NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,452, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 722, AFL-CIO and KASPER TRUCKING, INC. et al., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 722, AFL-CIO and KASPER TRUCKING, INC. et al.

314 NLRB No. 168.Case Nos. 33-CC-1116-2, -1117-2. August 31, 1994 Elbert D. Gadsden, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Judith T. Poltz, for General Counsel. Michael W. O’Hara (Kavanah & O’Hara), Springfield, Illinois, for Respondent [1] . Gerald A. McInnis (Husch & Eppenberger), Peoria, Illinois, for Charging Party.

Hearings--Conduct of Law Judge--Bias and Prejudice Allegations.--Allegations set forth by a union that an administrative law judge demonstrated bias and prejudice in the conduct of an unfair labor practice hearing were found to lack merit. The NLRB determined that the judge did not improperly exclude evidence, did not interfere with the union’s offer of proof, did not prejudge the case and did not reject legal arguments that were never made. Consequently, the parties received a full and fair opportunity to litigate the issues raised in an unfair labor practice complaint. Section 10(c).

Back reference: ¶5590.331.

From Text of Board’s Decision

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, [3] 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. [4] The Respondent argues that at the hearing the judge improperly excluded relevant evidence it sought to introduce. Although the Respondent acknowledges that the judge subsequently reversed this ruling in his decision, it argues that this reversal does not mitigate the prejudice it suffered and that, in any event, the judge failed to properly consider this evidence. [5] The Respondent also argues, among other things, that the judge: (1) improperly 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 comments 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 proceeding.

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 announced 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 owners-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 requirements, the General Counsel and the Charging Party objected, citing relevancy. The Charging Party argued that under Don Bass Trucking [6] and Air Transit, [7] 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 contractors.

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. [8] Rather than asserting that Freeland had other matters on which to testify, however, the Respondent made an offer of proof about what Freeland would testify, if further examined. [9] This offer related to regulations and requirements about Illinois 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 license. 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 official notice of portions of the Illinois Commerce Tranportation law governing brokers and leases. Following objections by the General Counsel and the Charging Party, the judge denied the Respondent’s request, finding 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 Independent 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 excluded evidence bore some relevance to the issue whether the Act had been violated. Accordingly, the judge reversed his rulings and admitted the “certificate,” the state law provisions, and treated the offer of proof as testimony by Freeland. After considering this evidence, however, the judge determined that Respondent’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 independent owner-operators, provided it with the Independent Contractor Agreement(s) for Owner-Operators supporting this claim, and reiterated even more explicitly 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 evidence, and duly considered in it 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 improperly interfered with the litigation by directing the General 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 proceeded to another line of inquiry. When the judge directed the General Counsel to pursue the picketing issue, the Respondent objected. The Respondent argued that 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, [10] we otherwise find that the judge’s actions were proper. Section 102.35(k) of the Board’s Rules and Regulations authorizes administrative 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 judges may examine witnesses or interrupt questioning in order to clarify testimony or develop the record. NLRB v. Overseas Motors, [106 LC ¶12,382] 818 F.2d 517, 520 (6th Cir. 1987); NLRB v. Top Form Mills, [107 LC ¶10,095] 789 F.2d 262, 265 (4th Cir. 1986). Here, the judge did no more than pursue a line of questioning in order to develop a complete and integrated record. Although the judge might have accomplished this through his own questioning, rather than by prompting the General Counsel, we do not find this isolated incident improper or evidence of bias or prejudice. NLRB v. Superior Sales, [54 LC ¶11,465] 366 F.2d 229, 233 (8th Cir. 1966).

C. Interference with Offer of Proof

The Respondent maintains that the judge demonstrated bias by interrupting its counsel and attempting 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 attributed numerous legal arguments to it that it never made, and that were, in fact, “nonsensical.” The Respondent 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 519 fn. 1 (1992). This holding is particularly apt here where, despite frequent entreaties by the judge, the Respondent repeatedly declined to articulate its theory of defense. [11]

Contrary to the Respondent’s claims, we are satisfied that the judge fully comprehended and evaluated its legal argument that Kasper’s owner-operators were its employees based on Illinois’ law and filing requirements. The fact that the judge rejected this argument and concluded that the owner-operators were independent 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, [1985-86 CCH NLRB ¶17,809] 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 prejudgment of the case.

The judge states in his decision that he told the Respondent’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 Respondent’s state law defense was inapplicable to a determination whether the Dixon and Amboy owner-operators were Kasper employees or independent contractors. In comparable circumstances, the Fourth Circuit held that “[a] judge’s remarks that constitute mere expressions 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 exceptions, 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 demonstrated bias against the Respondent--or its counsel--in the hearing or in analyzing and discussing the evidence.