Teamsters Local 722 (Kasper Trucking)

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 1016 (N.L.R.B. 1994)

1016
314 NLRB No. 168
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Respondent has been changed to reflect the offi-
cial name of the Union.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 At the conclusion of the hearing, the Respondent filed a motion
to disqualify the judge, claiming that the judge was biased and preju-
diced against it, and that the judge had made erroneous legal rulings.
In his decision, the judge rejected this motion in a detailed response
to the Respondent’s allegations. In its exceptions, the Respondent re-
news many of its allegations of bias, prejudice, and legal error.
4 The Respondent also argues, more broadly, that had it been al-
lowed to present its case, it would have provided additional bases
for dismissing the complaint. The Respondent, however, offers no
additional arguments.
5 275 NLRB 1172, 1174 (1985).
6 271 NLRB 1108, 1110 (1984).
7 The Respondent argued in its motion to disqualify the judge that
the judge prevented Freeland from testifying. In this regard, the Re-
spondent cited the judge’s statement in the record that ‘‘we need not
hear [Freeland’s] testimony.’’
The judge rejected the Respondent’s argument, finding that Free-
land was not prevented from testifying about matters relevant to this
case. The judge also found that the record was incomplete on this
point. The judge stated that when the Respondent’s counsel asked
him if Freeland could further testify, the judge responded ‘‘not in
this area.’’ The judge modified the transcript accordingly.
The Respondent excepts arguing that the judge never stated ‘‘not
in this area.’’ Regardless whether this statement was made, we find
that the Respondent was afforded ample opportunity to examine
Freeland and other witnesses on matters relevant to this proceeding.
Thus, when the judge sustained initial objections to Freeland’s testi-
mony about Illinois law, he did not foreclose Freeland from further
testimony. Instead, the judge directed the Respondent’s counsel to
proceed to another area of inquiry. Although the judge later directed
Freeland to step down as a witness—after Freeland’s testimony was
excluded on relevancy grounds—the judge simultaneously an-
nounced that the Respondent could present any other witness who
would testify to matters relevant to this proceeding. Rather than
argue that Freeland would testify about other, germane, issues, the
Respondent asked to make an offer of proof about what Freeland
would have testified. Before this offer was made, the judge again
International Brotherhood of Teamsters, Local 722,
AFL–CIO1 and Kasper Trucking, Inc. and
Rockford Blacktop Construction Co. Cases 33–
CC–1116–2 and 33–CC–1117–2
August 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On December 3, 1993, Administrative Law Judge
Elbert D. Gadsden issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed briefs in support
of the judge’s decision and in response to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings, and conclusions
and to adopt the recommended Order as corrected.
The Respondent asserts that the judge’s findings are
the result of erroneous legal and factual rulings, as
well as the judge’s bias and prejudice against it.3 The
Respondent argues that at the hearing the judge im-
properly excluded relevant evidence it sought to intro-
duce. Although the Respondent acknowledges that the
judge subsequently reversed this ruling in his decision,
it argues that this reversal does not mitigate the preju-
dice it suffered and that, in any event, the judge failed
to properly consider this evidence.4 The Respondent
also argues, among other things, that the judge: (1) im-
properly assisted the General Counsel in litigating her
case; (2) interrupted and interfered with its offer of
proof; (3) rejected ‘‘specious’’ legal arguments it never
advanced; (4) prejudged its defense, as demonstrated
by posthearing comments; and (5) made veiled com-
ments about the competence of Respondent’s counsel
and otherwise demonstrated prejudice and bias against
him.
Having examined the entire record, we are satisfied
that the Respondent’s bias and prejudice allegations
lack merit. Thus, for the following reasons, as well as
those articulated by the judge, we find that the parties
received a full and fair opportunity to litigate this pro-
ceeding.
A. Exclusion of Evidence
The Respondent initially argued in its motion for
disqualification that the judge erred in preventing its
sole witness, Kurt Freeland, from testifying. In its
opening statement at the hearing, the Respondent an-
nounced that Freeland, general counsel of the Illinois
Commerce Commission, would testify that Illinois law
requires ‘‘brokers’’ to be licensed; that Kasper was not
licensed; that Kasper had failed to file with the State
its lease agreements for owner-operators; and that by
failing to comply with these requirements, Kasper’s
leases with the owner-operators were void. When the
Respondent called Freeland as a witness, and began
questioning him about Illinois’ filing and licensing re-
quirements, the General Counsel and the Charging
Party objected, citing relevancy. The Charging Party
argued that under Don Bass Trucking5 and Air Tran-
sit,6 government regulations constitute supervision by
the state and not by the parties. The judge sustained
the objections, finding that Illinois law was irrelevant
to the determination whether owner-operators were
employees of Kasper Trucking or independent contrac-
tors.
After sustaining these objections, the judge directed
the Respondent to ‘‘move on to something else.’’ The
judge made clear however, that he was not precluding
Freeland or any witness from testifying about matters
relevant to this proceeding.7 Rather than asserting that
1017TEAMSTERS LOCAL 722 (KASPER TRUCKING)
told the Respondent that he wanted to hear testimony from any addi-
tional witnesses it had. The Respondent elected not to present further
testimony or witnesses, but rested on its offer of proof.
In these circumstances, we agree with the judge that the judge did
not preclude the Respondent from questioning Freeland further or,
indeed, from presenting any witness or evidence on matters relevant
to this proceeding.
8 The Respondent argues that the judge erred in finding that the
General Counsel and the Charging Party objected to its offer of
proof. The Respondent is correct. We note, however, that although
no party objected to the offer of proof, both the General Counsel
and the Charging Party earlier objected to Freeland testifying on pre-
cisely those issues contained in the offer.
9 See, e.g., Frito Co. v. NLRB, 330 F.2d 458, 465 (9th Cir. 1964)
(‘‘Once having elected to prosecute a complaint before the Board,
the General Counsel is cast in the role of prosecutor in a judicial
proceeding’’).
Freeland had other matters on which to testify, how-
ever, the Respondent made an offer of proof about
what Freeland would testify, if further examined.8 This
offer related to regulations and requirements under Illi-
nois Commerce Transportation law which the judge
determined irrelevant.
The Respondent next proffered a ‘‘certificate’’ of
record search by personnel in the Illinois Commerce
Commission, purporting to show that Kasper Trucking
had not applied for an Illinois intrastate broker’s li-
cense. When the General Counsel and the Charging
Party objected to the admission of this document, the
judge sustained the objections on relevancy grounds.
Finally, the Respondent asked the judge to take offi-
cial notice of portions of the Illinois Commerce Trans-
portation law governing brokers and leases. Following
objections by the General Counsel and the Charging
Party, the judge denied the Respondent’s request, find-
ing that the Respondent had not established that these
regulations were even marginally relevant to the issues
in this proceeding.
In its posthearing brief to the judge, the Respondent
presented, for the first time, an additional basis on
which the excluded testimony and evidence would be
relevant. Specifically, the Respondent contended that
Kasper’s failure to register with Illinois as a broker, its
failure to file employee lease agreements or the Inde-
pendent Contractor Agreement(s) for Owner-Operators,
and provisions of the equipment lease agreements that
it did file, misled the Respondent into believing that
the Dixon and Amboy drivers were Kasper employees.
Based on this newly articulated theory, the judge
found that the Respondent had established that the ex-
cluded evidence bore some relevance to the issue
whether the Act had been violated. Accordingly, the
judge reversed his rulings and admitted the ‘‘certifi-
cate,’’ the state law provisions, and treated the offer of
proof as testimony by Freeland. After considering this
evidence, however, the judge determined that Respond-
ent’s picketing violated Section 8(b)(4)(i) and (ii)(B).
Thus, the judge found that although the Respondent’s
initial inquiry to the State was appropriate, once
Kasper notified it that the Dixon drivers were inde-
pendent owner-operators, provided it with the Inde-
pendent Contractor Agreement(s) for Owner-Operators
supporting this claim, and reiterated even more explic-
itly that the Amboy drivers were not its employees, the
Respondent acted at its peril when picketing the
jobsites.
For purposes of this proceeding, we need not decide
whether the judge erred when initially excluding from
evidence the ‘‘certificate,’’ Freeland’s testimony, or
proffered sections of Illinois law. See generally NLRB
v. Del Rey Tortilleria, 823 F.2d 1135 (7th Cir. 1987).
Thus, the judge reversed his rulings, accepted this evi-
dence, and duly considered it in his decision. In these
circumstances, we find that the Respondent was not
prejudiced.
B. Interference with Presentation of Evidence
The Respondent next argues that the judge improp-
erly interfered with the litigation by directing the Gen-
eral Counsel, during her direct examination of George
Kasper, to ask additional questions. Specifically, after
Kasper testified that picketing occurred at the Dixon
jobsite on January 19, 1993, the General Counsel pro-
ceeded to another line of inquiry. When the judge di-
rected the General Counsel to pursue the picketing
issue, the Respondent objected. The Respondent ar-
gued that as it was an adversarial proceeding, if the
General Counsel, as prosecutor, failed to develop the
record, the judge should not do so. The Respondent
further asserted that the judge should wait until the
parties had finished examining a witness before posing
his own questions. The judge disagreed, stating that he
wanted a complete and integrated record, and that if
any party failed to provide it he would step in. The
judge also stated that since the Board was governed by
administrative law, it did not view the General Counsel
as a prosecutor.
Although we agree with the Respondent that the
General Counsel functions as a prosecutor in unfair
labor practice proceedings,9 we otherwise find that the
judge’s actions were proper. Section 102.35(k) of the
Board’s Rules and Regulations authorizes administra-
tive law judges to ‘‘call, examine, and cross-examine
witnesses and to introduce into the record documentary
or other evidence.’’ Further, it is well settled that
judge’s may examine witnesses or interrupt question-
ing in order to clarify testimony or develop the record.
NLRB v. Overseas Motors, 818 F.2d 517, 520 (6th Cir.
1987); NLRB v. Top Form Mills, 789 F.2d 262, 265
(4th Cir. 1986). Here, the judge did no more than pur-
sue a line of questioning in order to develop a com-
plete and integrated record. Although the judge might
have accomplished this through his own questioning,
rather than by prompting the General Counsel, we do
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 For example, when the Respondent’s counsel cross-examined
General Counsel’s witness Rafferty, he responded to repeated objec-
tions only that he would ‘‘link up’’ the testimony. Similarly, when
the Respondent’s counsel was cross-examining Gordon Kasper, the
judge frequently asked him where he was going with a particular
line of questioning, and to explain the Respondent’s legal theory.
Rather than comply, the Respondent’s counsel variously replied that
he would ‘‘get to it,’’ that he was almost finished and, finally, that
he did not want to reveal his theory until presenting the Respond-
ent’s case-in-chief.
not find this isolated incident improper or evidence of
bias or prejudice. NLRB v. Superior Sales, 366 F.2d
229, 233 (8th Cir. 1966).
C. Interference with Offer of Proof
The Respondent maintains that the judge dem-
onstrated bias by interrupting its counsel and attempt-
ing to scuttle its offer of proof of what Freeland would
have testified. We have carefully examined the record
and find no evidence that the judge acted improperly.
Although there were verbal exchanges between the
judge and Respondent’s counsel on the subject of the
offer, before the offer was made, we are satisfied that
the judge acted temperately and judiciously towards
Respondent’s counsel. Moreover, the latter made a
complete offer of proof and, ultimately, this offer was
accepted as if Freeland had testified.
D. Rejecting Legal Arguments that Were
Never Made
The Respondent argues that the judge improperly at-
tributed numerous legal arguments to it that it never
made, and that were, in fact, ‘‘nonsensical.’’ The Re-
spondent contends that this evidences bias by the judge
and demonstrates his failure to comprehend its legal
position. We reject both arguments. First, the Board
has held that bias is not established merely because a
judge incorrectly attributes legal arguments to a party,
or mischaracterizes those arguments. SCC Contracting,
307 NLRB 1519 fn. 1 (1992). This holding is particu-
larly apt here where, despite frequent entreaties by the
judge, the Respondent repeatedly declined to articulate
its theory of defense.10
Contrary to the Respondent’s claims, we are satis-
fied that the judge fully comprehended and evaluated
its legal argument that Kasper’s owner-operators were
its employees based on Illinois’ law and filing require-
ments. The fact that the judge rejected this argument
and concluded that the owner-operators were inde-
pendent contractors does not reflect a misconception of
the Respondent’s theory, but rather the application of
applicable legal precedent. See, e.g., Precision Bulk
Transport, 279 NLRB 437 (1986); Don Bass Trucking,
supra.
E. Prejudgment of the Case
According to the Respondent, after the hearing
closed, the judge shook hands with its counsel and
stated, ‘‘You’re a good attorney, Mr. O’Hara, but it’s
not going to do you any good here.’’ The Respondent
argues that these comments reflect the judge’s prejudg-
ment of the case.
The judge states in his decision that he told the Re-
spondent’s counsel, ‘‘You’re a fine attorney, Mr.
O’Hara, but you are in the wrong court, it cannot help
you here.’’ The judge denied that his comment was
prejudicial, and asserted that it was a ‘‘complimentary
truth consistent with his rulings from the bench.’’
Under either version of this posthearing discussion,
we do not find the judge’s comments improper. At
most, they reflect the judge’s belief that the Respond-
ent’s state law defense was inapplicable to a deter-
mination whether the Dixon and Amboy owner-opera-
tors were Kasper employees or independent contrac-
tors. In comparable circumstances, the Fourth Circuit
held that ‘‘[a] judge’s remarks that constitute mere ex-
pressions of a point of law are not sufficient to show
personal bias or prejudice.’’ NLRB v. Top Form Mills,
supra, 789 F.2d at 265. See also Liteky v. U.S., 114
S.Ct. 1147 (Mar. 7, 1994).
F. Overall Bias and Prejudice Allegations
Finally, based on the above-referenced conduct of
the judge, as well as other incidents cited in its excep-
tions, the Respondent argues that the judge was biased
and prejudiced against it. On our full consideration of
the Respondent’s allegations, and the entire record in
these proceedings, we find no evidence that the judge
prejudged the case, made prejudicial rulings, or dem-
onstrated bias against the Respondent—or its coun-
sel—in the hearing or in analyzing and discussing the
evidence.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Brotherhood
of Teamsters, Local 722, AFL–CIO, LaSalle, Illinois,
its officers, agents, and representatives, shall take the
action set forth in the Order.
Judith T. Poltz, Esq., for the General Counsel.
Michael W. O’Hara, Esq. (Cavanagh & O’Hara), of Spring-
field, Illinois, for the Respondent.
Gerald A. McInnis, Esq. (Husch & Eppenberger), of Peoria,
Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. Unfair
labor practice charges were filed in Case 33–CC–1116–2 by
1019TEAMSTERS LOCAL 722 (KASPER TRUCKING)
Kasper Trucking, Inc., on February 4, 1993, and in Case 33–
CC–1117–2 on the same date by Rockford Blacktop Con-
struction Co. (Kasper Trucking, Rockford Blacktop, or
Charging Parties, respectively) against International Brother-
hood of Teamsters, Chauffers, Warehousemen and Helpers of
America, Local 722 (the Respondent). Pursuant to Section
102.3 of the National Labor Relations Board’s Rules and
Regulations, the Regional Director for Region 33 ordered the
above-captioned cases consolidated and, on behalf of the
General Counsel, issued the consolidated complaint, February
19, 1993, and an amended consolidated complaint on April
23, 1993.
In essence, the consolidated complaint alleges that Re-
spondent has been engaged in a primary dispute with Kasper
Trucking, and not in a dispute with Rockford Blacktop who
was performing work at two jobsites, Dixon and Amboy, Illi-
nois, respectively; that Kasper Trucking was performing
trucking services with the use of owner-operators, along with
other trucking companies engaged in commerce, as inde-
pendent contractors; that on certain dates in late December
1992 and January 19 and 23, 1993, Respondent established
a picket line at the Rockford Blacktop jobsite in Dixon, Illi-
nois, and a picket line on February 4, 1993, at the Rockford
Blacktop jobsite in Amboy, Illinois, because Kasper Truck-
ing does not have a contract with Respondent Local 722; that
the picket lines caused other trucking company owner-opera-
tors to refuse to perform trucking services, and thereby
threatened, coerced, and restrained Rockford Blacktop and
other trucking owner-operators engaged in commerce in an
industry affecting commerce, with an object to force and re-
quire Rockford Blacktop to cease doing business with Kasper
and other independent contractors, and to force and require
the other trucking independent contractor drivers to cease
doing business with Kasper, in violation of Section 8(b)(4)(i)
and (ii)(B) and Section 2(6) and (7) of the Act.
Respondent filed an answer to the complaint and an
amended answer to the amended consolidated complaint on
March 3 and April 28, 1993, respectively, denying that it has
engaged in unfair labor practices as set forth in the amended
consolidated complaint. Respondent also affirmatively al-
leged that at no time prior to the filing of the amended con-
solidated complaint did he learn in correspondence with the
General Counsel or counsel for the Charging Party, that the
amended consolidated complaint asserts that Kasper Trucking
was a ‘‘broker’’ for purposes of referring independent con-
tractor owner-operators to haul materials; and that Respond-
ent denies Kasper Trucking was a subcontractor for Rockford
Blacktop at the Dixon and Amboy jobsites.
The hearing in the above matter was held before me on
July 22, 1993, in Rockford, Illinois.
FINDINGS OF FACT
I. JURISDICTION
Rockford Blacktop Construction Co. (Rockford Blacktop)
is, and has been at all times material, an Illinois corporation
with a corporate office in Loves Park, Illinois, where it is en-
gaged in an ongoing truck hauling business as a contractor
in the construction industry on construction projects, includ-
ing a jobsite in Dixon, Illinois, and a jobsite in Amboy, Illi-
nois.
During the past calendar year Rockford Blacktop, in the
course and conduct of its business operations, purchased and
received at its Illinois jobsites goods valued in excess of
$50,000 directly from points located outside the State of Illi-
nois.
The complaint alleges, the parties stipulated, and I find
that Rockford Blacktop is now, and has been at all times ma-
terial, an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
Kasper Trucking, Inc. (Kasper) is and has been at all times
material, an Illinois corporation with a corporate place of
business in Poplar Grove, Illinois, where it is engaged in
hauling materials to and from construction projects, including
one located in Dixon, Illinois, and one in Amboy, Illinois.
During the past calendar year, Kasper Trucking, in the
course and conduct of its business operations, derived gross
revenue in excess of $50,000 from performing services di-
rectly to customers located outside the State of Illinois.
The complaint alleges, the parties stipulated, and I find
that Kasper Trucking is, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 722 (the Union) is,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent Union, Local 722 has geographic jurisdiction
over a portion of northwestern Illinois, in which Dixon and
Amboy, Illinois, are located. Respondent Union maintains an
office in LaSalle, Illinois, and a satellite office in Dixon, Illi-
nois.
Gerald Reilly was president of Respondent Union until
January 1993 when he undertook a position with The Central
Conference of Teamsters.
R. G. Lathrop was vice president and construction busi-
ness agent of Respondent Union until January 1993, when he
became secretary-treasurer.
Teamsters Local 325, a sister Local to Respondent, has ge-
ographic jurisdiction covering Rockford, Illinois, and is a
member of the Teamsters Joint Council 25. Local 325 is not
a party to the current proceeding.
Charging Party Rockford Blacktop has an office in Loves
Park, Illinois, where it is engaged in business as a contractor
in the construction industry in the Rockford area.
Charging Party Kasper Trucking holds authority from the
Illinois Commerce Commission to operate as a common car-
rier holding itself out to the public to haul construction mate-
rials and farm products. Kasper’s operating authority extends
across a 100-mile radius of Capron, Illinois, located near
Rockford, Illinois. Kasper also has authority from the Inter-
state Commerce Commission to perform as a contract carrier
for shippers within its geographic authority.
Kasper Trucking provided trucking services for Rockford
Blacktop pursuant to a verbal agreement.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth above are not in conflict in the record.
Respondent Union has been engaged in a primary dispute
with Kasper Trucking but not with Rockford Blacktop Con-
struction Co., or other trucking concerns (Finner Trucking,
Inc., John Leiser, Fadness Trucking, Orval Dobbs Trucking,
Fyke Farms, Richard Brown, and Daniel Coniglio), or any
other person at the jobsite other than Kasper Trucking.
However, on or about December 21, 1992, and January 19
and 26, 1993, unnamed pickets, in support of Respondent
Union, picketed Rockford Blacktop’s jobsite in Dixon, Illi-
nois, with signs. On February 4, 1993, unnamed pickets in
support of Respondent’s dispute with Kasper Trucking, also
picketed Rockford Blacktop’s jobsite at Amboy, Illinois, with
signs.
The General Counsel alleges that the picketing at both
jobsites induced and encouraged individuals employed by
Rockford Blacktop, Finner Trucking, Orval Dobbs Trucking,
Fyke Farms, Richard Brown, David Coniglio, and other per-
sons engaged in commerce or an industry affecting com-
merce, to strike or refuse to perform services, and thereby
Respondent has threatened, coerced, and restrained Rockford
Blacktop and the other aforenamed trucking concerns, all
with a design to force or require Rockford Blacktop to cease
doing business with Kasper and the other aforenamed truck-
ers, in violation of Sections 8(b)(4)(i) and (ii)(B) and 2(6)
and (7) of the Act.
Respondent denies that Kasper is a ‘‘broker’’; that Re-
spondent demanded Kasper to sign a contract; that Respond-
ent appealed to truckdrivers other than Kasper drivers to en-
gage in a work stoppage; that Respondent appealed to other
trucking concerns at either jobsite to cease doing business
with Rockford Blacktop; or that Respondent has coerced and
restrained Rockford Blacktop or any of the other trucking
concerns, in violation of Section 8(b)(4)(i) and (ii)(B) of the
Act.1
B. Respondent Counsel’s Motion to me to Disqualify
Myself and Grant Respondent a New Trial
Subsequent to the close of the hearing in the instant pro-
ceeding, August 22, 1993, I received a motion on August 10,
1993, from Michael O’Hara, counsel for Respondent, to dis-
qualify myself and grant Respondent a new trial, allegedly
because of the my personal bias and/or prejudice against Re-
spondent and its counsel, O’Hara. The motion is accom-
panied by four affidavits in support of the motion from Re-
spondent’s counsel, Michael O’Hara himself; Respondent
Union’s secretary-treasurer, R. G. Lathrop; Respondent
Union’s recording secretary, Terry Luitz; and a member of
Respondent Union, Steve Morgan, the latter three of whom
are officially affiliated with Respondent Union.
The motion and the accompanying affidavits assert that I
displayed throughout the proceeding open animosity, antag-
onism, bellicosity, and hostility to Respondent Union’s attor-
ney, O’Hara, lecturing him and making veiled comments as
to his competence.
The hearing in the above matter was held before me on
July 22, 1993, in Rockford, Illinois. Motions in opposition to
O’Hara’s motion were timely filed by counsel for the Gen-
eral Counsel and counsel for the Charging Party, respec-
tively. Also, briefs have been received from counsel for the
General Counsel and counsel for Respondent, respectively,
all of which have been carefully considered. Upon request,
leave was granted O’Hara to further support his motion,
which he did in his posthearing brief to me.
The charge of personal bias and prejudice is a serious
charge, and one which should not be taken lightly without
clear substantiation, at the risk of summarily undermining the
integrity of the administrative law judge, and the administra-
tive process in general.
Section 102.37 of the Board’s Rules and Regulations
under hearing provides as follows:
Disqualification of administrative law judges.—An ad-
ministrative law judge may withdraw from a proceeding
whenever he deems himself disqualified. Any party
may request the administrative law judge, at any time
following his designation and before filing of his deci-
sion, to withdraw on grounds of personal bias or dis-
qualification, by filing with him promptly upon the dis-
covery of the alleged facts a timely affidavit setting
forth in detail the matters alleged to constitute grounds
for disqualification. If, in the opinion of the administra-
tive law judge, such affidavit is filed with due diligence
and is sufficient on its face, he shall forthwith dis-
qualify himself and withdraw from the proceeding. If
the administrative law judge does not disqualify himself
and withdraw from the proceeding, he shall so rule
upon the record, stating the grounds for his ruling, and
proceed with the hearing, or, if the hearing has closed,
he shall proceed with issuance of his decision, and the
provisions of section 102.26, with respect to review of
rulings of administrative law judges, shall thereupon
apply. [Emphasis added.]
It is quite apparent that Section 102.37 of the Board’s
Rules and Regulations requires a request for withdrawal of
an administrative law judge for personal bias or disqualifica-
tion shall be accompanied by an affidavit. Significantly, the
attempt to disqualify a judge could result in an unwarranted
disruption of the judicial or quasi-judicial process, at con-
ceivably gross inconvenience and expense to other parties
and the Government.
Moreover, the objective of the affidavit in support of the
motion is to discourage baseless allegations by requiring per-
sons offering it to be sworn. It is the general hope that a
sworn statement, like testimony of a sworn witness, will
have some semblance of truth, even if not ultimately substan-
tiated. Such a statement would appear to entail a detailed de-
scription of conduct and language in the context in which it
occurred, measured not by the number of affidavits, but by
the substantive content of them. Consequently, ethical con-
siderations also play a part in the quest for objectivity and
truth.
In this regard, disciplinary rule 8-102 (D), The American
Bar Association, Code of Professional Responsibility and
Canons of Judicial Ethics, defines misconduct as the expres-
sion of ‘‘false and untrue and unfounded charges of mis-
conduct against an adjudicatory officer.’’ In re Meeker, 414
P 2d 862, 869. The constraint applies to any allegation which
an attorney ‘‘knew or should have known to be false.’’ Vio-
lation of the standards have been described as:
[U]nethical and unprofessional conduct tending to bring
the bench and bar into disrepute and to undermine pub-
1021TEAMSTERS LOCAL 722 (KASPER TRUCKING)
lic confidence in the integrity of the judicial process.
[Kentucky Bar Assn. v. Heleringer, 602 SW 165 (Ky,
1980).]
Therefore, it would appear that most members of the bar
would exercise due caution to ensure separating passionate
perception from factual accuracy, where a judge or a review-
ing authority is requested to inconvenience other parties and
alter the course of a proceeding by granting a new trial. This
is especially true where the legal position of the maker of
the motion appears, or in fact proves, to be nonmeritorious.
Accusations
It is especially noted that the essence of counsel for Re-
spondent’s motion, as well as the accompanying affidavits of
its supporting affiants, assert that I displayed open animosity,
antagonism, bellicosity, and hostility to the Union’s attorney,
O’Hara, lecturing him and making veiled comments as to
O’Hara’s competence.
Unfortunately, the cold transcript of this proceeding does
not and cannot manifest the attitudinal conduct (facial ex-
pressions and other body language) of me or O’Hara. Neither
O’Hara’s motion, nor the assertions in the supporting affida-
vits describe in detail, nor support my alleged characteriza-
tion of attitudinal conduct (animosity, antagonism, belli-
cosity, and hostility), except to attribute to me the
aforedescribed subjective, conclusionary perceptions of the
affiants.
O’Hara’s motion does not provide any details of such
conclusionary characterizations and the record does not sup-
port them. However, the record does reveal that I, almost
consistently, ruled against O’Hara’s persistent efforts to
cross-examine witnesses on matters that were not even men-
tioned on direct, and which were patently irrelevant to the
issues in this proceeding. O’Hara was asked on several occa-
sions during the trial to state or explain the relevancy of his
extensive cross-examination and arguments on the record.
For most of the proceeding, he would only inform me that
he would show a connection—he would ‘‘link it up,’’ which
he failed to do in spite of the many opportunities afforded
him to do so.
The above characterizations and other assertions of
O’Hara, and his supporting affiants, that, (1) I made numer-
ous unspecified erroneous and prejudicial rulings; (2) that I
lectured him at length and made unspecified veiled com-
ments about O’Hara’s competence; (3) that I refused to per-
mit his only witness to testify on behalf of Respondent be-
cause his testimony was ruled irrelevant; (4) that I inter-
rupted and refused to allow him to make an offer of proof
about what his witness would testify to, on the same ground
that such testimony was irrelevant; (5) that I refused to take
official (administrative) notice of the Illinois Commerce
Transportation Law (affidavits notably, neglected to state that
the code was related to the same subject (Illinois law) ruled
irrelevant by me because it has no bearing, force, and effect
upon the issues raised in this case under the National Labor
Relations Act); (6) that I permitted counsel for the General
Counsel to place into evidence ‘‘contracts’’ between Kasper
Trucking and independent owner-operators (without affida-
vits stating the ‘‘contracts’’ were specifically related to the
‘‘employees versus independent contractor owner-operators’’
issue raised under the National Labor Relations Act, although
such ‘‘contracts’’ may have had some relevance to the Illi-
nois Commerce Transportation Law in an Illinois administra-
tive proceeding); (7) that I refused to permit O’Hara to
present his case in chief—in defense (with affidavits failing
to state that O’Hara elected not to put on his case after the
bench ruled that his sole witness’ testimony about Illinois
Commerce Transportation Law was irrelevant to this pro-
ceeding under the National Labor Relations Act, but that his
witness was not precluded from testifying on matters related
to the issues in this proceeding under the Act); and finally,
(8) that after the proceeding herein was closed O’Hara came
to the bench to shake hands with me as a professional cour-
tesy, and the latter stated, ‘‘You’re a good attorney, Mr.
O’Hara, but it is not going to do you any good here.’’ The
last (8) inaccurate and absurd assertion will be addressed
after a review of the transcript of the proceeding.
The truth and accuracy of the above-described accusations
and assertions can be fairly evaluated only by a careful ex-
amination of the transcript and record in this proceeding.
That examination will show that the rulings in this pro-
ceeding were a proper and honest exercise of my judgment
(even if not correct) in accordance with Section 102.35 of
the Board’s Rules and Regulations.
An examination of the transcript will also show that any
comments about, or lecture of, O’Hara by me during this
proceeding was an appropriate and reasoned response to
O’Hara’s passionate and persistent arguments about my rul-
ings, and O’Hara’s persistence in addressing the Illinois
Commerce Transportation Law, while failing to state its rel-
evancy to the issues raised under the National Labor Rela-
tions Act.
An examination of the transcript will further show asser-
tions (3) through (7), about my rulings, that O’Hara, and his
supporting affiants were reckless with accuracy and truth. All
of the assertions by the affiants were either half truths, per-
ceptions, questions, or statements taken out of context, or not
explained, or made without any foundation in truth.
Before examining the transcript it should facilitate clarity
of understanding to have a brief foundation of the legal basis
for the current controversy.
Issues Presented for Determination
The ultimate issue in the instant matter is whether Re-
spondent attempted to enmesh Rockford Blacktop, and other
neutral owner-operator truckdrivers in Respondent’s primary
dispute with Kasper Trucking, by picketing the jobsites
where Kasper was not present, in violation of Section
8(b)(4)(i) and (ii)(B) of the Act.
However, the crucial subordinate issue presented for deter-
mination is whether the owner-operator drivers here were
‘‘independent contractors’’ or ‘‘employees’’ of Kasper
Trucking, within the meaning of the National Labor Rela-
tions Act.
Section 2(3) of the Act specifically excludes from the defi-
nition of ‘‘employee’’ an individual ‘‘having the status of an
independent contractor.’’
The standards and criteria distinguishing an independent
contractor from an employee have been well enumerated by
the Board and the courts. Teamsters Local 814 (Santini
Bros.), 208 NLRB 184, 190–198 (1974); Teamsters Local
525 (Helmkamp Construction Co.), 271 NLRB 148, 150
(1984), enfd. 723 F.2d 921 (7th Cir. 1985); Scott & Cole
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Paper Independent Contractors or Employees: The View of
the National Labor Relations Board, Labor Law Journal 395
(July 1993), and cases cited.
In order to determine whether the truckdrivers sent by
Kasper Trucking to the Dixon and Amboy jobsites met the
definition of ‘‘employees’’ of Kasper Trucking, or ‘‘inde-
pendent contractors,’’ in accordance with the criteria set forth
under the above-cited Board law, factual evidence of the
presence or absence of the kinds of control or authority
Kasper Trucking possessed and/or exercised over the owner-
operator truckdrivers on the Dixon and Amboy jobsites
would constitute relevant evidence. Whether Kasper Trucking
complied with or satisfied definitions and filing requirements
under the laws of Illinois, ordinarily would not be relevant
in making such determination under Board law. Such compli-
ance and satisfaction by Kasper might be relevant under Illi-
nois law in an Illinois proceeding, but the Respondent is
herein charged with a violation of the National Labor Rela-
tions Act.
Thus, the consolidated complaint in the instant proceeding
alleged in paragraph 2, as pertinent herein:
(g) . . . that Kasper trucking is engaged in business
as a contractor in the construction industry hauling con-
struction materials.
(h) Finner Trucking Inc., John Leiser, Fadness
Trucking, Orval Dobbs Trucking, and other independent
contractor owner-operators have been subcontractors of
Kasper at Rockford Blacktop’s Dixon jobsite.
2(d) of the Amended Consolidated Complaint al-
leged, in part, that Kasper Trucking . . . ‘‘is engaged
in the construction industry hauling construction mate-
rials and as a [broker] making referrals of independent
contractor owner-operators to haul construction mate-
rials.’’
. . . .
2(g) . . . at all times material herein, Kasper Truck-
ing has been a ‘‘broker’’ referring independent con-
tractor owner-operators to haul for Rockford Blacktop’s
Dixon and Amboy jobsites.
Crucial to the above allegations is whether the owner-op-
erators contracted by Kasper Trucking and referred to the
Dixon and Amboy jobsites by Kasper were ‘‘employees’’ of
Kasper or ‘‘independent contractors’’ under the Board’s defi-
nitions, notwithstanding how Illinois law may define their
status or relationship.
Examination of the Transcript of the Proceeding
In conducting any proceeding before the National Labor
Relations Board, I am consciously guided by Section 102.35
of the Board’s Rules and Regulations, which provide as per-
tinent here as follows:
Duties and powers of administrative law judges.—It
shall be the duty of the administrative law judge to in-
quire fully into the facts as to whether the respondent
has engaged in or is engaging in an unfair labor prac-
tice affecting commerce as set forth in the complaint or
amended complaint. 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:
. . . .
(d) To rule upon offers of proof and receive relevant
evidence;
. . . .
(f) To regulate the course of the hearing . . . . [Em-
phasis added.]
After certain preliminary matters and the admission of the
formal papers into evidence, counsel for General Counsel
was permitted to make an opening statement. In making her
statement she cited and proceeded to explain official Board
authority in support of what she intended to prove. At this
juncture:
MR. O’HARA: I’m going to object. I know this is
opening statement, but opening statement is for pur-
poses of indicating factual matters that are intended to
be proven. This is not closing argument with respect to
bringing a law brought to bear on the fact. I think an
appropriate time to do that is after the facts are deter-
mined.
I have some disagreements with respect to the law
being cited and her interpretation of that law.
So, I would ask that General Counsel be required to
restrict her opening statement to the factual matters that
she intends to prove, as opposed to arguing the law at
this point.
JUDGE GADSDEN: Well, counsel [they] thereoften
refer to the authority on which they are relying because
that’s a part of the theory of their case. This is an open-
ing statement. It is not really argument. It’s really her
theory and on that basis, I will permit Ms. Poltz to con-
tinue.
JUDGE GADSDEN: Well, what you’re saying, counsel,
you’re really saying that the case that you are citing or
discussing, really—you would cite in support of your
theory in this case. Is that correct?
MS. POLTZ: Yes, Your Honor. [Tr. 14–15.]
JUDGE GADSDEN: Well, without any detail or discus-
sion of those other cases, your citing them and certainly
just briefly just stating about what you’ve already done,
I think is sufficient.
MS. POLTZ: Thank you, Your Honor. I’m just about
finished with that line of discussion.
JUDGE GADSDEN: Alright.
MS. POLTZ: I just want to say in conclusion that in
the present case, Kasper Trucking Company was the
object of Respondent’s picket, and it is the theory of
the General Counsel that, by picketing these inde-
pendent owner-operators, Respondent was clearly at-
tempting to enmesh Rockford Blacktop and the owner-
operators in its dispute with Kasper Trucking Company.
Thank you, Your Honor.
JUDGE GADSDEN: Thank you. Anyone with an open-
ing statement?
MR. MCINNIS: No, Your Honor.
JUDGE GADSDEN: Mr. O’Hara?
MR. O’HARA: Your Honor, I’d like to reserve my
opening statement for my case in chief.
JUDGE GADSDEN: Certainly.
MR. O’HARA: Thank you.
1023TEAMSTERS LOCAL 722 (KASPER TRUCKING)
JUDGE GADSDEN: Alright. You may proceed, Ms.
Poltz.
Thereafter, counsel for General Counsel called R. G.
Lathrop, secretary-treasurer of Respondent Union, Local 722,
Dixon, Illinois, one of the affiants in support of O’Hara’s
motion for me to disqualify myself and grant Respondent a
new trial. Lathrop testified that in December 1992 he was
vice president of Local 722 and construction business agent.
Gerald Reilly was president of Local 722 from 1986–1992,
after which he assumed a position with the Central Con-
ference of Teamsters (all Joint Councils and Conferences of
13 States, including Illinois). Local 722 is a constituent of
the Central Conference.
Lathrop said the Associated General Contractors of Illinois
has a contract with the Illinois Conference of Teamsters, ef-
fective May 1, 1992–April 30, 1995 (G.C. Exh. 2). However,
the latter contract does not cover the Joint Council in which
Local 722 is located, Dixon, Illinois. Local 325 has jurisdic-
tion over Rockford, Illinois. Dixon is in the jurisdiction of
Local 722, Lee County, including Amboy.
Lathrop further testified that on or around December 18,
1992, Rockford Blacktop, Charging Party in Case 33–CC–
1116–2 had a job and jobsite in Dixon, Illinois. When the
job started, he visited the jobsite where Rockford Blacktop
was clearing out an area to construct box culverts. Materials
were being hauled away in Kasper trucks driven by Orval
Dobbs, John Leiser, and Gary Hinde. Lathrop said he asked
Dobbs, Leiser, and possibly Hinde to see their union cards.
When they displayed their cards, he discovered they were not
dues-paying members of Local 722. He denied he told them
they could not work but said he told them Kasper Trucking
did not have a signed agreement with Local 722. After he
talked to the three drivers they left the jobsite. He does not
recall calling Rockford Blacktop at that time. He denied he
told the aforenamed drivers he was going to stop the job un-
less he got a contract with Kasper.
Lathrop said he did make some signs (G.C. Exh. 13)
which read:
Our Only Dispute
Is with Kasper Trucking
Teamsters of TLU 722
&
Has no agreement.
Lathrop further testified he instructed pickets to appear at
the Dixon jobsite with the above sign and picket. The pickets
appeared and picketed midday on or about December 18,
1992. The backhoe operator of the operating engineers re-
fused to work behind the pickets. Without the backhoe oper-
ator there was nothing to load the trucks. He said he also had
the pickets to picket the jobsite again January 11 and 19,
1993. The operating engineers again refused to operate the
backhoe and the backhoe was operated by salaried employ-
ees.
In February 1993, Rockford Blacktop had a job in Amboy,
Illinois, also in the jurisdiction of Local 722, removing tanks
from underground. On or about February 4, Lathrop said he
sent pickets to that jobsite with picket signs bearing the same
language used at the Dixon jobsite. He did not speak to the
drivers at the Amboy jobsite because the drivers would not
stop and speak with him. During December 1992 and Janu-
ary 1993, his office was the satellite office in Dixon and
Reilly was the boss who worked out of the LaSalle, Illinois
office, although his secretary, Don Sheppard, worked in the
Dixon office.
In January Lathrop said he called Gordon Kasper trying to
reach Gary Kasper. That evening Gary Kasper called him
and he asked Gary Kasper to sign a contract with Local 722.
Lathrop testified without dispute and he was not cross-ex-
amined by Respondent. The proceeding thus far was cordial
and essentially without significant procedural and evidentiary
conflict.
Counsel for the General Counsel then called Myron
Rafferty (Butch), president of Rockford Blacktop, Charging
Party in Case 33–CC–1117–2. Rafferty testified that Rock-
ford Blacktop is engaged in the business of road construction
and that it hires the trucking services of Kasper Trucking on
various jobsites, including a jobsite in Dixon it had restruc-
turing Route 2 for the State of Illinois, hauling materials
away to disposal sites, and construction materials from quar-
ries to jobsites.
Rafferty said Kasper Trucking sent trucks to the jobsite
December 18, 1992, at Dixon, Illinois, and that on that date
Business Agent R. G. Lathrop called and told him his sub-
contractor, Kasper Trucking, was not right with the Union;
and that in order for Rockford Blacktop to use Kasper Truck-
ing, it had to make Kasper right (sign a contract with Re-
spondent).
Rafferty said he told Lathrop if we have a problem,
Lathrop should call Kasper Trucking.
At this juncture, counsel for General Counsel asked the
witness (Lathrop):
Q. Do you recall whether anything was said?
A. The only thing, I said, well, if we got a problem
he should call Kasper Trucking.
Q. Do you recall whether anything was said on the
subject of—
MR. O’HARA: I’m going to object. This is not an ad-
verse witness, and this is getting into the form of lead-
ing questions, putting into the mind of this individual
particular things. And that’s improper. It’s leading. If
she ask what was said—his recollection—that’s appro-
priate. But to have a leading question as to what was
said is an improper question.
JUDGE GADSDEN: Well, you may be right, but I be-
lieve you’re a little premature, counsel, because I don’t
know what counsel is about to ask the witness. I
thought the last question was designed to exhaust his
recollection. If it was, she may proceed. If it was not,
then we have another question.
MR. O’HARA: Let me just make sure that the record
is clear here.
JUDGE GADSDEN: Yes, sir.
MR. O’HARA: Even if she exhausts his recollection
I don’t believe that she can ask the leading question
that I believe she was going to ask. The only reason
I interrupted is to make sure that this testimony is not
tainted by such.
JUDGE GADSDEN: Sure.
MR. O’HARA: And that’s the reason I raised the
question . . . .
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By Ms. Poltz: Q. The question is, do you recall that
anything else was said?
A. The only other thing that I said was that he
should—if there was a problem with Kasper Trucking,
he should call Kasper.
Q. And my question is, do you recall whether any-
thing else was said?
A. That was all.
Q. Was there any interruption of work on December
18th, that first day?
A. No, there was not. Not that I recall.
Rafferty further testified he learned from his foreman that
there were pickets at the jobsite. He called the business agent
of the operators and informed him that pickets had appeared
on the jobsite and there was a work stoppage. There was also
work stoppage later on January 11 and 19. His foreman
called and informed him and he told the foreman to send ev-
erybody home.
On January 26 pickets of Local 722 appeared with the
same picket signs (G.C. Exh. 13) on the jobsite and Rafferty
said he told the foreman to keep everybody there and he
would come to the site. However, the operators would not
work so he went down and operated the backhoe himself,
and Kasper drivers worked.
In February 1993, Rockford Blacktop used the services of
Kasper Trucking on a jobsite at the Green River Ordinance
Depot near Amboy, Illinois, to remove and haul away under-
ground storage tanks for the Corps of Engineers, pursuant to
established rates by the hour or by the ton per mile. The
agreement does not specify what trucks or drivers Kasper
may use to perform the services. Kasper Trucking was ver-
bally contracted to haul the dirt to a landfill about 40 miles
away. Rafferty’s son, Sean Rafferty, called him and informed
him pickets were at the jobsite. Rafferty said he knows that
Kasper Trucking uses company-employed drivers and also
leased drivers. Once on the jobsite the foreman of Rockford
Blacktop directs all drivers.
Rafferty said the contractor on the Dixon jobsite was
Profitter Construction but he did not know whether the latter
was signatory to a collective-bargaining agreement with the
Teamsters.
Although Rafferty said he did not know whether Profitter
was signatory to an agreement with the Teamsters, he did
know Rockford Blacktop was not. O’Hara asked Rafferty
was he familiar with any of the terms of the contract be-
tween Profitter and the Teamsters. Counsel for the General
Counsel objected on the grounds of relevance, and O’Hara
informed the bench he would show a connection, and the
bench permitted him to continue his interrogation over the
objection of counsel for the General Counsel (p. 52).
O’Hara then asked Rafferty was there a provision in the
subject contract regarding owner-operators and the witness
said, ‘‘[Y]es there is a section that covers it.’’
Counsel for the General Counsel again voiced a continuing
objection of relevance, since neither Charging Party (Kasper
nor Rockford Blacktop) is signatory to the agreement.
O’Hara asked the witness several other questions about
provisions in the contract regarding subcontracting as related
to onsite and offsite hauling. The witness answered from
memory of a time when he was signatory to the agreement
years ago.
O’Hara asked another question about provisions in the
contract and counsel for the General Counsel objected. Since
O’Hara had not yet shown a connection of relevance, the
bench reminded him that he was permitted to ask a few
questions (over counsel for the General Counsel’s proper ob-
jection) and O’Hara withdrew the question.
However, O’Hara then asked the witness if he had read
the complaint in the proceeding and, if so, did he agree with
the accuracy of the statements therein. Counsel for the Gen-
eral Counsel objected and the bench intervened:
JUDGE GADSDEN: What’s the basis, counsel? You
seem to be going pretty much at the same thing, in a
different way.
MR. O’HARA: I’m asking about the complaint.
Judge Gadsden: Well the point is, we have the com-
plaint here. We have what language is in it.
Mr. O’Hara: I’m going to—I’ll—
JUDGE GADSDEN: What are you doing?
MR. O’HARA: Well . . . .
O’Hara was permitted to ask the witness a series of ques-
tions about Rockford Blacktop ‘‘engaging’’ Kasper Trucking
as a ‘‘broker’’ to furnish trucking services, since those terms
‘‘engage’’ and ‘‘broker’’ were used in section 2(d) of the
complaint herein. After the witness (Rafferty) explained what
he understood those terms to mean, O’Hara then persisted in
asking Rafferty about his personal definition of a ‘‘broker,’’
and counsel for the General Counsel objected because the
question called for a technical conclusion by the witness.
Thereafter counsel for Respondent asked Rafferty whether
Rockford Blacktop engaged Kasper Trucking to provide it
with trucking industry brokerage service to independent con-
tractor owner-operators. Rafferty replied, ‘‘[S]pecifically,
no,’’ and he explained why he answered no on page 60 of
the transcript. He said he knew the trucks Kasper sent to the
jobsite were owner-operators because the truck signs read
‘‘leased to Kasper Trucking’’ and he was familiar with the
faces of the drivers.
Responding to counsel for the General Counsel’s objection
to O’Hara’s questions, the bench admonished O’Hara about
his technical questions of the witness as to how the witness
defined ‘‘broker’’ because it did not matter what the witness
thought or understood the term to mean—we will determine
whether or not he was a broker by what the facts indicate
occurred, that is sufficient for the record (pp. 63–64):
JUDGE GADSDEN: Well, I’ve already spoken to coun-
sel with respect to the use of that term. It doesn’t mat-
ter what the witness thinks or understands, we will de-
termine whether he’s a broker or not, and so that’s
why—it’s almost like asking a person to define a word
by using a word, and if you would move on without
emphasizing the matter of broker and determine what
the facts indicate occurred, that is sufficient for the
record.
MR. O’HARA: Your Honor, let me indicate that I’m
not the one that amended the complaint, and I’m going
to indicate to you right now that it is a critical issue
with respect to this particular proceeding.
JUDGE GADSDEN: I don’t need you to tell me that
it’s critical. I know exactly what you want. I’ve been
around a long time. Now I’m asking you to ask the wit-
1025TEAMSTERS LOCAL 722 (KASPER TRUCKING)
ness the question without using the term ‘‘broker,’’ be-
cause the facts will establish whether he is a broker or
not. Not only did I ask you not to do it, but you went
back and re-emphasized it. Now I am directing you to
question this witness and not to use the attorney’s lan-
guage in the complaint.
Are you an attorney, Mr. Witness?
MR. RAFFERTY: No, sir, I’m not.
JUDGE GADSDEN: You’re not, I didn’t think you
were. Alright.
MR. O’HARA: Well let me indicate for the record,
just so we’re clear.
JUDGE GADSDEN: Sure.
MR. O’HARA: If you’re ruling as a matter of law that
broker is a legal term—
JUDGE GADSDEN: I’m not making that ruling, and
I’m not allowing you to put your definition of a broker
on the record, either. That’s exactly why I’m asking
you to question the witness with respect to facts and
leave alone the technical terminology that’s used by the
counsel in the complaint. They weren’t his. He didn’t
use them. Okay?
At this juncture in the hearing I noted that O’Hara had not
yet shown a connection of relevance for his questions on
‘‘broker’’ and he was quite persistent in pursuing the same
line of inquiry regarding the term ‘‘broker’’ under Illinois
law. Nonetheless, O’Hara was permitted to question Rafferty
about whether or not he examined the contract between
Kasper Trucking and the truckdrivers on the jobsite (pp.
882–884), whether he had possessed Illinois operating au-
thority, whether he had interstate and intrastate authority, for-
hire motor carriage, whether he hauled for himself or hired
haulers for himself. The witness answered all of these ques-
tions (p. 65).
Counsel for the General Counsel called Gordon Kasper,
president and owner of Kasper Trucking, Inc., who testified
that on December 18, 1992, the Union distributed handbills
at the Dixon jobsite. Kasper Trucking records show that
owner-operators worked only 5, instead of 8, hours that day.
In explaining why the owner-operators only worked 5 hours,
Kasper said Rockford Blacktop’s truck superintendent,
George Butts, called Kasper Trucking and informed him that
Union Business Agent Lathrop was on the Dixon jobsite and
told the superintendent to send the truckdrivers home.
O’Hara objected to what Butts told Kasper Trucking, on
the grounds that it was ‘‘hearsay,’’ and he moved that the
testimony be stricken. The objection was overruled because
Lathrop and Rafferty had previously testified Lathrop was at
the Dixon jobsite on that date handbilling for the Union and
questioning the drivers (owner-operators). Since Lathrop’s
and Rafferty’s testimony tended to support the ‘‘hearsay,’’
and particularly since Kasper was offering the statement at-
tributed to Butts as an explanation for the owner-operators
working 5 hours that day, I ruled the statement admissible.
Thus far, the objections by O’Hara in this proceeding and
my rulings upon them, have been noted.
With respect to the admissibility of evidence, the adminis-
trative law judge is guided by the Section 10 of the National
Labor Relations Act which provides, in part as follows:
Any such proceeding shall, so far as practicable, be
conducted in accordance with the rules of evidence ap-
plicable in the district courts of the United States under
the rules of civil procedure for the district courts of the
United States, adopted by the Supreme Court of the
United States pursuant to section 2072 of title 28,
United States Code [section 2072 of title 28].
Rule 611(a) of the Federal Rules of Evidence provides as
follows:
MODE AND ORDER OF INTERROGATION AND
PRESENTATION
(a) Control by court. The court shall exercise reason-
able control over the mode and order of interrogating
witnesses and presenting evidence so far as to (1) make
the interrogation and presentation effective for the as-
certainment of the truth, (2) avoid needless consump-
tion of time, and (3) protect witnesses from harassment
or undue embarrassment.
O’Hara objected to my requesting counsel for the General
Counsel to further interrogate her witness on a last statement
made by the witness, namely, ‘‘There were picketers there.’’
I asked counsel for the General Counsel to further ‘‘pursue’’
the latter statement,—(in the interest of time and in order to
develop a complete record). O’Hara’s objection was over-
ruled as he proceeded accusing me of usurping the function
of the General Counsel and lecturing me on what he believed
to be the proper procedure. His arguments and accusations
in this proceeding led me to ponder whether he was a new
attorney, or at least new to Board proceedings, a fact for
which I generally allow reasonable latitude, with under-
standing.
However, O’Hara’s passionate and argumentative stance
on rulings of the bench was, in my judgment, conveying an
impression on the record and to persons in the court that he
was being deprived of due process and thereby tending to
undermine the integrity of the administrative process, even
though he frequently addressed the bench as, ‘‘Your honor.’’
Consequently, his conduct invited the appropriate and rea-
soned responses by the bench.
Also, when counsel for the General Counsel asked Kasper
was there any interruption in work on the jobsite January 19
reported to him, Kasper said his son went to the site because
someone told him picketing would occur and O’Hara ob-
jected on the grounds of ‘‘hearsay.’’ When Kasper was asked
how was picketing brought to his attention, and Kasper re-
plied ‘‘we were told by Rockford Blacktop that there—,’’
O’Hara objected and both objections were overruled in the
interest of time and because previous testimony of witness
Rafferty obviously supported Kasper’s statement, and the
statement was simply being offered as Kasper’s reason for
why the trucks worked only 5 hours, he said because the
business agent told them to go home.
Continuing on direct examination, Kasper was asked did
interruption of work occur on January 19, 1993. Kasper said,
‘‘[Y]es, I could indicate that.’’ He was asked what happened
on January 19 and he responded, ‘‘There was pickets there.’’
The General Counsel asked, ‘‘[W]hat does the two hours that
were billed reflect?’’ I felt the witness had not finished his
statement and he asked the General Counsel to let the wit-
ness finish. The witness (Kasper) said that’s all he meant, but
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I asked counsel for the General Counsel to further pursue his
answer (in the interest of time):
MR. O’HARA: Well, I’m going to object to that,
Your Honor. If she can present her case—this is a for-
mal, adjudicatory, adversarial case, and if she doesn’t
enlighten us, I don’t think it’s the job of—
JUDGE GADSDEN: Well, it is the job of an Adminis-
trative Law Judge to see to it that this record is com-
plete. He is the one who has to—or she—who has to
make the decision in the case. I’m directing counsel to
question this witness further with respect to pickets
being there, and this way we don’t leave holes in the
record for someone to assume. So, you may do that,
and I can tell you this is not anything new.
MR. O’HARA: Well—
JUDGE GADSDEN: In fact, the Court should have
been doing it a long time before we had the revision
of the rules of evidence.
MR. O’HARA: Well, let me indicate just for the
record—
JUDGE GADSDEN: Sure.
MR. O’HARA: —that I believe the proper way to do
so is to allow both sides to have an opportunity to
present their case, and then, if the Administrative Law
Judge has questions to fill in the gaps, then he may do
so. But having another party directing someone who is
prosecuting this case to ask particular questions, when
I haven’t had an opportunity to cross-examine with re-
spect to the questions that have elicited, is leading this
witness to a particular area. And I believe the proper
way is to wait for the parties to have questioned the
witness, to determine whether the ALJ, in fact, has any
remaining questions, because I may, indeed, ask the
questions that you desire to ask.
JUDG GADSDEN: Well, if—
MR. O’HARA: And let me indicate, with all due re-
spect—
JUDGE GADSDEN: Just a moment, Counsel! No
argument! You see, I don’t know how long you have
been around. All judges proceed slightly differently.
But this is not anything that is new. Now, I want the
record developed. I want a record developed that is as
complete as possible; and, not only that, I will do the
very same thing with your witness if you stop and you
[don’t] move on. We want an integrated record, also.
So, I’m not going to entertain any argument on it. You
may object. Your objection is noted on the record. But
I want you to develop this record. And very often—I
can tell you this. when neither counsel asks the ques-
tions, I proceed [to do] it even though neither one of
them explored it. That strikes you, too, doesn’t it?
MR. O’HARA: No, I think that’s proper, Your Honor.
JUDGE GADSDEN: Okay, well—
MR. O’HARA: But I think interrupting direct testi-
mony and directing a prosecutor to ask particular ques-
tions during her direct examination is improper.
JUDGE GADSDEN: We do not conceive her as a pros-
ecutor, and that’s one of the distinctions between ad-
ministrative law as distinguished from the law. We
have a little more latitude. We are fact-finders, and we
develop a record. Now, I have lectured in law schools
in administrative law. How long have you been in prac-
tice?
MR. O’HARA: Twelve years, but I’m—I’m sorry. I’m
a Hearing Officer for the Illinois Department of Mines
and Minerals and also a Hearing Officer for the Illinois
Secretary of State’s office and have conducted many
proceedings as the Hearing Officer.
JUDGE GADSDEN: Well, I believe you are competent,
but you learn something every day. I’ll tell you that.
MR. O’HARA: I agree with that, Your Honor.
Counsel for the General Counsel then asked Kasper was
there any interruption in work January 19 reported to you?
A. My son Gary went down there that day because
he was told that there would be picketers there, so—
MR. O’HARA: I object as far as to hearsay and ask
that it be stricken.
JUDGE GADSDEN: Now, what is the witness testifying
to now?
MS. POLTZ: I have asked him whether any interrup-
tion of work was reported to him on January nine-
teenth.
JUDGE GADSDEN: Which you asked him previously.
MS. POLTZ: Yes.
JUDGE GADSDEN: And he said yes. That’s right.
Now, continue.
By Ms. Poltz:
Q. What was the nature of the interruption of work
on January nineteenth?
JUDGE GADSDEN: If you know. Create a foundation
first.
MS. POLTZ: Well, Your Honor, I think he has testi-
fied that, in the ordinary course of business, where
there are interruptions in work, he will receive a report
of it.
JUDGE GADSDEN: Not when you have an objection
there. Lay the foundation. That is a basis for knowl-
edge. What was reported to him?
MS. POLTZ: You’re asking—I don’t understand
where we are right now. I mean, I would like to ask
this witness if there was an interruption of work, and
then how it was brought to his attention.
JUDGE GADSDEN: Well, ask that.
By Ms. Poltz:
Q. How was the interruption of work brought to your
attention?
A. It was brought to our attention by—we was told
by Rockford Blacktop that there—
MR. O’HARA: I’m going to object. That’s hearsay.
JUDGE GADSDEN: Overruled. And, for your informa-
tion, some hearsay is admissible, especially when there
is other evidence that indicates that it may be true.
That’s all there is to it.
MR. O’HARA: Just note my continuing objection.
JUDGE GADSDEN: That’s it. I didn’t come here to
teach evidence. I’ve been around a long time. I’ve been
on the other side of this bench, too, in practice—private
practice. Now, I don’t need to have anybody arguing
1027TEAMSTERS LOCAL 722 (KASPER TRUCKING)
with the bench on its ruling. I have made the ruling,
so you just sit and live with it. You have your objec-
tions noted in the record.
MR. O’HARA: I just want to protect my client’s in-
terests, Your Honor.
JUDGE GADSDEN: I would be the last person in the
world to try to deprive you of doing that, Counsel. But,
at the same time, I am responsible for running a trial
and a hearing, and I’ve done it for over 24 years.
That’s right. And I’ll do the same thing when your wit-
ness is on the stand. That’s right. You are not the im-
portant person in the trial. the important persons at the
trial are the persons who are the Charging Party and the
Respondent in this proceeding. You represent this Re-
spondent. Not only that, there have been occasions
when counsel was really incompetent. And the bench
will take over the examination, because we’re here to
develop the record and get the facts. That’s new to you,
too? You’ll learn a lot of new things if you stay around
long enough.
Presumably it is the above exchange between O’Hara and
the bench to which O’Hara, and his supporting affiants, at-
tribute the accusations that I made veiled comments about his
competence and lectured him throughout the proceeding. Any
reader of the transcript will see who was lecturing whom,
and who invited the lecturing.
Moreover, as the court stated in Bethlehem Steel Co. v.
NLRB, 120 F.2d 641, 652 (D.C. Cir. 1941):
It is the function of an examiner, just as it is the recog-
nized function of a trial judge, to see that facts are
clearly and fully developed. He is not required to sit
idly by and permit a confused or meaningless record to
be made. If the spirit and conduct of the Examiner
throughout this case were reversible error, few adminis-
trative and few judicial proceedings could withstand at-
tack.
In my judgment, the responses to O’Hara’s persistent, pas-
sionate, argumentative, and mostly nonmeritorious objections
were reasoned and appropriate responses to them. See Logan
County Airport Contractors, 305 NLRB 845 fn. 1, 854, 862–
863 (1991). Moreover, many of O’Hara’s questions on cross-
examination, which not only excessively exceeded the
bounds of direct examination, but were generally irrelevant.
While the bench’s responses were firm and not harsh, the
U.S. Court of Appeals has held that even harsh language
itself by the judge does not establish prejudice. Lawson Co.
v. NLRB, 753 F.2d 471 (6th Cir. 1985).
Proceeding Continued
General Counsel’s Exhibit 10 is an undated letter from
Local 722 requesting Kasper Trucking to complete a copy of
an enclosed contract, and forms for Kasper to participate in
the Union’s Health and Welfare Pension Funds. Kasper
Trucking was asked to complete the forms and return one
copy of each to the Dixon branch office of Teamsters Local
722.
Gordon Kasper testified that between December 18, 1992,
and January 1993 he received a copy of the above letter and
forms. In response thereto, he said he called Lathrop’s office
two or three times at Dixon, Illinois, and Reilly on one occa-
sion at the LaSalle office, and left messages on their answer-
ing machines, but he did not receive a return call from either
union agent. The latter statements are not denied in the
record.
Kasper Trucking entered into Independent Contractor
Agreement for Owner-Operators described in General Coun-
sel’s Exhibits 3(a), 4(a), 5(a), 6(a), 9(a), and 25(a) with all
approximately 70 owner-operators.
On cross-examination O’Hara asked Kasper was he a
‘‘broker’’ since the word ‘‘broker’’ appears in paragraph 2(d)
of the amended complaint and on page 2 of the contract,
namely: Whereas company is engaged in business as a
broker of transportation services.
It is noted that the amended complaint alleges that Kasper
Trucking is a contractor in the construction industry hauling
construction materials, and as a ‘‘broker’’ making referrals of
independent contractor owner-operators to haul construction
materials that the Independent Contractor Agreement for
Owner-Operators between Kasper and the drivers referred,
provides:
Whereas, contractor declares that contractor is engaged
in an independent business as an independent owner-
operator and has complied with all Federal, State and
local laws regarding business permits and licenses of
any kind that may be required to carry out the said
business and the task to be performed under this agree-
ment.
In response to questions by O’Hara, Kasper further testi-
fied that he is not a ‘‘broker.’’ He said a long time ago
owner-operators were referred to as ‘‘brokers.’’ However, he
denies he is a ‘‘broker’’ since he is no longer an owner-oper-
ator, and he understands that ‘‘broker’’ means independent
contractor, even though the word ‘‘broker’’ appears in para-
graph 2(d) of the consolidated complaint. O’Hara’s questions
of the witness and his argument about the use of the word
‘‘broker’’ in the amended consolidated complaint and in the
contract were not deemed by me dispositive of what function
Kasper performed in relation to the two jobsites, or what
control he had over the drivers, because Kasper did not pre-
pare the complaint as amended, nor the contract, although he
signed the contract.
It is important to note at this juncture that O’Hara makes
quite an argument in his posthearing brief to me about the
General Counsel amending the complaint to also describe
Kasper as a ‘‘broker,’’ even though Kasper denied he is a
broker. O’Hara also accuses the bench of not allowing him
an opportunity to prepare to meet the amendment (‘‘broker’’)
until he appeared at the hearing. This assertion is not accu-
rate. The records will show O’Hara received a copy of the
amended complaint April 23, 1993, prior to the July 22,
1993 hearing herein. The record also shows that O’Hara
cross-examined Kasper extensively about his being a
‘‘broker,’’ what was his definition of a ‘‘broker,’’ and
whether he filed with the State as a ‘‘broker.’’ By such ex-
tensive cross-examination of Kasper about a ‘‘broker,’’ over
the objections of counsel for the General Counsel and coun-
sel for Charging Party, O’Hara cannot claim he was sur-
prised by the amendment, or that he was deprived of notice,
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
because he nonetheless litigated the issue of a ‘‘broker.’’
Peck Inc., 269 NLRB 451, 462 (1984).
Additionally, and more significantly, paragraphs 2(d) and
(h) of the original complaint describe Kasper Trucking as a
subcontractor at the Dixon jobsite to which Kasper supplied
owner-operators under a subcontract agreement entitled Inde-
pendent Contractor Agreement for Owner-Operators. Con-
sequently, for purposes of the National Labor Relations Act,
whether Kasper or other owner-operator drivers were ‘‘bro-
kers,’’ owner-operators, or independent contractors in the
technical sense of these terms, or as used by the parties, can
only be determined by the evidence of Kasper Trucking’s op-
erating performance, the contractual arrangement between
Kasper and the drivers Kasper supplied on the Dixon and
Amboy jobsites, evincing what kind of control and authority,
if any, Kasper possessed or actually exercised over them.
O’Hara was permitted to cross-examine Kasper extensively
on the independent contractor owner-operator agreement and
filing requirements under Illinois Commerce Transportation
Law. The witness was permitted to answer all of his ques-
tions, over the objection of counsel for the General Counsel
that such questions were irrelevant. O’Hara then asked
Kasper was he familiar with the terms and conditions of the
lease agreement executed by Kasper Trucking which Kasper
acknowledged is a form prescribed by the Illinois Commerce
Commission.
O’Hara then requested to approach Kasper with the lease
form. Since the relevance of O’Hara’s examination over the
objection of the General Counsel was still not apparently re-
lated to the issues in this case, the bench asked O’Hara
where was he taking his examination, and how was it rel-
evant to the proceeding:
MR. O’HARA: Well after I get done with my case in
chief, I believe that the administrative law judge will be
familiar with my theory. But I don’t have to reveal my
theory until such time, and I should ask the witnesses
the questions that I want to ask them.
JUDGE GADSDEN: Well, no—
MR. O’HARA: Because, by revealing the theory, that
would provide answers to this particular witness.
JUDGE GADSDEN: No, you don’t have the authority
to go off into left field asking any questions you want
when the bench nor counsel for either side can see the
relevancy of them to the case. That’s when the bench
rules on relevancy. Now, if you don’t want to answer
the questions and I find them irrelevant, then you just
won’t be permitted to ask the question. . . .
MR. O’HARA: I’m not finished, Your Honor.
JUDGE GADSDEN: Well, I’m asking you what is your
theory? . . .
Mr. O’Hara: Permit me five more questions.
JUDGE GADSDEN: Wait a minute, wait a minute. Not
only that, if you don’t want to state it in open court,
I can let you approach the bench, you along with coun-
sel, and we’ll ask the witness to step outside the court-
room. Would you do that, please?
The witness was directed to step outside the courtroom
and I called a bench conference with respective counsel. The
reporter asked me if I wanted the conference on or off the
record. In view of O’Hara’s passionate, persistent, and argu-
mentative failure to disclose the relevance of his line of in-
quiry, or his theory of defense, the reporter was directed to
record the bench conference. During the conference, O’Hara
continued to argue what Illinois Commerce filing laws re-
quire, without explaining the relevance of such filings to this
proceeding. (Tr. 161–162.) O’Hara then requested to ask the
witness five more questions and the witness was recalled to
the stand. O’Hara was permitted to ask the witness several
questions about lease agreements under Illinois law over the
objection of counsel for the General Counsel and counsel for
the Charging Party.
When none of O’Hara’s questions revealed any relevance
to the issues in this case, I sustained the objections of the
General Counsel and counsel for the Charging Party for lack
of relevance. O’Hara asked whether I was going to sustain
the objections. I responded, ‘‘I certainly am,’’ and O’Hara
concluded his cross-examination by asking the witness sev-
eral other questions which proved to be irrelevant.
Thereafter, counsel for the General Counsel rested her case
and O’Hara asked to make his opening statement, which he
had deferred until this time, and he was permitted to do so.
O’Hara commenced his opening statement by stating he
believed that perhaps his presentation of the case has preju-
diced his client by my rulings on relevance. He then stated
without specificity, that Associated General Contractors, 290
NLRB 522, 528–530 (1988), cited by counsel for the Gen-
eral Counsel during her opening statement, is distinguishable
from, and inapplicable to, the facts in the instant case.
The bench made an unsuccessful effort on numerous occa-
sions during the hearing to have O’Hara state the relevance
of many of his questions of witnesses on cross-examination
or his theory of defense, or what was he trying to establish.
O’Hara made his most explicit and complete explanation of
what he deemed the relevance of his cross-examination and
his sole theory of defense, for the first time, during his open-
ing statement given at the conclusion of the General Coun-
sel’s case, as follows:
The question is, what is the relationship between
Kasper and the truckers? The Illinois Commerce Com-
mission is governed by the Illinois Commerce Trans-
portation Law, and the Illinois Commerce Transpor-
tation Law specifically and unequivocally indicates that
the leasing of equipment and personnel by a holder of
operating authority has to be filed with the Illinois
Commerce Commission—the complete terms. And the
failure to file the complete terms between the operator
holding authority and the lessor—failure to do so ren-
ders the contract provisions void. And it is against Illi-
nois Law to operate without filing all the terms and
conditions governing the relationship between a holder
of operating authority and a lessor . . . . [Tr. 177–
178.]
O’Hara then stated explicitly what he intended to prove
through his prospective witness, Kurt Freedland as follows:
I intend to call the General Counsel for the Illinois
Commerce Commission to attest to the indications that
I am indicating are in the law, and for him to identify
the statute and his understanding with the proper en-
forcement of those provisions. . . . I would indicate
that the facts have already shown that, indeed, this op-
erator with authority did not file the proper leases.
1029TEAMSTERS LOCAL 722 (KASPER TRUCKING)
What I am indicating is that the Illinois Commerce
Commission requires that the leases, the one holding
the operating authority, have exclusive direction and
control of the lessor, and that if that provision is not
provided within the agreement, that it is implied by
law. [Tr. 179–180.]
Respondent’s Case
O’Hara then called Freedland who testified he is the gen-
eral counsel for the transportation division of the Illinois
Commerce Commission, as opposed to another division of
the Commission, public utilities. On several occasions I inad-
vertently referred to the Illinois Commerce Commission as
the Utilities Commission. However, neither O’Hara nor other
counsel in the case corrected me because it was understood
by them that I was referring to the Illinois Commerce Com-
mission, the only state agency to which O’Hara made ref-
erence, and which, he advised, the court enforces the Illinois
Commerce Transportation Law.
In response to questions by O’Hara, Freedland proceeded
to testify about sections of the Illinois Commerce Transpor-
tation Law. When he was asked does the Illinois law regulate
‘‘brokers,’’ counsel for the General Counsel and counsel for
the Charging Party both objected, as they consistently had
with regard to Illinois regulations being relevant to this pro-
ceeding. Their objections were sustained.
In support of his objection, McInnis cited Don Bass Truck-
ing, 275 NLRB 1172, 1174 (1985). In his brief to me,
McInnis’ argued that in Don Bass, the issue of whether
truckdrivers were employees or independent contractors, in-
volved essentially the same relations under the Act that ex-
isted between Kasper Trucking and the owner-operators in
the instant case. In Don Bass, the union argued, as does the
Union here, that the alleged owner-operators are employees
within the meaning of the Act because the Illinois Commerce
Commission regulations dictate the terms of the employment
relationship between the subcontractor and the owner-opera-
tors. In disposing of the issue in Don Bass, the Board re-
stated the test for establishing independent contractor status
as the common law agency test, stating:
When the one for whom the services are performed re-
tains the right to control the manner and means by
which the result is to be accomplished, the relationship
is one of employment; while on the other hand, where
control is reversed [sic] only as to the result sort, the
relationship is that of an independent contractor. The
resolution of this question depends on the facts of each
case and no one factor is determinative.
The Board further stated in rejecting the Union’s argu-
ment, and relying upon the courts and its own decisions stat-
ed:
Government regulations constitute supervision not by
the employer but by the State, ‘‘. . . extensive govern-
mental regulation afford less opportunity for control by
the putative employer’’ because the employer cannot
evade the law either and in requiring compliance with
the law he is not controlling the driver.
In supporting its position, the Board cited its decision in
Air Transit, 271 NLRB 1108, 1110 (1984), citing Seafarers
Local 77 (Yellow Cab) v. NLRB, (603 F.2d 862 (D.C. Cir.
1978)), where the court rejected the argument that govern-
ment-imposed regulations constitute company control over
drivers, as in Air Transit, supra.
The objections of the General Counsel and counsel for
Charging Party were sustained and O’Hara was precluded
from further questioning the witness about Illinois Commerce
Transportation Law. Although O’Hara contends on the
record, in his motion, and in his posthearing brief to me that
he was precluded from having Freedland testify, he was not
precluded from interrogating Freedland on matters relating to
the issues in this case under the National Labor Relations
Act. He was only precluded form further questioning
Freedland about Illinois Commerce Transportation Law,
without a showing of its relevancy. The electronic recording
of the proceeding did not accurately reflect my ruling on
O’Hara’s request to further question Freedland. The bench’s
specific answer was [‘‘Not in this area’’]. The transcript is
so corrected. O’Hara’s proffer supports this correction.
This conclusion is further substantiated by O’Hara’s re-
quest to make a showing (offer of proof), which he was per-
mitted to do. There, O’Hara stated that Freedland would
have testified about whether Kasper Trucking filed lease
agreements under the requirements of Illinois law, the re-
quirement of brokers to be licensed under Illinois law, what
kind of control a lessor must retain over a lessee, and other
requirements of Illinois Commerce Transportation Law.
Notably, O’Hara’s showing of proof did not include any
prospective testimony about ‘‘employees’’ and ‘‘independent
contractors’’ under the National Labor Relations Act and
Board decisions.
Counsel for General Counsel and counsel for the Charging
Party objected to O’Hara’s showing of proof, and although
such objections are not necessary, the bench sustained their
objections since I was satisfied the subject of O’Hara’s offer
of proof was already a matter of record.
O’Hara then requested me to take official (administrative)
notice of specific subsections of section 18(c) of the Illinois
Commerce Transportation Law and sections of the Illinois
Administrative Code. The request was denied because as
O’Hara stated, the subject of the request involved a complete
statement of the Illinois regulations on what O’Hara stated
in his opening statement, in his offer of proof, and in his
posthearing brief to me, all of which, during the hearing,
were ruled irrelevant to the issues in this case, and because
of O’Hara’s failure to show the relevancy of Freedland’s tes-
timony to the issues in this case. O’Hara engaged in quite
an argument on the record regarding my denial of his request
to take official or administrative notice of the sections of the
Illinois law cited but not supplied by him.
I then asked O’Hara did he have anything else?:
MR. O’HARA: No. Let me indicate, Your Honor,
this. I had five other witnesses. In light of the ALJ’s
ruling with respect to not allowing my first witness to
testify and to finish what, in fact, he was going to tes-
tify to, with a prediction, prior to hearing that testi-
mony, what that testimony would be, I believe that my
client’s case has been severely prejudiced. . . .
MR. O’HARA: I just wish I could have presented all
my case.
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
JUDGE GADSDEN: Well, I’m sorry that you feel that
way, counsel, but I can’t entertain a trial on matters that
are not relevant to the National Labor Relations Act.
Alright?
The record is clear that I did not preclude O’Hara from
calling any additional witnesses. In fact O’Hara had been
previously asked by the bench to call all of his witnesses.
O’Hara forgot he had told the bench in his offer of proof
what Freedland was going to testify about, which is in the
record. The record is very clear that it was O’Hara who
elected not to call any other witnesses because, as he inti-
mated, since Freedland was not allowed to testify about the
Illinois Commerce Transportation Law, their testimony
would not be helpful to him, or because they would be testi-
fying along the same line that Freedland would have testified
(compliance with Illinois filing requirements).
Since O’Hara was not permitted to continue his line of in-
terrogation and arguments about Illinois law which he main-
tained throughout the proceeding, he elected not to call any
additional witnesses. He was not prohibited from calling
other witnesses or to have any witness including Freedland
testify about matters related to the issues in this case brought
pursuant to the National Labor Relations Act.
O’Hara briefly explained the subject of the Illinois Com-
merce Transportation Law on the record on several occa-
sions. However, in spite of being asked numerous times dur-
ing the hearing by me to explain how the Illinois law was
relevant to the issues in this case, O’Hara failed to make any
explanation of relevance. Even if I am incorrect in his ruling
on relevancy, his rulings were based upon an honest exercise
of his authority to rule on relevancy (Sec. 102.30, Board’s
Rules and Regulations), and not because of any bias against
O’Hara or the Respondent.
Although I do not consider his language to O’Hara harsh,
untactful, or intemperate, the Board has held that the use of
harsh language alone does not evidence bias, prejudice or
lack of objectivity. Ohio Power Co., 215 NLRB 165 (1974).
Additionally, the Board has also held that the resolution of
all issues in favor of one party is insufficient to support a
finding of bias or prejudice. Penn Color, Inc., 261 NLRB
395 (1982); Dimensions & Metal, 258 NLRB 593 (1981).
Even where a transcript in another proceeding showed that
an administrative law judge was impatient and irritated at
having to try a case previously heard by another judge, the
Court in NLRB v. Webb Ford, Inc., 689 F.2d 733, 737 (7th
Cir. 1982), succinctly stated:
Our standard in determining whether an ALJ’s display
of bias or hostility requires setting aside his findings
and conclusions and remanding the case for hearing be-
fore a new ALJ is an exacting one, and requires that
the ALJ’s conduct be so extreme that it deprives the
hearing of that fairness and impartiality necessary to
that fundamental fairness required by due process.
A. O. Smith Corp. v. NLRB, 343 F.2d 103, 110 (7th
Cir. 1965); Tele-Trip Co. v. NLRB, 340 F.2d 575, 581
(4th Cir. 1965). A reading of the transcript makes it
clear that the ALJ was impatient and irritated at having
to re-try the case. While his repeated comments urging
expedition and expressing exasperation reflect regret-
table hostility on the part of the ALJ, and certain com-
ments may be read as evidencing an overly solicitous
attitude towards the General Counsel, we do not believe
the record as a whole reveals such bias and partiality
as to require rejection of his findings and conclusions
in toto.
Nor do we find a sufficient denial of due process in
the ALJ’s adoption and incorporation of portions of the
General Counsel’s brief. While we do not as a general
rule endorse such a practice, see Machlett Laboratories,
Inc. v. Techny Industries, Inc., 665 F.2d 795, 797 (7th
Cir. 1981), we have recognized that it is within the dis-
cretion of the finder of fact so to do, id.; Scheller-Globe
Corp. v. Milsco Manufacturing Co., 636 F.2d 177, 178
(7th Cir. 1980). We find no such abuse of discretion in
the instant case sufficient to warrant remand of the case
on that basis alone.
Lastly, O’Hara and his supporting affiants assert that after
the hearing was conducted, he went to the bench to shake
Judge Gadsden’s hand as a professional courtesy; and that
while shaking hands, Judge Gadsden stated, ‘‘You’re a good
attorney, Mr. O’Hara, but it’s not going to do you any good
here.’’
The above off-the-record assertion is only partially accu-
rate. It is accurate that after the hearing was closed, O’Hara
came to the bench and extended his hand. After such a pas-
sionate argumentative presentation by O’Hara, during which
I was constrained to rule against his positions on many occa-
sions, I was quite pleased to meet and shake hands with
O’Hara. I do not meet any gesture of courtesy by anyone,
on or off the bench, with a discourtesy.
In fact, as I shook O’Hara’s hand, greeting him warmly
with two hands, and as one professional to another profes-
sional, said, ‘‘You’re a fine attorney Mr. O’Hara but you are
in the wrong court [with his state law argument], it cannot
help you here,’’ or as O’Hara recalled it, ‘‘[I]t’s not going
to do you any good here [in a Board proceeding].’’ I do not
conceive such a well-intentioned truth from one professional
to another to constitute bias or an offense, but a complimen-
tary truth consistent with the rulings of the bench. Nonethe-
less, O’Hara passionately exploded, yelling, ‘‘You put that
on the record!, I want you to put that statement on the
record,’’ as if he dared me to put it on the record. I was sur-
prised by his reaction, and as he turned to walk away, I said,
‘‘[Y]ou take things too personally, counsel.’’ He did not look
back as he walked out of the courtroom in apparent anger.
I considered O’Hara’s demand so absurd I was still in a state
of surprise when O’Hara started walking away without a re-
sponse from me.
In my 24 years as a Federal administrative law judge, per-
haps hundreds of lawyers (as few as one, and as many as
seven in one proceeding) have appeared before me through-
out the Eastern United States. O’Hara is the first and only
lawyer to argue to the degree he did about rulings, or to ac-
cuse my rulings as bias and prejudice against himself and his
client. I can recall an interim appeal being filed in only one
proceeding and that was denied by the Board. Naturally, law-
yers have objected to some of my rulings, and when they did
not agree with the ruling, they properly excepted to it and
moved on. Very few, if any, have argued with the bench
over a ruling, and certainly none to the extent of O’Hara.
1031TEAMSTERS LOCAL 722 (KASPER TRUCKING)
Some attorneys are considerably aggressive and chal-
lenging and that it is to be expected. Most judges, including
myself, welcome such aggressiveness and challenge. How-
ever, regardless how aggressive (even approaching obstrep-
erous) counsel may be, I have never lost sight of who are
the parties entitled to justice: the Charging Party and the Re-
spondent, not the attorney or other representative of a party.
Consequently, if ill feelings were to develop during a hearing
against a participating counsel, which experience I have
never encountered, such feelings would never be taken
against those entitled justice.
Prior to the hearing I had never met O’Hara or any mem-
bers of the Respondent, and while O’Hara was at times pas-
sionately argumentative with the bench on rulings, he was
not in my judgment excessively aggressive, especially since
I made what he believed appropriate and reasoned responses
to his arguments and actions. Consequently, there was no
reason for the bench to have any personal or nonpersonal
bias and prejudice against O’Hara or members of the Re-
spondent, who sat approximately 28 feet away from the
bench.
It is noted that O’Hara’s posthearing brief to me is essen-
tially an extension of his passionate arguments and accusa-
tions made during the hearing and in his motion, except in
his brief, he lifted out of context several statements attrib-
uting such attitude to me, sometimes editing sentences and
phrases with sarcasm or profanity (I ‘‘did not give a damn,’’
just screw the Union). Most of the edited statements attrib-
uted to me are not supported by the transcript. Fortunately,
we have a transcript of the proceeding and most of O’Hara’s
passionate accusations have been addressed in this decision
in the actual context in which they were made, if made at
all.
The transcript shows, throughout O’Hara’s cross-examina-
tion of Kasper and his offer of proof of testimony of his wit-
ness, Freedland, concerning, Illinois Commerce Transpor-
tation Law filing requirements, whether or not Kasper filed
with the Illinois Commission as a ‘‘broker’’ and complied
with Illinois law, without O’Hara ever stating or showing the
relevance of such testimony to the issues in this Board pro-
ceeding. His state law argument is apparently his only de-
fense and he made no effort to address the issues in the case.
However, in his posthearing brief, O’Hara for the first
time, partially mentions what appears to be what he consid-
ered the relevancy of Freedland’s testimony and Illinois
Commerce Transportation Law to the issues in this unfair
labor practice proceeding before the Board. If I can separate
any showing of relevancy of O’Hara’s legal arguments in his
brief, from his passionate accusatory injections, attacking my
rulings, it appears he is contending the Illinois filing require-
ments are relevant because Kasper did not file under that law
as a ‘‘broker’’ or otherwise complied with other filing re-
quirements.
Respondent’s Argument
O’Hara contends that Kasper did not file copies of the
Independent Contractor Agreement for Owner-Operators with
the Commerce Commission as required by Illinois law. Nor
were those agreements posted in the cabs of the trucks of
owner-operators that Kasper referred to the Dixon and
Amboy jobsites. Kasper acknowledged that the purpose of
the filing and the posting required under the Illinois Com-
merce Transportation Law number on the side of the trucks
was to enable the general public to inquire of the Illinois
Commerce Commission, and verify whether or not the driver
or the truck is a lessee or lessor filed with the Commission
and, if so, in what capacity.
O’Hara further argued that at the time the picketing took
place (December 1992), Respondent (Union) inquired of the
Illinois Commerce Commission to obtain the complete and
exclusive statement of the terms between Kasper Trucking
and the owner-operators on the jobsites. Respondent learned
from the Commission that only trucks (the motorized power
units and not the drivers) were on file leased to Kasper by
Orval Dobbs, Glen Fadness, and John Leiser; and that the
same equipment leases used by the owner-operator drivers
were also used by Kasper employee drivers. It is noted that
while the latter statement may be true, that does not mean
that Kasper employees were driving such leased trucks on
the subject jobsites here. O’Hara argues that no filings with
the Illinois Commerce Commission indicated that anyone
other than employees were driving trucks with the insignia
of Kasper Trucking on the door at the Dixon and Amboy
jobsites. It is also noted that while the records of the Com-
mission may not have so indicated, it does not follow that
the drivers of the leased trucks were in fact employees of
Kasper.
O’Hara continued that since the Union first inquired of the
Illinois Commerce Commission to determine the leasing ar-
rangement between Kasper Trucking and Dobbs, Fadness,
and Leiser, and was informed by the Commission that only
the trucks, not the drivers, were leased by Kasper; and that
Illinois Commerce Transportation Law provides that under a
lease of motorized power units, the lessee is aware of his re-
sponsibility for direction and control of operators under the
lease. Specifically, he argues the law provides:
Direction and Control of Leased Equipment It shall be
the responsibility of the licensed holder to exercise full
direction and control of all equipment and personnel
used in its operations. Equipment used in its operations
must be owned by or under lease to the carrier. . . .
[t]he lessee of equipment used under authority of a li-
cense issued by the Commission shall have exclusive
possession and control of equipment while it is so used.
Failure to exercise supervision and control of equip-
ment constitutes an illegal transfer of authority, making
both the lessor and lessee subject to sanctions provided
by Section 18(c)–4307 of the law.
Exclusive possession and control
The lessee shall have exclusive possession and control
of leased equipment during all periods when the equip-
ment is operated under the lease. Such exclusive pos-
session and control shall extend also to the drivers of
leased equipment.
Thus, O’Hara’s specific argument of relevancy to his de-
fense appears to be that Kasper labeled himself a ‘‘broker,’’
and he was alleged as such in the amended complaint, in an
attempt to evade his explicit failure to properly file and com-
ply with the Illinois Commerce Transportation Law; that by
failing to so file and comply, Kasper kept the Independent
Contractor Agreement for Owner-Operators in his office, so
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that copies of them could not be carried within the trucks as
Illinois law requires; that making the agreements
unaccessible to the public and not available for inspection in
the trucks when Union Agent Lathrop stopped drivers on the
jobsite, Respondent was misled that the drivers on the jobsite
were employees of Kasper; that the only lease agreements in
the cab of the trucks were leases for only motorized power
units under Illinois law; and that since Respondent could not
see proper agreements for independent contractors, but only
for a lessee, Respondent (Union) was deprived of its ‘‘win-
dow opportunity’’ to picket . . . measured in days or weeks.
O’Hara appears to be arguing that the Union did not know
and could not have ascertained whether or not the owner-op-
erators on the subject jobsites were independent contractors
or employees of Kasper, if Kasper failed to properly comply
with the Illinois filing requirements. In support of his argu-
ment, he cites Mauts & Oren v. Teamsters Local 279, 882
F.2d 1117, 1124 (1989). That is, he argues, since Kasper
Trucking did not file with the Illinois Commerce Commis-
sion for independent owner-operators, as he did for leased
equipment (motorized power units only), the public, includ-
ing the Union, was left to assume that the owner-operators
referred to the jobsites by Kasper were employees of Kasper,
and not independent contractors. O’Hara’s argument also
seems to be contending that under the above-cited Illinois
law, the licensed holder for leased equipment only, shall
have full direction and control of all equipment and per-
sonnel used during all periods of the leased operation, there-
by making them employees of Kasper.
It is noted that if O’Hara had stated the above argument
at the hearing as being relevant to his defense, in all prob-
ability I might have permitted him to continue his examina-
tion of Freedland, as at least being peripherally relevant to
the Respondent’s theory of defense. However, O’Hara re-
fused to state why such law was relevant, leaving the bench
and the opposition to speculate on the unapparent relevance
of Illinois law to the issues in the instant case.
Whether or not Respondent’s proffered testimony and sub-
mitted sections of Illinois law are sufficiently relevant to the
issues in this case, and whether or not they constitute a valid
legal defense for the Union picketing the two subject
jobsites, will be determined by an analysis and consideration
of the credited evidence and the law, both Federal and State,
infra.
Evidence of the Contractual Arrangement and Actual
Performance of Kasper and the Owner-Operators He
Referred to the Dixon and Amboy Jobsites
Company Drivers
The essentially uncontroverted and credited testimony of
Gordon Kasper established that Gordon personally owned
seven semi-dump trucks and three tandem-axel straight
trucks which he leases to Kasper Trucking, Inc., under an ar-
rangement wherein he personally makes the payments on
purchase loans of the trucks. Kasper Trucking is responsible
for all maintenance and the operation of the trucks. That is
Kasper Trucking has the following responsibilities for the
trucks:
1. License plates
2. Insurance—collision and liability, including cargo
losses.
3. Fuel tanks for gasoline and a garage where light repairs
are performed by one mechanic hired by Kasper Trucking to
perform lubrications, oil and tire changes, brake shoes, drums
and lights.
4. A lot where trucks are parked.
5. Other major repairs are best performed by outside motor
services at the expense of Kasper Trucking.
6. Pay drivers an hourly wage.
Kasper Trucking’s busiest season is between April and
Thanksgiving when it employs 10 drivers to operate its
trucks. Five to eight drivers are laid off during the winter
months but laid-off drivers are recalled in the spring.
Kasper Trucking drivers are represented by Teamsters
Local 325 and the Local and Kasper have a collective-bar-
gaining agreement covering its employed drivers operation.
However, Local 325 is not involved in this dispute. Kasper
Trucking selects and hires its drivers and pays them wages
and benefits in accordance with the collective-bargaining
agreement. It makes benefit contributions to a Health, Wel-
fare, and Pension plan, and deducts social security, income
taxes, union dues, and garnishments from the wages of its
drivers. The drivers work full time and sometimes as much
as 50 hours a week. They receive time and a half for over-
time and Saturday work and Kasper provides them with a W-
2 form at the end of the year.
Driver work assignments with information regarding des-
tinations, etc., are given by Gary Kasper, son of Gordon
Kasper, a day ahead of time and drivers report to the Com-
pany’s facility (lot) where they have coffee or smoke before
commencing the workday. Before departing the drivers are
responsible for checking the oil, water, and tires and warm-
ing the engine of their truck. Their worktime begins when
they get in the truck to warm it up and ends when they re-
turn their truck to park it. At the close of the workday they
wash their trucks with a water hose, soap, and pail, and fuel
the truck at the pump, all provided by Kasper Trucking.
Kasper’s drivers have no out-of-pocket expenses related to
their work, although Kasper will reimburse them for an occa-
sional toll paid by the driver.
Both Gordon Kasper and his son, Gary Kasper, make the
assignments of company drivers and they keep in touch with
these drivers by a two-way radio installed in each company
truck. The foreman of the construction contractor directs the
drivers where to pick up and deliver materials hauled. If a
driver has a problem on the jobsite, the contractor’s foreman
will inform Gordon Kasper by radio.
Lastly, company drivers may not refuse to work on any
particular day or refuse to perform any hauling assignment
without being subject to discipline. They may not work for
any other employer during the construction season.
Owner-Operator Drivers
Kasper Trucking uses the services of approximately 70 in-
dividuals, known as owner-operators, who own and drive
their own trucks. Two of these individuals own two trucks
and one of them is driven by the son of Gordon Kasper,
Gary Kasper. Some of the owner-operators are sole propri-
etors, partnerships, or incorporated. The owner-operators
lease both the truck and the driver to Kasper Trucking. Occa-
sionally an owner-operator will permit another person to
drive his truck, and the lease agreement contains nothing
prohibiting such practice. Nonetheless, only one or two
1033TEAMSTERS LOCAL 722 (KASPER TRUCKING)
owner-operators have other drivers, and most of them have
signs painted on their trucks indicating the truck is leased to
Kasper Trucking, showing Kasper’s registration number with
the Illinois Commerce Commission. Such owner-operators
are responsible for the following:
1. Truck purchase financing.
2. Truck maintenance and repairs.
3. Obtaining license plates, liability and collision insur-
ance, if they so elect.
4. They are not covered by Kasper Trucking’s Workmens
Compensation insurance as are drivers employed by Kasper.
5. They must purchase occupational hazard insurance
against on-the-job injury.
6. They are not covered by the collective-bargaining agree-
ment between Kasper and Local 325.
7. They are simply a party to a lease, an owner-operator
agreement between Kasper and themselves, for which they
are paid 85 percent of the gross amount of what is received
by Kasper from the contractor.
8. Kasper bills the contractor for all trucking services on
the basis of either mileage ton or hourly services, depending
upon the nature of the job.
9. Each owner-operator is signatory to an equipment lease
with Kasper Trucking and that is a printed lease form re-
quired by the Illinois Commerce Commission with which
such lease is filed.
10. The form identifies Kasper Trucking as the lessee and
the owner-operator as the lessor, and provides for the identi-
fication and description of the truck leased.
11. The form also contains a statement of the percent of
gross revenue which reflects the owner-operator’s compensa-
tion for the leased equipment.
12. Each owner-operator is signatory to an agreement with
Kasper Trucking, captioned Independent Contractor Agree-
ment for Owner-Operators. The agreement provides that: (a)
the owner-operator directs the operation of the leased vehi-
cle, with respect to when, how, and by whom the vehicle is
to be loaded, unless directed by the customer; (b) when and
how the vehicle is to be financed; (c) how it is to be re-
paired, maintained, and garaged; (d) determines the method,
means, and manner of performance; (e) is free to sublease
his equipment to other carriers; (f) is responsible for payment
of all Federal, state, and local taxes; (g) social security and
unemployment insurance taxes; (h) licensing vehicles; and (i)
maintaining insurance on vehicles.
The agreement with Kasper also provides that the owner-
operator is free to refuse any load and any job offer by
Kasper trucking; that the operator is not required to give
Kasper Trucking any priority over any other party with
whom the owner-operator does business; owner-operators
may secure their vehicles from any source and arrange their
own financing; they may drive their own vehicle or designate
other drivers; they submit billings for their services to Kasper
Trucking, which the latter must pay within 10 to 14 days
thereafter; Kasper pays them 85 percent of the gross revenue
charged the customer; and gross revenue is determined by
the published tariffs which Kasper Trucking files with the Il-
linois Commerce Commission.
The owner-operators receive their assignments by calling
Kasper Trucking in the evening to learn about available work
the following day. Kasper Trucking offers them work accord-
ing to the type of truck that is needed and the owner-operator
may inquire about the nature of the work. The owner-oper-
ator is free to decline work or to refrain from calling to in-
quire about work. If an owner-operator accepts a job, he is
free to leave the job by simply informing the contractor’s job
foreman, without any adverse consequences. They may have
signs on their trucks identifying themselves as owner and op-
erator; they obtain their own license plates, insurance, fuel,
tires, and mechanical work.
Kasper makes no contributions to any kind of pension or
welfare fund on behalf of owner-operators. Kasper sends
owner-operators a W-2 tax form at the end of the year.
When on the jobsite, the construction contractor’s foreman
tells owner-operators where to park, and where to dump or
pickup materials. Kasper Trucking has no radio means of
communicating with owner-operators when they are on the
job as it does with its own employee drivers. Any problem
arising on the job with owner-operators is worked out be-
tween the owner-operator and the job foreman. Kasper may
not learn about the problem until the end of the day or he
may be asked not to refer an owner-operator to the contractor
again.
Secondary Employer
In December 1992 Rockford Blacktop contracted with the
State of Illinois to rebuild Route 2 in Dixon, Illinois, which
necessitated the removal of materials. Kasper Trucking was
hired by Rockford Blacktop to haul materials away from the
jobsite and dispose of it at two sites, one adjacent to the job-
site and another 1-1/2 miles away, and also to haul material
from a quarry 5 miles away, to the jobsite. Kasper Trucking
provided trucking services for Rockford Blacktop pursuant to
a verbal agreement in accordance with the preestablished
published rates (tariffs) on file at the office of the Illinois
Commerce Commission, which provides for lease rates on ei-
ther the ton/mile or by the hour. Kasper Trucking did not as-
sign any of its employee drivers to the Dixon jobsite, but
only the following owner-operators:
Gary Hinde Truck #801
Orval Dobbs Truck #834
John Leiser Truck #835
Kevin Finner Truck #820.
On or about December 18, 1992, union agent of Local
722, R. G. Lathrop visited the jobsite at Dixon and report-
edly asked the drivers to show him their union dues receipts.
Lathrop testified that he told the drivers that Kasper Trucking
did not have a contract with Respondent Union.
Myron Rafferty of Rockford Blacktop testified without
dispute that on the same day, December 18, 1992, Lathrop
called him and told him Kasper Trucking ‘‘[w]as not right
with the Union; and in order for us [Rockford Blacktop] to
use him [Kasper Trucking] down there, we had to make him
right.’’ Rafferty told Lathrop to contact Kasper Trucking
himself.
Lathrop acknowledged he put up picket signs that same
day (December 18, 1992) which read:
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
TLU 722
Our Only Dispute
Is with Kasper Trucking
Teamsters of TLU 722
&
Has no Agreement.
Lathrop acknowledged that when he put up the above
picket sign at the Dixon jobsite December 18 and 21 and
January 11, 19, and 26, the backhoe operator refused to work
and the trucks could not be loaded. In fact the evidence
shows the truckdrivers worked only 5 hours instead of the
usual 8 hours the first or second day. As a result of the work
stoppage, the drivers were sent home early on December 21
and January 11 and 19. Rafferty went to the jobsite on Janu-
ary 26, 1993, and operated the backhoe himself.
During the picketing in January and December, Union
Agent Gerald Reilly sent an undated letter bearing his signa-
ture (G.C. Exh. 10) to Kasper Trucking with a collective-bar-
gaining agreement, a Health & Welfare and a Pension par-
ticipation agreement enclosed for Kasper to sign. Thereafter,
Gordon Kasper called Reilly at the LaSalle, Illinois hall and
learned that he was in Las Vegas. He called Lathrop at the
Dixon office two or three times and left messages from him-
self, but he did not receive a return call. Lathrop testified
that in January, Gordon Kasper reached him by telephone
and he asked Kasper to sign a contract with Respondent
Union.
In a letter dated January 12, 1993 (G.C. Exh. 16) the attor-
ney for Kasper Trucking advised Respondent Union that
Kasper Trucking engaged only independent owner-operators
to perform all trucking work on the Dixon jobsite.
In a letter dated January 14, 1993, Respondent Union’s at-
torney demanded evidence to support the assertion that the
independent owner-operator drivers on the jobsite were inde-
pendent contractors. In reply letters dated January 15 and 18,
Kasper Trucking’s attorney provided copies of Independent
Contractor Agreement for Owner-Operators executed be-
tween the subject Drivers and Kasper (G.C. Exhs. 16–19).
Rockford Blacktop also had a contract to remove under-
ground storage tanks and haul away contaminated soil from
a jobsite near Amboy, Illinois. Rockford Blacktop contracted
with Kasper Trucking to perform the hauling requirements to
a landfill 40 miles away. Kasper Trucking did not send any
of its own employee truckdrivers to the Amboy jobsite, but
on February 3, 1993, it sent only the following owner-opera-
tors:
Dick Brown Truck #603
Doug Fyke Truck #633
David Coniglio Truck #646
On February 4, 1993, Respondent Union sent pickets car-
rying the same picket signs to the Amboy jobsite. On the
same day (February 4), Kasper Trucking’s attorney sent a
letter (G.C. Exh. 20) to Respondent’s attorney, advising that
Kasper Trucking did not send any of its truckdriver employ-
ees to the Amboy jobsite, but that only the independent con-
tractor owner-operators named in the letter would perform
the work on that jobsite. On the same day, Rockford Black-
top and Kasper Trucking filed the charges in the instant mat-
ter.
Based upon the foregoing essentially uncontroverted evi-
dence, counsel for the General Counsel argues that the
owner-operators sent by Kasper Trucking to the Dixon and
the Amboy jobsites were not employees of Kasper, but Inde-
pendent Contractors. In support of her position she cites
Teamsters Local 525 (Helmkamp Construction), 271 NLRB
148, 150 (1984), enfd. 773 F.2d 921 (7th Cir. 1985); Scott
& Culpepper, Independent Contractors of Employees: The
view from the National Labor Relations Board, Labor Law
Journal 395 (July 1993), and cases cited therein.
Counsel for the General Counsel also cites Associated
General Contractors, 290 NLRB 522, 528–530. In Associ-
ated General Contractors, the criteria for determining inde-
pendent contractor status is set forth therein by the Board.
The General Counsel’s evidence above clearly satisfies most
of the criteria enunciated therein, including the daily hauling
arrangement between Kasper Trucking and the owner-oper-
ator drivers, which is generally an oral agreement concluding
with the broker, subcontractor (Kasper) making the referral.
Independent contractors never acquire seniority and inde-
pendent owner-operators, as here, submit their bills to the
broker or subcontractor (here Kasper), who pays the owner-
operators. The contractor here, Rockford Blacktop, did not
pay the owner-operator truckdrivers on the Dixon and
Amboy jobsites. In Associated General Contractors, the
independent owner-operators were found to be independent
contractors with Board approval.
However, prior to making my determination on the ‘‘em-
ployee-independent’’ contractor status of the owner-operators
at the Dixon and Amboy jobsites in the instant matter, I will
now consider the Respondent’s evidence and legal argu-
ments, in conjunction with the above evidence and legal ar-
guments of counsel for the General Counsel. This is in ac-
cordance with the Board’s evaluative test for determining
‘‘employee-independent contractor’’ status. Specifically, the
Board and the courts have repeatedly held that ‘‘the total fac-
tual context’’ and ‘‘all the incidents of the relationship must
be assessed and weighed with no one factor being decisive.’’
NLRB v. United Insurance Co., 390 U.S. 254, 258 (1968);
Associated General Contractors of California, 280 NLRB
698 (1986); Democratic Union Organizing Committee, Local
777 v. NLRB, 603 F.2d 862 (D.C. Cir. 1979); Teamsters
Local 525 (Helmkamp Construction), supra; Scott Culpepper,
Independent Contractors or Employees, The View of the Na-
tional Labor Relations Board, Labor Law Journal 395 (July
1993), and cases cited therein.
The Law and the Evidence
During the instant hearing O’Hara requested that I take ad-
ministrative notice of provisions of Illinois Commerce Trans-
portation Law, copies of which he did not supply me with
during the hearing. His request for administrative notice was
denied because he had failed and refused to clearly show the
relevance of such law to the issues involved, or to state his
theory of defense in the instant Board proceeding.
However, since O’Hara has furnished a copy of what he
deems the pertinent provisions of the Illinois regulations or
law, and has stated some semblance of relevance with re-
spect to his theory of defense in his posthearing brief to me,
I reverse his prior denial and take administrative notice of all
the subject Illinois law or regulations submitted by counsel,
for purposes of analyzing and considering its relevancy
1035TEAMSTERS LOCAL 722 (KASPER TRUCKING)
and/or its merit in conjunction with all the evidence and ar-
guments of record on ‘‘employee or independent contractor’’
status.
Correspondingly, for the same purposes, I will treat Re-
spondent’s proffer as O’Hara stated on the record what
Freedland would have testified about if he had been per-
mitted to testify.
Illinois Law
According to O’Hara, pertinent provisions of Illinois law
provide as follows:
‘‘broker’’ means any person other than a motor carrier
of property, that arranges, offers to arrange, or holds
itself out, by solicitation, advertisement, or otherwise,
as arranging or offering to arrange for hire transpor-
tation of property or other services in connection there-
with by a motor carrier of property which holds or is
required to hold a license issued by the [Illinois Com-
merce Commission] . . . .
It shall be unlawful for any person:
1. To act as a broker without a license in good standing
issued to it by the [Illinois Commerce Commission];
. . . .
6. To act as a broker in connection with transportation
by a person other than an authorized common carrier of
property by motor vehicle unless the carrier does not
require authorization to transport the shipment; . . . .
I also reverse his denial and take administrative notice of
a ‘‘Certificate,’’ certified by the Illinois Commerce Commis-
sion, which O’Hara says in his brief specifically states that:
[t]o date Kasper Trucking has not applied for an intra-
state Brokers License.
O’Hara argues that more curiously still, immediately sub-
sequent to the commencement of the Union’s picketing,
Kasper provided contracts to the Board indicating Kasper
was acting as a ‘‘broker,’’ and the Board alleged Kasper was
acting as a broker at all times herein. While O’Hara’s above
observations may or may not be correct, it is not unreason-
able to consider the possibility that after the Union appeared
on the jobsite, Kasper might have been alerted that he had
not filed, or that he had neglected to provide the Board with
copies of the contracts indicating he was acting as a
‘‘broker,’’ and if so, possibly, the Board simply updated its
allegations by amendment, that Kasper was acting as a
‘‘broker.’’ However, all of these probabilities or possibilities
are conjectural and insignificant to this Board proceeding, in
the absence of relevant evidence supporting them.
Kasper argues that more curiously still, is the fact that
Kasper Trucking’s ‘‘Independent Contractor Agreement for
Owner-Operators,’’ provided to the Union at the time of the
picketing and admitted in evidence, specifically provides:
[t]his agreement and any dispute thereunder shall be
governed by the laws of the State of Illinois . . . .
Without finally construing the above language on the
agreement between Kasper and the owner-operators on the
Dixon and Amboy jobsites, it appears that such language
could have had reference to any contractual or other civil
disputes between the parties to the agreement would be gov-
erned by the laws of the State of Illinois. It hardly could
have meant any unfair labor practice dispute between the
Union and Kasper Trucking, and Rockford Blacktop arising
under the National Labor Relations Act would be governed
by the laws of the State of Illinois. If the above language
was intended to mean what counsel appears to be advocating
it means, the parties should have used explicit language, in-
cluding disputes arising under the National Labor Relations
Act, even if such language might not have been enforceable.
The instant dispute arose under and was brought before the
National Labor Relations Board. When the bench asked
counsel for Respondent did he have legal authority for the
meaning he advocated, he said, ‘‘[Y]es,’’ but he did not have
it with him.
Another provision of Illinois law for which O’Hara made
his blanket request that I take administrative notice is section
18(c)–1113 of the Illinois Commerce Transportation Law, a
copy of which he did not show or furnish me at the hearing.
This section too was a part of my denial because Respondent
had failed or refused to state the relevance of the Illinois
law, or his theory of defense, to the issues in this proceeding.
Notwithstanding, the above-cited section of the Illinois law,
which O’Hara provided in his posthearing brief to me, clear-
ly sets forth its legislative purpose as follows:
[i]t is hereby declared to be the policy of the State of
Illinois to actively supervise and regulate commercial
transportation to persons and property within this State.
This policy shall be carried out in such manner as to:
(a) promote adequate, economical, efficient and respon-
sive commercial transportation service, with adequate
revenues to carriers and reasonable rates to the public,
and without discrimination; (b) recognize and preserve
the inherent advantages of, and foster sound economic
conditions in, the several modes of commercial trans-
portation in the public interest; (c) develop and preserve
a transportation system properly supportive of the broad
economic goals of the State of Illinois; (d) create eco-
nomic and employment opportunities of commercial
transportation and affected industries through economic
growth and development; (e) encourage fair wages and
safe and suitable working conditions in the transpor-
tation industry; (f) protect the public safety standards
and insurance; (g) insure a stable and well coordinated
transportation system for shippers, carriers and the pub-
lic; (h) cooperate with the Federal Government, the sev-
eral states, and with the organizations representing state
and commercial transportation service providers and
consumers.
The transportation law also regulates the leasing of motor
vehicle equipment and personnel by for-hire motor carriers
as follows:
[t]he Commission may prescribe requirements for the
leasing of equipment, with driver, and of equipment
with driver to or by a motor carrier of property; [pro-
vided that such regulation shall not encompass the leas-
ing of equipment, without drivers, from a bona fide
equipment leasing company to a motor carrier of prop-
erty. Such leases shall be in writing, constitute a com-
plete and exclusive statement of terms between the par-
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ties, specify the compensation for the lease and the du-
ration of the lease, be signed by the parties thereto, be
filed with the Commission, and be carried in each
motor vehicle covered thereby.
Thus, the objectives and purposes of the Illinois law gov-
erning transportation of common carriers and their owner-
ship, leasing and transferring of equipment (motorized power
units) only, or with drivers too, appears to attempt to enable
the State of Illinois to actively supervise and regulate com-
mercial transportation of persons and property within the
State so as to promote adequate, economical, efficient, and
responsive commercial transportation service, with adequate
revenues to carriers at reasonable rates to the public without
discrimination, etc., including to cooperate with the Federal
Government, and the several States.
Federal Law
Comparatively, Section 1, Subsection 151 of the National
Labor Relations Act sets forth the primary objectives and
purposes of the Act, as pertinent herein as follows:
Section 1, subsection 151: the denial by some employ-
ers of the right of employees to organize and the refusal
by some employers to accept the procedure of collec-
tive bargaining lead to strikes and other forms of indus-
trial strife or unrest which have the intent or the nec-
essary effect of burdening or obstructing commerce by
(a) impairing the efficiency, safety or operation of the
instrumentalities of commerce; (b) occurring in the cur-
rent or commerce; (c) materially affecting, restraining,
or controlling the flow of raw materials or manufac-
tured or processed goods from or into channels of com-
merce, or the prices of such materials or goods in com-
merce; or (d) causing diminution of employment and
wages in such volume as substantially impair or disrupt
the market for goods flowing from or into the channels
of commerce.
In keeping with the above-stated general purposes and ob-
jectives of the Act, the amendment, Section 8(b)(4)(i) and
(ii)(B) specifically provides:
(b) [Unfair labor practices by labor organization] It
shall be an unfair labor practice for a labor organization
or its agents—
. . . .
(4)(i) to engage in, or to induce or encourage any in-
dividual employed by any person engaged in commerce
or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise han-
dle or work on any goods, articles, materials, or com-
modities or to perform any services; or (ii) to threaten,
coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case
an object thereof is—
. . . .
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing in
the products of any other producer, processor, or manu-
facturer, or to cease doing business with any other per-
son, or forcing or requiring any other employer to rec-
ognize or bargain with a labor organization as the rep-
resentative of his employees unless such labor organi-
zation has been certified as the representative of such
employees under the provisions of section 9 [section
159 of this title]: Provided, That nothing contained in
this clause (B) shall be construed to make unlawful,
where not otherwise unlawful, any primary strike or
primary picketing . . . . [Emphasis added.]
Thus, it is therefore clear that unlike the above-described
statute or regulations of Illinois, Section 1, Subsection 151
and Section 8(b)(4)(i) and (ii)(B) of the Federal Act is de-
signed to prohibit any union involved in a dispute with a pri-
mary employer (Kasper here) who refuses to recognize, join,
or sign a contract with the union, to enmesh a secondary em-
ployer (Rockford Blacktop here) and other neutral persons
(Dobbs, Fadness, and Leiser, etc.) in its dispute with the pri-
mary business employer (Kasper), by picketing the jobsite of
the secondary business (Rockford Blacktop) where the pri-
mary company (Kasper) is not present, causing a disruption
in work progress of the secondary business (Rockford Black-
top), and having the intent or necessary effect of burdening,
obstructing, or materially affecting commerce, by impairing
efficiency, restraining (work) or controlling the flow of mate-
rials and services in commerce.
It is unequivocally clear that the objectives of the Federal
law are totally different from the objectives of the Illinois
law.
There is support in law of the statement by counsel for the
Charging Party that ‘‘government constitutes supervision by
the State and not by the employer,’’ citing Don Bass Truck-
ing, 275 NLRB 1172 (1985), with respect to employee
verses independent contractor status, where the Board com-
menting on Air Transit, 271 NLRB 1108, 1110 (1984) stat-
ed:
Government regulations constitute supervision not by
the employer but by the State, the courts reasoned that
more extensive governmental regulation afford less op-
portunity for control by the pugative employer because
the employer cannot evade the law either and in requir-
ing compliance with the law he is not controlling the
driver.
A reading of Don Bass, supra, shows that the state regula-
tion there, constituted supervision by the State of lessee and
lessor employers and their employees, not of independent
contractors utilized by them, as the drivers there were found
to be.
More specifically, here, the first sentence of section 18(c)–
1103 of the above-described Illinois Commerce Transpor-
tation Law specifically states:
[i]t is hereby declared to be the policy of the State of
Illinois to actively supervise and regulate commercial
transportation within the State.
In Yellow Cab Co., 229 NLRB 1329 (1977), the owner-
operators there, unlike the independent owner-operators here,
were not found to be independent contractors because the
employer there had adopted the State’s regulations as an en-
forceable part of the contract with its leased drivers, and it
had a long list of requirements for the leased drivers for
1037TEAMSTERS LOCAL 722 (KASPER TRUCKING)
which the employer (Yellow Cab) could terminate the drivers
for failure to comply therewith. Because of the enormous
amount of control the employer possessed and/or exercised
over the leased drivers, they were found to be employees of
employer, Yellow Cab.
However, the Independent Contractor Agreement for
Owner-Operators between Kasper and the drivers on the
Dixon and Amboy’s jobsites contained no enforceable part of
the State’s regulations nor a long list of employer require-
ments by Kasper Trucking, for which Kasper could terminate
or discipline those drivers. Therefore Yellow Cab, supra, is
not applicable to the facts in the instant matter.
Findings
Thus, after carefully considering and evaluating all the es-
sentially uncontroverted and credited evidence of record, in-
cluding Illinois Commerce Transportation Law provided by
Respondent, as well as the proffered testimony of Freedland,
I find that pursuant to oral agreement, Kasper Trucking
agreed to refer owner-operator truckdrivers to the Dixon and
Amboy jobsites of contractor Rockford Blacktop; that both
jobsites are within the organizational jurisdiction of Respond-
ent Union; that Kasper Trucking referred only owner-oper-
ator drivers to the Dixon and Amboy jobsites; that Respond-
ent Union told Rockford Blacktop it could not use the re-
ferred owner-operator drivers on the jobsite unless it (Rock-
ford Blacktop) made Kasper Trucking right with Respondent
Union; and that Respondent Union asked Kasper Trucking to
sign a contract but the latter refused to do so.
In order to induce and encourage individuals employed by
Rockford Blacktop to cease doing business with Kasper
Trucking, Respondent Union proceeded to picket Rockford
Blacktop’s jobsites at Dixon and Amboy, even though Re-
spondent Union did not have a dispute with Rockford Black-
top, and Kasper Trucking was not present on either the
Dixon or Amboy jobsite; that Kasper Trucking’s attorney ad-
vised Respondent Union that the drivers referred to the two
jobsites were independent contractors and specifically not
employees of Kasper Trucking; that upon request of attorney
for Respondent Union, attorney for Kasper Trucking sent
signed copies of the Independent Contractor Agreement for
Owner-Operators to the attorney for Respondent Union; that
Respondent Union nevertheless continued to picket both
jobsites of secondary employer Rockford Blacktop, thereby,
causing the backhoe operator to walk off the job, which re-
sulted in work interruption at both jobsites on several days
in either December 1992 and January and February 1993;
that the object of the picketing conduct by Respondent Union
was to cause secondary employer Rockford Blacktop and the
several neutral independent contractor owner-operator driv-
ers, to cease doing business with primary employer, Kasper
Trucking; that the evidence clearly established that all the
drivers referred by Kasper Trucking to the Dixon and Amboy
jobsites were independent contractors under the Board’s cri-
teria, and not employees of Kasper Trucking; that the Illinois
law defining possession and supervisory control over leased
equipment and the drivers, has no force and effect upon the
National Labor Relations Act’s definition of ‘‘employee’’
and the Board’s established criteria for determining ‘‘inde-
pendent contractor’’ status; and that by picketing both
jobsites of Rockford Blacktop, the secondary employer, and
other neutral persons, including the independent contractors
who were engaged in commerce or in an industry affecting
commerce, Respondent Union has threatened, coerced, and
restrained Rockford Blacktop, and other neutral persons (re-
ferred independent contractor drivers) engaged in commerce
or an industry affecting commerce, in violation of Section
8(b)(4)(i) and (ii)(B) of the Act.
Ruling on Counsel for Respondent’s Motion for the
Administrative Law Judge to Disqualify Himself and
Grant Respondent a New Hearing
A careful review of the entire transcript in the instant pro-
ceeding does not support counsel for Respondent’s charges
that my rulings and comments demonstrated personal bias
and/or prejudice against counsel for Respondent, or the Re-
spondent, or that Respondent was deprived of due process of
law.
Nor does the transcript reflect that I displayed animosity,
antagonism, bellicosity, or hostility to O’Hara throughout the
proceeding.
The transcript does, however, show that I made a patient
and earnest effort to keep counsel for Respondent’s cross and
direct examination on the track of relevance, in the face of
counsel’s passionate and argumentative persistence to interro-
gate witnesses on matters patently irrelevant to the issues in
this case. Under these circumstances, my comments were ap-
propriate and reasoned responses to the numerous questions
and arguments by counsel for Respondent, while the latter
failed and refused to state the relevancy of his interrogation,
even though he was repeatedly asked to do so.
Consequently, since O’Hara’s motion failed to state in
substantive detail, and an examination of the record fails to
support the numerous charges of personal bias and/or preju-
dice against O’Hara and the Respondent, or that the Re-
spondent has been denied due process of law, his motion for
me to disqualify myself and grant Respondent a new trial
should be denied.
Accordingly, counsel for Respondent’s motion for dis-
qualification and a new trial is denied.
The Test
A part of the total factual context in this case is Illinois
Commerce Transportation Law and Respondent’s legal argu-
ments in reference to it, as they relate to the Board’s criteria
for determining the kinds and the amount of supervisory con-
trol Kasper Trucking possessed and/or exercised over owner-
operator truck drivers at Dixon and Amboy, in determining
whether they are ‘‘employees’’ of Kasper or ‘‘independent
contractors.’’
In attempting to address this question, counsel for Re-
spondent cites sections of Illinois Commerce Transportation
Law which essentially provide that any person other than a
motor carrier of property who arranges for hire, transpor-
tation of property by a motor carrier is a ‘‘broker’’ and is
required to hold a license issued to perform such service by
the Illinois Commerce Commission; and that it shall be un-
lawful to act as a ‘‘broker’’ without such a license.
Respondent argues that Kasper Trucking is not licensed as
a ‘‘broker’’ and he is not a broker under Illinois law, even
though the amended complaint herein describes Kasper as a
broker. Notwithstanding, it is noted that section 2(d) of the
complaint also alleges that Kasper is a contractor in the con-
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
struction industry hauling construction materials. Also section
2(g) of the complaint alleges Kasper is a subcontractor of
owner-operators referred to the Rockford Blacktop Dixon
and Amboy jobsites. As far as the complaint and the amend-
ed complaint are concerned, it appears to be immaterial to
the issues in this case whether or not Kasper is lawfully or
unlawfully a ‘‘broker’’ under the Illinois law. I make no de-
termination on whether or not Kasper is a broker, lawfully
or unlawfully. I will determine whether the drivers referred
to the jobsites were ‘‘employees’’ of Kasper or ‘‘independent
contractors’’ under the Board’s standards.
The crucial question in this case is whether Kasper Truck-
ing as ‘‘broker,’’ ‘‘subcontractor,’’ or any other business des-
ignation in which it is an employer engaged in commerce or
in an industry affecting commerce, referred owner-operators
to the Dixon and Amboy jobsites. The significance of the
status of the referred owner-operators is whether or not they
are employees of Kasper or independent contractors, not
whether Kasper is a ‘‘broker’’ pursuant to Illinois filing
laws. Consequently, whether or not Kasper is a ‘‘broker’’
under Illinois law may be relevant to an Illinois proceeding,
but irrelevant to the alleged union conduct in this Board pro-
ceeding.
In an effort to establish that Kasper had sufficient control
over the owner-operators he referred to the two subject
jobsites, constituting them employees of Kasper, Respondent
cites another section of Illinois law: Direction and Control
of Leased Equipment. In this regard, the Illinois law in es-
sence provides that the lessee of leased equipment (trucks)
shall have exclusive possession and control of the leased
equipment (trucks) during all periods of the lease, and such
possession and control shall extend also to the drivers of the
equipment.
The evidence of record shows that Kasper had authority
from the Illinois Commerce Commission as a lessee of Mo-
torized Power Units (equipment-trucks), but he did not have
a lease for drivers of the trucks. However, even without a
lease for drivers, Respondent argues that the above-cited law
gave Kasper exclusive possession and control over the
owner-operators he referred to the two subject jobsites. Even
if Kasper Trucking did not have a lease for drivers, the fact
that Illinois law conferred the authority upon it to direct and
control leased equipment, as well as the drivers, does not
mean that Kasper actually possessed and/or exercised such
authority. In fact the above uncontroverted evidence of
record shows that Kasper did not have or exercised exclusive
possession and control over the equipment or the owner-op-
erators referred to the subject jobsites. Again, no determina-
tion is made here on whether or not Kasper fully complied
with the Illinois law, cited by Respondent. As pointed out
below in this decision, the purposes and objectives of the
cited Illinois statutes and regulations are decidedly different
from the objectives and purposes set forth in the National
Labor Relations Act and applied in Board and court deci-
sions construing and enforcing that Act.
Although Illinois law requires agreements between owner-
operators and brokers, lessees, possibly subcontractors to be
filed with the State’s Commerce Commission and a copy of
the terms of such agreements to be posted in the cabs of the
truck, as notice to the public of the contractual lease agree-
ment between the parties, the fact that copies of such agree-
ments were not filed with the Illinois Commission or posted
in the cabs of the trucks of the owner-operators at the two
subject jobsites does not mean that such drivers were ‘‘em-
ployees’’ of Kasper. Without deciding but assuming both
Kasper and the owner-operators referred to the two subject
jobsites did not comply with the said filing and posting re-
quirements of Illinois, this would appear to be a matter for
the State of Illinois and not the National Labor Relations
Board.
In the absence of a showing of relevance, the primary con-
cern of the Board is whether the subject owner-operators are
employees of Kasper or independent contractors, irrespective
of whether or not they are in compliance with Illinois law.
There may be many lessees and lessors of leased motor
equipment operating as owner-operators or independent con-
tractors in the State of Illinois, who have not complied with
the filing requirements of the State. However, this does not
mean that they are not operating de facto, as broker, subcon-
tractor or independent contractor.
Also, assuming, arguendo, that Kasper and the owner-op-
erators had complied with all the filing requirements cited by
counsel for Respondent, but nevertheless operated as broker,
lessee, lessor, subcontractor, or independent contractors. If
the Union under such circumstances picketed the secondary
contractor employer (Rockford Blacktop), would the fact that
the owner-operator, lessee, lessor, broker, subcontractor, or
independent contractor met all filing and posting require-
ments of Illinois, excuse the Union from picketing the sec-
ondary contractor here (Rockford Blacktop). I think not, and
this is one of the reasons that I find the Illinois filing laws
and Respondent’s arguments irrelevant to this proceeding.
Finally, Respondent, citing the court’s language in Mauts
& Oren, Inc., 882 F.2d 1117 (7th Cir. 1989), that ‘‘picketing
of common jobsite has substantial foreseeable secondary ef-
fects on secondary employer, but such conduct does not vio-
late the Act unless the employer establishes that the Union
intended to cause disruption of the secondary business.’’
The picketing by the Union in the instant matter did not
occur at a common jobsite. Both the jobsite at Dixon and the
one at Amboy were the jobsites of the job contractor, Rock-
ford Blacktop, a secondary employer. Kasper Trucking, pri-
mary employer with which Respondent Union had a dispute,
was not present at either the Dixon or Amboy jobsite, but
operated several miles away out of Poplar Grove, Illinois.
Consequently, this aspect of Mauts & Oren, supra, does not
support Respondent’s argument and it is not applicable to the
facts in the instant matter.
Also citing Mauts & Oren, Respondent appears to be argu-
ing that since the Independent Contractor Agreement for
Owner-Operators was not filed with the Commerce Commis-
sion, the owner-operators themselves did not file with the Il-
linois Commerce Commission as the law required, and a
copy of those agreements were not posted in the cabin of the
trucks of the drivers when Union Agent Lathrop stopped the
drivers on the jobsite, the Union could not have ascertained
the terms of the agreement and was thereby deprived of a
window opportunity, so much for ‘‘allowing the Union suffi-
cient room to maneuver in the ambiguous legal environment
in which it must operate.’’ Respondent does not elaborate on
this argument but the factual situation in Mauts & Oren is
distinguished from the facts here, in that there, the workers
and service people of both the secondary employer and the
primary employer utilized the same neutral gate, and the
1039TEAMSTERS LOCAL 722 (KASPER TRUCKING)
Union could not exclusively target the workers of the pri-
mary employer from the employees of the secondary em-
ployer. Here, the primary business (Kasper Trucking) was
not present at the jobsites in Dixon or Amboy, but miles
away in Poplar Grove.
Respondent probably cited Mauts & Oren, to analogize the
‘‘window opportunity’’ defense referred to in that case, with
its contention that Respondent could not determine the status
of the owner-operator drivers at the Dixon and Amboy
jobsites, because the records of the Illinois Commerce Com-
mission showed neither Kasper nor the owner-operators had
properly complied with the filing and posting requirements
of the Commission. Therefore, Respondent Union should not
be at fault for assuming the owner-operators were employees
of Kasper and picketing the jobsites at Dixon and Amboy.
This argument, however, is not meritorious under the cir-
cumstances in this case. It was certainly appropriate for Re-
spondent to have checked with the Commission in its efforts
to learn the actual status of the owner-operators on the Dixon
and Amboy jobsites. Notwithstanding, I am not persuaded
that inadequate compliance with the Commission’s filing and
posting requirements would ipso facto mean that the owner-
operators are employees of Kasper; that Respondent had no
alternative means for learning the status of the drivers; or
that Respondent was totally and innocently unaware of their
actual status.
When the picketing commenced at the Dixon jobsite, the
picket signs clearly stated that Kasper Trucking did not have
a contract with Respondent (Local 722), and that Rockford
Blacktop was not involved in the dispute with Local 722.
On the first day of the picketing Union Agent Lathrop
called Rafferty of Rockford Blacktop and told him in order
for Rockford Blacktop to use Kasper Trucking, Rockford
Blacktop had to ‘‘make him [Kasper Trucking] right with the
Union.’’ Although witness Lathrop may have testified he did
not recall calling Rafferty on that day, I discredit his lack of
recall or implied denial and credit Rafferty’s account because
I was persuaded by his demeanor he was testifying truthfully
in this regard, and subsequent events substantially supports
his account, infra.
Additionally, the record shows that during the picketing
(apparently in December or January) Respondent (Local 722)
mailed to Kasper Trucking a letter requesting Kasper to com-
plete and sign the following enclosures:
1. A Construction Agreement (G.C. Exh. 10).
2. A Participation Agreement for Health & Welfare (G.C.
Exh. 11).
3. A Participation Agreement for Pension Benefits (G.C.
Exh. 12).
Respondent, on several occasions (on its picket signs and
by testimony of union agent Lathrop) stated that Respondent
did not have a dispute with Rockford Blacktop when it pick-
eted the Dixon and Amboy jobsites.
With respect to Respondent having additional information
or knowledge about the status of the owner-operators on the
jobsites, the record shows that in a letter dated January 12,
1993, Stuart I. Cohen, counsel for Kasper Trucking to union
president Gerald Reilly, informed Reilly that only inde-
pendent owner-operators have been engaged by Kasper for
the Dixon jobsite. The letter further advised Reilly that the
picketing at Dixon was unlawful and if it continued Re-
spondent would sue for damages (G.C. Exh. 16).
In a letter dated January 14, 1993, counsel for the Union,
Michael O’Hara, demanded counsel for Kasper Trucking to
furnish him with documentation and agreements by Kasper
and the owner-operators that the latter drivers were inde-
pendent contractors; and that if such documentation was not
received within 48 hours, the picketing would continue (G.C.
Exh. 18).
In a letter dated January 15, 1993, counsel for Kasper
Trucking (Cohen) informed counsel for Respondent Union
(O’Hara), as follows:
Enclosed are copies of the Independent Contrac-
tor/Owner-Operator Agreements for the Dixon job.
Each of the independent contractor/owner operators
working for Kasper on the Dixon job is a member of
Teamsters Local 325. In addition, each independent
contractor/owner-operator involved has executed an
Independent Owner-Operator Agreement with Team-
sters Local 325. We do not have copies of these agree-
ments, but you should be able to obtain copies from
Local 325.
The record does not show that counsel for Respondent
made any effort to obtain copies of those agreements from
Local 325.
The enclosed copies of the Independent Contractor/Owner-
Operator Agreements signed by the following owner-opera-
tors on the dates set opposite their respective names and six
were sent to counsel for Respondent January 15, and one
was sent January 18, 1993:
David Coniglio—3–14–92 (G.C. Exh. 9(a))
Richard B. Brown—3–13–92 (G.C. Exh. 8(a))
Fyke Farms—8-7-92 (G.C. Exh. 7(a))
Orval Dobbs—4–7–92 (G.C. Exh. 6(a))
Fadness Trucking—3–17–92 (G.C. Exh. 5(a))
John Leiser—4–13–92 (G.C. Exh. 4(a))
Finner Trucking—3–31–92 (G.C. Exh. 3(a))
signed: Kevin Finner
In a letter dated February 4, 1993, counsel for Kasper
Trucking informed counsel for Respondent (O’Hara) more
explicitly than he did in his letter of January 16, that the
owner-operator drivers on the Amboy jobsite, which Re-
spondent was picketing, were independent contractor owner-
operator truckdrivers engaged by Kasper to perform work on
the Green River Ordinance project north of Amboy. The let-
ter named the owner-operator independent contractors as
Douglas Fyke, Richard Brown, and David Coniglio, and cop-
ies of their agreement were sent to Respondent January 15
or 19. The letter also requested cessation of the picketing and
informed Respondent that charges had been filed with Re-
gion 33 of the Board by Kasper Trucking and Rockford
Blacktop.
Respondent did not present any evidence to show that any
of the drivers on the Dixon and Amboy jobsites were em-
ployee drivers of Kasper Trucking.
In citing Mauts & Oren, Respondent may also be relying
upon language of the court in addressing an alleged 8(b)(4)
violation where the primary and secondary employer occu-
pied a common worksite as follows:
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
And there is an important distinction between intending
to enmesh secondary employers in a dispute not their
own, and acting with knowledge that secondary em-
ployers will invariably be affected by the Union’s ac-
tions. Even if the Union’s picketing has substantial (and
foreseeable) secondary effects, that conduct does not
violate section 8(b)(4) unless the employer satisfies its
burden of establishing that the Union intended to cause
disruption of the secondary employer’s business.
As previously pointed out, the above language of the court
was made in reference to common situs picketing, where
both the primary and secondary employer occupied the same
jobsite. Unlike here, only Rockford Blacktop occupied the
jobsites in Dixon and Amboy, Illinois, while Kasper Truck-
ing was not present at either jobsite, but operated miles away
in Poplar Grove, Illinois. Consequently, although Rockford
Blacktop need not establish Respondent intended to cause
secondary disruption in work at the Dixon and Amboy
jobsites, the evidence clearly shows that such disruptive re-
sult was what Respondent implied and intended, when Union
Agent Lathrop called and told Rockford Blacktop (Rafferty)
that in order for it to use Kasper Trucking, Rockford Black-
top had to make Kasper Trucking right with the Union (by
Kasper signing a contract with Local 722). Moreover, the
uncontroverted and credited evidence shows that the backhoe
operator walked off the job at Dixon and Amboy, causing
disruption in work of the owner-operators for Rockford
Blacktop, the secondary employer. The trucks could not be
loaded and the owner-operators could not haul on several
days in December and January.
Additionally, Respondent was informed by letter dated
January 12 and 18 and February 4, 1993, accompanied by
enclosed copies of the signed Independent Contractor Agree-
ment for Owner-Operators forwarded January 15 and 18,
1993, that the owner-operator drivers on both jobsites, were
‘‘independent contractors’’ and not ‘‘employees’’ of Kasper
Trucking. Notwithstanding, Respondent apparently elected
not to believe or accept the letter or the documents furnished
by Kasper Trucking’s attorney as sufficient evidence of the
drivers independent contractor status, and it nevertheless con-
tinued to picket the jobsites of Rockford Blacktop in spite of
such information. Apparently, Respondent elected to rely ex-
clusively upon the technical filing requirements of the Illi-
nois Commerce Commission as to whether Kasper and the
drivers had not properly filed, when it elected to picket the
jobsites. In so electing, I find that Respondent picketed at its
peril.
Respondent’s intention was made clear to Rockford Black-
top by Respondent’s threatening telephone admonition to it,
when Union Agent Lathrop told Rafferty that in order for
Rockford Blacktop to do business with Kasper Trucking, he
had to make Kasper right (by Kasper signing an agreement
with the Union (Local 722)). Respondent even mailed copies
of the collective-bargaining agreement along with agreements
for benefits for Rafferty to sign, which Rafferty did not sign.
Based upon the foregoing essentially uncontroverted and
credited evidence of record, I find that, not only were the
secondary disruptive effects of the construction operation of
Rockford Blacktop foreseeable by Respondent, but that Re-
spondent also intended to enmesh secondary employer Rock-
ford Blacktop and the Independent Owner-Operators in the
dispute it had with primary employer, Kasper Trucking. This
conclusion was made clear to Rockford Blacktop by Re-
spondent’s threatening telephone admonition to Rafferty,
about making Kasper right with the Union, as well as by Re-
spondent electing to ignore or discredit attorney for Kasper’s
letter with enclosed copies of the signed independent con-
tractor agreements. Respondent even mailed agreements to
Kasper Trucking for Kasper to sign. When the latter did not
sign the agreements, Respondent continued to picket the
jobsites of Rockford Blacktop, the secondary employer. This
secondary conduct is the very conduct that Section 8(b)(4)
was designed to prohibit.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor
practices warranting a remedial Order, I shall recommend
that it cease and desist from engaging in such conduct and
that it take certain affirmative action designed to effectuate
the policies of the Act.
Having found that in support of its dispute with Kasper
Trucking, Respondent Union appealed to individuals em-
ployed by secondary employer Rockford Blacktop, and Inde-
pendent Contractor Owner/Operators performing hauling
services for Rockford Blacktop to engage in work stoppages,
by inducing and encouraging neutral individuals employed
by Rockford Blacktop, and independent contractors per-
forming hauling services for Rockford Blacktop, to cease
doing business with Kasper Trucking, Respondent has in-
duced and encouraged individuals employed by Rockford
Blacktop and other independent contractor owner- operators
engaged in commerce or an industry affecting commerce, to
engage in a strike or refuse to perform services and thereby,
has threatened, coerced and restrained Rockford Blacktop,
other neutral persons, and independent contractor haulers en-
gaged in commerce, or an industry affecting commerce, with
an object to force and require Rockford Blacktop, other neu-
tral persons, and independent contractor drivers on its jobsite,
to cease doing business with Kasper Trucking, in violation
of Section 8(b)(4)(i) and (ii)(B) of the Act, the recommended
Order will provide that Respondent cease and desist from en-
gaging in such conduct.
On the basis of the above findings of fact and upon the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Employer Rockford Blacktop Construction Company is,
and has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Employer Kasper Trucking, Inc., is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Respondent International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
722, is, and has been at all times material herein, a labor or-
ganization within the meaning of Section 2(5) of the Act.
4. Truck owner-operators Finner Trucking, Inc., John
Leiser, Fadness Trucking, Gary Hind, Orval Dobbs Trucking,
Fyke Farms, Richard Brown, and David Coniglio, contracted
and referred by Kasper Trucking, Inc., to the jobsites in
Dixon or Amboy, Illinois, are independent contractors and
1041TEAMSTERS LOCAL 722 (KASPER TRUCKING)
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
not employees of Kasper Trucking, Inc., and also persons en-
gaged in commerce, or an industry affecting commerce,
within the meaning of the Act.
5. By engaging in the afore-described secondary conduct,
Respondent has threatened, coerced, and restrained Rockford
Blacktop Construction Company and other neutral persons
engaged in commerce or an industry affecting commerce, by
means of threatening to picket, and in fact picketing, Rock-
ford Blacktop jobsites, with an object of forcing individuals
employed by Rockford Blacktop, and Independent Contractor
Owner/Operators performing hauling services for it, to en-
gage in work stoppages.
6. That an object of the acts and conduct of Respondent
Union was to force and require Rockford Blacktop Construc-
tion Company, other neutral persons, and owner-operators to
cease doing business with Kasper Trucking Inc.
7. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, International Brotherhood of Teamster,
Chauffeurs, Warehousemen and Helpers of America, Local
722, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Picketing or by other means, inducing or encouraging
any individual employed by Rockford Blacktop Construction
Company or by any other neutral person engaged in com-
merce or in an industry affecting commerce, to engage in a
strike or a refusal, in the course of his employment, to use,
manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials or commodities, or to refuse
to perform any other services where an object thereof is to
force or require the named employer, or any other person en-
gaged in commerce or an industry affecting commerce to
cease doing business with Kasper Trucking, Inc.
(b) Picketing or by other means, threatening, coercing, or
restraining Rockford Blacktop Construction Company or any
other person engaged in commerce or an industry affecting
commerce with whom Local Union 722 has no primary labor
dispute where, in either case, an object thereof is to force or
require the named employer, or any other person engaged in
commerce or an industry affecting commerce, to cease doing
business with Kasper Trucking, Inc.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at Respondent’s business offices, meeting halls,
and places where notices to members are customarily posted
copies of the attached notice marked ‘‘Appendix.’’3 Copies
of the notice, on forms provided by the Regional Director for
Region 33, after being signed by Respondent’s authorized
representative, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Mail or deliver additional signed copies of said notices
to the Regional Director for Region 33, for Kasper Trucking,
Inc., if willing, to mail to each of the independent contractor
owner-operators referred to the Dixon and/or Amboy
jobsites.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT, by picketing or other means, induce or en-
courage any individual employed by Rockford Blacktop Con-
struction Company or by any other neutral person engaged
in commerce or in an industry affecting commerce, to engage
in a strike or a refusal, in the course of his employment, to
use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials or commodities, or to
refuse to perform any other services where an object thereof
is to force or require the named employer, or any other per-
son engaged in commerce or an industry affecting commerce
to cease doing business with Kasper Trucking, Inc.
WE WILL NOT, by picketing or other means, threaten, co-
erce, or restrain Rockford Blacktop Construction Company or
any other person engaged in commerce or an industry affect-
ing commerce with whom we have no primary labor dispute
where, in either case, an object thereof is to force or require
the named employer, or any other person engaged in com-
merce or an industry affecting commerce, to cease doing
business with Kasper Trucking, Inc.
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL 722