DATE:  October 27, 1992
CASE NO. 92-STA-1


IN THE MATTER OF

ROBERT SPEARMAN,

          COMPLAINANT,

     v.

ROADWAY EXPRESS, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                    ORDER DENYING MOTION TO RECONSIDER

     This case arises under Section 405 (employee protection
provision) of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).  By motion dated
August 26, 1992, Respondent requests reconsideration of the
Decision and Order of Remand and the Order Vacating Procedural
Orders and Directing Reassignment issued on August 5, 1992, and
received by Respondent on August 11, 1992.  Neither the STAA nor
its implementing regulations, 29 C.F.R. Part 1978 (1991), provide
for reconsideration by the Secretary.  Reference to Rule 59(e),
Federal Rules of Civil Procedure, reveals that a motion to alter
or amend a judgment must be served not later than ten days after
entry of judgment.  See U.S. Department of Labor v.
Bergen County, New Jersey, CETA, Case No. 82-CTA-334, Sec.
Order, Aug. 31, 1992, slip op. at 2-3 (absent express regulatory time
frame, Federal procedure offered appropriate guidance).  The
instant request, mailed on August 26 and received on August 31,
is beyond the time frame for seeking reconsideration of the
August 5 orders.  Accordingly, the motion to reconsider is
denied.  Moreover, for the following reasons, had the motion been
timely, I would deny it on substantive grounds.
[PAGE 2]
     In arguing that bias has not been shown, Respondent
misperceives my reasons for directing reassignment.  While bias
on the part of an Administrative Law Judge (ALJ) may serve as a
basis for recusal, I have made no such finding here.  Rather, I
premised reassignment on the ALJ's inadequate handling of the
proceedings.  Aaacon Auto Transport, Inc. v. ICC, 792 F.2d
1156, 1162-1163 (D.C. Cir. 1986), cert. denied, 481 U.S.
1048 (1987).  In particular, the ALJ repeatedly ruled on motions
without permitting Complainant an opportunity to respond, [1] 
improperly limited Complainant's case, and subjected Complainant
to an unnecessary demonstration.  The case was remanded to the
Chief ALJ for reassignment to another, unspecified ALJ.  No
"handpicked," arguably predisposed replacement was named, which
distinguishes the instant case from Utica Packing Co. v.
Block, 781 F.2d 71 (6th Cir. 1986) [2] .  I also expressly
declined to make factual findings and in no manner attempted to
dictate the outcome before the replacement ALJ.  In vacating
certain of the ALJ's orders which improperly limited
Complainant's complaint, I have attempted to avoid a further
remand.  See Bassett v. Niagra Mohawk Power Co.,
Case No. 86-ERA-2, Sec. Remand Order, July 9, 1986; Richter v.
Baldwin Associates, Case Nos. 84-ERA-9, et seq., Sec.
Remand Dec., Mar. 12, 1986 (cases remanded to ALJs for further
proceedings where complaints improperly delimited).  I have
considered the remaining arguments made by Respondent and find
them unpersuasive for the reasons advanced in my August 5, 1992,
orders.  
                               ORDER
     Respondent's motion to reconsider is denied as untimely. 
Had the motion been timely submitted, I would have found it to be
without merit.  In addition, Respondent's motion for a stay of
the proceedings is denied as moot.  Receipt of Complainant's
counsel's motion to withdraw hereby is acknowledged.  Counsel's
motion, together with copies of Respondent's motions, will be
transmitted to the Office of Administrative Law Judges where the
case currently is pending.  
     SO ORDERED.


                              LYNN MARTIN
                              Secretary of Labor     
Washington, D.C.


[ENDNOTES]
           
[1]   The time frames set out at 29 C.F.R. §§ 18.4 and
18.6 (1991) apply under 29 C.F.R. § 1978.106.

[2]   There, the court held it a denial of due process for the
Department of Agriculture to replace a career adjudicator, who
had issued a final decision with which the Department "violently
disagreed," and then petition for reconsideration with his
replacement, a noncareer political appointee with no
adjudicatory, regulatory, or legal background, whose assigned
legal advisor formerly had worked for an official directly
involved in the case's prosecution.