Otis Elevator Company

Plain-English summary

OSHA alleged that excessive noise at 15 locations in Otis Elevator Company's foundry required feasible administrative or engineering controls. The Secretary's expert completed one day of discovery but concluded that more inspection time was needed, and the judge denied a continuance before dismissing the citation for lack of feasibility evidence. The Commission held that a roughly 30-day delay would not prejudice Otis, the additional inspection was critical, and the Secretary had pursued discovery diligently after extensive settlement negotiations. It set aside the dismissal and remanded for further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1).
• Outcome: Dismissal of the repeat noise citation set aside; case remanded for further proceedings.
• Key point: A short continuance should be allowed for critical discovery in a multi-location noise case when the request is diligent and the employer would not be prejudiced.

Full text (OSHRC public release)

Docket No. 79-1625

SECRETARY OF LABOR,

Complainant,

v.

OTIS ELEVATOR COMPANY,

Respondent.

UNITED AUTO WORKERS,

Local Union 1818,

Authorized Employee

Representative.

OSHRC Docket No. 79-1625

DECISION

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

BY THE COMMISSION:

A decision of Administrative Law Judge Paul L. Brady 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. �� 651-78 ("the Act").  Judge Brady vacated
a citation alleging that Otis Elevator Company ("Otis") violated the
occupational noise standard at 29 C.F.R. � 1910.95(b)(1). [[1/]]  The threshold
issue before the Commission is whether the judge abused his discretion in denying the
Secretary of Labor ("Secretary") a continuance of the hearing in order that an
expert retained by the Secretary could conduct a discovery inspection of Otis's plant.
  We conclude that the judge did abuse his discretion and remand for further
proceedings

I

In January, 1979, the Secretary conducted an eight-day inspection of Otis's foundry in
London, Ohio.  Numerous citations for alleged safety and health violations were
subsequently issued over a period ranging from March 7 to April 26, 1979.  Following
extensive settlement negotiations, a hearing was convened on January 31, 1980, at which
time the judge was informed that the parties had settled all but two issues, one of which
was later withdrawn by the Secretary.  The only issue that remains in dispute
concerns the citation alleging that Otis violated 29 C.F.R. � 1910.95(b)(1) by failing to
reduce noise by administrative or engineering controls at 15 named locations in its plant.

At the January 31 hearing, the parties discussed the Secretary's need to have
a noise expert inspect the areas of Otis's plant involved in the section 1910.95(b)(1)
citation.  The parties agreed that the Secretary's expert would conduct a discovery
inspection of Otis's plant within four weeks.  The parties also agreed that four
weeks after the expert conducted his inspection would be sufficient time to prepare for
the hearing.  At the January 31 hearing, the date of the future hearing on the merits
was left open.

On March 3, the judge set the case for a hearing on April 8.  Earlier,
on February 19, the Secretary's expert had inspected Otis's worksite.  Following that
inspection, the expert "determined that further, in-depth studying would be necessary
to arrive at professional opinions and conclusions."  On or about March 14, the
Secretary's attorney requested permission from Otis's attorney for the expert to reenter
the plant to complete his inspection.  Otis's attorney refused because the company
would not then have ample time to evaluate the expert's findings before the April 8
hearing.

On March 18, the Secretary filed with Otis a written request for permission
to enter land, with a copy to the judge.  He simultaneously filed with the judge a
motion for a continuance of the hearing, noting that Otis would object to the request for
further entry without an adequate continuance to prepare for trial after the entry.  
On March 21, the judge denied the motion for continuance, stating that provision had
previously been made for a discovery inspection and such an inspection had been conducted.

On March 31, the Secretary filed a motion to compel entry on land so that his
expert could reenter Otis's plant.  The memorandum accompanying the motion again
noted that Otis's only concern was that the company have adequate time after the reentry
to prepare for the hearing, that the parties agreed that an inspection could be conducted
the week of April 7, and that the granting of the motion would necessitate a continuance.

The hearing convened on April 8 as scheduled.  The judge denied the
outstanding motion to compel entry, noting that the motion required a continuance and he
would not grant a continuance for the reasons he had previously stated.  The
Secretary then called as a witness the industrial hygienist who had conducted the
inspection of Otis's plant that preceded the issuance of the citation.  This witness
testified that he had measured noise exposures exceeding the limits permitted by the
standard, and Otis stipulated to the accuracy of his measurements.  The industrial
hygienist also testified that Otis had previously been cited for a violation of the noise
standard in 1974.[[2/]]  The witness did not testify concerning specific
administrative or engineering controls that might have been feasible to reduce the noise
levels.  At the close of the industrial hygienist's testimony, the Secretary again
renewed his request for a discovery inspection to gather evidence regarding feasible
controls.  Otis opposed the request and moved to dismiss the citation for the
Secretary's failure to establish a prima facie case.  The Secretary conceded he had
not proven the feasibility of controls, asserting he could not meet his burden of proof on
that issue without the further discovery he sought.  Judge Brady denied the
Secretary's discovery request and granted Otis's motion to dismiss.  The judge noted
that the Secretary had cited Otis for violating the noise standard in 1974 and concluded
that, when the Secretary issued the repeat citation in this case, he must necessarily have
known what Otis was required to do to comply with the standard.  Further noting that
the Secretary had already obtained some discovery, the judge determined that a delay in
the hearing for the Secretary to obtain additional discovery was unjustified.

The Secretary petitioned for review of the judge's rulings denying his
requests for discovery and granting Otis's motion to dismiss. Commissioner Cottine
directed that the judge's decision be reviewed pursuant to 29 U.S.C. � 661(i).

II

The Commission has held that the decision whether to allow discovery is within the judge's
sound discretion.  In exercising that discretion, the judge "should be guided by
the objective of providing a fair and prompt hearing to the parties."  Del Monte
Corp., 81 OSAHRC 78/A2, 9 BNA OSHC 2136, 2140, 1981 CCH OSHD � 25,586 at p. 31,915 (No.
11865, 1981).  The judge must "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."  Id.

In this case, the Secretary sought to have his expert enter Otis's plant to gather
information relevant to the feasibility of engineering controls to reduce excessive noise.
  In a case where the Secretary alleges that an employer violated section
1910.95(b)(1), such information is critical to the Secretary's proof of a violation.
  See Sun Ship, Inc., 82 OSAHRC 69/A2, 11 BNA OSHC 1028, 1983 CCH OSHD � 26,353 (No.
16118, 1982), appeal filed, No. 83-3081 (3d Cir. Feb. 14, 1983).  Thus, the
Commission has held that the Secretary should ordinarily be permitted discovery
inspections in noise cases, and that it is an abuse of discretion for the judge to deny
such discovery even if some delay in the proceedings will result.  Del Monte Corp.,
supra; Samsonite Corp., 82 OSAHRC 26/A2, 10 BNA OSHC 1583, 1982 CCH OSHD � 26,054 (No.
79-5649, 1982); Federated Metals, Inc., 81 OSAHRC 58/A2, 9 BNA OSHC 1906, 1981 CCH OSHD �
25,425 (No. 79-2255, 1981); Ralston Purina Co., 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1979 CCH
OSHD � 23,897 (No. 78-145, 1979).  Only if the Secretary has been excessively
dilatory or otherwise contumacious should his discovery request be denied.  Samsonite
Corp., supra; Federated Metals, Inc., supra.

Judge Brady did grant the Secretary's initial request for a discovery
inspection but would not grant the Secretary a continuance of the hearing to permit
further discovery after the initial one-day entry by the Secretary's expert.  The
judge reasoned that the Secretary had already conducted a discovery inspection and
apparently concluded that the need for further discovery did not outweigh the delay in the
hearing that would result.

We do not agree.  The delay in the hearing that would have resulted from
granting the Secretary's request was approximately 30 days.  Otis did not contend
that this nominal delay would have been burdensome or prejudicial.  It only opposed
the Secretary's request because, without a continuance, it would not have had sufficient
time before the hearing to review the expert's findings.

Thus, the continuance sought by the Secretary would, if granted, have alleviated Otis's
only concern arising out of the discovery request.  Moreover, the judge erred in
giving substantial weight to the fact that the Secretary's expert had been able to conduct
a discovery inspection of one day's duration.  This case involves the feasibility of
noise reduction controls at fifteen different locations in Otis's plant, and the expert's
view that he would require more than a single day to arrive at conclusions concerning the
feasibility of controls is not contradicted on the record.

The judge also erred in relying on any familiarity with noise controls in
Otis's plant the Secretary acquired as a result of the 1974 citation.  That citation
was not contested and was therefore not the subject of a proceeding before the Commission.
  Thus, the Secretary did not have the opportunity to conduct discovery regarding
feasible noise controls with respect to that citation. Furthermore, the record provides no
reason to believe that the sources of excessive noise and possible means of noise
reduction in Otis's foundry were the same in 1979, when the citation in this case was
issued, as in 1974.  Most of the areas of excessive noise involved in this case were
not even mentioned in the 1974 citation.

Finally, we note that the Secretary acted with reasonable diligence in
pursuing discovery.  Although approximately a year elapsed between the issuance of
the citation and the scheduled hearing, most of that time was occupied by settlement
negotiations that concerned both the noise citation and numerous other citations alleging
various safety and health violations.  That the settlement negotiations were
conducted in good faith is evidenced by the fact that the parties were able to amicably
resolve most of the issues originally presented.  A delay in pursuing discovery
pending the outcome of good faith settlement negotiations is justified.  See Ralston
Purina Co., supra.  Moreover, the Secretary diligently pursued discovery after it
became clear that the noise citation could not be settled.  The initial discovery
inspection was conducted less than three weeks after the parties agreed to the inspection
at the January 31, 1980 hearing.  When the Secretary thereafter determined that
further discovery was needed, he proceeded diligently to seek the continuance of the
hearing that would be necessary and to obtain permission for the inspection first from
Otis and then from the judge.

Because the Secretary's need for a further discovery inspection clearly
outweighed the short delay in the hearing that would have resulted, and the Secretary
acted with diligence to pursue his discovery request, the judge abused his discretion in
denying a continuance for that purpose.  Accordingly, the judge's decision is set
aside and the case is remanded for further proceedings consistent with this opinion.

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/]] The 1974 citation was introduced into evidence as Exhibit C-1.
  The citation alleged that Otis violated 29 C.F.R. � 1910.95 by failing to limit
employee exposure to permissible sound levels at six named locations, some of which are
the same as are listed in the citation now under review.  The 1974 citation was not
contested and became a final order of the Commission pursuant to 29 U.S.C. �
659(a).  The citation now at issue alleges a repeat violation based on the 1974 final
order.