MIKE YOUNG, Complainant

VALLEY PACKAGING INDUSTRIES, Respondent A

RALPH KALIES, Respondent B

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 28, 1992.  Complainant filed a timely petition for review by the Commission.

Based upon a review of the record, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed April 27, 1992

/s/ Pamela I. Anderson, Chairpman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

In his petition for review, the Complainant asserted that the Administrative Law Judge became so rude and abusive on the day of hearing that it could no longer be put up with.  Based on a review of the record including the original hearing tape, the Commission concludes that it is not true that the Administrative Law Judge was rude or abusive.  On the contrary, his behavior was professional and impartial. Thus there is no basis for Complainant's assertion that his refusal to proceed was justified by anything the Administrative Law Judge did at the hearing.

The Commission notes that several weeks prior to the hearing in this matter, the Administrative Law Judge issued a ruling which denied a motion by Complainant that the Administrative Law Judge remove himself from this case and a number of other cases involving Complainant.  It may be that, although he claimed that his refusal to proceed was because of something the ALJ did at the hearing, Complainant actually refused to proceed because of his preexisting dissatisfaction with this ALJ which led to his motion for disqualification.  However, this ALJ's ruling that he would not remove himself from cases involving Complainant provided no excuse for Complainant not to proceed at hearing.  He could have done so and then appealed any unfavorable decision to the Commission.  A party who fails to persuade an ALJ to remove himself must proceed to hearing with the ALJ, and raise the ALJ's failure to remove himself as grounds for appeal in the event of an unfavorable decision, if the party wishes to have the ALJ' s decision not remove himself reviewed.  If the party refuses to proceed with the hearing and the complaint is for that reason dismissed, the claim that the denial of the substitution request was error must be considered to have been abandoned.

110

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