Engineers Beneficial Assn District 1 (Crest Tankers)

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1481 (N.L.R.B. 1985)

ENGINEERS 'BENEFICIAL' ASSN' DISTRICT 1 (CREST TANKERS)
District No. 1, Pacific Coast District - Engineers Ben-
eficial Association , AFL-CIO sand Crest Tank-
ers, Inc. Case 14-CB-6124 -
29 March 1985
ORDER DENYING MOTION,FOR„
RECONSIDERATION, GRANTING
REQUEST FOR SPECIAL PERMISSION, .
TO APPEAL AND MOTIONS TO,, , .
RECUSE, AND REMANDING,--
PROCEEDING,TO CHIEF ' , .
ADMINISTRATIVE LAW JUDGE FOR
HEARING DE•NOVO, -
BY CHAIRMAN DOTSON AND MEMBERS' }
HUNTER AND DENNIS
On 4 and 6 September 198,4 a hearing was. held
before Administrative Law,Judge,Joel A. Harmatz
on the complaint issued in the above-entitled pro-
ceeding, which alleges that the Respondent Union
has violated Section 8(b)(1)(A) and (B) and Section
8(b)(2) of the National Labor Relations At by ,at-
tempting to utilize the grievance-arbitration ,proce-
dure of its contract with Trinidad Corporation` to
force a separate Company, Crest Tankers, Inc.,F to
recognize the Respondent Union as the bargaining
agent for its licensed engineers: ,
On 5 September 1984 Charging Party Crest
Tankers filed a telegraphic request for 'special per-
mission to appeal a ruling made by the, administra-
tive law judge. By telegraphic Order dated 6 Sep-
tember, the Board granted the; Charging Party's
appeal, reversed the judge, and directed him to
permit the introduction of evidence regarding the
arbitration award and whether such award meets
the Spielberg criteria. i On 6 September; following
receipt of the Board's Order, the judge, excluded
counsel for the Charging Party from the hearing,
and adjourned the hearing so that the Charging
Party could obtain new counsel.
By letter dated 11 September 1984, the Respond-
ent Union moved the Board for reconsideration of
its Order granting the Charging Party's request for
special permission to appeal. The Respondent
Union argues that the Board's Order should be re-
considered because (1) the Board acted without
benefit of the record or the positions of the oppos-
ing party, thereby denying the Respondent due
process, and (2) the Order was obtained through
misrepresentations to the Board. The General
Counsel filed opposition to the Respondent's
motion for reconsideration.
Thereafter, the Charging Party filed "a Request
for Special Permission to Appeal Order of Admin-
' Spielberg Mfg Co, 112 NLRB 1080 (1955)
1481
istrative Law Judge Excluding Counsel for ,Charg-
ing Party and a Motion to Recuse Administrative
Law Judge"; the General Counsel filed a "Memo-
randum in Support of Charging Party's Request for
,Speciiat' Permission to Appeal Order of Administra-
tive Law Judge"; the General Counsel also moves
the Board to disqualify the administrative law
judge and remand this matter for a hearing de
novo before a ,different administrative law fudge,. In
essence, the Charging Party and the General Coun-
sel,argue that there were no grounds to exclude the
Charging Party's, counsel; that the judge misapplied
Section 102.44(a) of the Board's Rules and Regula-
tions -,which, in their view, provides for exclusion
of counsel only when there is a clear showing that
,counsel has ,engaged in contumacious conduct; and
that the probative, evidence , indicates that the
judge's exclusion of the Charging Party's counsel
was. the result of the judge's displeasure over
having been reversed rather than any misconduct
by' the Charging Party's counsel. Accordingly,' the
Charging Party and the General Counsel urge the
Board to grant the Charging Party's motion and re-
verse the judge's ruling excluding counsel.
With respect to the motion to recuse, the Charg-
ing Party and the General Counsel argue that the
judge should be disqualified because his actions in
this case, including his order denying motion to
disqualify2 and supplemental findings in support
thereof; create the appearance of hostility and bias
and"indicate that he is unable to conduct the hear-
ing in this casein an impartial, objective manner.
The Respondent Union filed an "Opposition to
Charging. Party's Request for Special Permission to
Appeal and, Motion to Disqualify Administrative
Law' Judge." • In its opposition, the Respondent
argues that the Charging Party counsel's telegraph-
ic appeal misrepresented and distorted the judge's
evidentiary ruling, so that exclusion of the Charg-
ing Party's counsel was warranted. The Respond-
ent also contends that disqualification of the judge
would be erroneous, and would serve only to
allow counsel for the Charging Party to benefit by
his own misconduct.
The Board, having duly considered the matter,
IT IS ORDERED that the Respondent's motion for
reconsideration of the Board's 6 September Order
is denied.3
2 Pursuant to Sec 102 37 of the Board's Rules and Regulations, the
motion to disqualify the judge was initially filed with the judge for his
consideration
3 Based on what the Board had before it, and given the Respondent's
failure to respond to the Charging Party's request for special permission
to appeal or even seek a recess to do so , the Board's action in granting
the appeal was proper
274 NLRB No 215
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the Charging
Party's request for special permission to appeal the
administrative law judge's order excluding the
Charging Party's counsel from the hearing is grant-
ed 4
IT IS FURTHER ORDERED that the Charging
Party's and the General Counsel's motions to
recuse the administrative law jduge are granted.5
IT IS FURTHER ORDERED that this matter is re-
manded to the chief administrative law judge for a
hearing de novo before a different administrative
law judge designated by him, who shall prepare
and serve on the parties a decision containing find-
ings of fact, conclusions of law, and recommenda-
tions with respect to the unfair labor practices al-
leged in the complaint and that, following service
of the decision upon the parties, the provisions of
Section 102.46 of the Board's Rules and Regula-
tions shall be applicable.
MEMBER HUNTER, concurring.
I concur in the order herein denying the Re-
spondent's motion for reconsideration, granting the
Charging Party's request for special permission to
appeal the judge's order excluding counsel, grant-
ing the Charging Party's and the General Counsel's
motions to disqualify the judge, and remanding this
case for a hearing de novo. I write separately be-
cause I do not agree with the rationale set forth by
the majority. Rather, I conclude, for the reasons
below, that the judge abused his discretion by
threatening initiation of disciplinary proceedings
against the Charging Party's counsel, and by ex-
cluding the Charging Party's counsel, because he
refused to "correct" his telegraphic appeal to the
Board as instructed by the judge. Further, I con-
clude that, under the circumstances here, the
judge's conduct, including statements made by him
at the hearing and in his supplementary findings,
necessitates his disqualification from further partici-
pation in this proceeding.
The complaint in this case alleges that the Re-
spondent violated Section 8(b)(1)(A) and (B) and
Section 8(b)(2) of the Act by obtaining, and seek-
4 Although the Charging Party's telegraphic appeal did not clearly re-
flect the judge's evidentiary ruling, the Board is of the opinion that the
evidence is insufficient to establish that the Charging Party counsel's
filing the appeal or his refusal to obey the judge's directive to "correct"
the appeal was a deliberate attempt to obstruct the hearing, and finds that
counsel's conduct did not warrant his exclusion from the hearing See
Great Lakes Screw Corp v NLRB, 409 F 2d 375 (7th Cir 1969), denied
enf of 164 NLRB 149 (1967)
5 In granting the motions to recuse, the Board notes that its proceed-
ings should be free from any appearance of partiality or bias on the part
of its administrative law judges In granting the motions to recuse, the
Board does not mean to imply that the administrative law judge is, in
fact, prejudiced or biased In all the circumstances, however, the Board is
of the opinion that all parties would be better served if this matter were
heard de novo before a different administrative law judge
ing judicial enforcement of, an arbitration award
finding that the Charging Party, Crest Tankers,
Inc., is an affiliate or subsidiary of Trinidad Corpo-
ration and that Trinidad is therefore required to
extend to employees of Crest Tankers the terms of
Trinidad's collective-bargaining agreement with the
Respondent. In the unfair labor practice hearing,
the General Counsel attempted to show the arbitra-
tor's award "palpably wrong" under Spielberg by
eliciting evidence, over the Respondent's objection,
regarding the business relationship between Trini-
dad and the Charging Party. The judge permitted
the General Counsel to introduce only that evi-
dence which had been presented to the arbitrator.
The Charging Party sought and was granted leave
to file with the Board a request for special permis-
sion to appeal from the judge's ruling. This request
and the appeal supporting it were telegraphically
transmitted to the Board on the morning of 5 Sep-
tember 1984. The judge and the parties were pro-
vided a typed reproduction of the request and sup-
porting appeal at that time.
Following the luncheon recess on 5 September
1984, the judge informed counsel for the Charging
Party that his telegraphic appeal contained state-
ments which the judge believed misrepresented the
nature and scope of the judge's ruling. Counsel for
the Charging Party denied generally that he had
misrepresented the ruling, but did agree to prompt-
ly inform the Board that a portion of the appeal,
noted specially by the judge and stating that the
judge "has sustained Respondent's affirmative de-
fense before permitting General Counsel to present
his case," was intended as conclusory argument
rather than a representation of the judge's ruling.
The judge found counsel's offer insufficient and
later stated:
I am not making this in the form of a sugges-
tion. If the case is remanded based on a misun-
derstanding of the record to me, I will make a
big to-do believe me, including I will exam-
ine-I have done this before-I will examine
the question as to whether there is a violation
of Canon 8 of Canon of Legal Ethics in such a
thing, because we are talking-I am not talk-
ing-I know lawyers like to take license in
making argumentation and I have to live with
that, but I don't have to accept a lawyer's mis-
representations in the review process that can
lead to a consuming of resources unnecessarily
by the other side and by the government.
The Charging Party's request for special permis-
sion to appeal was received by the Board on the
morning of 5 September 1984. Having received no
opposition nor response to the request, the Board
ENGINEERS BENEFICIAL ASSN DISTRICT I (CREST TANKERS)
granted the request and reversed the judge's ruling
by the telegraphic order issued the afternoon of 6
September 1984. Upon receiving the Board's order,
the judge informed counsel for the Charging Party
that "something better be corrected, or there is
going to be a big problem." Counsel for the Charg-
ing Party renewed his offer to clarify a limited por-
tion of the appeal, but adhered to the position that
the appeal did not misrepresent the judge's ruling.
After extensive colloquy regarding the ruling, the
content of the Charging Party's appeal, and the
corrective actions contemplated by the judge,-
counsel for the Charging Party indicated that he
would stand by his submission to the Board. The
judge announced that he was going to recuse him-
self from the proceeding, presumably to initiate dis-
ciplinary action against counsel for the Charging
Party. Upon objection by the Respondent that the
judge's decision to recuse himself was prejudicial
to its interest , the judge reversed his ruling and ex-
cluded counsel for the Charging Party, stating:
They [the Board] acted with immediacy [on
the request]. You were wrong, you misled
them. It prejudices the proceeding. You should
act with immediateness in cleansing the air.
That's my suggestion to you. You refused to
pick it up. At this point I have no other alter-
native but to consider your misconduct in mis-
representing to the Board the limited scope of
evidentiary ruling in a fashion calculated to
mislead the Board into doing precisely what
they did, outside the record and without
giving the other side an opportunity to be
heard. I consider that misconduct that you
refuse to correct. That you show no remorse
for it warrants your summary exclusion, a mi-
shearing under Section 102.44 of the Board's
rule of recollection [sic].
Following the exclusion of counsel, the Charging
Party filed with the Board a request for special
permission to appeal the judge's order. Concurrent-
ly, the Charging Party moved the judge to dis-
qualify himself on the basis of bias and prejudice.
The General Counsel submitted memoranda sup-
porting both the request for special permission to
i It is unnecessary to review in detail the comments of the judge and
the representatives of the parties during this phase of the discussion It
will suffice to say that the judge informed counsel for the Charging Party
that the judge intended "to recommend disciplinary action " unless coun-
sel for the Charging Party corrected the misrepresentations in the appeal
which the j udge described as "clear , unequivocal , cannot be reconciled
with the record or my ruling They are a slander to me and a liable to
my competence " For his part , counsel for the Charging Party invited
the judge to file charges against him , saying, "I am ready to ^t, nd behind
what I did and I will leave it at that your Honor " While coum,el for the
Charging Party later said he may have misunderstood the judge's ruling
to some extent , he considered that his appeal to the Board was "essential-
ly fair "
1483
appeal, and the motion to disqualify. In so doing,
the General Counsel argued that the judge improp-
erly excluded counsel for the Charging Party inas-
much as counsel had engaged in no conduct that
could be considered "contemptuous" within the
meaning of the Board's Rules and Regulations.' In
addition, the General Counsel noted several state-
ments made by the judge in hearing which contrib-
uted to the appearance that the judge was not im-
partial and objective With particular reference to
the judge's evidentiary ruling and the Charging
Party's request for special permission to appeal that
ruling, the General Counsel observed, "It can be
argued that Charging Party's special appeal did not
clearly set forth Judge Harmatz' ruling. Even if
this is the case, the worst that can be said of Mr.
Hanna is that he misunderstood the ruling."
On 23 October 1984, the judge issued an order
denying the Charging Party's motion to disqualify,
as failing to state on its face a credible, substantial
claim . Accompanying and supporting the order by
the judge was a 54-page document constituting the
judge's supplementary findings. The tenor of this
document is well illustrated by the following por-
tion of its introductory statement:
Central to the effort to remove the ALJ is
the claim that Attorney Hanna engaged in no
misconduct, but in fact it was the ALJ who
was guilty of abusive behavior. The disruptive
nature of this attempt to divert attention from
Mr. Hanna's misconduct is evidenced by the
fact that it has already brought the hearing in
this proceeding to a standstill. Thus, prejudice
to Respondent and the proceeding as a whole
wrought by Mr. Hanna's imprudently worded
appeal is escalated by this present effort on the
part of the Charging Party and General Coun-
sel to obtain a new trial before a different
ALJ.
2 Sec 102 35 of the Board's Rules and Regulations states in relevant
part
The administrative law judge shall have authority, with respect to
cases assigned to him , between the time he is designated and transfer
of the case to the Board , subject to the Rules and Regulations of the
Board and within its powers
(f) To regulate the course of the hearing and, if appropriate or
necessary, to exclude persons or counsel from the hearing for con-
temptuous conduct and to strike all related testimony of witnesses re-
fusing to answer any proper question
Sec 102 44 of the Board's Rules and Regulations states in part
(a) Misconduct at any hearing before an administrative law judge
of before the Board shall he around for summary ev,lusion from the
fiearmg
(b) Such misconduct of an aggiavate i I t.t
by an attorney or other representative of a pony, hall be ground for
suspension or disbarment by the Board from further practice before
it after due notice and hearing
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yet the evidence will show that the attack
upon the AU is nothing more than an attempt
to prepetuate [sic] the corruption of Board
processes made evident in Mr. Hanna's request
for special permission to appeal. As shall be
seen , virtually every allegation offered in sup-
port of disqualification is negated by the tran-
script. Others are supported by specious rea-
soning. The disregard of cold fact is so perva-
sive in this new venture as to suggest that, in
the eye of the proponents, Mr. Hanna's special
appeal did not go far enough. Their reliance
upon false innuendo, misrepresentation, distor-
tion and concealment is so prominent as to
demonstrate a cynical disrespect for the capac-
ity of the statutory process to identify and act
upon truth.
Following issuance of the judge's order denying
the motion to disqualify and his supplementary
findings, the Charging Party filed a request for
review, contending, inter alia, that the Board
should remove the judge from further participation
in this case because his supplementary findings
demonstrate bias and hostility toward counsels for
the Charging Party and the General Counsel. As
noted above, I agree that under the circumstances
of this case, the judge should be disqualified.
The present controversy involves matters grow-
ing out of an evidentiary ruling by the judge and
the Charging Party's request for special permission
to appeal that ruling. Section 102.26 of the Board's
Rules and Regulations provides, in this regard, as
follows:
Requests to the Board for special permission
to appeal from a ruling of the regional director
or of the administrative law judge, together
with the appeal from such ruling, shall be filed
promptly, in writing, and shall briefly state (1)
the reasons special permission should be grant-
ed and (2) the grounds relied on for the
appeal. The moving party shall immediately
serve a copy of the request for special permis-
sion and of the appeal on the other parties and,
if the request involves a ruling by an adminis-
trative law judge, on the administrative law
judge. Any statement in opposition or other
response to the request and/or to the appeal
shall be filed promptly, in writing, and shall be
served immediately on the other parties and on
the administrative law judge, if any. If the
Board grants the request for special permission
to appeal, it may proceed forthwith to rule on
the appeal.
The language of Section 102.26 does not require
a party seeking special permission to appeal a
ruling of an administrative law judge to state with
precision the ruling from which appeal is sought.
The nature of the disputed ruling will, of course,
appear generally in presentation of the grounds for
the appeal, but disagreements concerning the re-
questing party's description of the ruling at issue
may promptly be brought to the Board's attention
through responses or opposition to the request for
special permission to appeal. Thus, the requesting
party is required to "immediately" serve a copy of
its request and appeal on the other parties and the
judge, and written responses and oppositions are to
be "promptly" filed and "immediately" served on
the other parties and the judge. Where the filings
create uncertainty as to the precise nature of the
ruling appealed from, the Board may take the steps
it deems necessary to finally resolve the issue
before it.
Consistent with this administrative scheme, and
in recognition of the adversary nature of unfair
labor practice proceedings before the Board, an ad-
ministrative law judge should not attempt to regu-
late the content of party submissions to the Board
under Section 102.26 of the Board's Rules. Indeed,
all parties to Board proceedings are given wide
latitude to present their respective positions and
supporting arguments to the Board in the manner
they deem desirable. Should an administrative law
judge be concerned that a party's filings misstate or
confuse a ruling from which appeal is sought, there
is nothing to preclude the judge from informing
the Board of the precise ruling at issue. And,
should it appear that a party has attempted inten-
tionally to mislead the Board in its determinations,
there is a mechanism for dealing with such miscon-
duct which does not threaten to compromise the
judge's position as a neutral arbiter.3
Further, and without denigrating the power, and
indeed, the duty of an administrative law judge to
regulate the course of an unfair labor practice hear-
ing, I find generally that summary exclusion of
counsel is not an appropriate response to a per-
ceived misrepresentation by counsel in the course
of requesting special permission to appeal a judge's
ruling under Section 102.26. In so doing, I note
that Section 102.38 of the Board's Rules gives any
party to a proceeding the right to appear in hear-
ing and be represented "by counsel." Such lan-
guage has been construed as implying the concomi-
tant right to counsel of choice.4 Accordingly, an
a See , e g, Rose Printing Co, 146 NLRB 638, 638 fn 1, 640-641 (1964),
where, after concluding that the respondent's attorneys had engaged in
conduct constituting a breach of professional ethics, the administrative
law judge referred the matter to the Board for disposition under its Rules
and Regulations See also In Re Roy T Rhodes, 152 NLRB 912 (1965)
° Backer v C I R , 275 F 2d 141, 144 (5th Or 1960), cf Powell v Ala-
bama, 287 U S 45, 53 (1932)
ENGINEERS BENEFICIAL ASSN DISTRICT 1 (CREST TANKERS) 1485
administrative law judge must use great care in re-
sorting to the extraordinary disciplinary measure of
excluding counsel. This is especially so in matters
arising under Section 102.26 of the Board's Rules,
for by their nature it may appear that the judge's
actions are prompted by a personal interest in the
outcome.
In addition, a finding that counsel has engaged in
contemptuous conduct within the meaning of the
Board's Rules requires, "a clear showing that such
conduct amounted to an obstruction of justice."5
In light of the above discussion of Section 102.26
of the Board's Rules, I have grave doubt that such
a showing may be made on the basis of a party's
request for special permission to appeal from an ad-
ministrative law judge's rulings. In any case, unlike
conduct which is inherently disruptive of a pro-
ceeding, as, for example, disorderly conduct during
a hearing, a party's submission of a request to the
Board cannot constitute an "obstruction of justice"
unless there is a present intention to deceive the
Board through the submission. Absent a concession
by submitting counsel, an interlocutory examination
on his point by the administrative law judge will
only produce the deleterious effects of impeaching
the judge's status as an impartial decisionmaker,
and unnecessarily diverting the proceeding from
consideration of the alleged unfair labor practices
at issue. As noted above, there are appropriate
mechanisms available to an administrative law
judge to ensure that an intentional misrepresenta-
tion by counsel does not undermine the Board's
processes and does not go unpunished.
In the instant case, there is no evidence that
counsel for the Charging Party attempted inten-
tionally to mislead the Board in consideration of
his request for special permission to appeal the
judge's ruling. For this reason, and in light of our
determination herein, I agree with my colleagues
that the Respondent's motion for reconsideration of
the Board's 6 September 1984 order be denied.
Further, I find for the reasons discussed earlier,
that the judge abused his discretion by threatening
counsel for the Charging Party with disciplinary
action, and by excluding counsel, because he would
not "correct" his request for special permission to
appeal the judge's ruling.
In addition, I find that the judge must be dis-
qualified from further participation in this proceed-
ing because his conduct raises serious questions as
to his ability to preside impartially. In so doing, I
note the following observation of the First Circuit
5 Great Lakes Screw Corp v NLRB, 409 F 2d 375, 381 (7th Cir 1969),
cf In Re McConnell, 370 U S 230 (1962)
regarding the demeanor of an administrative law
judge in a case before the court:6
We realize that tempers and patience run
short in extensive, hard fought labor-manage-
ment hearings. But this makes it all the more
important for the presiding officer to set an ex-
ample of evenhandedness. The sharp retort,
the sly dig, the sarcastic innuendo cannot fail
to give the appearance of injustice, no matter
how sound and fair may be the final judgment.
In the instant case, the judge made several injudi-
cious statements to the parties, including this reply
to counsel for the Charging Party's assertion that
the judge's evidentiary ruling was "amazing" and
"frankly somewhat hard to define":
I can understand your amazement, sir I can
remember when I was attempting to learn log
rhythms [sic] in algebra class. I was astounded
as well by what was going on, but later after a
few weeks I realized what my high school
teacher was attempting to get at. It is called a
process of ingestion. I am sure you understand
Mr. Hanna what I am saying.
This kind of sarcastic repartee has no place in our
proceedings and leaves an impression that the
judge is not giving dispassionate consideration to
arguments before him and is growing hostile to
counsel. I recognize, of course, that human nature
being what it is, decorum may on occasion be a
casualty of contentiousness. But I am compelled to
note that this is not an isolated example of injudi-
cious and gratuitous remarks by Judge Harmatz.7
Far more troubling, in my view, are comments
by the judge which suggest that his concern over
the content of the Charging Party's request for spe-
cial permission to appeal was based on his profes-
sional reputation. Thus, for example, after counsel
for the General Counsel observed that the disputed
evidentiary ruling undercut a substantial portion of
his case, the judge remarked, "If you have confi-
dence in your position, take an appeal I am abso-
lutely certain that the Board will affirm me." Fol-
lowing the Board's reversal of the judge's eviden-
tiary ruling by mailgram dispatched over the signa-
ture of Associate Executive Secretary Joseph
Moore, the judge informed counsel for the Charg-
ing Party that he considered the appeal to the
6 Texas Instruments Inc v NLRB, 599 F 2d 1067, 1071 fn 4 (1st Or
1979)
7 See, e g, Reading Anthracite Co, 273 NLRB 1502 (1985), Loose Leaf
Hardware, Inc, 267 NLRB 619, 619 fn 3 (1983), Automobile Transport,
Inc, 223 NLRB 217, 217 fn 1 (1976), Ohio Power Co, 215 NLRB 165,
165 fn 1 (1974), of Hoover Co, 207 NLRB 76 (1973)
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board a "very serious slur" on the judge's compe-
tence, adding:
Joe Moore probably read this letter and
said, oh my God, what is this man doing.
That's what I would have done if I were Joe
Moore. I would have flew out the window,
and said what kind of idiots do we have that
we are entrusting with responsibility of run-
ning an unfair labor practice hearing.
Through these, and similar statements in hearing,
the judge has created a legitimate basis for concern
that his actions in demanding that counsel for the
Charging Party correct his special appeal, and in
excluding counsel, arose out of personal displeasure
with counsel and anger caused by the judge's per-
ception that counsel's appeal held the judge up to
professional ridicule. In light of this fact, I reject as
utterly unwarranted and improper, the judge's
attack in his supplementary findings on the integri-
ty of the attorneys for the Charging Party and the
General Counsel whom the judge found " strained
to juggle distortion, concealment, false argumenta-
tion, and outright misrepresentation" in the course
or urging his disqualification. Indeed, the Board
has recently found improper a similar report by
Judge Harmatz where, as here, a motion to dis-
qualify the judge as biased and prejudiced was
based on the contents of the official record.8 Under
the circumstances, I see no alternative but to dis-
qualify the judge from further participation in this
case inasmuch as his conduct has placed in issue his
ability to preside impartially. I therefore join my
colleagues in granting the Charging Party's and the
General Counsel's motions to disqualify the judge,
and in remanding this case for a hearing de novo.
I wish to emphasize in closing that I view with
utmost seriousness, an allegation that an administra-
tive law judge is biased or prejudiced. Such an al-
legation must not be made lightly and a counsel
who underestimates the Board's ability to identify
meritless accusations against the administrative law
judges who serve it may find himself the subject of
inquiry.9 At the same time, however, I note the
Board's recent reaffirmation of the view that its
proceedings must be free even of the appearance of
partiality.' 0 Thus, it is crucial that the Board show
no hesitancy to replace a presiding judge whose
conduct has given rise to a legitimate doubt regard-
ing his or her ability to deal impartially with the
parties and representatives in a proceeding.
9 Reading Anthracite Co, supra
9 See, e g , Marietta Contracting , 265 NLRB 1279 (1982)
10 Reading Anthracite Co, supra, fn 8