CASE NO. 85-ERA-2

In the Matter of

VERA ENGLISH,
    Complainant,
    v.

GENERAL ELECTRIC COMPANY,
    Respondent

    This matter was remanded by the Under Secretary of Labor on May 9, 1986, for the limited purpose of taking further testimony as directed in the Under Secretary's Remand Order. Accordingly, I issued an Order Opening the Record for Limited Further Testimony on May 21, 1986, in which I outlined specific requirements and parameters to be used by the parties in taking the testimony

requested by the Under Secretary.

    Respondent has submitted a Motion for Reconsideration of this Order. Respondent objects to the use of deposition to preserve testimony and would have the record reopened for formal bearing. Respondent further objects to the limit placed on the number of rebuttal witnesses which it may depose.

    Complainant consents to Respondent's Motion for Reconsideration. In addition, Complainant has submitted an independent Motion to Amend the Order Opening the Record for Limited Further Testimony. Complainant requests that the Order be Amended to permit Complainant to call Sam Jacobs as a witness on her behalf. Complainant would have the Order further amended to remove any limits on the subject matter of the testimony to be taken. Complainant also would have the Order amended to allow presentation of surrebuttal witnesses.

    I have reviewed relevant portions of the original hearing transcript, as well as the remand order by the Under Secretary, my order and the two motions. I find that my Order is not only consistent with the Under Secretary's remand order but is also in compliance with the regulations regarding the conduct of hearings before the Office of Administrative Law Judges. Accordingly, my Order will stand as originally issued.

    In his Remand Order, the Under Secretary explicitly indicated that his remand is made for a limited purpose, that of taking further testimony. The further testimony is subject to additional limiting instructions given in the remand order. Those limiting instructions both identify the persons from whom testimony can be taken set forth the scope of such testimony. First, the witnesses are identified as Complainant, Vera English, and four persons referred to by Complainant's attorney on page 2047 of the hearing transcript: Buddy Lewis, Bob Carpenter, Bob Hudson and Bill Bullard. As indicated in the hearing transcript, the testimony of these four witnesses is to be offered to demonstrate discrepancies between the "Pucket Report," the "Wiecsorek Report," the "NRC Report," and a compilation of reports prepared by Respondent which was marked for identification as ALJ-11. The latter exhibit was never considered evidence.

    My Order Opening the Record for Limited Further Testimony

takes into account the Under Secretary's limitations.

    Additionally, in his Remand Order, the Under Secretary specifically recognized the authority and responsibility of the Administrative Law Judge to "regulate the conduct of the hearing and to limit duplicative and cumulative evidence." [Remand Order at 1]. In the interest of expediting this matter, the Under Secretary also issued strict guidelines for further briefing. As indicated in the Remand order, "[t]hese time and length limitations are made necessary by the unfortunate history of the case." [Remand Order at 21. Neither the Under Secretary's limits nor my recent Order in any way impairs the "interest of giving each party a full and fair opportunity to present its position on the issues in this case," which is the goal of the Under Secretary on remand. [Remand Order at 3-4]. The Administrative Law Judge has various general powers deemed necessary to the conduct of fair and impartial hearings. These powers include, but are not limited to, the powers to:

[1] Conduct formal hearings in accordance with the provisions of this part; [2] administer oaths and examine witnesses; [3] compel the production of documents and appearance of witnesses in control of the parties; [4] compel the appearance of witnesses by the issuance of subpoenas as authorized by statute or law; [5] issue decisions and orders; [6] take any action authorized by the Administrative Procedure Act; [7] exercise, for the purpose of the hearing and in regulating the conduct of the proceeding, such powers vested in the Secretary of Labor as are necessary and appropriate therefore; [8] where applicable, take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts, issued from time to time and amended pursuant to 28 U.S.C. 2072; and [9] do all other things necessary to enable him or her to discharge the duties of the office.

20 C.F.R. § 18.29. Procedures which provide for the submission of evidence in written form are permitted under the Administrative Procedure Act, so long as a party is not prejudiced by this procedure. 5 U.S.C. § 556(d).

    I find that neither party will be prejudiced by the procedures outlined in my Order of May 21, 1986. The testimony will be taken under oath, and each party will be afforded full rights

of examination and cross-examination. Although the procedure will not allow for immediate evidentiary rulings each party's objections will the preserved in the deposition transcripts, and opportunity for appropriate argument will be allowed by way of post-deposition briefs. I fully recognize the importance of demeanor to credibility determinations. However, equally important measures include but are not limited to the witness's ability to recollect, prior consistent or inconsistent statements by the witness, and testimony consistent or inconsistent with other evidence of record. These latter measures are all discernable from a written record. Furthermore, the narrow scope of the testimony to be taken lessens the importance of credibility to this case. Nonetheless, the written argument of the parties in post-deposition briefs should be sufficient to aid in the resolution of credibility issues, should any arise.

    The parties are reminded that the subject matter to be covered in the subject depositions is narrow; any testimony related to the alleged malfeasance of third parties will be considered irrelevant.

    The parties are also reminded that my Order of May 21, 1986, did not authorize the submission of additional exhibits. If an exhibit is attached to a deposition transcript it is to be submitted for impeachment or rehabilitative purposes only. Accordingly, Respondent's Motion for Reconsideration of Order Opening the Record for Limited Further Testimony is denied, as is Complainant's Motion to Amend Order the Opening Record for Limited Further Testimony.

    My Order of May 21, 1986 remains in effect.

      ROBERT J. BRISSENDEN
      Administrative Law Judge

Dated: JUN 11 1986
San Francisco, CA

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