reduce noise levels, and the economic condition of Del Monte.

n4 The motion followed an unanswered request by the Secretary to enter Del Monte's land for discovery purposes. The request to enter land preceded the assignment of the case to Judge Larkin.

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Judge Larkin, without ruling upon any of the discovery motions or holding an evidentiary hearing, issued a decision vacating the citation for failure to comply with the particularity requirement of section 9(a). The Commission directed review of the case, set aside the judge's order, and remanded the case for further proceedings. Del Monte Corp., 77 OSAHRC [*6] 17/D12, 4 BNA OSHC 2035, 1976-77 CCH OSHD P12,536 (No. 11865, 1977). The Commission held that the judge should not have ruled on Del Monte's motion to dismiss for lack of particularity prior to the compilation of a complete factual record. In its remand order, the Commission instructed the judge to dispose of all pending motions and requests with expedition.

Without ruling on the various motions before him, Judge Larkin on February 7, 1977, send a letter to the parties asking them how they desired to proceed. The parties requested that a hearing be held to dispose of the pending motions and to clarify other matters, and such a prehearing conference was held on April 26, 1977. n5 At the prehearing conference, the Secretary argued that a single evidentiary hearing should be held concerning the motion to dismiss for lack of particularity and the merits of the alleged noise violation, while Del Monte argued that a separate proceeding should be held on the dismissal motion. Judge Larkin agreed with Del Monte, and he scheduled an evidentiary hearing on the particularity issue for May 17, 1977. n6

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n5 After Judge Larkin's letter but prior to the prehearing conference, Del Monte filed motions for summary judgment and to suppress evidence, a second request for admissions, and an application for subpoenas. The Secretary filed, among other things, a motion to clarify the nature and scope of the prehearing conference and a motion to quash the subpoenas.

n6 The Secretary sought an interlocutory ruling from the Commission on whether the judge violated the Commission's remand order in scheduling bifurcated hearings with respect to particularity and the merits. The Commission granted the interlocutory appeal and ruled that the judge should schedule a consolidated hearing on all issues. Del Monte Corp., 1977-78 CCH OSHD P22,432 (No. 11865, 1977). However, the Commission's order was issued one day after hearings on the particularity issue were completed. The Commission later amended its order to read: "Judge Larkin is directed to continue the hearing on the merits of the case and to defer ruling on the particularity issue until he has made findings of facts on all issues before him."

[*7]

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The Secretary at the prehearing conference also requested discovery prior to the evidentiary hearing. While admitting that the Secretary had not been prompt in moving for discovery following remand, counsel for the Secretary argued that the Secretary still was entitled to discovery "on an equal level" with Respondent. The Secretary requested sixty days for discovery and asked that the previous discovery motions be suspended. Noting the Commission's order of expedited proceedings and the Secretary's lack of diligence, the judge ruled that the parties could conduct discovery only through subpoenas and subpoenas duces tecum. n7

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n7 At the same time the Secretary sought interlocutory review of Judge Larkin's scheduling of bifurcated hearings, he sought interlocutory review of the judge's ruling on discovery. The Commission denied interlocutory appeal with respect to discovery matters.

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On May 10 or May 12, 1977 (the parties dispute the [*8] date), the Secretary served subpoenas and subpoenas duces tecum on twenty of Del Monte's representatives and employees. The subpoenas duces tecum requested documents relating to noise surveys conducted by Del Monte, engineering or administrative controls developed or in use at the cited workplace, and Del Monte's hearing conservation program. Del Monte moved to quash the subpoenas. The hearing concerning the particularity issue was begun on May 17, 1977, but primarily involved argument concerning Del Monte's motion to quash the subpoenas. Judge Larkin granted the motion on the grounds that the subpoenas were overbroad and not relevant. n8

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n8 Toward the end of the hearing on May 18, 1977, Judge Larkin offered to subpoena for the Secretary a blueprint of Del Monte's plant and the noise survey conducted by Del Monte prior to the inspection. However, the judge required the Secretary in return to narrow the scope of the subpoena duces tecum that the Secretary had served on the custodian of Del Monte's records. The Secretary refused to narrow the scope of the subpoena, so the judge adhered to his previous ruling quashing the subpoena duces tecum.

[*9]

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On May 18, the hearing focused on the testimony of Henry Vartanian, the compliance officer who conducted the inspection for the Secretary, and R. L. Anderson, the division manager of Del Monte's Tampa plant. Their testimony addressed the physical layout and production functions of the Tampa plant and the events of the inspection. Vartanian testified that the terms used in the citation to describe the areas of the plant were the same terms that had been used by T. E. Gleisner, Del Monte's walkaround representative, during the inspection. Some of the areas listed in the citation contained only one machine, while other areas contained several machines. During the inspection, dosimeters were placed on three employees, and Vartanian also took sound level measurements. Gleisner showed Vartanian a noise survey Del Monte had conducted that specified sound levels in designated areas of the plant. During the closing conference, Vartanian informed Del Monte's representatives that an apparent violation had occurred and that a citation might be issued. The extent of noise levels was not discussed at the closing [*10] conference.

A week after the hearing on particularity, the Secretary moved for leave to conduct discovery by interrogatories, depositions, and entry of an expert into Del Monte's plant to evaluate feasible administrative or engineering controls for noise. Judge Larkin denied the Secretary's motions for discovery. In so ruling, the judge relied upon the Commission's order that proceedings be expedited and upon the Commission's order denying interlocutory review of the judge's denial of discovery with respect to the particularity issue.

Meanwhile, a hearing on the merits was scheduled for July 11, 1977. On July 7, 1977, the Secretary advised Judge Larkin and Del Monte by telegram that he would be unable to proceed without the information sought by discovery and he would not appear at the hearing. The judge notified the Secretary by telegram on July 8, 1977, that if he failed to appear the case would be dismissed with prejudice. The Secretary ailed to appear on July 11, 1977. Nevertheless, two witnesses testified for Del Monte: R. L. Anderson, Del Monte's division manager, and Edward Pack, an acoustical engineer. This testimony centered on the administrative and engineering [*11] feasibility of noise abatement, Del Monte's hearing conservation program, and the economic feasibility of noise controls.

In his decision following the hearing, Judge Larkin found that Del Monte had not been advised at the time of the inspection or thereafter of the specific time or duration of allegedly excessive sound levels, the location of sources creating the alleged excessive noise, the employee or employees exposed to excessive noise, or the corrective action necessary to lower noise levels. The judge consequently dismissed the citation on the ground that it did not sufficiently advise Del Monte of the nature of the alleged violation. The judge concluded that the citation failed to comply both with procedural due process requirements under the fifth amendment and with the particularity requirements of section 9(a) of the Act. The judge also noted that the citation failed to comply with the Occupational Safety and Health Administration, U.S. Dep't of Labor, Field Operations Manual X-A(2)(b) ("Field Operations Manual"). n9 Finally, the judge pointed out that Del Monte had not been provided with additional information about the nature of the violation in the three [*12] years following the inspection.

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n9 The manual is reprinted in the BNA OSHR Reference File at Tab 77:2101, and in 1 CCH Employment Safety & Health Guide at P4251.

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Even though the Secretary declined to appear at the hearing on the merits and the judge's decision dismissed the citation for lack of particularity, the decision went on to make findings concerning the feasibility of noise controls at the Tampa plant. Relying solely on the evidence introduced by Del Monte, the judge concluded that feasible administrative and engineering controls did not exist to reduce noise levels within the limits specified in Table G-16 of 29 C.F.R. § 1910.95. He found that development of noise controls required by the standard would take at least two years and that such controls were not feasible in light of the adequacy of personal protective equipment that was furnished to Del Monte's employees.

III

On review, the Secretary argues that the judge erred in dismissing the citation for lack of particularity. The Secretary contends [*13] that the citation clearly put Del Monte on notice as to the locations of the violation. The Secretary also points out that R. L. Anderson's testimony indicates that Del Monte was familiar with the areas that were cited as having excessive noise levels. Finally, the Secretary contends that Del Monte was fully aware of its noise problems prior to the Secretary's inspection, since Del Monte had conducted its own noise survey.

Del Monte argues on review that the particularity requirements of the Act must be strictly construed so as to permit the employer to make an informed decision regarding abatement and that the particularity requirement must be read in a manner consistent with due process. It also argues that the Secretary violated the instructions of his Field Operations Manual, since the citation did not identify the specific items of equipment involved in the violation, sufficiently describe essential facts concerning the nature of the violation, or identify the employees exposed to the hazards. Del Monte further avers that when the citation was issued Del Monte did not know the locations that were alleged to have excessive noise levels. It therefore requests that the [*14] Commission affirm the judge's dismissal of the citation for lack of particularity.

Since Judge Larkin issued his decision, the Commission has developed further its view of what is necessary to satisfy the particularity requirement of section 9(a) of the Act in the context of an alleged violation of 29 C.F.R. § 1910.95. In Wheeling-Pittsburgh Steel Corp., 79 OSAHRC 66/A2, 7 BNA OSHC 1581, 1585, 1979 CCH OSHD P23,784, p. 28,855 (No. 14702, 1979), the Commission stated:

A citation alleging noncompliance with § 1910.95 does not have to specify the excessive noise levels in order to satisfy the particularity requirement of section 9(a) of the Act, 29 U.S.C. § 658(a). The citation need only provide fair notice of the general locations of excessive noise levels. The citation in this case was sufficiently particular in that it expressly referred to the areas of excessive noise. Moreover, we note that a citation facially lacking sufficient particularity need not be declared void as a matter of law. The purposes of the particularity requirement may be fulfilled and additional information obtained during the pleading, discovery, and hearing stages of the litigation.

See [*15] also Cement Asbestos Products Co., 80 OSAHRC 26/C7, 8 BNA OSHC 1151, 1980 CCH OSHD P24,343 (No. 78-1054, 1980). Consistent with the holding in Wheeling-Pittsburgh, the Commission also has held that the ultimate sanction of vacating a citation should be taken only when the respondent has shown that it was prejudiced in its ability to determine whether to contest or in its ability to defend on the merits. Gold Kist, Inc., 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1979 CCH OSHD P23,998 (No. 76-2049, 1979).

Applying the tests set forth in Wheeling-Pittsburgh and in Gold-Kist, we conclude that the citation is sufficiently particular in this case. The citation listed the specific operations at Del Monte's plant that were alleged to be in violation. The terminology used in the citation to designate the cited operations was the terminology that had been supplied to the compliance officer by Del Monte's representative. Del Monte also had conducted its own noise tests prior to the inspection and thus had knowledge of the noise levels in its plant. Further, Del Monte has not demonstrated any prejudice as the result of its alleged lack of fair notice.

We also reject the [*16] judge's conclusion that the citation should be dismissed for failure of the Secretary to follow the procedures outlined in the Field Operations Manual. The manual contains only guidelines for the Secretary's personnel concerning the content of citations rather than a listing of mandatory requirements. Moreover, the purpose of the manual's guidelines are to promote agency efficiency and not to create an administrative straightjacket. They do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals. FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977).

We therefore conclude that Del Monte has failed to establish that the citation in this case lacks particularity. We also conclude that Del Monte has not been deprived of fair notice of the violation or of an opportunity to obtain a fair hearing. We reverse Judge Larkin's rulings that the citation in this case failed to comply with section 9(a) of the Act and with due process of law.

The Secretary argues that the judge's initial failure to rule on the Secretary's discovery motions and his subsequent failure, after the prehearing [*17] conference, to allow the Secretary to conduct discovery constituted an abuse of discretion. The Secretary claims that the judge's failure to allow discovery was prejudicial with respect to the judge's findings that the citation lacked particularity and that controls to reduce the noise levels were not feasible. The Secretary points out that his first attempt at discovery preceded the assignment of the case to the judge and that thereafter his discovery motions were pending before the judge at all pertinent times during the proceeding. The Secretary therefore contends that the judge erred in concluding that the Secretary was dilatory in moving for discovery. Finally, the Secretary points out that the need for discovery is particularly great in cases involving the noise standard because of the application of technically-complex testing procedures and abatement measures. Hence, the Secretary argues that the judge abused his discretion in denying the Secretary's discovery motions

Del Monte argues that the judge's denial of the Secretary's discovery motions does not constitute an abuse of discretion. Del Monte points out that the Commission ordered expedited proceedings, that the [*18] Secretary did nothing regarding discovery during the first three months following remand, and that the Secretary's motions for discovery filed after the May 17, 1977 hearing would have delayed the proceeding indefinitely. Further, according to Del Monte, the discovery sought by the Secretary was so broad and burdensome that its denial would have been appropriate at any time.

Del Monte also contends that the judge's decision should be affirmed since the Secretary failed to put on any evidence in support of his case. Del Monte argues that it is impossible to determine whether the Secretary was prejudiced by the judge's denial of discovery since the Secretary failed to attempt proof of any elements of the violation.

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. KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977-78 [*19] CCH OSHD P22,350 (No. 13490, 1977), Petition for review dismissed, No. 79-3127 (6th Cir. July 3, 1979). Given the judge's broad discretion, a judge's disposition of discovery matters is reversible only if the judge's actions constitute an abuse or discretion resulting in substantial prejudice. Ralston Purina Co. 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1979 CCH OSHD P23,897 (No. 78-145, 1979); Perini Corp., 77 OSAHRC 136/A2, 5 BNA OSHC 1596, 1977-78 CCH OSHD P21,967 (No. 11007, 1977); see ISI Corp. v. United States, 503 F.2d 558 (9th Cir. 1974).

Discovery inspections, however, are ordinarily permissible where a violation of the noise standard is alleged. Pabst Brewing Co., 77 OSAHRC 12/A2, 4 BNA OSHC 2003, 1976-77 CCH OSHD P21,472 (No. 13068, 1977). Similarly, the Secretary is entitled under Commission Rule 53, 29 C.F.R. § 2200.53, to reasonable discovery through depositions or written interrogatories of any unprivileged matter that is relevant to the economic and technological feasibility of noise reduction controls. See KLI, Inc., supra. In allowing the Secretary discovery in noise cases, the Commission has recognized that the Secretary is authorized [*20] to issue a citation on less evidence than he may need to prove the existence of the violation. Pabst Brewing Co., supra. 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." Ralston Purina Co., 7 BNA OSHC at 1731, 1979 CCH OSHD at p. 28,977.

Applying the factors set forth in KLI, Inc., we conclude that the judge abused his discretion in denying the Secretary the opportunity for discovery of information celevant to the feasibility of noise controls. n10 The need of the Secretary for discovery was substantial, and the practical effect of denying the Secretary any opportunity for meaningful discovery in this case was to undercut the Secretary's case. n11

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n10 Because we reverse the judge's holding that the citation lacked particularity, we need not reach the issue of whether the judge improperly denied the Secretary discovery with respect to the particularity issue. However, we note that in this case Judge Larkin unduly narrowed the scope of the inquiry at the hearing concerning the particularity issue. In his rulings quashing the Secretary's subpoenas and excluding evidence on grounds of relevancy, the judge apparently was under the impression with respect to the particularity issue that the Secretary could present only evidence relevant to information that the compliance officer and other government employees had supplied Del Monte. However, the Commission has held that "an employer's familiarity with his own business might lend substance to a citation which is meaningless if read in a vacuum." Gannett Corp., OSAHRC , 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,915 at p. 25,114 (No. 6352, 1976). Therefore, evidence concerning an employer's knowledge of his own business, including any test the employer may have made that is pertinent to the cited standard or hazard, is relevant with respect to particularity.

n11 Respondent contends that it is impossible to determine whether the Secretary was prejudiced in this case by the judge's denial of discovery because the Secretary failed to present any evidence or prove any elements of the violation. We disagree. It is likely that, in the absence of any discovery, the Secretary would be unable to establish his case concerning the feasibility of noise controls. Ralston Purina Co., supra. Therefore, it was not necessary in this case for the Secretary to attempt to produce evidence at the hearing.

[*21]

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It is possible that discovery sought by a party in our proceedings may be overly burdensome. However, the fact that the discovery initially sought may be burdensome does not compel denial of all discovery. Rather, parties and the judge should attempt to narrow reasonably the scope of discovery. In this case, Judge Larkin at one point in the hearing attempted to narrow the scope of discovery with respect to the particularity issue. However, the judge made no similar attempt to narrow the scope of discovery with respect to the feasibility of noise controls. Rather, the judge denied all of the Secretary's discovery requests on this issue. Although we do not specifically rule on whether the Secretary was entitled to all the discovery he sought in this case -- which included interrogatories, requests for the production of documents, and a request to enter land -- it is clear that allowance of at least some of the discovery sought by the Secretary would not have been overly burdensome to Del Monte.

Finally, allowance of discovery by the Secretary in this case would not have unduly delayed the proceedings. [*22] Contrary to the factual finding of the judge, the Secretary was not dilatory in requesting discovery. The Secretary's initial request for a discovery inspection preceded the assignment of this case to an administrative law judge, and his requests for interrogatories and the production of documents were filed shortly thereafter. While upon remand the Secretary waited several months before renewing his requests for discovery, the Secretary's renewal of his discovery motions was not necessary, since the Commission had directed Judge Larkin to rule on the Secretary's original discovery motions, which were still pending. Indeed, it was the judge's failure to rule on the parties' motions, as much as the parties' conduct, that delayed the proceeding upon remand. n12 Further, since the Secretary's motions for discovery upon remand sought essentially the same information as his previous discovery motions, the filing of the renewed motions for discovery should not be construed as a waiver of the right to a ruling on the original discovery requests. Because the Secretary was not dilatory in requesting discovery, and because there is no indication that the discovery sought by the Secretary [*23] would take an excessively long time to obtain, the judge's denial of discovery on the ground of unjustified delay was not warranted. Therefore, consistent with our holding in KLI, Inc., supra, we conclude that the Secretary was entitled to discovery with respect to the feasibility of noise controls. n13

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n12 Both parties were tardy in responding to the judge's letter dated February 7, 1977, which requested that the parties inform the judge of their "preferred method of proceeding." Therefore, it was not solely the Secretary's lack of diligence in responding to the judge's letter that delayed the proceedings upon remand.

n13 Del Monte, in arguing in support of the judge's rulings on discovery, refers to the Commission's order that proceedings in this case the expedited and to the Commission's denial of interlocutory appeal with respect to the judge's discovery rulings.

By ordering that proceedings in this case be expedited, the Commission intended that the judge give this case priority in his management of his overall case load. The order that the proceedings be expedited does not necessarily limit discovery by the parties.

The denial of a party's petition for interlocutory appeal is not an expression of the Commission's view as to the merits of the ruling upon which appeal was sought. Cement Asbestos Products Co., supra. Consequently, the Secretary on review was not barred from challenging the judge's denial of discovery.

[*24]

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VII

Respondent also contends that the citation should be vacated under Federal Rule of Civil Procedure 41(b) as a result of the Secretary's failure to prosecute. n14 The same argument was made under a similar factual context in Ralston Purina Co., supra, which also involved an alleged noise violation. In Ralston Purina, the Secretary advised the judge that he would be unable to proceed to a hearing because of the judge's denial of discovery. The judge in that case consequently dismissed the case under Rule 41(b) for failure of the Secretary to prosecute. After finding upon review that the judge had improperly denied discovery, the Commission reversed the judge's dismissal. The Commission, citing Durham v. Florida East Coast Railway, 385 F.2d 366, 368 (5th Cir. 1967), pointed out that appellate courts have allowed dismissal with prejudice "only in the face of a clear record of delay or contumacious conduct by the plaintiff." Finding no record of such delay or contumacious conduct in Ralston Purina, the Commission held dismissal was not warranted. The Commission also held that [*25] the Secretary's failure to proceed in that case was excusable since it was the direct result of the judge's improper denial of the Secretary's discovery inspection request. See also Federated Metals, Inc., OSAHRC , 9 BNA OSHC 1906, 1981 CCH OSHD P25,425 (Nos. 79-2255 & 79-3647, 1981).

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n14 The Federal Rules of Civil Procedure are applicable to Commission proceedings in the absence of a specific Commission rule. Section 12(g) of the Act, 29 U.S.C. § 661(f); 29 C.F.R. § 2200.2(b). One of the grounds for involuntary dismissal under Fed. R. Civ. P. 41(b) is "failure of the plaintiff to prosecute." A dismissal under Fed. R. Civ. P. 41(b) "operates as an adjudication upon the merits" and therefore is a dismissal with prejudice.

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In this case, as in Ralston Purina, there is no record of undue delay or contumacious conduct by the Secretary in his prosecution. Further, the Secretary's failure to proceed at the hearing in this case was excusable because the judge had abused his discretion in denying the [*26] Secretary discovery relevant to the presentation of the Secretary's case. Therefore, Del Monte is not entitled to involuntary dismissal under Rule 41(b).

VIII

Finally, Del Monte argues in support of the judge's finding that there are no feasible administrative or engineering controls that could be implemented at Del Monte's Tampa Facility. Del Monte contends the July 11, 1977 hearing Jemonstrated the infeasibility of such controls. n15

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n15 Del Monte also contends that pursuant to Commission Rule 62, 29 C.F.R. § 2200.62, the Secretary waived his right to object to evidence adduced at the July 11 hearing because he failed to appear. Paragraph (c) of that rule permits the Commission to excuse, for good cause, the failure of a party to appear. Under that provision, we excuse the Secretary's failure to appear for the same reasons that we denied Del Monte's motion for involuntary dismissal. Thus, the Secretary is not barred from challenging the evidence presented at the July 11 hearing.

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Since we hold that the judge [*27] abused his discretion in denying the Secretary discovery, we must set aside the judge's findings with respect to the feasibility of noise controls and remand this case to an administrative law judge. Upon remand, both parties are entitled to the opportunity to obtain discovery and to proceed to an evidentiary hearing on the merits of the citation.

Accordingly, for the above-stated reasons, we reverse the judge's ruling that the citation failed to provide adequate notice of the alleged violation, and we vacate his denial of the Secretary's discovery motions. We also set aside the judge's findings that engineering and administrative noise controls are not feasible. Finally, we remand this case to the Chief Administrative Law Judge n16 for assignment to a judge to conduct further proceedings consistent with this decision.

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n16 Judge Larkin has retired. Therefore, it is not necessary for us to rule on the Secretary's motion to assign this case to a different judge upon remand.

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SO ORDERED.