Pursuant to my Order of Remand of January 7, 1986, the exhibits
submitted at the hearing in the above-captioned case were, with certain exceptions, reconstructed,
and the case record was forwarded to me for review by an Order Remanding Case To the
Secretary of Labor, issued on February 4, 1986 by Administrative Law Judge (ALJ) James W.
Kerr, Jr. in his order, Judge Kerr informed the parties that any additions, corrections or
objections to the exhibit lists, which were attached to his order, were to be filed with me by
February 6, 1986.
Respondent Roadway Express, by letter of February 10, 1986, has filed
with me its additions, corrections and objections. Although submitted late, I accept this filing for
good cause shown.
Roadway has filed objections and comments to specific exhibits and also
has filed a general objection to the issuance of a decision in this case on the present record. with
regard to Roadway's specific objections to and comments on individual exhibits, I note that no
response has been filed either by Complainant Hufstetler, acting prose, or by
the Assistant Secretary for Occupational Safety and Health of the Department of Labor, also a
party to this proceeding and represented by the Department's office of the Solicitor. There being
no objection thereto, I accept Roadway's objection and comments set forth in items 1-8 under the
heading of Specific objections to the ALJ's February 4, 1986 Submission on pages 4-6
of Roadway's letter of February 10, 1986, and, accordingly, amend Judge Kerr's exhibit lists and,
to the extent appropriate, amend the record.
Roadway's primary objection, however, is to the issuance of a-final
decision by me at this time. Roadway requests that I remand the case for a new hearing before a
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different administrative law judge. In this connection, Roadway contends that the ALJ prepared
and issued his Recommended Decision and order of October 30, 1985 without having reviewed
the exhibits submitted at the hearing or submitted post-hearing. Since these exhibits included the
deposition testimony of certain Roadway witnesses, Roadway argues that the ALJ's rendering of
a decision in favor of Complainant without first having reviewed the exhibits shows a clear bias
on the part of the ALJ and renders his decision unreliable as a basis for my resolution of
credibility issues. Furthermore, Roadway contends, it is not possible for me to evaluate the
evidence of record denovo inasmuch as certain physical evidence submitted
at the hearing has not and cannot be reproduced. Both Complainant Hufstetler and the Office of
the Solicitor have responded to Roadway's request for a new hearing, advancing arguments as to
why I should not remand this case for a new hearing.1
1Complainant, in addition, requests that
I not make a part of the record of this case that portion of Roadway's letter which states its objection
to the ALJ's recommended decision because such objections are outside the scope of the ALJ's order
on objections to the exhibit lists. I deny Complainant's request. Under the Administrative Procedure
Act, all papers and requests filed in a proceeding become a part of the record of that proceeding. 5
U.S.C. § 556(e) (1982).