Salem-Gravure, Division of World Color Press, Inc.

Plain-English summary

The Secretary sought to have a private expert inspect Salem-Gravure's plant during discovery. The Commission initially refused because of trade-secret concerns, and the citation was later dismissed when the Secretary declined to seek a federal court order. The D.C. Circuit set aside the dismissal, holding that the Commission had not adequately explained why a protective order could not protect the company's trade secrets. The Commission returned the case to the judge for further proceedings under the court's decision.

Decision snapshot

• Cited standard(s): Not stated in the decision.
• Outcome: Case remanded to the ALJ for further proceedings on the discovery-inspection issue.
• Key point: Trade-secret concerns did not justify rejecting a private expert inspection without an adequate explanation of why a protective order would fail.

Full text (OSHRC public release)

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. 83-0509

REMAND ORDER

Before: BUCKLEY, Chairman; AREY, Commissioner.

BY THE COMMISSION:

This case is before the Commission on remand from the United
States Court of Appeals for the District of Columbia Circuit. Graphic Communications
International 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 denied
the Secretary's motion to permit a non-federal expert to conduct a discovery inspection of
Salem-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 might
endanger 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 those
trade secrets, the Commission held that such an inspection could only be conducted
pursuant to a search warrant or other order issued by a federal court with contempt
authority. The Commission overruled an earlier decision, Owens-Illinois, Inc., 78 OSAHRC
105/C8, 6 BNA OSHC 2162, 1978 CCH OSHD � 23,218 (No. 77-648, 1978), which held that if a
discovery inspection by a non-federal expert would endanger an employer's trade secrets,
the inspection should be permitted subject to a protective order containing certain
specified provisions. After the Commission issued its ruling, the secretary declined to
seek a court order and notified the Commission that she would not proceed to a hearing
under the circumstances. Accordingly, Administrative Law Judge James A. Cronin, Jr.,
granted Salem-Gravure's motion to dismiss and vacated the citation and notification of
proposed penalty.

The D.C. Circuit set aside the involuntary dismissal order. The
court concluded that the Commission had not set forth a sufficient basis for determining
that the type of protective order contemplated by Owens-Illinois was inadequate to protect
an employer's trade secrets.[[1/]] The court therefore held that the Commission's action
in overruling Owens-Illinois was arbitrary and capricious, and it set aside the
Commission's ruling denying the Secretary's discovery motion and remanded for
reconsideration of that ruling. 843 F.2d at 1494.

The case is hereby remanded to the administrative law judge for
further proceedings consistent with the D.C. Circuit's decision.

FOR THE COMMISSION

Ray Darling, Jr.

EXECUTIVE SECRETARY

DATED: 8 MAR 1989

FOOTNOTES:

[[1/]] In fact, in an earlier matter in which the Commission was faced with an
established violation of a protective order (see E.I. duPont De Nemours & Co., 12 BNA
OSHC 1994 (No. 80-4785, 1986)), the Commission concluded that its sanction authority was
ineffective and, in an unpublished order, disposed of the matter by accepting an apology
from the persons involved.