Case No. 85-STA-8

In the Matter of

Jerry W. Hufstetler,
    Complainant

    v.

Roadway Express, Inc.,
    Respondent

    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 pro se, 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

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 de novo 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

    After consideration of the arguments of all the parties, I deny Roadway's request for a retrial of the entire case before a different administrative law judge. Remand of a case for a new hearing before a different ALJ is warranted where "the ALJ's conduct [is] so extreme that it deprives the hearing of that fairness and impartiality necessary to that fundamental fairness required by due process". National Labor Relations Board v. Webb Ford, I nc., 689 F.2d 733, 737 (7th 1982); Accord Tele-Trip Company v. National Labor Relations Board, 340 F.2d 575 (4th 1985). That is not the case here; indeed Roadway does not contend that the manner in which the ALJ conducted the trial of the facts was in any way biased or prejudiced or otherwise raised due process issues. The actual presentation of the testimony of witnesses, excluding the deposition testimony, spanned 4 days and over 1400 pages of transcript. To require the parties to present this testimony again when no defect in the conduct of the trial is alleged would be unnecessarily burdensome and costly. Moreover, if the physical evidence, which Roadway asserts is a necessary part of its case, could not be duplicated when the record was reconstituted, it cannot be duplicated for a new trial before another administrative law judge.

    Furthermore, my review of the reconstituted record, including the ALJ's recommended decision and order, does not reveal such bias on the part of Judge Kerr as to require that the case be reassigned to another administrative law judge. See United States v. Grinnel Corp., 384 U.S. 563, 583 (1966); Hamm v. Members of Board of Regents of the State of Florida, 708 F.2d 647, 651 (11th Cir. 1983)

    Nevertheless, I do find, from indications in the transcript as to how the exhibits were handled, that there is some basis for questioning whether the ALJ read and considered all of the exhibits. Although, I have the authority to issue my final decision and order on the basis of a de novo review of the record evidence and without reliance on the ALJ's recommendation, the fact that the physical evidence, which is now missing from the record, was handled or viewed by the ALJ during the hearing makes it advisable that I have the benefit of the ALJ's analysis of the evidence. Accordingly, I remand this case to the ALJ and direct him to issue a supplemental or amended recommended decision and order reflecting his evaluation of all the evidence in the reconstituted record as amended herein.

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).