The Administrator would have the Board cure the infirmity by finding that IRC waived any argument regarding the validity of the decision by agreeing during the April 5, 1996, conference call to the rehiring of the ALJ. Even if the record supported a factual finding of waiver, we would hesitate to give it effect. In any event, the record does not factually support a finding of waiver.

   The only record of what was agreed upon during the April 5, 1996, conference call is the memorandum by Judge Vittone. It states:

As a result of the conference call, it was agreed that the best course of action would be for the Department of Labor to rehire Judge Fath for the limited purpose of reconsidering the Decision and Order dated January 3, 1996, and to take whatever action he deemed appropriate under the circumstances. Mr. Hoogstraten [IRC's attorney] indicated that a rehiring of Judge Fath to consider the issues raised by the backdating would address his client's concerns about whether Judge Fath still had the authority to issue the decision when it was actually mailed. Mr. Blair [DOL's attorney] voiced no objection to the rehiring of Judge Fath for this purpose. (Emphasis added)

Exhibit C attached to Petitioner's Brief.

   The memorandum speaks not to waiver but only to the purpose for which Judge Fath was being rehired. It does not memorialize any agreement by the parties as to what issues were appropriate subjects for appeal. Additionally, it clearly implies that Judge Fath would address the issues raised by the backdating. These issues were not in fact addressed in the ALJ's decision. The Board can find no waiver where none has been expressed. The circumstances of this case call for a clear and intelligible waiver. Finding an implied waiver risks compounding the errors already made in this case.

   Our review of the record indicates that the parties are basically in agreement about the underlying facts of the case. They proffer differing interpretations of the applicable regulations, however, with regard to employees' rights with successor contractors where there are unclear or disputed provisions of prevailing Collective Bargaining Agreements. Although we favor the ALJ's determination concerning the legal issues presented, we find that the decision is tainted by the backdating and so cannot stand.

   Notwithstanding that we have set the decision aside, we reject Petitioner's characterization of the ALJ's conduct at the hearing as badgering witness Fountain

or in any way demonstrating a bias against him. The hearing transcript reveals that Fountain is a college graduate; with more than 20 years as a small business entrepreneur; that he successfully bid on sizable contracts in the two years preceding the contracts at issue; and that he testified that he was unfamiliar with the cost details of contracts on which he had successfully bid and which were the bases of the proceeding. Fountain, Transcript (Tr.) at 200, 202-203, 212-13. The ALJ's pique at Fountain's non-responsiveness to fundamental questions regarding the details of contracts with which he should have been fully cognizant was not excessive.

   We are advised by counsel that there is no longer any dispute with regard to the back wage issue concerning sick leave underpayments allegedly owed to IRC's employees under the Fort Belvoir contact. The withheld funds have been duly disbursed to the employees, and IRC does not dispute the disbursement. (Letter from Carol Arnold, Esq. to Peter D.P. Vint, Esq., dated March 4, 1998; letter in response from Mr. Vint to Ms. Arnold, dated March 11, 1998).

   For the foregoing reasons, this case is DISMISSED WITH PREJUDICE.

   SO ORDERED.

       DAVID A. O'BRIEN
       Chair

       KARL J. SANDSTROM
       Member