BRISTOL-MYERS COMPANY

OSHRC Docket No. 77-3854

Occupational Safety and Health Review Commission

December 29, 1978

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Lawrence W. Bierlein, P.C., for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: This case is before the Commission on interlocutory appeal from Administrative Law Judge Abraham Gold's ruling denying the Secretary's motion to conduct a post-citation discovery inspection. On October 27, 1977, the Secretary issued a citation alleging that the Respondent, Bristol-Myers Company ("Bristol-Myers"), was in violation of the occupational noise standard, 29 C.F.R. §   1910.95(b)(1) at its facility in Syracuse, New York.   Bristol-Myers contested the citation and a hearing was scheduled before Judge Gold.   After unsuccessfully attempting to obtain Bristol-Myers' consent to a discovery inspection, the Secretary filed a motion under Rule 37(a) of the Federal Rules of Civil Procedure to compel entry upon the Respondent's premises by an acoustical expert.   The purpose of the entry was to obtain additional information relevant to the allegation that feasible engineering or administrative controls exist to reduce excessive noise levels in the facility.   [*2]   Judge Gold denied the motion, holding that no valid discovery purpose had been set forth and that the Secretary's request was merely an attempt to determine whether there was a factual foundation for the claim that feasible noise abatement controls exist.   The judge reasoned that this matter should have been fully explored before issuance of the citation.   The Secretary requested and was granted an interlocutory appeal on the issue of whether the judge erred in denying the motion.

The Commission has previously addressed identical rulings based upon similar reasoning.   In Reynolds Metals Co., 78 OSAHRC 51/D5, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975) ("Reynolds I"), the Commission specifically rejected the reasoning that a motion by the Secretary to conduct discovery indicates a lack of sufficient evidence to issue the original citation.   The Commission held that a citation may issue upon less evidence than the Secretary may need to prove a contested violation and that discovery should be permitted under circumstances similar to those presented in this case. n1 See also Thomas A. Galante & Sons, 78 OSAHRC    , 6 BNA OSHC 1945, 1978 CCH OSHD P22,984 [*3]   (No. 77-2512, Aug. 30, 1978); Pabst Brewing Co., 77 OSAHRC 12/A2, 4 BNA OSHC 2003, 1976-77 CCH OSHD P21,472 (No. 13068, 1977); World Color Press, 77 OSAHRC 202/B9, 6 BNA OSHC 1084, 1977-78 CCH OSHD P22,358 (No. 76-2005, 1976), appeal dismissed, No. 78-1010 (7th Cir., July 14, 1978).

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n1 Bristol-Myers argues that the Secretary's own policy indicates that a citation should not issue without sufficient evidence to prove all elements of an alleged violation.   The Respondent refers to an internal memorandum written in 1973 by one of the Secretary's representatives, stating that citations alleging violations of 29 C.F.R. §   1910.95(b)(1) should not be issued unless "some person . . . [in a specified position has] . . . knowledge that further engineering or administrative controls are technically feasible." However, this internal memorandum does not affect the Commission's interpretation of the Act.   Policy pronouncements by the Secretary that have not been promulgated as rules or regulations have no binding legal effect on either the Secretary or the Commission.   FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977).

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Judge Gold's ruling is contrary to Commission precedent.   Accordingly, it is reversed and the case is remanded for further proceedings.   In its brief in opposition to the interlocutory appeal, Bristol-Myers has sought to raise an additional objection to the Secretary's motion.   It contends that the proposed discovery inspection by an acoustical expert who is not a Federal employee would compromise certain claimed trade secrets. We therefore direct the judge to conduct further proceedings consistent not only with this decision but also with our decision in Owens-Illinois, 78 OSAHRC     , 6 BNA OSHC     , 1978 CCH OSHD P      (No. 77-648, Dec. 20, 1978).

It is so ORDERED.  

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, concurring in part and dissenting in part:

I agree that the reason cited by the judge for denying the Secretary's motion to conduct a discovery inspection was erroneous and that the judge's ruling should be vacated and the case remanded for the reasons stated in Commissioner Cottine's decision.   However, on the trade secrets question, I adhere to the views stated [*5]   in my dissenting opinion in Owens-Illinois, supra.