1023
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2 ANTHONY and KAREN ROTI, )
PAUL ROSENSTROCK and )
3 LESLIE WEBER, )
)
4 Complainants, )
)
5 vs. ) No. PCB 99-019
)
6 LTD COMMODITIES, )
)
7 Respondent. )
8
9 The following is the transcript of a hearing
10 held in the above-entitled matter taken
11 stenographically by DEBORAH T. BRAUER, CSR, a notary
12 public within and for the County of Lake and State of
13 Illinois, before JOHN KNITTLE, Hearing Officer, at 118
14 West Cook Avenue, Libertyville, Illinois, on the 5th
15 day of November, 1999, A.D., commencing at 9:45 a.m.
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L.A. REPORTING (312) 419-9292
1024
1
PRESENT:
2
STEVEN P. KAISER & ASSOCIATES
3 BY: MR. STEVEN P. KAISER
4711 Golf Road
4 Suite 708
Skokie, Illinois 60076
5 (847) 677-7066
6 Appeared on behalf of the
Complainants;
7
BAIZER & KOLAR
8 BY: MR. JOSEPH E. KOLAR
513 Central Avenue
9 5th Floor
Highland Park, Illinois 60035
10 (847) 433-6677
11 Appeared on behalf of the
Respondent.
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L.A. REPORTING (312) 419-9292
1025
1
I N D E X
2
THE WITNESS: JACK LEO VOIGT
3
PAGE
4
Direct Examination 1028
5 by Mr. Kaiser
6 Cross Examination
by Mr. Kolar
7
Redirect Examination
8 by Mr. Kaiser
9 Recross Examination
by Mr. Kolar
10
Further Redirect Examination
11 by Mr. Kaiser
12
E X H I B I T S
13
COMPLAINANTS' EXHIBIT NO. FOR ID ADM IN EVD
14
5 1228
15 13 1229
14 1229
16 17 1230
18 1230
17 19 1230
24 1232
18 25 1233
31 1234
19 32 1235
52 1027
20 53 1027
54 1027
21 55 1089 1223
56 1094 1223
22 57 1102 1224
58 1108
23 59 1137
60 1206 1218
24
L.A. REPORTING (312) 419-9292
1026
1
I N D E X (CONTINUED)
2
3 E X H I B I T S (CONTINUED)
4 COMPLAINANTS' EXHIBIT NO. FOR ID ADM IN EVD
5
61 1208
6 62 1211 1218
63 1211 1218
7 64 1214 1216
65 1242 1243
8
9 RESPONDENT'S EXHIBIT NO. FOR ID ADM IN EVD
10 28 1239
36 1238
11 51 thru 85 1238
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24
L.A. REPORTING (312) 419-9292
1027
1 HEARING OFFICER KNITTLE: We are back on the
2 record. Today's date is November 5, 1999. It's
3 approximately 9:45 a.m. This is the fifth day of the
4 hearing in PCB 1999-019, Roti, et al. versus LTD
5 Commodities.
6 Just for the record, once again, there are no
7 members of the public present. If there were, they
8 would have the opportunity to offer public comment if
9 they so chose. Also for the record none of the
10 complainants are here today nor is any representative
11 from LTD Commodities, aside of course from today's
12 witness who works for LTD.
13 We had some preliminary matters, Mr. Kaiser.
14 We have three exhibits we want to offer.
15 MR. KAISER: Yes, Mr. Knittle, I would move for
16 the admission into evidence at this time of
17 complainants' Exhibits 52, 53 and 54.
18 MR. KOLAR: No objection.
19 HEARING OFFICER KNITTLE: No objection to any of
20 those three. And those are admitted.
21 (Complainants' Exhibit No. 52,
22 53 and 54 were
23 admitted into evidence.)
24 HEARING OFFICER KNITTLE: Any other preliminary
L.A. REPORTING (312) 419-9292
1028
1 matters at this time, Mr. Kaiser?
2 MR. KAISER: No, Mr. Knittle.
3 HEARING OFFICER KNITTLE: Mr. Kolar?
4 MR. KOLAR: No.
5 HEARING OFFICER KNITTLE: Let's move on then.
6 It's your witness, Mr. Kaiser.
7 MR. KAISER: Thank you.
8 JACK LEO VOIGT,
9 called as a witness herein, having been first duly
10 sworn, was examined and testified as follows:
11 DIRECT EXAMINATION
12 BY MR. KAISER:
13 Q. Sir, could you please state your full name
14 and spell your last name for the court reporter's
15 benefit.
16 HEARING OFFICER KNITTLE: Then we'll swear him in.
17 MR. KAISER: Sorry.
18 HEARING OFFICER KNITTLE: That's okay. Why don't
19 we swear you in first so we know who you are.
20 (Witness sworn.)
21 THE WITNESS: My name is Jack Leo Voigt spelled
22 V-o-i-g-t.
23 BY MR. KAISER:
24 Q. Mr. Voigt, could you please tell the Board
L.A. REPORTING (312) 419-9292
1029
1 what's your date of birth?
2 A. July 28, 1954.
3 Q. By whom are you currently employed?
4 A. LTD Commodities, Incorporated.
5 Q. How long have you worked for LTD Commodities?
6 A. Nine and -- nine years, nine months.
7 Q. You were hired in 1990 by LTD to fill a
8 position with the title Distribution Center Manager?
9 A. Yes.
10 Q. And at some point the title of that position
11 changed to Director of Distribution in approximately
12 1996?
13 A. Yes.
14 Q. And in 1998 LTD promoted you to the position
15 of Vice-President of Distribution, is that correct?
16 A. Yes.
17 Q. Is that the position you currently hold?
18 A. Yes.
19 Q. And the only person above you essentially --
20 at least the person to whom you report is Mike Hara?
21 A. Correct.
22 Q. And is the President -- are you aware of who
23 the President of LTD Commodities is?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1030
1 Q. And what is the name of the President of LTD
2 Commodities?
3 A. Sheldon Leibowitz.
4 Q. Do you own stock in LTD Commodities?
5 A. No.
6 Q. Now, I'd like to show you what's been marked
7 for purposes of identification as Respondent's Exhibit
8 88. From where you sit, Mr. Voigt, can you see this
9 aerial photograph that's hanging from the easel?
10 A. Yes.
11 Q. And can you identify within Respondent's
12 Exhibit 88 the footprint or the roof line of LTD's
13 Bannockburn facility as it looked prior to the
14 expansion in roughly 1994?
15 A. Yes.
16 Q. And at that time, back in '88, and until
17 there was an expansion to the south, is it fair to say
18 that the total amount of warehouse space under roof at
19 Bannockburn was roughly 200,000 feet?
20 A. Yes.
21 Q. I'm showing you what's previously been marked
22 for purposes of identification as Respondent's Exhibit
23 89.
24 From where you're seated are you able to see
L.A. REPORTING (312) 419-9292
1031
1 this aerial photograph hanging from the easel?
2 A. Yes.
3 Q. And I represent to you that this aerial
4 photograph was taken in the spring of 1999. From where
5 you sit are you able to identify the roof line outline
6 of the expansion to the LTD facility that occurred some
7 time in the middle 1990s?
8 A. Yes.
9 Q. And did this south addition to the LTD area
10 in fact add an additional 150 or so thousand square
11 feet of warehouse space?
12 A. Yes.
13 Q. Just to clear up something that's been a
14 little uncertain in the record so far.
15 Now, when you took -- when you were first
16 hired by LTD in 1999 I take it part of your
17 responsibilities had to do with shipping and receiving?
18 A. Yes.
19 Q. And you're familiar with the docks that
20 existed at the LTD facility prior to the expansion in
21 the mid-1990s?
22 A. Yes.
23 Q. And is it accurate to say that on the north
24 end of LTD's facility back as early as 19- -- well as
L.A. REPORTING (312) 419-9292
1032
1 early as the time you arrived, 1990, there were 26 dock
2 doors located on the north wall of the LTD facility?
3 A. Yes.
4 Q. What is a little unclear is whether -- right
5 now if you go out to the dock area, the dock is below
6 grade. LTD's north parking lot is some height above
7 the grade of the dock area, is that correct?
8 A. Could you ask that question again?
9 Q. Well, if I walked out or if you walked out
10 any one of the dock doors and stood at the north end of
11 this, what I'm calling the truck staging area, can you
12 see that?
13 A. Yes.
14 Q. I mean, if you stood at that north end you'd
15 be looking at a retaining wall of a height of, I don't
16 know, 8 to 12 feet, right?
17 A. Yes.
18 Q. And above that retaining wall is LTD's north
19 parking lot, correct?
20 A. Yes.
21 Q. What I'm trying to understand, and what I
22 want to clarify for the record is, before -- at some
23 point was the dock area, LTD's dock area, reconfigured
24 or reworked a little bit? In connection --
L.A. REPORTING (312) 419-9292
1033
1 specifically in connection with the expansion of the
2 warehouse facility to the south did LTD also make
3 changes, not additions to the number of docks but
4 changes in the topography of the dock area?
5 A. Yes.
6 Q. And could you describe for the Board what
7 those -- do you know what changes were made?
8 A. Yes. There were 12 spots for trailers, empty
9 trailer parking and potentially full trailer parking
10 also with dock bumpers that were put on in that area
11 that you pointed to where the 12 trailers are.
12 Q. And that was added at the same time that LTD
13 expanded to the south?
14 A. Yes.
15 Q. And there was earth moving equipment and
16 earth moved in order to create those 12 dock spaces for
17 either empty or full trailers?
18 A. Yes.
19 Q. And I don't know if this is more to satisfy
20 my curiosity or for the Board's benefit, but was the
21 north parking lot above grade prior to the development
22 of these 12 dock or parking spaces or staging area or
23 was it on grade with the docks prior to the work in
24 connection with the southern expansion of LTD?
L.A. REPORTING (312) 419-9292
1034
1 A. It was always above.
2 Q. That north parking lot was always above?
3 A. It wasn't changed except for a
4 reconfiguration of islands that were put in there and
5 parking spaces.
6 Q. All right. But there was some earth movement
7 in order to create these 12 truck parking slots?
8 A. Yes.
9 Q. Now, you're aware of what LTD does within the
10 walls of its facility in Bannockburn, Illinois?
11 A. Yes.
12 Q. Does LTD manufacture any products under the
13 roof of its Bannockburn facility?
14 A. No.
15 Q. To your knowledge does LTD manufacture any
16 products anywhere?
17 A. No.
18 Q. And in fact LTD simply markets and
19 distributes products?
20 A. Yes.
21 Q. And the products that LTD sells pass either
22 through its Bannockburn facility or after late October
23 of 1998 through it's Aurora facility?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1035
1 Q. And while LTD may employ satellite public
2 warehouses in Kenosha, Wisconsin; Franklin Park,
3 Illinois; and Bolingbrook, Illinois before a good is
4 shipped to an LTD customer, it passes through either
5 the Aurora facility or the Bannockburn facility, is
6 that correct?
7 A. Yes, but we did have a Libertyville facility
8 in '98 that we did do shipping out of, and presently we
9 have a Gurnee facility.
10 Q. When did the Gurnee facility come on line?
11 A. We started shipping a week ago.
12 Q. And this is -- I take it LTD had to add an
13 additional facility in Gurnee because the volume of
14 sales keep growing?
15 A. Yes.
16 MR. KAISER: All right. Now if I may just go off
17 the record.
18 (Discussion off the record.)
19 BY MR. KAISER:
20 Q. And is it fair to say that you have seen
21 LTD's volume grow since you joined the company in 1990?
22 A. Yes.
23 Q. And in fact LTD had to add the Aurora
24 facility in October of 1988 because the Bannockburn
L.A. REPORTING (312) 419-9292
1036
1 facility alone was reaching capacity?
2 A. Yes.
3 Q. And I don't think anybody would quarrel with
4 the proposition that the amount of truck traffic to the
5 Bannockburn facility has increased since you joined the
6 company in 1990, would you quarrel with that
7 proposition?
8 A. No.
9 Q. And in fact the volume of truck traffic to
10 the Bannockburn facility has increased since LTD
11 constructed the south addition some time in the
12 mid-1990s, is that true?
13 A. I would have to check numbers to verify that.
14 Q. Do you doubt that?
15 A. I'm not doubting it. I would have to verify
16 it.
17 Q. Is there any way that you can even imagine
18 that LTD added an additional 150,000 square feet of
19 warehouse space and didn't increase the volume of truck
20 traffic at its Bannockburn facility?
21 A. Well, the business could have a situation
22 where you had to bring in the product anyways and you
23 bring it in in just-in-time mode versus a storage-type
24 mode. Having the additional storage space gives you a
L.A. REPORTING (312) 419-9292
1037
1 comfort level in that you don't run out of product and
2 cause possible shortages.
3 Q. All right. Well, I think we'll investigate.
4 We'll look at the numbers and we'll make some
5 determinations so I don't want to put you in a place
6 where you're speculating.
7 Is that what is your problem there, Mr.
8 Voigt, you didn't want to speculate?
9 A. Yes.
10 Q. All right. Now, previously we have
11 introduced into evidence Complainants' Exhibits C-1 and
12 C-2. Do you recognize these two catalogs?
13 A. Yes.
14 Q. And those are LTD's catalogs, right?
15 A. Yes.
16 Q. And the goods that are shown in those
17 catalogs are representative of the goods LTD sells?
18 A. Yes.
19 Q. And during the testimony of Greg Zak, Greg
20 Zak had downloaded certain pages from LTD's website,
21 and have you looked recently at LTD's Web page?
22 A. Yes.
23 Q. Does that look to be a true and accurate
24 printout of certain screens from LTD's Web page?
L.A. REPORTING (312) 419-9292
1038
1 A. Yes.
2 Q. Now, do you recall during the course of your
3 deposition -- and you'll remember I took your
4 deposition at Mr. Kolar's office back in the spring of
5 1998, right?
6 A. Yes.
7 Q. And we talked at that time about the
8 Sportcraft electronic dartboard that's shown for sale
9 on Page 91 of LTD's Christmas catalog, Complainants'
10 Exhibit 2. Do you see that dartboard?
11 A. Yes.
12 Q. And we talked about that as representative of
13 one type of goods LTD sells, do you remember that
14 discussion?
15 A. Yes.
16 MR. KOLAR: If you would stipulate it was spring
17 of '99 when you took his dep.
18 MR. KAISER: Yes, I would stipulate. I appreciate
19 that correction. Thank you.
20 BY MR. KAISER:
21 Q. And, as I understood it, LTD's merchandising
22 group develops a forecast for demand of the Sportscraft
23 electronic dartboard and either the merchandising
24 traffic area or the distribution traffic area decides
L.A. REPORTING (312) 419-9292
1039
1 what carrier will deliver the Sportscraft dartboard to
2 one of LTD's facilities?
3 A. Yes.
4 Q. And, as I understood it, LTD's merchandising
5 group tends to coordinate overseas and some domestic
6 deliveries, is that right?
7 A. Yes.
8 Q. And 50 percent or more of LTD's products are
9 manufactured overseas, is that right?
10 A. Yes.
11 Q. And the distribution group within LTD will
12 coordinate domestic traffic on behalf of LTD, is that
13 right?
14 A. Yes.
15 Q. So depending on whether the dartboard is
16 manufactured overseas or manufactured domestically,
17 that will play some role in determining how that
18 dartboard makes it way from the manufacturer to LTD's
19 facility, is that right?
20 A. Yes.
21 Q. But, as I understood it, it's LTD and not the
22 manufacturer of in this case the dartboard, who decides
23 how the goods will be shipped to LTD's facility?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. And LTD may work with a subcontractor to get
2 the goods from the manufacturer to LTD, but the
3 manufacturer is not responsible for delivery of the
4 goods?
5 A. No.
6 Q. And, as I understood it, you told me during
7 your deposition that approximately 98 percent of the
8 goods arrive on carriers selected by LTD, is that
9 correct?
10 A. Yes.
11 Q. Did LTD successfully conclude contract
12 negotiations with CTC Distribution Services?
13 A. Yes.
14 Q. You'll recall when we took your deposition
15 last spring LTD was negotiating a new contract with CTC
16 Distribution Services?
17 A. Right.
18 MR. KAISER: And I want to note for the record
19 that Karen Roti, one of the complainants is here and --
20 KAREN ROTI: My daughter Kristin.
21 MR. KAISER: Her daughter Kristin and --
22 MS. KARASIK: A neighbor.
23 MR. KAISER: A neighbor. An interested neighbor,
24 member of the public.
L.A. REPORTING (312) 419-9292
1041
1 MR. KARASIK: A very concerned neighbor.
2 MR. KAISER: A very concerned neighbor.
3 Would the very concerned neighbor mind giving
4 Mr. Knittle, the Illinois Pollution Control Board's
5 Hearing Officer, your name and address?
6 MS. KARASIK: My name is Kendra Karasik. That's
7 K-a-r-a-s-i-k. My address is 1590 Wedgewood Drive,
8 Lake Forest 60044.
9 HEARING OFFICER KNITTLE: Thank you, ma'am.
10 MR. KOLAR: Is Ms. Karasik going to testify for
11 the complainants?
12 MS. KARASIK: 60045, sorry.
13 HEARING OFFICER KNITTLE: Mr. Kolar, what was
14 that? I couldn't hear you.
15 MR. KOLAR: I was asking if Ms. Karasik is going
16 to testify for the complainants?
17 HEARING OFFICER KNITTLE: Mr. Kaiser, are you
18 planning on calling Ms. Karasik?
19 MR. KAISER: I hadn't discussed that issue with
20 Ms. Karasik, so I don't know.
21 MS. KARASIK: I'd be more than happy to.
22 MR. KOLAR: I'd like to exclude her if she's going
23 to testify for the complainants.
24 HEARING OFFICER KNITTLE: Well, you're going to
L.A. REPORTING (312) 419-9292
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1 have to come to a decision fairly quickly on this
2 issue.
3 MR. KAISER: Right.
4 If I may a take a break for two minutes.
5 HEARING OFFICER KNITTLE: Yes.
6 MR. KAISER: Thank you.
7 HEARING OFFICER KNITTLE: Let's go off the record.
8 (Discussion off the record.)
9 HEARING OFFICER KNITTLE: Mr. Kaiser, perhaps a
10 summary of the situation?
11 MR. KAISER: Sure.
12 By way of explanation, we began Mr. Voigt's
13 direct examination at about 9:45. Shortly thereafter
14 Karen Roti and her daughter arrived as did two
15 neighbors, Kendra, K-e-n-d-r-a, Karasik, K-a-r-a-s-i-k.
16 MS. KARASIK: That's correct.
17 MR. KAISER: Who lives at 1590 Wedgewood Drive,
18 Lake Forest, Illinois and Cindy Lakin, L-a-k-i-n, who
19 lives at 1566 Wedgewood Drive arrived shortly
20 thereafter. It's now 10:20.
21 In the intervening roughly 20 minutes we have
22 been, along with Mr. Kolar, talking with Ms. Lakin and
23 Ms. Karasik to find out what it is they -- why they're
24 here, why they have an interest in these proceedings,
L.A. REPORTING (312) 419-9292
1043
1 and what it is they might say if the Board allowed them
2 to offer testimony in this case. As residents in the
3 vicinity of LTD they have had an opportunity to observe
4 LTD's operations and make observations about noise from
5 LTD's facilities, and they would like an opportunity to
6 tell the Board what it is they have heard and what it
7 is they are currently hearing.
8 As you know, Mr. Knittle, complainants are
9 getting close to the end of their case here or we
10 thought we were. What we would like to do, and what we
11 would propose, consistent with some of the discussions
12 we have had both on and off the record, is that we
13 finish up the examination of Mr. Voigt today. We
14 expect that that could go as late as 3 o'clock this
15 afternoon. Ms. Lakin and Ms. Karasik have children.
16 They're able to be here now, but later in the afternoon
17 children will be returning home from school, they don't
18 have sitters lined up to cover it, and it would be a
19 great hardship to have them come back this afternoon.
20 We had been talking about having a recess of some
21 perhaps week or even two before we came back to put on
22 LTD's case in defense.
23 What I would propose at this time is that we
24 finish up with Mr. Voigt's testimony, agree on a date
L.A. REPORTING (312) 419-9292
1044
1 where we'd come back, and it would be at that point
2 that the complainants would call, if the Board allows,
3 Ms. Lakin and Ms. Karasik to testify as part of the
4 complainants' case in chief. And we would expect them
5 to close our proofs at the conclusion of their
6 testimony. And so that's essentially my proposal this
7 morning.
8 HEARING OFFICER KNITTLE: Mr. Kolar.
9 MR. KOLAR: My comment would be basically that's
10 fine, but I don't see us reconvening within a week or
11 two. And if they're going to testify for the
12 complainants, I would move to exclude them during Mr.
13 Voigt's testimony. And whoever goes first, if it's Ms.
14 Karasik when we reconvene, then at that time Ms. Lakin
15 would be excluded consistent with witnesses being
16 excluded generally. And then I guess I would like to,
17 if I chose during the break, whenever we reconvene,
18 take their depositions and limit further more
19 complainant witnesses to Ms. Lakin and Ms. Karasik so
20 that we don't come back in December or whatever the
21 case may be and then suddenly we have three, four other
22 people that now want to testify for the complainants.
23 HEARING OFFICER KNITTLE: Right. Let me -- well,
24 I'm inclined to agree with Mr. Kolar, at least in part
L.A. REPORTING (312) 419-9292
1045
1 on this, Mr. Kaiser.
2 I'm sure you're aware we have provisions in
3 the Board reg's for interested citizens to provide
4 comment that wouldn't be testifying for the complainant
5 or the respondent. Although, you know, in essence it
6 seems as if these particular complainants, if they
7 wanted to provide public comment, would be, you know,
8 providing public comment that would be perhaps more
9 favorable to the complainant.
10 Generally we allow, and you should know this
11 too, generally we allow interested citizens in any
12 Board case to provide comment, and we do that at the
13 end of his case and his case before we start closing
14 arguments. So when everything is done, interested
15 citizens, if they want, can come up to the Board to
16 tell the Board what they think about the case as long
17 as it's semi-relevant. But in that situation you
18 wouldn't be appearing for the complainant and you
19 wouldn't be conducting a direct examination, Mr.
20 Kaiser. I would have to swear the witness in and I
21 would allow both parties to cross examine them, but --
22 MR. KAISER: But they would essentially make a
23 statement?
24 HEARING OFFICER KNITTLE: They would make a
L.A. REPORTING (312) 419-9292
1046
1 statement. It would be a narrative statement of sorts,
2 not a direct examination, and they would not be
3 witnesses for the complainant.
4 MR. KOLAR: And that's at the end of the whole
5 case?
6 HEARING OFFICER KNITTLE: That's at the end of the
7 case in rebuttal. So it would be before closing
8 arguments, if any, and before the close of the case.
9 That's authorized by our regulations. It's something
10 we always want to hear what the citizens, you know, in
11 the surrounding area have to say if it's relevant. So
12 we'd be happy to do that as well. But you would
13 understand that, you know, it wouldn't be like they'd
14 be your witness and you'd be able to direct exam and
15 lead them to what you want them to testify to. They
16 would be giving a statement.
17 MR. KAISER: Right.
18 HEARING OFFICER KNITTLE: So --
19 MR. KAISER: I'm not prepared to express a
20 preference about how their testimony would come before
21 the Board but --
22 HEARING OFFICER KNITTLE: Well, if we're going to
23 want to hold open your case in chief, I agree with Mr.
24 Kolar, that I don't want another five or six witnesses
L.A. REPORTING (312) 419-9292
1047
1 coming in in December in the interim. And of course,
2 as you know, you can always appeal any of my decisions
3 to the Pollution Control Board, and they may disagree
4 with me, but I don't think it's procedurally fair to
5 Mr. Kolar and to LTD Commodities to have witnesses who
6 are as of yet undisclosed come forward in the recess as
7 you will.
8 MR. KAISER: Right. I understand.
9 But as these witnesses have presented
10 themselves during the course of the hearing I
11 understand that they would be allowed to testify as
12 witnesses in the complainants' case in chief but other
13 members of the public, who might want to provide
14 comment, would be allowed to comment but not
15 necessarily appear as witnesses, is that --
16 HEARING OFFICER KNITTLE: I think that's an
17 accurate.
18 MR. KAISER: -- the essence of your --
19 HEARING OFFICER KNITTLE: My ramblings?
20 MR. KAISER: Yes.
21 HEARING OFFICER KNITTLE: That's essentially
22 correct.
23 MR. KAISER: All right. If that's --
24 HEARING OFFICER KNITTLE: Mr. Kolar.
L.A. REPORTING (312) 419-9292
1048
1 MR. KAISER: If it's your ruling, I would accept
2 that.
3 MR. KOLAR: Well, given that, I guess I would
4 rather have them all be public comment then at the end
5 of the case. I would object to them as not being
6 timely disclosed witnesses and let them come in,
7 without questions from Mr. Kaiser, give their public
8 comment, and then we would each have cross examination
9 opportunity at the end of the case, whenever that
10 happens to be.
11 HEARING OFFICER KNITTLE: Mr. Kaiser, is that
12 acceptable to you?
13 MR. KOLAR: It sounds like what now we would have
14 is these two people would be in the complainants' case
15 and they would get eight or ten people to come down and
16 talk in the public comment section. So it seems to me
17 that I would prefer they all just be in the public
18 comment section if they're that interested in this
19 hearing. I mean, LTD's people can come down as well
20 and comment.
21 MS. KARASIK: Well, we could all get simple
22 affidavits from everybody and speed everything up
23 and --
24 HEARING OFFICER KNITTLE: Hold on, folks.
L.A. REPORTING (312) 419-9292
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1 MS. LAKIN: We don't want to inconvenience the
2 Court but on the other hand it's an inconvenience to
3 us.
4 HEARING OFFICER KNITTLE: Hold on. At this point
5 we're having a legal discussion between the -- well, at
6 least a quasi legal discussion --
7 MS. LAKIN: You asked if there is any way that we
8 will --
9 HEARING OFFICER KNITTLE: Ma'am, I'm asking you to
10 be quiet for a little bit.
11 MR. KOLAR: I would move to strike the comments
12 from the record as to how it's affecting them. It's
13 not a public comment period.
14 HEARING OFFICER KNITTLE: Yeah, we're not going to
15 allow any testimony about how this matter is affecting
16 them. I do want it stricken at this point until we
17 figure out how to allow them to come in.
18 Mr. Kaiser, do you have something else?
19 MR. KAISER: I think where we stood previously was
20 that Ms. Lakin and Ms. -- or, as I understood, where
21 the Board seemed to be going was that Ms. Lakin and Ms.
22 Karasik could testify as witnesses, where I would have
23 the opportunity to do their direct, where Mr. Kolar
24 during the break, if he so chose, could take their
L.A. REPORTING (312) 419-9292
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1 depositions, and that they would be put on as witnesses
2 with formal direct and formal cross examination. And
3 then other members of the public, who haven't appeared
4 at this hour, would be treated as members of the public
5 who could make a public statement under the rules that
6 you have described. So that would be -- that's my
7 preference and that's what I'm moving toward.
8 HEARING OFFICER KNITTLE: I'm still inclined to do
9 that, Mr. Kolar. I know you have an objection to that,
10 and there is going to be enough time between any of
11 this happens that you could get a ruling from the Board
12 on that. But at this point that's what I'm going to
13 do. So you guys will be able to appear as
14 complainants' witnesses if you want to.
15 MR. KAISER: Right.
16 HEARING OFFICER KNITTLE: But if in fact that's
17 what you want to do, we're going to exclude them from
18 today's testimony.
19 MR. KAISER: Fair enough.
20 HEARING OFFICER KNITTLE: Anybody else who shows
21 up, we're not going allow you to keep your case in
22 chief open to call them as witnesses.
23 MR. KAISER: I understand the ruling.
24 HEARING OFFICER KNITTLE: Is that clear?
L.A. REPORTING (312) 419-9292
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1 MR. KAISER: Yes.
2 MR. KOLAR: I understand that's your ruling.
3 HEARING OFFICER KNITTLE: I'm not asking for
4 agreement at this point in time.
5 MR. KOLAR: That's clear.
6 MR. KAISER: If you could, Mr. Knittle, just
7 explain the policies behind excluding the witnesses,
8 why they wouldn't be allowed to observe Mr. Voigt's
9 testimony.
10 HEARING OFFICER KNITTLE: Mr. Kolar has moved that
11 you're excluded from the testimony of Mr. Voigt. If
12 you're a witness for the complainant, it's not really
13 fair for you to listen to what other people say and
14 then decide what you're going to say before you say it.
15 Essentially that's my understanding. I generally
16 accept, as do all courts throughout the land, that if
17 you're not a party, and you're going to appear as a
18 witness for one of the parties, you can be excluded
19 until you testify.
20 MR. KAISER: So they have made a motion, and that
21 is that you would not be able to sit in and hear what
22 Mr. Voigt has to say because of the concern that that
23 would in some way influence the way you might testify
24 in the future.
L.A. REPORTING (312) 419-9292
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1 So Ms. Roti and presumably her daughter would
2 be allowed to stay as parties and as a person who's not
3 going to be a witness in this matter.
4 HEARING OFFICER KNITTLE: Correct.
5 Let's go off the record again.
6 (Discussion off the record.)
7 HEARING OFFICER KNITTLE: We're back on the
8 record.
9 Mr. Voigt, let me remind you you're still
10 under oath.
11 BY MR. KAISER:
12 Q. And, Mr. Voigt, I want to thank you for
13 bearing with us during the essentially half hour that
14 we had to deal with these procedural elements.
15 Before your examination was suspended we were
16 talking about the contract between LTD Commodities and
17 CTC Corporation, are you familiar with that contract?
18 A. Yes.
19 Q. And who is CTC Corporation?
20 A. They're a third-party consolidator, and what
21 they do is take the packages from the Bannockburn
22 facility and take them to their hub and sort them for
23 U.S. Postal criteria.
24 Q. Now, how long has CTC had a contract with
L.A. REPORTING (312) 419-9292
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1 LTD?
2 A. Three or four years.
3 Q. And is CTC essentially the -- LTD has a
4 variety of trucking firms that bring goods into the
5 facility, is that right?
6 A. Yes.
7 Q. But CTC is essentially the exclusive entity
8 shipping goods out of LTD's Bannockburn facility?
9 A. Yes.
10 Q. So when somebody orders the dartboard or any
11 other item in the catalogs, that item is pulled from
12 the shelves within either the Bannockburn or Aurora or
13 now the Gurnee facility, and if it's from the
14 Bannockburn facility, it's put on a CTC truck and
15 shipped out?
16 A. A truck that works for CTC.
17 Q. Or a truck that works for CTC?
18 A. Yes, correct.
19 Q. And CTC is allowed on LTD's Bannockburn
20 property in furtherance of the contract between LTD and
21 CTC? I mean, they're not trespassing when they're
22 there --
23 A. No.
24 Q. -- right?
L.A. REPORTING (312) 419-9292
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1 I mean, you want them there? LTD wants CTC
2 and their trucks to be there and be there at a certain
3 time and get those products and get them to the post
4 office and out to the customers, right?
5 A. Yes.
6 Q. So CTC performs a very important function for
7 LTD Commodities?
8 A. Yes.
9 Q. All right. With respect to the trucks
10 bringing in goods to LTD's Bannockburn facility,
11 Cavalea, C-a-v-a-l-e-a, is one of the larger firms that
12 brings goods into LTD?
13 A. Yes.
14 Q. And in fact Cavalea handles more than 50
15 percent of the volume goods coming into LTD's
16 Bannockburn facility?
17 A. In my estimation, yes.
18 Q. And there are other carriers, are there not?
19 A. Yes.
20 Q. Now, Federal Express, they account for less
21 than 1 percent of the total volume of goods brought
22 into LTD's Bannockburn facility?
23 A. Yes.
24 Q. And UPS I believe you estimated is 5 percent
L.A. REPORTING (312) 419-9292
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1 or less of the total volume of products coming into
2 LTD's Bannockburn facility?
3 A. Yes.
4 Q. And Roadway is a slightly bigger carrier that
5 brings in between 5 and 10 percent of the goods to
6 LTD's Bannockburn facility?
7 A. Those are estimations, yes.
8 Q. But within a margin of error or 1 or 2
9 percent?
10 A. It could be greater. I mean, they are one of
11 our carriers.
12 Q. And one of LTD's principal carriers?
13 A. Yes.
14 Q. Not nearly as big as Cavalea --
15 A. No.
16 Q. -- but bigger than, for instance, Federal
17 Express?
18 A. Yes.
19 Q. And Dolphin, that's the name of a carrier as
20 well, isn't it?
21 A. Yes.
22 Q. But Dolphin principally brings in supplies to
23 LTD's Bannockburn facility?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. And what types of supplies does Dolphin bring
2 into LTD's Bannockburn facility?
3 A. Corrugation or corrugated.
4 Q. Boxes?
5 A. Boxes, yes.
6 Q. All right. I take it -- I mean, with the
7 volume of goods LTD is shipping out of Bannockburn, LTD
8 uses a lot of boxes, right?
9 A. Yes.
10 Q. And those boxes get there by Dolphin trucks?
11 A. Right.
12 Q. Principally?
13 A. Right.
14 Q. And then you seem to be indicating you want
15 to clarify something?
16 A. I want to ask a question. We were talking
17 about the deposition, and we were answering the
18 question at that time because right now we are using a
19 different trucking firm for the corrugated boxes.
20 Q. Who is LTD using today, November 5, 1999, to
21 bring in the corrugated boxes?
22 A. Leak.
23 Q. Could you spell that for the court reporter's
24 benefit?
L.A. REPORTING (312) 419-9292
1057
1 A. I'm guessing it's L-e-a-k.
2 Q. Why did LTD change from Dolphin to Leak?
3 A. We're using a different manufacturer of
4 boxes.
5 Q. And how often does Leak bring boxes to the
6 LTD facility?
7 A. Daily.
8 Q. Daily.
9 Once a day or more than once a day?
10 A. Multiple trailers per day equal to what
11 Dolphin did.
12 Q. And that's just supplies?
13 A. Yes.
14 Q. When you say multiple trailers per day is
15 that two, three, four, can you give us a little better
16 number there?
17 A. It will vary. It could be as little as two,
18 as little as zero, it can be as high as five, six.
19 Q. And does that include Saturdays? Does Leak
20 deliver boxes to LTD's Bannockburn facility on
21 Saturdays?
22 A. I'm not aware that they do but they could.
23 Q. All right. But certainly Monday through
24 Friday Leak is bringing in boxes?
L.A. REPORTING (312) 419-9292
1058
1 A. Yes.
2 Q. Zero to five or six times a day?
3 A. Yes.
4 Q. Now, with respect to goods that are
5 manufactured domestically and brought to LTD's
6 Bannockburn facility, is it my understanding that
7 Roadway is the biggest domestic transporter of goods?
8 A. Yes.
9 Q. And behind Roadway then the United States
10 Postal, Kix, K-i-x, and J.B. Hunt or some of the other
11 entities that bring goods into LTD's Bannockburn
12 facility?
13 A. Yes.
14 Q. And LTD typically pays the shipping costs for
15 delivery of goods to its warehouse?
16 A. Yes.
17 Q. And LTD doesn't employ any long-haul truck
18 drivers, does it?
19 A. No.
20 Q. And LTD doesn't own any long-haul trailer
21 tractors?
22 A. No.
23 Q. And LTD doesn't own any long-haul
24 over-the-road semi-trailers?
L.A. REPORTING (312) 419-9292
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1 A. No.
2 Q. And LTD's business is not -- LTD doesn't
3 lease warehouse space to any other catalog houses?
4 A. No.
5 Q. And LTD doesn't package goods or ship goods
6 for other catalogs other than its own?
7 A. No.
8 Q. And LTD doesn't make its money by selling
9 freight forwarding services?
10 A. No.
11 Q. LTD makes it money by selling the products
12 shown in its catalogs and available through other means
13 like the internet?
14 A. Yes.
15 Q. Now, LTD does employ a large number of people
16 at its Bannockburn facility, is that right?
17 A. Yes.
18 Q. And during this season, what we have been
19 referring to as roughly the Christmas season, which is
20 a period of time within your industry or within LTD's
21 year beginning in roughly August and extending to the
22 middle of December, is that right?
23 A. Yes.
24 Q. And LTD sells a greater volume of goods
L.A. REPORTING (312) 419-9292
1060
1 during its Christmas season than during the season
2 between say January and July of any given year?
3 A. Yes.
4 Q. So LTD gears up for that Christmas increase,
5 correct?
6 A. Yes.
7 Q. And part of that gearing up is hiring an
8 additional 500 or 600 people to help receive the
9 freight, ship the freight, pick the orders, handle
10 telephone sales, and so forth, is that right?
11 A. Yes.
12 Q. And currently working at the LTD Bannockburn
13 facility in November of 1999 there are more than a
14 thousand employees under the roof, right?
15 A. Yes.
16 Q. And in fact that number may be even in excess
17 of 1,300 employees, correct?
18 A. Yes.
19 Q. Now, I'd like to help you take the Board
20 through a typical day at LTD. As I understand it LTD
21 operates two shifts a day, is that right?
22 A. Yes.
23 Q. And the first shift officially begins at 6
24 a.m. in the morning, right?
L.A. REPORTING (312) 419-9292
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1 A. Right now the shift starts at 5:30.
2 MR. KOLAR: Objection, typical day during what
3 season?
4 MR. KAISER: All right. I'll lay a foundation.
5 Thank you.
6 MR. KOLAR: Foundation.
7 BY MR. KAISER:
8 Q. What time does LTD's first shift currently
9 begin?
10 A. 5:30 a.m.
11 Q. When did LTD -- when I took your deposition
12 the typical shift was beginning at 6 a.m., when did
13 LTD --
14 A. Yes.
15 Q. -- adjust the schedule so that the first
16 shift now begins at 5:30 a.m.?
17 A. A couple months ago.
18 Q. So some time late summer/fall of 1999?
19 A. September.
20 Q. Why did LTD move the start time for the first
21 shift?
22 A. We were working nine hour shifts.
23 Q. When does the -- now, November 1999, when
24 does the first shift end?
L.A. REPORTING (312) 419-9292
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1 A. Right now it's ending I believe at 2:00. We
2 are off nine hours as of this week. We're only working
3 eight hours right now.
4 Q. All right. So right now it's just eight
5 hours, but until this week or during September and much
6 of October of 1999 is it your testimony LTD's first
7 shift ran for nine hours in length?
8 A. Yes.
9 Q. So it started at 5:30, and help me with the
10 math, when did it finish?
11 A. I believe 3 o'clock.
12 Q. 3 o'clock.
13 During this period, again September and most
14 of October 1999, when did LTD's second shift start?
15 A. Either 4 p.m. or 3:45 p.m.
16 Q. And as I understand there is a break, LTD
17 finishes all the work of the first shift and then there
18 is a complete turnover of the dock personnel, the
19 second shift comes in and starts fresh, is that right?
20 A. Right.
21 Q. And during September and October of 1999 they
22 started -- the second shift started at either 3:45 or
23 4 p.m.?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. And was that second shift also a nine hour
2 shift?
3 A. Yes.
4 Q. So, again, typically if there was no
5 overtime, when did the second shift end during this
6 period of September and October 1999?
7 A. 1 a.m.
8 Q. During this period of September and October
9 of 1999 was there one or more occasions where you
10 authorized, you or anyone under you, authorized the
11 second shift to work overtime?
12 A. Working nine hours is overtime.
13 Q. Nine hours is overtime?
14 A. Yes.
15 Q. So one of those hours is an overtime hour?
16 A. Yes.
17 Q. So essentially LTD scheduled daily two hours
18 of overtime?
19 A. Yes.
20 Q. One hour on the first shift and one hour on
21 the second shift?
22 A. Yes.
23 Q. In addition to the scheduled overtime were
24 there any days between September 1st and October 31st
L.A. REPORTING (312) 419-9292
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1 of 1999 on which LTD authorized additional hours of
2 overtime?
3 A. Not that I'm aware of.
4 Q. So to your knowledge there was no date
5 between September 1st and October 31st of 1999 where
6 LTD operated beyond 1 a.m. in the morning?
7 A. Not that I'm aware of based on the shift
8 ending at that time.
9 Q. All right. Now, you know that one of the
10 sources of noise about which the Rotis, Webers and
11 Rosenstrocks have complained is the yard tractor,
12 right?
13 A. Yes.
14 Q. And the yard tractor -- can you tell the
15 Board basically what is a yard tractor and what does it
16 do?
17 A. It's an off-the-road vehicle. It's used for
18 yard work to typically move trailers in a quick and
19 efficient fashion.
20 Q. And you're aware that back in 1996 LTD's
21 subcontractor used a yard pig that was unmuffled and
22 was loud?
23 A. Yes.
24 MR. KOLAR: Objection, sounded unmuffled, I think.
L.A. REPORTING (312) 419-9292
1065
1 BY MR. KAISER:
2 Q. Sounded unmuffled and sounded to the
3 neighbors extremely loud, right?
4 A. Yes.
5 Q. And LTD took steps and actually replaced the
6 yard tractor that was in operation in 1996?
7 A. We asked the carrier to look into a different
8 yard tractor, which they did.
9 Q. And the carrier did?
10 A. Yes.
11 Q. And the carrier substituted a new or a newer
12 yard tractor, a different yard tractor?
13 A. Yes.
14 Q. But that yard tractor -- again, you spoke to
15 the carrier and that's the subcontractor, right?
16 A. We spoke with CTC.
17 Q. CTC. Yes, subcontractor is not correct.
18 It's a contractor for LTD, right?
19 A. Carrier, yes.
20 Q. And LTD didn't own the yard tractor in 1996?
21 A. No.
22 Q. And doesn't own the yard tractor that's in
23 operation in its dock area in 1999?
24 A. No.
L.A. REPORTING (312) 419-9292
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1 Q. But, again, that yard tractor is not there as
2 a trespasser, is it?
3 A. No.
4 Q. That yard tractor is there to help LTD move
5 goods in and move goods out efficiently?
6 A. Yes.
7 Q. LTD does not issue a paycheck to the driver
8 of the yard tractor?
9 A. No.
10 Q. CTC pays the yard tractor driver?
11 A. Yes.
12 Q. You don't control when the yard tractor
13 begins or when the yard tractor stops operation on any
14 given day?
15 A. Yes, we do.
16 Q. How so?
17 A. It's based on the work that we generate for
18 that tractor.
19 Q. But it's possible, and correct me if I'm
20 wrong, but it's possible that LTD's shift goes home at
21 1 a.m. but that yard tractor is still doing work to
22 finish up his or her duties, right?
23 A. It could be a short period after the shift
24 ends because when a shift would end, the trailer would
L.A. REPORTING (312) 419-9292
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1 be closed up, and it would have to be pulled out and
2 that door would be closed at 1 a.m. and the tractor
3 would pull the load out. It might take a few minutes
4 to take care of that, and then we're shut down.
5 Q. I take it that driver of the yard tractor had
6 better be in position and ready to go at 5:30 in the
7 morning when the first shift starts, right?
8 A. Yes.
9 Q. And that first shift starts at 5:30 in the
10 morning on Monday morning in the time frame between
11 September 1st and October 31, 1999?
12 A. Yes.
13 Q. And trucks -- well, all right. During that
14 time frame -- now, the dock doors open on the north end
15 of LTD's facility from September 1st through October
16 31st at 5:30 am, right?
17 A. They can be open then, yes.
18 Q. They can be open then?
19 A. Yes.
20 Q. I mean, LTD is open for business, the
21 warehouse people are in place, LTD is ready to receive
22 and ship freight?
23 A. Yes.
24 Q. Have you ever seen occasions where trucks,
L.A. REPORTING (312) 419-9292
1068
1 semi-tractors with their trailers, have arrived at
2 LTD's docks before LTD has opened its doors for
3 business, whether that's 6 a.m. or -- between September
4 1st and October 31, 1999 -- before 5:30 am?
5 A. I have seen -- yes, I have seen it.
6 Q. Approximately how often do you see
7 semi-tractors and semi-trailers arrive before LTD has
8 opened its dock operations?
9 A. I have seen that -- when we started at 6 a.m.
10 I had seen that periodically.
11 Q. How about now that you have gone to this 5:30
12 a.m. start time, do you see that periodically?
13 A. No because I usually get there at quarter to
14 6:00 so --
15 Q. You get there at quarter to 6:00?
16 A. Yes.
17 Q. So you're not there to see it?
18 A. Correct.
19 Q. All right. And, as I understand it, LTD --
20 these trucks do not typically arrive randomly, is that
21 right?
22 A. No.
23 Q. I mean, LTD works hard to schedule the
24 arrival of the trucks?
L.A. REPORTING (312) 419-9292
1069
1 A. Yes.
2 Q. And in fact I understood that you were able
3 to tell me that LTD tries to schedule the arrival of
4 each truck within approximately a half hour time frame?
5 A. Yes.
6 Q. And unless there is bad weather or unforeseen
7 traffic, the trucks typically roll in pretty much on
8 schedule?
9 A. Yes.
10 Q. And that's to avoid -- I mean, LTD doesn't
11 want 30 trucks arriving at the same time and there is
12 only 26 dock doors, right?
13 A. Yes.
14 Q. So, as a matter of efficiency, LTD schedules,
15 with some precision, the arrival and the departure of
16 trucks?
17 A. Yes.
18 Q. Are there certain dock doors -- and there are
19 26 dock doors in total, correct?
20 A. Yes.
21 Q. Are there certain dock doors that LTD has
22 dedicated for receiving goods?
23 A. Yes.
24 Q. Do you know offhand which docks are dedicated
L.A. REPORTING (312) 419-9292
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1 to receiving goods?
2 A. I estimate doors 9 through 20 are for
3 receiving.
4 Q. And which doors are used for shipping goods?
5 A. 4 through 8 and 21 through 26.
6 Q. And, if I'm recalling correctly, as you go
7 east the numbers increase, door 1 starts on the west
8 end of the building and you count towards the east?
9 A. Yes.
10 Q. So a trailer that's empty that receives goods
11 in doors 9 through 20, that empty trailer is not then
12 loaded in place?
13 A. No, it's not loaded.
14 Q. Goods going out of LTD leave through dock
15 doors 4 through 8 and 21 through 26 typically?
16 A. Yes. I might add that we do -- doors 20 and
17 19 also are outbound doors for transfers between the
18 different facilities that we ship out of.
19 Q. All right. So doors 19 and 20 outbound --
20 for instance, if you're shipping something from
21 Bannockburn to Aurora or Bannockburn to Gurnee, those
22 would be inter-LTD shipments?
23 A. Right, in and outbound.
24 Q. In and outbound.
L.A. REPORTING (312) 419-9292
1071
1 A. Right.
2 Q. So if you're receiving goods from one of the
3 three public warehouses or from Aurora or from Gurnee
4 they would come in through doors 19 and 20?
5 A. Not the public warehouses.
6 Q. Not the public warehouses?
7 A. No.
8 Q. Public warehouses would then be with the
9 general traffic and be received through 9 through 20
10 and go out docks 4 through 8 and 21 through 26?
11 A. I mean, it is possible that a public
12 warehouse could pull in there if it's available, but
13 generally it is dedicated for the transfer between the
14 buildings.
15 Q. All right. If we could describe what
16 happens -- now, you're aware of LTD's good neighbor
17 policy?
18 A. Yes.
19 Q. And in fact when LTD became aware through
20 Mike Hara and through conversations you had with Karen
21 Roti and others that there was complaints from
22 neighbors to the north, one of the things LTD did was
23 create this good neighbor policy --
24 A. Yes.
L.A. REPORTING (312) 419-9292
1072
1 Q. -- right?
2 And part of the good neighbor policy was
3 posting certain rules on the wall as drivers exit
4 Lakeside Drive and move into LTD's dock area?
5 A. Yes.
6 Q. As I understand it one of the elements of
7 LTD's good neighbor policy is that instead of people
8 arriving and honking their horn to let LTD's dock
9 personnel know they're here, the driver is to get off
10 at Lakeside Drive and come into LTD's dock area and
11 then turn off the tractor?
12 A. Yes.
13 Q. And are you aware that when the tractor's
14 engine is turned off, that typically the air from the
15 air brake is released at that time?
16 A. I have heard that.
17 Q. You're familiar with the noise air makes when
18 it's released from an air brake?
19 A. Yes.
20 Q. How would you describe that noise?
21 A. A rushing of air through a hose or whatever.
22 Q. So when the truck stops, it turns off its
23 engine, releases air from its air brakes, is that
24 right, typically?
L.A. REPORTING (312) 419-9292
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1 A. Yes. I'm not sure if it happens when they
2 turn it off or not. You know, I know I have heard it,
3 but when does it exactly happen, I couldn't tell you.
4 Q. All right. The driver gets out of the
5 tractor, announces that he or she is here, and what
6 happens next?
7 A. Then the driver is given directions on what
8 the next steps are for it. If they're to disconnect
9 from their trailer, then the yard tractor will put it
10 into one of the dock doors or they will back it in
11 themselves if they're capable.
12 Q. Who makes that decision whether the yard
13 tractor will put the trailer into the docks or whether
14 the long-haul truck driver would pull the trailer into
15 the dock?
16 A. Dock personnel, and we also utilize the
17 judgment of the yard tractor driver.
18 Q. The yard tractor driver?
19 A. Yes.
20 Q. What if he says, "That guy can't drive, no
21 way is he backing in"? Then do you make them unhitch
22 or what judgment calls does the yard tractor driver
23 make?
24 A. I think the driver does talk to the
L.A. REPORTING (312) 419-9292
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1 personnel, asking them how confident they feel about
2 backing up the trailer within a short period of time.
3 They also -- you know, whatever the situation is, it's
4 possible that the yard tractor is busy doing something
5 else and is not available. At that time a dock person
6 from LTD would direct the driver what to do.
7 Q. All right. So let's take the example where
8 the yard tractor determines that the yard tractor
9 driver -- and do you know the name of the current yard
10 tractor driver?
11 A. No.
12 Q. I take it there is a morning shift yard
13 tractor driver and an evening shift yard tractor
14 driver?
15 A. Yes.
16 Q. The morning shift yard tractor driver, some
17 time between September 1st and October 31, 1999 the
18 tractor and trailer has come into LTD's dock area, the
19 engine has been shut off, the air brakes have released,
20 the yard tractor driver, in consultation with the
21 long-haul truck driver, determines that the yard
22 tractor is in a better position to back the trailer
23 into the dock, what would next happen?
24 A. Typically the driver that dropped off the
L.A. REPORTING (312) 419-9292
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1 trailer either dropping it right in the yard or
2 dropping it off at a dock will pick up an empty and
3 take it away.
4 Q. So, to break that down into movements, the
5 tractor that's pulled the trailer across the roads to
6 LTD's dock disengages from the trailer it's been
7 hauling?
8 A. Yes.
9 Q. Have you observed that process before?
10 A. Yes.
11 Q. Is there noise made when the tractor
12 disengages from the trailer?
13 A. Yes.
14 Q. How would you describe for the Board the
15 sound made when a tractor disengages from a
16 semi-trailer?
17 A. There is a noise that it disconnects from the
18 fifth wheel, that's the back end of a tractor. There
19 is a -- I'm not sure what they call it on the trailer,
20 there is --
21 Q. Is that the boogie wheel?
22 A. I don't know. Maybe it is for all I know.
23 Q. There is that big sort of disk on the back of
24 the tractor that --
L.A. REPORTING (312) 419-9292
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1 A. That I call the fifth wheel, but the part
2 that comes off the trailer is like a stem that comes
3 off, and that fits into that fifth wheel slot, and that
4 pulls apart.
5 Q. All right. Is there a noise generated when
6 the fifth wheel disengages -- I may call that the
7 trailer pin.
8 A. Trailer pin.
9 Q. Would that be descriptive?
10 A. Yes.
11 Q. So when the fifth wheel disengages from the
12 trailer pin is there a noise that's generated?
13 A. Sometimes.
14 Q. Have you ever heard it disengage when there
15 isn't and it doesn't make noise?
16 A. Yes. With the yard tractor if the legs of
17 the trailer are raised high enough when you drop the
18 fifth wheel of the yard tractor, and I'm calling that
19 that disk on the back, that can just pull away just
20 from the bottom of it and have a clearance that it can
21 move away from.
22 Q. All right. But at this point in time we're
23 trying to describe the movement of a representative
24 truck that's come in and the semi-tractor, the
L.A. REPORTING (312) 419-9292
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1 long-haul semi-tractor is disengaging from the trailer,
2 has it been your experience that the disengagement of
3 the semi-tractor from the trailer generates a noise?
4 A. Yes, it can.
5 Q. About what percentages of the time have you
6 observed that process generate noise?
7 A. I haven't really kept stats on it so I --
8 Q. But it can?
9 A. Yes.
10 Q. So the tractor moves away, the trailer is
11 there, then is the next step that the yard tractor
12 engages with the trailer that's been left?
13 A. Yes.
14 Q. And how does the yard tractor engage with the
15 trailer?
16 A. It backs up to it with the fifth wheel and it
17 places the pin into the slot. And from there there is
18 a hydraulic lift that's utilized on the yard tractor to
19 raise the front end of the trailer to get the legs off
20 the ground that are presently supporting the trailer.
21 And once the legs are off -- a sufficient height off
22 the ground, then they can proceed moving the trailer.
23 Q. And have you observed that action you just
24 described?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. Is there noise generated when the yard
3 tractor engages with the trailer, pneumatically raises
4 the trailer so that the legs can come up?
5 A. Yes.
6 Q. And then the yard tractor I take it backs
7 that trailer into one of the docks?
8 A. Yes.
9 Q. What does the yard tractor then do?
10 A. Then the yard tractor will disconnect from
11 the trailer by lowering the hydraulic fifth wheel so
12 that the legs of the trailer support the trailer and
13 then the tractor will pull away.
14 Q. And is the dock door open or closed when the
15 yard tractor is disengaging from the trailer it's just
16 put in position?
17 A. The dock door is open.
18 Q. Is there noise generated when the yard
19 tractor disengages from the trailer after it's placed
20 it into the dock?
21 A. Yes.
22 Q. Does the yard tractor's engine make noise as
23 it pulls away or as it accelerates away from the
24 trailer it's just --
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. -- positioned?
3 A. Yes.
4 MR. KOLAR: For the record the complainants have
5 to prove noise in excess of numerical regulations. So
6 to a certain extent this is not relevant, all these
7 operations, unless they make noise in violation of the
8 Pollution Control Board Regulations.
9 MR. KAISER: Certainly one of the prohibitions is
10 you can't make noise that's a nuisance that
11 unreasonably substantially interferes with other
12 peoples' use and enjoyment of their property. So what
13 we're showing here is not so much do these noises
14 result in -- did they result in noise on September 24,
15 1997 that would be a numeric violation but whether
16 since 1996 through the present do these noises at
17 least -- well do they create so much noise that the
18 Rotis, Webers and Rosenstrocks are unreasonably
19 disturbed.
20 HEARING OFFICER KNITTLE: Right. And I understand
21 what you're saying, Mr. Kolar. I'm not going to
22 sustain the objection. I agree with you that it's
23 not -- all these noises to this point are not being
24 proved to be in violation of any Board regulation to be
L.A. REPORTING (312) 419-9292
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1 a nuisance or otherwise. However, I think it would be
2 helpful to the Board to know where the noises that have
3 been complained of come from initially. So in terms of
4 kind of a background approach I'm going to allow him to
5 continue.
6 BY MR. KAISER:
7 Q. Mr. Voigt, again, in this typical truck
8 movement that we have described you were saying that
9 the original semi-tractor that would have brought the
10 trailer to LTD's dock area, once it's disengaged, is it
11 typical that it then goes to another door to pick up a
12 trailer that's been loaded?
13 A. It could go to another door. It could go to
14 the staging area that you were pointing to right now
15 and pull a trailer. It could be a trailer that's been
16 placed somewhere else in the yard.
17 Q. And I take it that tractor will engage with
18 that trailer, a full or partially full trailer?
19 A. Yes.
20 Q. And, again, is there a noise generated when
21 the tractor engages with the trailer?
22 A. There is some.
23 MR. KOLAR: For the record Ms. Roti and her
24 daughter left, maybe only momentarily, but they left.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER KNITTLE: Just also for the record
2 I saw them make eating motions so I think they're going
3 to go eat, but that's just an assumption. Speculation
4 one might say.
5 BY MR. KAISER:
6 Q. And, again, when the semi-tractor couples
7 with the outbound trailer is sound generated at that
8 moment?
9 A. Yes.
10 Q. And when the tractor accelerates in order to
11 drag the trailer out of LTD's dock area and up the
12 slight incline onto Lakeside Drive is sound generated?
13 A. Yes.
14 Q. And then this trailer that has been placed
15 into position to be unloaded, once it's unloaded,
16 what's done? What does LTD do with that trailer next?
17 A. The trailer will be pulled away from the dock
18 either via the yard tractor or via another tractor, you
19 know, from some trucking company.
20 Q. So there is again the active engagement
21 either with the over-the-road tractor or the yard
22 tractor with the trailer that's been emptied in the
23 dock?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. Is there sound generated by that action?
2 A. Yes.
3 Q. Then either the yard tractor or the
4 over-the-road tractor hauls the trailer out of the dock
5 area?
6 A. Yes.
7 Q. Is there sound generated by the acceleration
8 of either the yard tractor or the over-the-road
9 tractor?
10 A. Yes.
11 Q. If that trailer is empty is it typical for
12 the empty trailer to be taken off the LTD premises or
13 to be positioned within the LTD premises for loading?
14 A. I would say typically it would be temporarily
15 stored on our property.
16 Q. Where does LTD temporarily store trailers?
17 A. We have 12 positions with a dock or with
18 bumpers there, and we also to the left of that area,
19 which would be the west, stage trailers there also.
20 Q. Now, do you know whether the trailers stored
21 in the -- or placed in the dock area where there are
22 the 12 docks with the bumpers, do you know whether
23 those trailers -- can you say whether those trailers
24 are typically empty or full or is it both?
L.A. REPORTING (312) 419-9292
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1 A. Most of the time they're empty. We don't
2 like to store any product outside temporary or long
3 term for security reasons.
4 Q. Are there ever occasions where to your
5 knowledge a full trailer either just arriving or a full
6 trailer about to leave LTD's facility is placed
7 temporarily in the truck staging area?
8 A. Yes.
9 Q. And I take it either the over-the-road
10 tractor or the yard tractor may have responsibility for
11 placing the trailers against -- or placing the trailers
12 in the staging area?
13 A. Yes.
14 Q. Have you ever observed whether sound is
15 generated when either the yard tractor or the
16 over-the-road tractor puts a full trailer in position
17 against the stops in LTD's trailer staging area?
18 A. Yes.
19 Q. Have you ever seen a driver place a trailer
20 in the staging area and put it in place too quickly so
21 that it bangs against those back stops?
22 A. No.
23 Q. Now, as I understood it, this empty trailer
24 that's been unloaded more often than not would be
L.A. REPORTING (312) 419-9292
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1 placed -- either hauled out of the dock by either the
2 yard tractor or the over-the-road tractor and placed in
3 either the staging area or moved into a shipping dock,
4 is that accurate?
5 A. I couldn't give you an exact number without
6 conferring with staff members back in the building.
7 Q. All right. But that's --
8 A. But it can happen.
9 Q. It can happen?
10 A. Yes.
11 Q. And it sounds to me like it's not usual for
12 LTD or any of the companies to take empty trailers
13 away?
14 A. Well, what would tell me if we're staging an
15 empty is who the carrier is. We do stage empties as a
16 practice for the CTC carriers because we do need to
17 have empty trailers on reserve. Once trailers get
18 filled up, it gives us the flexibility to be able to
19 pull that trailer out and have it empty, readily
20 available, instead of shutting down the building to be
21 able to load trailers. Anything that comes out of
22 receiving -- and if we do not have the right carrier
23 here to drop off a full trailer and -- I guess I'm
24 saying it wrong. If we have emptied trailer A for
L.A. REPORTING (312) 419-9292
1085
1 trucking company A, but trucking company B shows up,
2 and we don't have any other dock space open, we'll pull
3 trailer A out, put it into our temporary storage area
4 there, and we'll put trailer B in there. And it's
5 possible that the driver for trailer B would have to go
6 back and do what's called deadheading without a
7 trailer. It does happen periodically. We don't like
8 that simply because if we do get empties in our yard,
9 it does crowd the yard and makes it difficult to work
10 within those confines.
11 Q. Now, are these trailers pretty much
12 interchangeable? Can Cavalea drive off with one of
13 CTC's trailer or are these trailers dedicated, that's a
14 CTC trailer, that's a Cavalea trailer, that's a Leak
15 trailer?
16 A. Those are dedicated. Typically they are not
17 allowed to take any trailer they wish simply for the
18 purpose of liability and tracking where the trailers
19 are going.
20 Q. Now I need to understand this. I mean
21 Cavalea brings goods into you, right?
22 A. Yes.
23 Q. So Cavalea's trailer is emptied and then
24 what, Cavalea takes away its empty trailer?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. Cavalea's trailer isn't taken over for LTD to
3 fill up and then have CTC drive away?
4 A. No.
5 Q. All right. So you have told me that -- well,
6 is it true that each time a tractor disengages from a
7 trailer the air brakes are released?
8 A. Yes.
9 Q. And each time a tractor is coupled or
10 uncoupled some sound is generated?
11 A. Yes.
12 MR. KOLAR: Yard tractor or tractor?
13 BY MR. KAISER:
14 Q. Well, you were telling us, Mr. Voigt, that a
15 yard tractor can disengage from a trailer and make less
16 noise than a semi-trailer or semi-tractor disengaging,
17 is that right?
18 A. Yes.
19 Q. If it's done right, if the legs are the right
20 height, if the guy's not in hurry and doesn't bang into
21 it?
22 A. Is sound and noise the same thing?
23 Q. Yes. I mean noise --
24 A. Is noise a negative thing and sound is a
L.A. REPORTING (312) 419-9292
1087
1 positive? I mean, noise is like "stop making all that
2 noise" for kids is a thing that you shouldn't be
3 making. That type of thing?
4 Q. Right. That's why I realize that you were
5 sensitive to the term "noise" and I tried to say
6 "sound" --
7 A. Okay.
8 Q. -- so that we wouldn't be arguing.
9 I mean, it's no secret what the Rotis hear as
10 noise, you may hear simply as sound. But what I want
11 to know is, is there something that's audible to the
12 human ear that we'll call sound?
13 HEARING OFFICER KNITTLE: Can I jump in?
14 MR. KAISER: Sure.
15 HEARING OFFICER KNITTLE: Just so you know, if you
16 say "noise," you're not admitting that LTD is violating
17 a regulation to noise. I mean, and her clicking her
18 fingers, the court reporter, and making notes is noise
19 as well.
20 THE WITNESS: Thank you. I'm glad you clarified
21 that.
22 HEARING OFFICER KNITTLE: Feel free to answer and
23 you can say noise and it's not going to be held against
24 you at this point.
L.A. REPORTING (312) 419-9292
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1 THE WITNESS: Okay.
2 HEARING OFFICER KNITTLE: Is that fair?
3 MR. KAISER: Yes. That's certainly fair.
4 BY MR. KAISER:
5 Q. With that understanding when a yard tractor
6 disengages from a trailer is there sound at that
7 moment?
8 A. Yes, there is.
9 MR. KOLAR: Objection, it's foundation. When you
10 say "when a yard tractor" do you mean an over-the-road
11 tractor or the yard tractor?
12 MR. KAISER: The yard tractor.
13 BY MR. KAISER.
14 Q. When the yard tractor.
15 A. Yes.
16 Q. And when an over-the-road tractor disengages
17 from a trailer, that's an audible event, isn't it?
18 A. Yes.
19 Q. And, similarly, when the yard tractor engages
20 with the trailer that's an audible event?
21 A. Yes.
22 Q. And when a semi-tractor within LTD's dock
23 areas engages with a trailer that's an audible event?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1089
1 Q. Now, I understand that you have made some
2 observations that if the legs are a certain height, so
3 that the yard tractor or the over-the-road tractor can
4 engage without making as much metal to metal contact,
5 the event is not as loud?
6 A. Yes.
7 Q. And, similarly, if the yard tractor or an
8 over-the-road tractor engages at an appropriate speed,
9 again the sound is not as loud?
10 A. Yes.
11 Q. But you have observed, haven't you, Mr.
12 Voigt, that if the semi-truck driver isn't careful and
13 engages the trailer at a speed -- an inappropriate
14 speed, the sound generated is greater?
15 A. Yes.
16 Q. And, similarly, if the legs on the trailer
17 have been set too low, so that there is more friction
18 and metal to metal contact between the tractor and the
19 trailer as they engage, the sound is louder?
20 A. Yes.
21 (Complainants' Exhibit No. 55
22 was marked for
23 identification.)
24
L.A. REPORTING (312) 419-9292
1090
1 BY MR. KAISER:
2 Q. I'd like to show you what I'm marking for
3 purposes of identification as Complainants' Exhibit 55.
4 It's an overtime schedule for 1998.
5 I'm showing you a copy of that, Mr. Voigt,
6 and asking you if you recognize that?
7 A. Yes.
8 Q. What do you recognize that to be?
9 A. It is listing the months of September,
10 October, November, December of 1998 and the dates of
11 each month, the 1st through the -- I guess the 30th and
12 the number of hours of overtime worked.
13 Q. And this is -- I mean, this is accurate
14 information here that LTD prepared, right?
15 A. I believe so.
16 Q. Well, you prepared this after your
17 deposition. I asked you to go back and figure out how
18 much overtime was authorized in 1998 and this is what
19 Mr. Kolar produced?
20 A. Yes.
21 Q. Did you give this to Mr. Kolar?
22 A. Yes.
23 Q. And you're the person back in 1998 who could
24 authorize overtime at LTD's Bannockburn facility?
L.A. REPORTING (312) 419-9292
1091
1 A. Yes.
2 Q. And back in the fall of 1998 LTD operated two
3 shifts, did it not?
4 A. Yes.
5 Q. And those shifts back then began at 6 a.m. in
6 the morning and I believe 3:30 in the afternoon, is
7 that right?
8 A. Yes.
9 Q. Now, I'm curious. I think it's fairly
10 straightforward. I mean the left-hand column is the
11 day of the month and the right-hand column is how many
12 hours of overtime were worked, right?
13 A. Yes.
14 Q. I notice that on, for instance, September
15 12th six hours of overtime were worked and then again
16 on September 19th six hours of overtime.
17 A. That's what I was looking at and questioning.
18 Six hours overtime is -- I would question the source of
19 that number.
20 Q. Well, I note in October on the 3rd it shows
21 six hours, and once in December six hours. I mean,
22 that's a lot of overtime, isn't it?
23 A. Well, it seems strange. The only way that
24 six hours would be considered overtime would be a
L.A. REPORTING (312) 419-9292
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1 Saturday, I mean, to have that multiple hours, but I
2 don't know if these dates correspond with a Saturday.
3 Q. Okay.
4 A. Typically when we use a Saturday date, a
5 Saturday date is considered all overtime.
6 MR. KOLAR: September 12th was a Saturday.
7 BY MR. KAISER:
8 Q. Then how about the 19th?
9 A. That would be a Saturday also.
10 Q. October 3rd, a Saturday.
11 A. I would question the 10th.
12 Q. The 10th, four hours.
13 A. Four hours, that's a Saturday then too.
14 Q. Yes, the 10th was a Saturday.
15 A. Well, that makes sense then.
16 Q. And December 12th, again a Saturday.
17 So those were Saturday hours. What was that,
18 an extended -- that was a second shift. Ordinarily
19 there would have just been a first shift on Saturday
20 back in the fall of 1998 but on those Saturdays LTD ran
21 a second shift as well?
22 A. Saturday could just mean first shift.
23 Q. Could just mean an abbreviated first shift?
24 A. Correct.
L.A. REPORTING (312) 419-9292
1093
1 Q. And as you sit here today you're not certain?
2 A. I would suspect that it was simply a first
3 shift Saturday. If it would have been second shift, it
4 more likely would have either been 10 or 12 hours.
5 Q. And in these instances where we see,
6 particularly in October, virtually every day of the
7 week two hours of overtime do you see that?
8 A. Yes.
9 Q. Would that have been overtime on the first
10 shift or on the second shift?
11 A. I believe it would be for one hour for first
12 shift and one hour for second shift.
13 Q. All right. So if LTD typically concluded its
14 second shift at 12:30 a.m., on those dates where it
15 shows two hours of overtime, that would have been one
16 hour additional, so LTD would have closed at 1:30 a.m.
17 on those dates, is that right?
18 A. Correct.
19 Q. And what about those days where it indicates
20 LTD operated one hour of overtime, is it more likely
21 that that one hour was on the first shift or on the
22 second shift?
23 A. First shift.
24 HEARING OFFICER KNITTLE: Mr. Kaiser.
L.A. REPORTING (312) 419-9292
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1 MR. KAISER: Yes.
2 HEARING OFFICER KNITTLE: Let's go off the record
3 for a second.
4 (Discussion off the record.)
5 HEARING OFFICER KNITTLE: We're back on.
6 (Complainants' Exhibit No. 56
7 was marked for
8 identification.)
9 BY MR. KAISER:
10 Q. Mr. Voigt, I'm showing you what I have marked
11 for purposes of identification as Complainants' Exhibit
12 56. It's a two-page document.
13 Do you recognize this two-page document?
14 A. Yes.
15 Q. What do you recognize it to be?
16 A. The first page is an outbound trailer chart
17 for December for the weeks of the 5th, 12th, 19th and
18 26th showing day and night with the total amount of
19 trailers in Bannockburn.
20 Q. All right. And what's the second page?
21 A. The second page shows the inbound trailer
22 activity at Bannockburn for November 30th through
23 December 30th.
24 Q. And, as I recall, when you took over at LTD
L.A. REPORTING (312) 419-9292
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1 you wanted to create some way to track the numbers in
2 and number of trucks out, is that right?
3 A. Yes.
4 Q. And this is a summary of trucks in and trucks
5 out during December of -- essentially December of 1998,
6 right?
7 A. Yes.
8 Q. And this is a true and accurate copy of the
9 summary that's prepared and maintained by LTD in the
10 ordinary course of its business?
11 A. Yes.
12 Q. This is the type of document you would rely
13 on if you had to answer a question about how many
14 trucks are going in and out of LTD, right?
15 A. Yes.
16 Q. Now, with respect to the outbound trailers
17 for December, the first page.
18 A. Yes.
19 Q. I see week ending 12-5-98. I take it that's
20 the business week that concluded on December 5, 1998,
21 is that right?
22 A. Correct.
23 Q. And in terms of "day" it says "84 trucks,"
24 does that mean 84 outbound -- what does that number
L.A. REPORTING (312) 419-9292
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1 mean, 84?
2 A. That was outbound trailers for the week of
3 December 5th.
4 Q. That number now outbound -- and I take it 90,
5 that means outbound trailers during the night shift?
6 A. Yes.
7 Q. And the total then you have the day shift and
8 night shift together, and you come up with 174 outbound
9 trailers during the week of December 5, 1998?
10 A. Yes.
11 Q. Now, that "outbound trailer," does that
12 include just trailers loaded with goods bound for LTD's
13 customers, right?
14 A. Yes.
15 Q. That number does not include trucks that have
16 been brought goods into LTD but are going out empty,
17 hauled out by Cavalea and other carriers that
18 principally bring goods to LTD, right?
19 A. That's correct.
20 Q. So that number does not include supply trucks
21 coming in -- well, supply trucks going out empty after
22 they have dropped off corrugated boxes?
23 A. Yes.
24 Q. And "trailers" does not include the
L.A. REPORTING (312) 419-9292
1097
1 incidental truck traffic of, for instance, FedEx or UPS
2 or one of the other haulers bringing back goods that
3 have been returned or dropping off small shipments,
4 right?
5 A. Yes.
6 Q. So that's not a total number of outbound
7 trailers or truck traffic for LTD that just tells us
8 the number of loaded trailers carrying product out to
9 LTD's customers during the relevant time frames?
10 A. Yes.
11 Q. The total number of outbound trailers, if you
12 included empties, both supply empties and empties of
13 trailers that had brought goods into LTD, that number
14 would be greater than the number shown on the first
15 page of Complainants' Exhibit 56?
16 A. Yes.
17 Q. Now, on the second page of Complainants'
18 Exhibit 56, this is an analysis of inbound trailers,
19 correct?
20 A. Yes.
21 Q. And here we see domestic carriers, which is I
22 guess a miscellaneous category of domestic freight
23 haulers, right? Up at the top there you see, Mr.
24 Voigt, we have got domestic -- I mean, Cavalea, we know
L.A. REPORTING (312) 419-9292
1098
1 that's one of your big haulers --
2 A. Yes.
3 Q. -- deliverers?
4 And "Carton," what does Carton refer to?
5 A. That's the corrugated trucks.
6 Q. That's the supplies essentially?
7 A. Right.
8 Q. Are there other supplies other than
9 corrugated boxes?
10 A. Yes, there is, you know, tape or strapping,
11 and then we also have styrofoam peanuts that are
12 delivered.
13 Q. How often are styrofoam peanuts delivered?
14 A. Daily.
15 Q. Do they come in a semi-trailer?
16 A. Yes.
17 Q. Do they come more than once a day?
18 A. Yes.
19 Q. About how many times a day does LTD's
20 Bannockburn facilities receive a shipment of styrofoam
21 peanuts?
22 A. Two or three times a day.
23 Q. Does the number of trucks bringing in
24 styrofoam peanuts, taping and other types of supplies,
L.A. REPORTING (312) 419-9292
1099
1 is that indicated, can you track that anywhere on this
2 second page of Complainants' Exhibit 56?
3 A. I think it may fall under miscellaneous, but
4 I couldn't guarantee that.
5 Q. All right. But in terms of an attempt to
6 track inbound, we have got domestic, which unless you
7 can tell me otherwise I'll assume it's just
8 miscellaneous domestic carriers or do you know what
9 that domestic refers to?
10 A. It's multiple carriers throughout the
11 country.
12 Q. I see. And Cavalea --
13 A. That would be overseas containers.
14 Q. Overseas. Very good. Thank you.
15 So to understand this, we understand domestic
16 is the miscellaneous carriers of goods produced
17 domestically?
18 A. Yes.
19 Q. And Cavalea is the principal deliverer of
20 goods manufactured overseas?
21 A. Yes.
22 Q. And "Carton" refers to the corrugated boxes?
23 A. Yes.
24 Q. And "Miscellaneous NS" refers to the peanuts
L.A. REPORTING (312) 419-9292
1100
1 and the other packing materials and supplies?
2 A. And it could be returns, it could be a FedEx
3 truck.
4 Q. You think so? You think that's tracked in
5 that miscellaneous column?
6 A. Yes, it could.
7 Q. It could be?
8 A. Yes.
9 Q. You're not certain though?
10 A. No.
11 Q. Those could be additional trucks coming in
12 and out of the docks that just simply aren't recorded,
13 is that possible?
14 A. That could be also.
15 Q. Is that more likely even?
16 A. I would not say it's more likely.
17 Q. But as you sit here today you're not certain
18 whether those miscellaneous types of FedEx returns or
19 UPS returns are or are not included in the
20 miscellaneous category there?
21 A. I would say they are in there.
22 Q. All right. And with respect to "public
23 warehouse" I take it that's shipments coming in from
24 the public warehouses that LTD was using in the fall of
L.A. REPORTING (312) 419-9292
1101
1 1998?
2 A. Yes.
3 Q. And so if we look at a weekly total of
4 inbound truck traffic we see the number -- not looking
5 at shuttles yet, but we see the total number of inbound
6 trucks at 145, is that right?
7 A. That's correct.
8 Q. Now shuttles -- well, what does "shuttles"
9 refer to?
10 A. That's the transfer of product between the
11 facilities.
12 Q. And back in November and December of 1998
13 that would have been between which LTD facilities?
14 A. The Bannockburn and the Aurora facilities.
15 Q. All right. So --
16 A. And Libertyville.
17 Q. And Libertyville which was operated then.
18 And this year, if we looked at a similar
19 diagram, we might have Gurnee as one of the shuttle
20 destinations?
21 A. Yes.
22 Q. So that's a separate category, shuttles in --
23 on December 1st, nine shuttles in and 11 shuttles out,
24 is that right?
L.A. REPORTING (312) 419-9292
1102
1 A. Yes.
2 Q. And so the total number of shuttles in and
3 shuttles out during the week ending December 4, 1998
4 was 97?
5 A. Yes.
6 Q. Right?
7 A. Yes.
8 Q. So 47 shuttles came in from LTD's satellite
9 facilities and 50 shuttles went out?
10 A. Yes.
11 Q. So to get an accurate outbound number we
12 would have to take again this 174 and add the number of
13 shuttles out as well, right?
14 A. Yes.
15 Q. Okay. And to get an accurate number of total
16 shuttles in or total trucks in we would take the 145
17 and then we would add also the weekly total 47 shuttles
18 in to get a number of inbound trailers?
19 A. Right.
20 (Complainants' Exhibit No. 57
21 was marked for
22 identification.)
23 BY MR. KAISER:
24 Q. All right. I'm showing you what I have
L.A. REPORTING (312) 419-9292
1103
1 marked for purposes of identification as Complainants'
2 Exhibit 57. It's a -- well, I'll show it to you. It's
3 a one-page document.
4 If you could tell the Board what we're
5 looking at here in Complainants' Exhibit 57?
6 A. This looks like a monthly summarization of
7 our inbound shipments in the years '96 and '97 and
8 outbound shipments '96, '97 for the months of
9 September, October, November and December.
10 Q. And that was an effort, was it not, to put
11 together numbers similar to those found in
12 Complainants' 56 where we knew what LTD was doing in
13 December of 1998 but we wanted to get a sense of what
14 LTD was doing in '96 and '97, right?
15 MR. KOLAR: Did I give those to you?
16 MR. KAISER: Yes.
17 MR. KOLAR: I thought I marked all mine with an
18 "L" in the bottom but maybe I didn't.
19 THE WITNESS: Note that it does state that the
20 inbound shipments are numbers that are used to
21 illustrate the inbound shipments for '96 have been
22 estimated using 20 percent less of what was received in
23 '97 so --
24
L.A. REPORTING (312) 419-9292
1104
1 BY MR. KAISER:
2 Q. So those are estimated numbers, the '97
3 numbers are hard numbers but the '96 are LTD's best
4 estimate?
5 A. Yes.
6 Q. Did you prepare this document or cause this
7 document to be prepared?
8 A. Yes.
9 Q. And I take it you'll vouch for these numbers,
10 these are true and accurate or the best estimate?
11 A. Yes.
12 Q. And I note that in '97 inbound shipments --
13 both in '96 and '97 inbound shipments peaked in the
14 month of October, is that right?
15 A. It appears so.
16 Q. And, similarly, in '97 at least outbound
17 shipments peaked in the month of October but in '96 --
18 how could that be that in '96 outbound shipments would
19 have peaked in November if you were doing an estimate?
20 A. I'm not following what you --
21 MR. KOLAR: The estimate applies to the asterisk.
22 MR. KAISER: I see. Okay. So we had actual
23 numbers. All right. Thank you.
24 MR. KOLAR: Ask him that, I guess.
L.A. REPORTING (312) 419-9292
1105
1 MR. KAISER: Right.
2 BY MR. KAISER:
3 Q. I mean, I'm looking down here and I thought
4 that there was the assumption for '96 but for outbound
5 apparently you had hard numbers on the number of
6 outbound shipments --
7 A. Yes.
8 Q. -- in '96?
9 It was simply the inbound shipments that were
10 estimated?
11 A. Yes.
12 Q. All right. And again the outbound shipments,
13 that would be a number strictly of outbound trailers
14 loaded with goods for LTD's customers, right?
15 A. Yes.
16 Q. That would not include the empties that
17 Cavalea and the domestic freight haulers took away
18 after they had brought goods to LTD?
19 A. I don't know. I would have to look at this
20 again.
21 Q. Okay. If you would, please.
22 (Pause in proceedings.)
23 THE WITNESS: The question again was.
24
L.A. REPORTING (312) 419-9292
1106
1 BY MR. KAISER:
2 Q. On the outbound shipments for '96 and '97
3 does that outbound number define only the number of
4 outbound trailers leaving LTD's Bannockburn facility
5 that were loaded with product?
6 A. Product going to the customer or product
7 going to our other distribution center?
8 Q. Either.
9 A. I'm not sure how to answer it. Again, I
10 would have to go back and get numbers that would -- the
11 outbound numbers look high. If you look at a month
12 of -- let's say the month of November, 853 over four
13 weeks would be over 200 trailers per week when I look
14 at the '98 numbers.
15 Q. Of course by '98 at this time you have your
16 Aurora facility operating?
17 A. That's true. I would say that's correct.
18 Q. Correct?
19 A. A correct assumption.
20 Q. That these are trailers that LTD loaded and
21 they're either going to another warehouse or another
22 distribution center or they're going to customers but
23 it doesn't include the empties, correct?
24 A. No, it would not include empties. Empties
L.A. REPORTING (312) 419-9292
1107
1 are just a direct correlation to the inbound.
2 Q. Right. Though if one wanted to try to
3 determine how many trucks passed through the entrance
4 and exit to LTD's dock facility you would have to count
5 the empties going out, right?
6 A. Yes.
7 Q. I'm going to show you what's previously been
8 marked for purposes of identification as Complainants'
9 Exhibit C-4. It's a one-page document from John
10 Schimel to Jack Voigt dated Wednesday, November 13,
11 1996. Do you see that?
12 A. Yes.
13 Q. What do you recognize that to be?
14 A. It was an e-mail that John Schimel gave to me
15 about a visitor he had the evening of November 13th.
16 Q. And did you receive that e-mail from John
17 Schimel on or about November 13, 1996?
18 A. Yes.
19 Q. And is it fair to say that by at least
20 November 13, 1996 you knew that person living in the
21 subdivision to the north of LTD's Bannockburn
22 facilities was concerned about sound originating at
23 LTD's dock area?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1108
1 Q. To the best you can recall did you have any
2 notice, before John Schimel sent you this e-mail, that
3 neighbors to the north were concerned about noise?
4 A. Not that I can recall.
5 Q. I'm showing you what's previously been marked
6 for purposes of identification as Complainants' Exhibit
7 C-5. It's a letter from William Kaufman to Jack Voigt
8 dated December 10, 1996.
9 I'd ask you to take a look at this and tell
10 me did you receive that letter some time in December of
11 1996?
12 A. Yes.
13 Q. And did that again give you notice that a
14 neighbor living in the subdivision to the north had
15 some concern about sound from LTD's dock operations?
16 A. Yes.
17 (Complainants' Exhibit No. 58
18 was marked for
19 identification.)
20 BY MR. KAISER:
21 Q. Now I'm showing you what's been marked for
22 purposes of identification as Complainants' Exhibit 58.
23 It's a document that has as its cover a fax cover sheet
24 from David Lothspeich to Jack Voigt. It appears to
L.A. REPORTING (312) 419-9292
1109
1 have a date on it of December 19, 1996.
2 Do you see that, Mr. Voigt?
3 A. Yes.
4 Q. Did you receive -- and take your time. Did
5 you receive this document and the attachment from Mr.
6 Lothspeich in December of 1996?
7 A. Yes.
8 Q. I'm showing you what's previously been marked
9 for purposes of identification as Complainants' Exhibit
10 8. It's a letter from Leslie Weber to David Lothspeich
11 dated January 30, 1997. It's a two-page letter.
12 I don't know if you can tell by looking at
13 that document in the form you're seeing it in, C-8,
14 whether you saw it some time in the time frame late
15 January-February of 1997, but the question I'm posing
16 to you is, do you recall seeing it in that time frame,
17 late January, early February 1997?
18 A. Yes.
19 Q. Was it provided to you by David Lothspeich to
20 the best of your knowledge?
21 A. Yes.
22 Q. I'm showing you what's previously been marked
23 for purposes of identification as Complainants' Exhibit
24 C-6. It's a letter from Tom Thunder to John Schimel
L.A. REPORTING (312) 419-9292
1110
1 dated December 31, 1997.
2 Have you seen that before, Mr. Voigt?
3 A. Yes.
4 Q. In fact Mr. Schimel works for you, right?
5 A. Yes.
6 Q. Have you tasked Mr. Schimel with the
7 responsibility for getting some information about
8 people who knew about noise and noise abatement and
9 noise measurement?
10 A. Yes.
11 Q. And did you see this some time in late
12 January, early February 1997?
13 A. Yes.
14 MR. KOLAR: This is 6?
15 MR. KAISER: Yes, that was 6.
16 BY MR. KAISER:
17 Q. C-7 is a letter from David Lothspeich to Mike
18 Hara dated February 7, 1997. Did Mike Hara pass that
19 letter on to you some time in February of 1997?
20 A. Yes.
21 Q. I note C-8 then is the Leslie Weber to
22 Lothspeich letter of January 30, 1997 which I
23 believe -- yes, here we go. Let me -- this is the same
24 thing, right?
L.A. REPORTING (312) 419-9292
1111
1 A. Yes.
2 Q. Let me just show you this, Mr. Voigt. It
3 says in Lothspeich's letter to Hara of February 7,
4 1997, "I am forwarding to you a copy of the January 31,
5 letter from LTD neighbor Leslie Weber."
6 Does that confirm your understanding as to
7 how you got a copy of C-8, Leslie Weber's letter to
8 David Lothspeich?
9 A. Yes.
10 Q. Now, C-9 is a fax from you to David
11 Lothspeich dated April 7, 1997 attaching a one-page
12 letter that reads as follows: "Dear David, Please find
13 attached the proposal we felt we would go with for the
14 environmental noise issue. Call me after you have a
15 chance to read this over to discuss the next step in
16 dealing with this issue."
17 Did you fax that to Mr. Lothspeich on or
18 about April 7, 1997?
19 A. Yes.
20 Q. And that's a true and accurate copy of your
21 fax, isn't it?
22 A. Yes.
23 Q. I'm showing you what's been marked for
24 purposes of identification as C-10, a letter from
L.A. REPORTING (312) 419-9292
1112
1 Lothspeich to Hara dated April 25, 1997.
2 Did Mr. Hara forward a copy of that letter to
3 you in late April or early May 1997?
4 A. Yes.
5 Q. And is it fair to say Mr. Hara gave you
6 principal responsibility for dealing with the
7 communications with the neighbors to the north and the
8 Village of Bannockburn in connection with the noise
9 issue?
10 A. Yes.
11 Q. And with respect to C-11, a letter from David
12 Lothspeich to Mike Hara -- and for the court reporter's
13 benefit Lothspeich is L-o-t-h-s-p-e-i-c-h -- Lothspeich
14 to Hara, July 11, 1997 talking about future noise
15 investigations.
16 Did Mr. Hara give you a copy of that letter
17 in July of 1997?
18 A. Yes.
19 MR. KAISER: Off the record.
20 (Discussion off the record.)
21 BY MR. KAISER:
22 Q. I'm showing you what's previously been marked
23 for purposes of identification as C-52. We were
24 looking at C-10, which is a letter from Lothspeich to
L.A. REPORTING (312) 419-9292
1113
1 Mike Hara dated April 25, 1997. And do you see where
2 it says, "I'm pleased to provide the attached April 20,
3 1997 review of the proposal from Acoustic Associates by
4 village sound consultant Schomer & Associates"?
5 A. Yes.
6 Q. I'm showing you what's been marked for
7 purposes of identification as C-52, an April 20th
8 letter from Schomer to Lothspeich. Is that to the best
9 of your knowledge the document Dave Lothspeich enclosed
10 in his April 25th letter to Mike Hara?
11 A. Yes.
12 Q. I'm showing you what's previously been marked
13 for purposes of identification as Complainants' Exhibit
14 C-12. It's a letter from Bill and Linda Kaufman to
15 Mike Hara dated Wednesday July 30, 1997.
16 Did Mr. Hara show you a copy of this letter
17 some time in the latter part of July or early August
18 1997?
19 A. Yes.
20 Q. I'm showing you what's previously been marked
21 for purposes of identification as Complainants' Exhibit
22 C-13. It's a transmittal memo from Tom Thunder to Jack
23 Voigt dated November 2, 1997.
24 I'd ask you to take a look at that and tell
L.A. REPORTING (312) 419-9292
1114
1 me if that's a true and accurate copy of a transmittal
2 memo you received from Tom Thunder in November of 1997?
3 A. Yes.
4 Q. As I understand it you, in consultation with
5 John Schimel and perhaps Mike Hara, decided to retain
6 Tom Thunder's group, Acoustic Associates, to help you
7 get information about noise issues, is that right?
8 A. Yes.
9 Q. And did LTD in fact authorize or hire Tom
10 Thunder and his group to, in September of 1997, take
11 noise measurements of LTD's dock operations and take
12 those measurements in the vicinity of the Roti and
13 Rosenstrock residences?
14 A. Yes.
15 Q. And do you recall meeting with Tom Thunder or
16 Roger Harmon before those investigations were made?
17 A. Yes.
18 Q. What did you say to Tom Thunder and what did
19 he say to you during those meetings?
20 MR. KOLAR: Objection, hearsay as to Tom Thunder.
21 BY MR. KAISER:
22 Q. What did you say to Tom Thunder? What did
23 you understand Tom Thunder was going to do?
24 A. There were going to do a sound study whatever
L.A. REPORTING (312) 419-9292
1115
1 evening that's dated there and position their
2 microphones and tape recording devices in strategic
3 places to help understand the concern that we had.
4 Q. I'm showing you what's previously been marked
5 for purposes of identification as Complainants' Exhibit
6 C-14. It's a transmittal memo and memorandum from Tom
7 Thunder to Jack Voigt dated November 14, 1997, Re:
8 Class B analysis, impulse analysis.
9 Did you receive this document from Tom
10 Thunder roughly the middle of November 1997?
11 A. Yes.
12 Q. Now, let's spend a little time on this if we
13 may, Mr. Voigt. And I note you're reading the front
14 page and take your time.
15 Have you given it the look you need?
16 A. Are you going to be asking me questions about
17 it?
18 Q. Yes, I may.
19 A. Then I better read it.
20 Q. Right. You might want to take your time and
21 familiarize yourself with these diagrams and we'll give
22 you a minute.
23 A. Sure.
24 Q. Thank you.
L.A. REPORTING (312) 419-9292
1116
1 HEARING OFFICER KNITTLE: Let's go off the record
2 while he's reading this.
3 (Discussion off the record.)
4 BY MR. KAISER:
5 Q. You have had a chance to look at that?
6 A. Yes.
7 Q. And do you recall having discussions with Tom
8 Thunder in November of 1997 about whether LTD was
9 properly classified as a Class B land use or a Class C
10 land use?
11 A. Yes.
12 Q. And do you remember talking with Tom Thunder
13 about impulse noise in general and in particular air
14 brakes, metal to metal noise, acceleration and fifth
15 wheel noise?
16 A. Yes.
17 Q. I want to show you what's previously been
18 marked for purposes of identification as Complainants'
19 Exhibit 15. It's a fax cover sheet from David
20 Lothspeich to Jack Voigt dated 12-1-97. And it
21 encloses as an attachment a November 21, 1997 letter
22 from Karen Roti to David Lothspeich.
23 Mr. Voigt, did you receive that fax from Mr.
24 Lothspeich in early December 1997?
L.A. REPORTING (312) 419-9292
1117
1 A. Yes.
2 Q. I'm showing you what's been marked for
3 purposes of identification as Complainants' Exhibit
4 C-16, a letter from Marvin Berman, Trustee Building
5 Commissioner, Village of Bannockburn, to Mike Hara
6 dated December 5, 1997.
7 Did Mr. Hara show you a copy of that letter
8 some time in December of 1997?
9 A. Yes.
10 Q. I'm showing you what's previously been marked
11 for purposes of identification as Complainants' Exhibit
12 17. It's a fax cover sheet from David Lothspeich to
13 Jack Voigt dated 12-8 1997. I note the "Re" line reads
14 as follows: "Trustee Berman asked that I fax you the
15 attached letter to make sure that you received it.
16 Please call and let me know if you will be able attend
17 tonight's meeting."
18 Did you receive a copy of this fax from Mr.
19 Lothspeich on or about December 8, 1997?
20 A. Yes.
21 Q. Do you know whether you were able to attend
22 the Village of Bannockburn's meeting on December 8,
23 1997?
24 A. I don't believe I was there.
L.A. REPORTING (312) 419-9292
1118
1 Q. I'm showing you what's been marked for
2 purposes of identification as Complainants' Exhibit 18.
3 It's a fax cover sheet from Tom Thunder to Jack Voigt
4 dated December 23, 1997 enclosing a second draft of a
5 letter report from Tom Thunder to LTD Commodities. I
6 note in the comment section on the first page it reads
7 as follows: "Here's my second draft based on our
8 recent meeting."
9 Do you recall meeting with Tom Thunder in
10 December of 1997 to discuss the results of his noise
11 study?
12 A. Yes.
13 Q. Where did that meeting take place?
14 A. At LTD.
15 Q. During that meeting did you form any opinion
16 as to whether LTD was in violation of the Illinois
17 Pollution Control Board's numeric standards for noise?
18 And if you need the question read back, the
19 court reporter can read it back.
20 A. Please.
21 (Record read as requested.)
22 THE WITNESS: Yes.
23 BY MR. KAISER:
24 Q. And what was that opinion?
L.A. REPORTING (312) 419-9292
1119
1 A. I felt we were not in violation.
2 Q. What was the basis of that opinion?
3 A. Based on the Class C rating that I feel that
4 LTD is and the, I think, results that Tom had given us.
5 Q. What about with respect to impulsive noise
6 where in the memo of November 14, 1997 Tom Thunder
7 suggests that: "On this figure, I have shown the
8 limits for Class C zoning. As you can see, it appears
9 we exceed these limits. Figure B shows that two of the
10 impulses are high frequency in nature (air brakes,
11 metal to metal) while the other two are low frequency
12 (acceleration, fifth wheel)."
13 You read this memo of November 14, 1997,
14 didn't you?
15 A. Uh-huh.
16 Q. And this is the one you just took a few
17 minutes to read?
18 A. Yes.
19 Q. And that's Exhibit C-14 for the record.
20 Did something happen between November 14th of
21 1997 and the time you reviewed Tom Thunder's second
22 draft on December 23, 1997 that led you to conclude in
23 December of 1997 that LTD wasn't violating even the
24 impulse limits?
L.A. REPORTING (312) 419-9292
1120
1 MR. KOLAR: Objection. I think that's more
2 properly a question for Tom Thunder because I don't
3 think this witness knows if we had one hour averaging
4 here in this November 14th memo so --
5 MR. KAISER: Well, I'm not saying are they in
6 violation. I just want to know what Mr. Voigt's
7 understanding was and whether he had an opinion in
8 December of 1997. Whether it was based on accurate or
9 inaccurate information the record will show, but --
10 MR. KOLAR: Objection, asked and answered. He
11 says that we were not in violation based on Class C and
12 results from Tom Thunder. So anything else I think is
13 more properly addressed to Tom Thunder.
14 MR. KAISER: I have to understand -- I mean, one
15 month earlier he gets a memo from Tom Thunder telling
16 him "I think you're in violation of the impulsive noise
17 limits." Four weeks later Mr. Voigt has now told us he
18 had the opinion they weren't, and I want to understand
19 what happened, if anything, between November 14th and
20 December 23rd that changed his opinion.
21 HEARING OFFICER KNITTLE: Well, I'll sustain the
22 objection in a limited sense. I don't think it was his
23 opinion. We don't know that his opinion was ever
24 changed unless I'm mistaken but I will allow you to ask
L.A. REPORTING (312) 419-9292
1121
1 him --
2 MR. KAISER: I guess you're right. Maybe he
3 disregarded Tom Thunder's November 14th memo.
4 HEARING OFFICER KNITTLE: I would ask you to allow
5 about the memo, ask him about the memo.
6 MR. KAISER: Sure.
7 BY MR. KAISER:
8 Q. Did you agree or disagree with Tom Thunder's
9 statement in his November 14, 1997 memo that "as you
10 can see it appears we" -- and I assume "we" is LTD --
11 "exceed these limits," referring to the impulsive noise
12 limits. Do you remember whether you agreed or
13 disagreed with Mr. Thunder in November of 19- --
14 A. I don't know that I expressed my opinion one
15 way or the other, I just listened to what he had to
16 say.
17 Q. All right. Did Mr. Thunder ever explain to
18 you that the Board has numeric limits on noise and it
19 also has a nuisance standard that limits the noise a
20 person can generate?
21 A. He may have.
22 MR. KOLAR: Objection for the record in that it
23 assumes that the nuisance regulation would apply to
24 this case but I think there is a Second District case
L.A. REPORTING (312) 419-9292
1122
1 that indicates it does not.
2 HEARING OFFICER KNITTLE: Mr. Kaiser, are we at a
3 good stopping point?
4 MR. KAISER: We can stop here as well.
5 HEARING OFFICER KNITTLE: Or do you have a train
6 of thought you want to finish or --
7 MR. KAISER: No. This is fine. We can stop right
8 here would be a great place to stop.
9 HEARING OFFICER KNITTLE: I'll move for the record
10 that my mom came in and she wants to have lunch with
11 me.
12 MR. KOLAR: That was your mom. Okay.
13 HEARING OFFICER KNITTLE: Let's go off the record
14 and take a lunch break.
15 (Lunch break.)
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
1123
1 A F T E R N O O N S E S S I O N
2 JACK LEO VOIGT,
3 having been previously duly sworn, was examined and
4 testified further as follows:
5 DIRECT EXAMINATION (CONTINUED)
6 BY MR. KAISER:
7 Q. Mr. Voigt, let the record reflect we're back
8 in session, Friday afternoon.
9 When we broke we were talking about
10 Complainants' Exhibit 18, Tom Thunder's fax cover sheet
11 and the second draft of his letter report. And it
12 references a meeting you had -- well, it references a
13 meeting. Did you in fact meet with Tom Thunder to
14 discuss noise issues in December of 1997?
15 A. Yes.
16 Q. I'm showing you what's been marked for
17 purposes of identification as Complainants' Exhibit 19.
18 It's a letter from Tom Thunder to LTD Commodities,
19 attention Jack Voigt dated January 8, 1998. And I'll
20 represent to you this is the letter in its final form
21 setting forth the results of Mr. Thunder's noise
22 measurements taken in September of 1997.
23 Have you seen this document? Did you get a
24 copy of that in January of 1998?
L.A. REPORTING (312) 419-9292
1124
1 A. Yes.
2 Q. Do you know what, if any, changes were made
3 to the document that wound up in final form as the
4 January 8, 1998 letter moved from draft stage to final
5 stage?
6 A. No, I don't. I mean, obviously we went and
7 compared it to --
8 Q. Right. I'm just wondering if there were any
9 big areas where you directed Tom Thunder either to
10 remove things or include particular things, do you
11 recall anything like that?
12 A. Specifically, no.
13 Q. Do you see the conclusion section here on
14 Page 4 of Mr. Thunder's January 8, 1998 report?
15 A. Yes.
16 Q. Could you please read the sentence that
17 begins "the random" and read to the bottom of that
18 paragraph?
19 A. "The random impact noise events do however
20 appear to exceed the State's impulse noise limits. The
21 fifth wheel impact noise tends to generate low
22 frequency noise while the sudden release of air from
23 the air brakes tends to generate high frequency noise."
24 Q. Is that description consistent with what you
L.A. REPORTING (312) 419-9292
1125
1 observed, that the sudden release of air from air
2 brakes tends to generate a high frequency noise?
3 A. Yes.
4 Q. And is that also consistent that the impact
5 noise made when the fifth wheel engages or disengages
6 generates a low frequency noise?
7 A. Yes.
8 Q. I want to show you what's previously been
9 marked for purposes of identification as Complainants'
10 Exhibits C-21 and C-22. C-21 is a letter dated
11 February 12, 1998 from Marv Berman to Mike Hara. And
12 C-22 is a letter from David Lothspeich to Mike Hara
13 dated February 18, 1998.
14 Did you see Complainants' Exhibit 21 in
15 February of 1998? Would Mr. Hara have given you a copy
16 of this?
17 A. Yes.
18 Q. And, similarly, would Mr. Hara have forwarded
19 to you David Lothspeich's letter of February 18, 1998?
20 A. Yes.
21 Q. Is it fair to say it's more likely than not
22 you saw those letters in February of 1998?
23 A. That's correct.
24 Q. I want to show you what's previously been
L.A. REPORTING (312) 419-9292
1126
1 marked for purposes of identification as Complainants'
2 Exhibit 23. It's a letter from Paul Schomer to Tom
3 Thunder dated February 27, 1998. Did Tom Thunder or
4 anyone else ever show you a copy of Schomer's letter
5 dated January 26, 1998?
6 A. I believe so.
7 Q. If you could look at the last page of this
8 letter. All right. And I note for the record -- I'm
9 going to show you a different last page. Do you see
10 this handwriting here?
11 A. Yes.
12 Q. Is that your handwriting?
13 A. Yes, it does look like mine.
14 Q. I would ask at this time to substitute in the
15 record -- Mr. Kolar, I don't know which copy you wound
16 up with. Take a look at the last page there.
17 MR. KOLAR: I was looking at C-23.
18 MR. KAISER: Right. And that's a copy of C-23 but
19 it has a little bit more information. And I may ask --
20 MR. KOLAR: These are different documents. My
21 C-23 is a February 27th letter.
22 MR. KAISER: I'm sorry. What am I looking at?
23 MR. KOLAR: From Schomer to Thunder.
24 HEARING OFFICER KNITTLE: That's mine as well.
L.A. REPORTING (312) 419-9292
1127
1 MR. KAISER: I apologize. What did I put in front
2 of you?
3 MR. KOLAR: January 26th. This might be --
4 HEARING OFFICER KNITTLE: 20.
5 MR. KOLAR: 20.
6 This is 20.
7 MR. KAISER: C-20.
8 MR. KOLAR: Right.
9 BY MR. KAISER:
10 Q. I'm sorry, what do you have in front of you?
11 Do you have C -- nothing in front of you at the moment.
12 A. You just took it. That was C-23.
13 Q. Let me grab C-20. I apologize. There is
14 C-20.
15 Now, take a look at C-20, a letter from
16 Schomer to David Lothspeich dated January 26, 1998.
17 Do you recall David Lothspeich forwarding a
18 copy of that letter to you?
19 A. Yes.
20 Q. Would that have been some time in late
21 January or February of 1998?
22 A. Yes.
23 Q. Now, I'm showing you what's been marked for
24 purposes of identification as C-23. This is a letter
L.A. REPORTING (312) 419-9292
1128
1 from Paul Schomer to Tom Thunder dated February 27,
2 1998.
3 Did you see Complainants' Exhibit 23,
4 Schomer's letter to Thunder? Have you seen that
5 before?
6 A. Yes.
7 Q. And in fact did you authorize Tom Thunder to
8 talk with Paul Schomer and discuss the results of
9 Thunder's noise analysis?
10 A. Yes.
11 Q. I'm showing you what's been marked for
12 purposes of identification as Complainants' Exhibit
13 C-24. It appears to be printouts of two e-mails from
14 John Sejud, S-e-j-u-d, to Jack Voigt the first of which
15 is dated -- or at least the top one is dated March 5,
16 1998 and the bottom one is dated March 3, 1998.
17 Did you in fact receive those e-mails in
18 March of 1998 from John Sejud?
19 A. Yes.
20 Q. Did the information contained in the e-mails
21 from John Sejud add to the pool of information you had
22 as of March 1998 with which you evaluated the noise
23 issues?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1129
1 Q. I'm showing you a document that's been marked
2 for purposes of identification as C-25. It's a letter
3 from Jack Voigt to Marvin Berman dated March 9, 1998.
4 Is that your signature on the document?
5 A. Yes.
6 Q. Did you in fact send this letter to Marvin
7 Berman on or about March 9, 1998?
8 A. Yes.
9 Q. Is this a true and accurate copy of the
10 letter you sent to Mr. Berman on or about March 9,
11 1998?
12 A. Yes.
13 Q. I'm showing you a document that's previously
14 been marked for purposes of identification as
15 Complainants' Exhibit 26. It's a letter from David
16 Mitchell to Jack Voigt dated March 10, 1998.
17 Did you in fact receive this letter in March
18 of 1998?
19 A. Yes.
20 Q. And did this letter contain information about
21 noise barriers, the cost and alleged effectiveness of
22 noise barriers?
23 A. Yes.
24 Q. Is this a true and accurate copy of the
L.A. REPORTING (312) 419-9292
1130
1 document you received from David R. Mitchell of the
2 Huff Company in March of 1998?
3 A. Yes.
4 Q. I'm showing you what's been marked for
5 purposes of identification as Complainants' Exhibit 27,
6 a letter from Karen Roti to Mike Hara dated March 21,
7 1998. It's unsigned but I represent to you that Karen
8 Roti sent a signed copy.
9 Did Mike Hara ever forward a copy of Ms.
10 Roti's letter to you?
11 A. He may have.
12 Q. I'm showing you what's previously been marked
13 for purposes of identification as Complainants' Exhibit
14 C-28, Mike Hara's response to Karen Roti dated April
15 16, 1998.
16 Did you have any role in preparing Mike
17 Hara's response to Karen Roti?
18 A. Yes.
19 Q. What was your role?
20 A. We had talked about what would be our game
21 plan to help -- you know, help give some response to
22 the Rotis and, you know, to look at her situation.
23 Q. So you talked with Mike Hara and told him
24 what you had found out in discussions with the Huff
L.A. REPORTING (312) 419-9292
1131
1 Company and discussions with Tom Thunder and
2 information you had received from Mr. Sejud?
3 A. Right.
4 Q. I'm showing you what's been marked for
5 purposes of identification as Complainants' Exhibit 29
6 a letter from Karen Roti to Mike Hara dated April 20,
7 1998.
8 Do you know whether Mr. Hara ever forwarded
9 that letter to you for review?
10 A. He may have. Does it jump out at me? No,
11 but I'm sure I did have a chance to see it.
12 Q. All right. Now, I'm showing you what's
13 previously been marked for purposes of identification
14 as Complainants' Exhibit 30. It's a fax cover sheet
15 from David Lothspeich to Mike Hara and Jack Voigt dated
16 April 23, 1998. It encloses or attaches a letter from
17 Paul Schomer to David Lothspeich dated March 16, 1998.
18 Did you receive this fax from David
19 Lothspeich on or about April 23, 1998?
20 A. Yes.
21 Q. And the fax you received, it included the
22 letter from Paul Schomer to David Lothspeich dated
23 March 16, 1998?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1132
1 Q. And I'd like to direct your attention if I
2 may.
3 A. Yes.
4 Q. If you could read the entire paragraph on the
5 second page of Schomer's letter to Lothspeich. If you
6 could read that aloud, please.
7 A. "It is now time to mitigate the known
8 measured noise impact" --
9 MR. KOLAR: I object. This is going to be part of
10 the record. I don't know if it's necessary to read a
11 pretty lengthy paragraph into the record.
12 MR. KAISER: I would agree. That's fine.
13 BY MR. KAISER:
14 Q. Did you understand that Mr. Schomer, as of
15 April of 1998, felt that LTD should build a noise wall?
16 And if you need to look at his letter to
17 refresh your recollection, you may?
18 A. Yes.
19 Q. I want to show you what's been marked for
20 purposes of identification as Complainants' Exhibits 31
21 and 32. 31 is a letter from Tom Thunder to Jack Voigt
22 dated May 19, 1998.
23 Did you receive that letter some time in late
24 May 1998?
L.A. REPORTING (312) 419-9292
1133
1 A. Yes.
2 Q. Did you read the letter when you received it?
3 A. Yes.
4 Q. And with respect to all these letters you
5 received, I take it you read the letters?
6 A. Yes.
7 Q. C-32 is a letter from Tom Thunder to Jack
8 Voigt dated June 5, 1998.
9 Did you receive this letter in June of 1998?
10 A. Yes.
11 Q. Did you read the letter?
12 A. Yes.
13 Q. I'm showing you what's been marked for
14 purposes of identification as C-33. It's a letter from
15 Mike Hara to Mike Grutza, President, Village of
16 Bannockburn. It's dated June 29, 1998. I want to show
17 you that letter.
18 Do you recognize that?
19 A. Yes.
20 Q. Do you note at the top it references a
21 meeting between Mike Hara, Karen Roti, Tony Roti and
22 yourself in June of 1998?
23 A. Yes.
24 Q. Do you recall attending a meeting at LTD's
L.A. REPORTING (312) 419-9292
1134
1 office in Bannockburn, Illinois in June of 1998 at
2 which Karen and Tony Roti were present?
3 A. Yes.
4 Q. What was the purpose of the meeting?
5 A. We wanted to try to solve their concern the
6 best we could face to face.
7 Q. What did you understand Karen and Tony Roti's
8 concerns to be with respect to noise from LTD's dock
9 operations in June of 1998?
10 A. They indicated that they felt they were being
11 kept awake by truck noises that they felt that were
12 coming from LTD's property.
13 Q. Was there discussion at that time about LTD
14 building a noise wall to reduce transmission and noise
15 from its docks to the Roti residence?
16 A. I believe there was.
17 Q. Do you recall Mike Hara asking the Rotis
18 whether they wanted to pay for that noise wall?
19 A. He may have.
20 Q. Do you remember that subject coming up, who
21 should pay for the noise wall?
22 A. Yes.
23 Q. Do you remember Tony Roti telling Mike Hara
24 that Tony Roti thought Mike should pay for it since LTD
L.A. REPORTING (312) 419-9292
1135
1 was the one causing the noise or words to that effect?
2 A. Yes, I guess.
3 Q. That meeting got a little heated at one
4 point, didn't it?
5 A. Yes.
6 Q. I take it you and Karen Roti weren't battling
7 one another, but Mike Hara and Tony Roti had some words
8 with one another, didn't they?
9 A. Yes.
10 Q. I'm showing you what's previously been marked
11 for purposes of identification as Complainants' Exhibit
12 34. It's the complaint in this matter.
13 I take it at some point since July of 1998 to
14 the present you have seen this complaint?
15 A. Yes.
16 Q. I'm showing you C-35 which is a letter from
17 Tom Thunder to you dated September 30, 1998.
18 Did you receive this letter?
19 A. Yes.
20 Q. I take it you probably received it late
21 September, early October of 1998?
22 A. Yes.
23 Q. And it's still Tom Thunder talking about the
24 cost of construction of a noise wall or effectiveness
L.A. REPORTING (312) 419-9292
1136
1 of a noise wall?
2 A. Yes.
3 Q. I'm showing you what's been previously marked
4 for purposes of identification as Complainants' Exhibit
5 38-J a memo from Steve Mitchell to Jack Voigt dated
6 January 13, 1999 and Complainants' Exhibit 38-K a memo
7 from Steve Mitchell to Jack Voigt dated February 13,
8 1999.
9 Do you recognize these exhibits, 38-J and
10 38-K? 38-J first, please.
11 A. Yes.
12 Q. Did you receive that on or about January 13,
13 1999?
14 A. Yes.
15 Q. Did you read it?
16 A. Yes.
17 Q. With respect to 38-K, did you receive this
18 memorandum on or about February 13, 1999?
19 A. Yes.
20 Q. Did you read it?
21 A. Yes.
22 Q. I'm showing you what's been marked previously
23 for purposes of identification as Complainants' Exhibit
24 36. I'll represent to you it's a figure created by Tom
L.A. REPORTING (312) 419-9292
1137
1 Thunder.
2 Did you ever see this figure or this
3 numerical analysis of the effectiveness of a noise
4 wall?
5 A. I don't recall seeing this.
6 Q. Did you ever talk with Tom Thunder about the
7 effectiveness of a noise wall?
8 A. Yes.
9 Q. And is it fair to say you were concerned that
10 a noise wall might not reduce noise enough?
11 A. Right.
12 Q. And that's still your position, right?
13 A. Yes.
14 Q. Did you ever talk with Steve Mitchell about
15 what types of guarantees he could provide you with
16 respect to the effectiveness of a noise wall?
17 A. Yes.
18 Q. Is that on the telephone or in person, the
19 conversations you had with Steve Mitchell?
20 A. Both.
21 (Complainants' Exhibit No. 59
22 was marked for
23 identification.)
24
L.A. REPORTING (312) 419-9292
1138
1 BY MR. KAISER:
2 Q. I want to show you what I'm marking for
3 purposes of identification as Complainants' Exhibit 59.
4 I'll note for the record that it's invoices from
5 Acoustic Associates, Limited to Jack Voigt. I'm not
6 certain if I have a copy of these, though I'll look in
7 my box.
8 Mr. Voigt, I'd ask you to take a look at
9 Complainants' Exhibit 59 which is a -- let me just note
10 for the record it's a 16 page document. If you'd thumb
11 through those, are those some, if not all, of the
12 invoices submitted by Acoustic Associates Limited to
13 LTD in connection with the work it had done for LTD?
14 A. Yes.
15 Q. And LTD has paid those invoices, has it not?
16 MR. KOLAR: Objection, relevance.
17 HEARING OFFICER KNITTLE: Mr. Kaiser.
18 MR. KAISER: I want to -- one of the arguments
19 that has been raised in this case is that the
20 complainants could have gone out and hired their own
21 sound expert, they could have obtained their own noise
22 readings. And there is an implication that because
23 they didn't -- well, there may be argument in closing
24 briefs about why they did or did not, and I want to
L.A. REPORTING (312) 419-9292
1139
1 point out what the cost of those types of
2 investigations are. And we can make that argument by
3 reference to Acoustic Associates' invoices to LTD in
4 connection with the work in this case.
5 HEARING OFFICER KNITTLE: Mr. Kolar.
6 MR. KOLAR: Well, I think the invoices go beyond
7 the actual measurement of noises. I think they relate
8 to telephone conferences, planning study, a meeting
9 with Paul Schomer, Bannockburn's noise consultant. So
10 I think it's, number one, inaccurate to state that all
11 these invoices totaled together would be the cost to
12 hire your own noise consultant. And, second, I haven't
13 heard any of the complainants say they did not have the
14 financial ability to hire their own noise consultant.
15 HEARING OFFICER KNITTLE: The objection is
16 sustained.
17 MR. KAISER: If I may offer one more basis.
18 I think it would go to potential bias of Tom
19 Thunder, to the extent he's received, as is clear,
20 substantial compensation from LTD. I think on that
21 issue alone -- I mean, if you prefer, I'll reoffer them
22 during Mr. Thunder's expected testimony for the purpose
23 of showing bias.
24 HEARING OFFICER KNITTLE: Let's do that instead.
L.A. REPORTING (312) 419-9292
1140
1 And I hate to do this to you guys but I need a second
2 here.
3 MR. KAISER: That's fine.
4 (Short break.)
5 BY MR. KAISER:
6 Q. At any rate, Mr. Voigt, you're aware that Tom
7 Thunder and his group Acoustic Associates they have
8 been billing you for the work they have done?
9 A. Yes.
10 Q. And I take it you have been paying them?
11 A. Yes.
12 Q. Now, with respect to the number of products
13 LTD sells -- and that's what LTD does, right, it sells
14 products?
15 A. Yes.
16 Q. Do I recall your deposition testimony
17 correctly that at any given time LTD offers for sale
18 between 2,000 and 5,000 products?
19 A. Yes.
20 Q. With respect to the trucking operations is
21 there any difference, meaningful difference between the
22 number of trucks that come into LTD on a Monday and the
23 number of trucks that come into LTD on a Friday?
24 A. No.
L.A. REPORTING (312) 419-9292
1141
1 Q. You don't staff any differently on Monday
2 than you do on Friday, right?
3 A. No. I would only say that it's possible that
4 unexpected live loads may show heavier on a Monday
5 simply because someone may have traveled over the
6 weekend and chose to.
7 Q. Unexpected live loads are a little more
8 likely to show up during the daytime than during the
9 second shift, right?
10 A. Yes.
11 Q. But other than those occasional live loads --
12 and that means somebody who wasn't scheduled, right?
13 A. Yes.
14 Q. Other than those occasional live loads do you
15 receive shipments of boxes during the second shift?
16 A. Yes.
17 Q. Do you receive shipments of the styrofoam
18 peanuts during the second shift?
19 A. Yes.
20 Q. And really your goal, as the person
21 overseeing the shipping and receiving operations for
22 LTD, is to make sure that it's a fairly steady flow of
23 traffic and that it doesn't build up either at the
24 beginning of the week or the end of the week, right?
L.A. REPORTING (312) 419-9292
1142
1 A. Yes.
2 Q. And, similarly, you don't want to have the
3 first shift working double time and the second shift
4 sitting around, right?
5 A. Yes.
6 Q. And you try to schedule the deliveries, the
7 receiving, and the shipping almost equal between the
8 first and the second shift, right?
9 A. There is more volume on the first shift
10 simply because of the live loads and the UPS/Federal
11 Express type deliveries that happen.
12 Q. But with respect to the products going out,
13 the loaded tractors filled with goods from LTD
14 Commodities to LTD's customers, those go out pretty
15 much evenly day in -- first shift and second shift,
16 right?
17 A. Yes.
18 Q. And Friday night is virtually as busy as
19 Monday night?
20 A. Yes.
21 Q. Are you aware of the truck volume -- strike
22 that.
23 Are you aware that the Rotis, Webers and
24 Rosenstrocks have all identified noise from a backup
L.A. REPORTING (312) 419-9292
1143
1 beeper on one of LTD's -- well coming from LTD's truck
2 dock that sounds different this year, summer and fall
3 of 1999, than it did in previous years?
4 A. Am I aware that they have identified that?
5 Q. Well, are you aware -- are any vehicles in
6 LTD's loading dock this year, summer and fall of 1999,
7 using a backup warning beeper that's different in any
8 respect than the backup warning beeper LTD used in
9 previous years?
10 A. Yes.
11 Q. What is the difference?
12 A. I believe this year the yard tractor has a
13 backup warning device and previous years did not.
14 Q. The yard tractor in the years 1998 and 1997,
15 and perhaps even as far back as 1996, did not have that
16 backup warning beeper on it?
17 A. I believe that's true.
18 Q. So it was only the over-the-road truck
19 tractors that had the backup warning beepers in years
20 past, if any?
21 A. Yes.
22 Q. I see. But this year the yard tractor that's
23 stationed 100 percent of its time in LTD's dock area is
24 operating with a backup warning beeper?
L.A. REPORTING (312) 419-9292
1144
1 A. Yes.
2 Q. And do you know whether that backup warning
3 beeper is engaged by the transmission of the tractor?
4 A. I would believe when it's put into the
5 reverse gear that it activates the alarm.
6 Q. Have you personally done any research or are
7 you aware of any research done on behalf of LTD which
8 would demonstrate that LTD can comply with the
9 regulations promulgated by the Occupational Safety and
10 Health Administration by disconnecting the warning
11 beeper but using a person to manually safeguard the
12 rear of the yard tractor or the trailer it's engaged
13 with at that time?
14 A. I have not.
15 Q. You are aware that the Huff Company has
16 proposed construction of a noise wall that would extend
17 from the western portion of LTD's dock area to the
18 eastern portion including coverage of the spur
19 connecting the dock area with Lakeside Drive?
20 MR. KOLAR: Objection. I think "proposed
21 construction" is inaccurate. That's not supported by
22 the evidence. They have a proposal for a noise wall.
23 They're not proponents necessarily of a noise wall
24 other than for business reasons.
L.A. REPORTING (312) 419-9292
1145
1 MR. KAISER: I'd accept that limitation.
2 BY MR. KAISER:
3 Q. You received a proposal from the Huff Company
4 for construction of a noise wall from the western end
5 of LTD's dock area to the east including coverage of
6 the spur area connecting LTD's loading dock with
7 Lakeside Drive?
8 A. Yes.
9 Q. You're aware that that wall would cost in the
10 vicinity of $300,000?
11 A. I believe that's correct.
12 Q. And you're aware that the Huff Company, and
13 Steve Mitchell, is of the opinion or has told you that
14 the wall they have proposed would reduce transmission
15 of noise from LTD's docks to the Roti, Weber and
16 Rosenstrock residences, correct?
17 A. Yes.
18 MR. KAISER: Thank you, Mr. Voigt. I have no
19 further questions at this time.
20 HEARING OFFICER KNITTLE: Mr. Kolar.
21 MR. KOLAR: Thanks.
22 THE WITNESS: Could we go off the record for a
23 second?
24 HEARING OFFICER KNITTLE: Sure.
L.A. REPORTING (312) 419-9292
1146
1 CROSS EXAMINATION
2 BY MR. KOLAR:
3 Q. Jack, you saw this, Respondent's Exhibit 89?
4 A. Yes.
5 Q. And even though you weren't with the company
6 prior to 1990, in your nine years have you gained an
7 understanding as to the stages of the three buildings
8 that now comprise the LTD warehouse office facility?
9 A. Yes.
10 Q. And if I drew a line vertically here that
11 would separate the -- sort of the pre-LTD building from
12 the first expansion, right?
13 A. Yes.
14 Q. The FMC building from then the --
15 A. Yes.
16 Q. Right here?
17 A. Yes.
18 Q. We'll mark this further.
19 And if I drew a horizontal line right here,
20 that would separate the '95 expansion from the FMC and
21 the first LTD expansion, right?
22 A. Yes.
23 Q. So in this quadrant to the upper left if I
24 just put "1986," that would represent the warehouse as
L.A. REPORTING (312) 419-9292
1147
1 of '86 when LTD bought the building?
2 A. Yes.
3 Q. And then this section to the right would be
4 the addition from 19- -- I think late 1987, right?
5 A. Yes.
6 Q. And then down below would be the 1995
7 addition?
8 A. Yes.
9 Q. Now, the truck staging area that you told Mr.
10 Kaiser was reconfigured with the '95 addition -- if I
11 understand correctly though, the auto parking lot was
12 always above grade relative to the truck dock area,
13 right?
14 A. Yes.
15 Q. So if we can clarify this, there had to be
16 something there before this concrete wall in order to
17 have a transition area from the low-grade dock area to
18 the above grade automobile parking lot --
19 A. Yes.
20 Q. -- true?
21 A. Yes.
22 Q. Can you explain what it looked like before
23 the concrete block retaining wall was built with the
24 truck bumpers?
L.A. REPORTING (312) 419-9292
1148
1 A. There is an existing portion of the retaining
2 wall. It was a wood retaining wall that went from east
3 to west. As you proceeded from the east, east being
4 the highest portion of the wall, and then going to the
5 west, the wall steadily declined until the -- I guess
6 by doors one and two which are ground level doors and
7 there was no need for a retaining wall because the
8 parking lot wasn't equal height to the truck staging
9 area there.
10 Q. Okay. So the concrete block wall that's
11 there now was sort of an improvement over an older
12 retaining wall?
13 A. Yes.
14 Q. But on top of that, as you acknowledge, the
15 wooden bumpers for the truck staging area were added?
16 A. Yes.
17 Q. Now, in 1994, the fall of 1994, was LTD
18 operating a second shift?
19 A. Yes.
20 Q. Were there trucking operations on that second
21 shift?
22 A. Yes.
23 Q. In the fall of 1995 was LTD operating a
24 second shift?
L.A. REPORTING (312) 419-9292
1149
1 A. Yes.
2 Q. Were there trucking operations in the 1995
3 second shift?
4 A. Yes.
5 Q. Currently 1999 when the second shift ends and
6 employees go home does LTD in any manner sort of lock
7 up for the night?
8 A. Yes, we do.
9 Q. Can you explain that just generally? What
10 happens in terms of shutting down?
11 A. Once we complete the shift, trucks are
12 finished loading and are pulled out of the dock area.
13 The dock doors are closed and locked and secured. The
14 security system is turned on and we leave the premises.
15 Q. And for 1999 the Aurora facility is going
16 full tilt?
17 A. Yes.
18 Q. Are there fewer trucks coming into the
19 Bannockburn facility in '99 than 1998 because of the
20 Aurora facility?
21 MR. KAISER: Objection, foundation. I'd like to
22 know how he knows. I mean, I'm assuming he's going to
23 give an answer to that question but I'd like to know
24 what he's looked at.
L.A. REPORTING (312) 419-9292
1150
1 HEARING OFFICER KNITTLE: Sustained.
2 BY MR. KOLAR:
3 Q. Do you know if there are fewer trucks coming
4 into the Bannockburn facility in 1999 than 1998 and
5 1997 because of the Aurora facility, yes or no?
6 A. Yes.
7 Q. Okay. And how do you -- before giving an
8 answer, how do you know truck traffic in 1999 versus
9 '98 and '97?
10 A. How do I know the --
11 Q. Yes, how do you know the answer to that
12 question.
13 A. Roughly 40 to 45 percent of our volume of
14 work now is shipped out of Aurora. Relative to
15 pre-1998 of October 100 percent was coming out of
16 Bannockburn.
17 Q. So then in 1999 versus '98 you think there
18 are fewer trucks in and out of Bannockburn than in '98?
19 A. I would speculate that is true.
20 MR. KAISER: Objection.
21 BY MR. KOLAR:
22 Q. We didn't want you to speculate. So I mean,
23 based on your experience at Bannockburn, your knowledge
24 of the distribution at Bannockburn, your knowledge of
L.A. REPORTING (312) 419-9292
1151
1 the distribution at Aurora, can you tell the Pollution
2 Control Board if based on that experience there is less
3 truck traffic this year than last year at Bannockburn?
4 If you don't know, you don't know. I don't want
5 speculation.
6 A. I don't have numbers in my mind that can say
7 yes or no. I'm basing it on outbound shipping that we
8 do. The volume is less this year than we did last
9 year. And, again, it's only an assumption at that
10 point because outbound trailers are quite a bit less
11 because of less volume being shipped out. Do I know --
12 do I see two numbers side by side? I don't have that.
13 Q. Okay. The only way you get product out of
14 the warehouse in Bannockburn is by trucks, right?
15 A. Correct.
16 Q. Trucks ship the merchandise out of the
17 warehouse?
18 A. Correct.
19 Q. You do know that in 1999 because of Aurora
20 the Bannockburn shipments out are down?
21 A. Yes.
22 MR. KAISER: Objection. That assumes that sales
23 are steady or falling. And without that number I don't
24 think he can make any assumption about volume, overall
L.A. REPORTING (312) 419-9292
1152
1 volume because you're basing it on -- there is an
2 assumption that's being made, and we don't know if
3 that's accurate.
4 HEARING OFFICER KNITTLE: I'm going to overrule.
5 I think he can answer just based on his job description
6 whether or not the volume is down. And I would hope
7 that he's not making assumptions that are not in
8 evidence. You could, Mr. Kaiser, delve into that.
9 MR. KAISER: I'll do cross. Fine.
10 BY MR. KOLAR:
11 Q. In 1999 does LTD have any sort of internal
12 policy regarding having trucks arrive during the day
13 shift versus the night shift or any sort of preference?
14 A. We pretty much try to spread it out during
15 the day. Again, we don't have control of our day shift
16 as good as we do on the night shift simply because
17 truckers of the nonscheduled type are less likely to
18 come in on nights because lot of companies are not open
19 on second shift. So our volume on days is higher that
20 way.
21 Q. In the time where you have been at LTD in
22 distribution has LTD's operation ever been opened 24
23 hours a day?
24 A. No.
L.A. REPORTING (312) 419-9292
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1 Q. Has the yard tractor at LTD ever operated 24
2 hours a day?
3 A. No.
4 Q. Some time this week was the yard tractor
5 backup beeper not operating?
6 A. Yes.
7 Q. Why is that?
8 A. Well, I had heard that the neighbors were
9 concerned about the backup beeper warning device so we
10 thought we would try an experiment and say, well, you
11 know, is there an appreciable difference between it
12 working and not working.
13 Q. When was it disconnected and when was it
14 reconnected?
15 A. It was off for approximately 36 hours
16 Tuesday -- I think Tuesday at 3 o'clock, and it was put
17 back on Thursday morning at 6 a.m., 7 am.
18 Q. And this wasn't the only occasion that LTD
19 had disconnected the backup beeper, right?
20 A. Yes. Roughly two months ago I heard it, and
21 I asked our maintenance department to disconnect it.
22 Q. How long was it disconnected?
23 A. I would say it was about -- I don't know if
24 it was quite a week or not.
L.A. REPORTING (312) 419-9292
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1 Q. And the backup beeper on the yard tractor, is
2 that something -- is LTD still looking into that as to
3 whether it can permanently disconnect the backup
4 beeper?
5 A. Yes.
6 Q. And is that something LTD would be willing to
7 do if it was not in violation of a law to do that and
8 it didn't have any safety ramifications?
9 A. Yes.
10 Q. Now, except for the yard tractor do all
11 tractors that come in and out of the LTD facility have
12 to your knowledge license plates on them?
13 A. Yes.
14 Q. And all these other trucks, other than the
15 yard tractor, come to LTD by Route 22 to Lakeside
16 Drive?
17 A. Yes.
18 Q. And to your knowledge Lakeside Drive, is that
19 a public or private road?
20 A. Public.
21 Q. You told Mr. Kaiser about the corrugated
22 shipment, do you recall that?
23 A. Yes.
24 Q. So I understand, everyday more than once a
L.A. REPORTING (312) 419-9292
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1 day you have cardboard boxes being shipped to LTD?
2 A. Yes.
3 Q. And tape is shipped to LTD?
4 A. Yes.
5 Q. And packaging peanuts are shipped to LTD?
6 A. Yes.
7 Q. So what does LTD do with these boxes and tape
8 and packing peanuts?
9 A. We offload the trucks. We store it on
10 shelving, racks, and we utilize those supplies for our
11 outbound shipping.
12 Q. Do employees build boxes with the cardboard
13 and the tape?
14 A. Yes.
15 Q. And then they, what, might put in some items
16 from your catalog into a box?
17 A. Yes.
18 Q. Fill it up with peanuts?
19 A. Yes.
20 Q. Close the box?
21 A. Yes.
22 Q. Put tape on the box?
23 A. Strapping, taping, both.
24 Q. And then we have got a package which goes
L.A. REPORTING (312) 419-9292
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1 back into a truck?
2 A. Yes.
3 Q. And that's shipped off to someplace 'till it
4 eventually makes its way to the business address,
5 right?
6 A. Yes.
7 Q. And that building of boxes, packing of boxes,
8 filling with peanuts, closing boxes happens in the LTD
9 warehouse?
10 A. Yes.
11 Q. Okay. And storage of the merchandise and
12 that packing and crating activity, that's really the
13 only thing that happens in the warehouse, right?
14 A. Yes.
15 Q. And every piece of merchandise that comes to
16 LTD and every piece of merchandise that leaves LTD does
17 so through the truck docks, right?
18 A. Yes.
19 Q. You mentioned 26 truck docks, but I didn't
20 hear what happens with 1, 2, and 3. Tell us about
21 those.
22 A. Docks 1 and 2 are ground level dock doors
23 that are used for fork trucks/repair trucks backing in,
24 pickup trucks can come in and out. Door 3 is a
L.A. REPORTING (312) 419-9292
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1 compactor used for our dumping of garbage and things.
2 Q. So when you say "ground level" I guess for
3 the ones 4 through 26, when a trailer backs into the
4 truck dock, once it's goes all the way down and makes
5 contact, the warehouse level would be about six feet
6 above the ground that the truck tires are on?
7 A. It would be more like three and a half to
8 four feet, but it would -- door 3 is also that way or
9 dock -- I guess I would say door 3 is the same way,
10 it's just that that dumpster is modified to be at the
11 same level as a trailer would be.
12 Q. Okay. Docks 1 and 2, the floor of the dock
13 is level with so to speak the floor of the warehouse at
14 that location?
15 A. Yes, and the parking lot.
16 Q. And has LTD ever operated any of its
17 warehouse area as a public warehouse for other
18 businesses or individuals?
19 A. No.
20 Q. It's always been strictly devoted to LTD's
21 private uses?
22 A. Yes.
23 Q. Now, where approximately is your office
24 located in the facility? Are you in the original
L.A. REPORTING (312) 419-9292
1158
1 office facility or do you have something in the
2 warehouse area?
3 A. Actually I'm in the part of the building
4 that's 1986. And there is a hallway that goes between
5 the 1986 and the office complex. In the northeast
6 corner of where that hallway runs, that's where my
7 office is located. Right up -- just a little bit right
8 there about -- no, down a little bit.
9 Q. In any event, your office is in the block
10 that we have marked 1986 and it would sort of be in the
11 northwest --
12 A. Corner of that, yes.
13 Q. -- corner of that block?
14 Can you hear trucking operations in your
15 office?
16 A. No.
17 Q. Have employees ever come to complain to you
18 that noise from LTD trucking operations is adversely
19 affecting them in any way?
20 A. No.
21 Q. As part of your job at LTD have you had
22 occasion to walk in the truck dock area?
23 A. Yes.
24 Q. And have you walked on the sidewalk above the
L.A. REPORTING (312) 419-9292
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1 truck staging area?
2 A. Yes.
3 Q. Have you seen tractor-trailers back into the
4 truck staging area?
5 A. Yes.
6 Q. Have you seen tractor-trailers come in
7 contact with the wooden bumpers in that area?
8 A. Yes.
9 Q. Have you ever felt the ground shake when
10 contact was made between the tractor-trailer and the
11 wooden bumper?
12 A. No.
13 Q. To your knowledge is there any trucking
14 reason why a tractor-trailer operator would want to at
15 an excessive speed ram the trailer into the wooden
16 bumper?
17 A. No.
18 MR. KAISER: Objection, calls for speculation.
19 HEARING OFFICER KNITTLE: Mr. Kolar.
20 MR. KOLAR: He's in the distribution business
21 running a trucking operation. I would think he would
22 be able to tell us whether there is a business reason
23 or a trucking need to hit those at an excessive speed.
24 MR. KAISER: I don't think that was the limit of
L.A. REPORTING (312) 419-9292
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1 the question. If that's the limit that is there a
2 trucking need as opposed to a personal need to release
3 tension or vent feelings of rage or some other thing
4 that might motivate someone to slam a trailer into a
5 dock, I'd be happy to hear Mr. Voigt's opinion, but if
6 it's a broader inquiry, like the one I just outlined,
7 I'd object.
8 HEARING OFFICER KNITTLE: Mr. Kolar, is that okay?
9 MR. KOLAR: Yes.
10 HEARING OFFICER KNITTLE: Can you rephrase it just
11 because I don't know if the witness remembers.
12 BY MR. KOLAR:
13 Q. Is there any trucking need, truck operator
14 need to your knowledge -- strike that. Let me put it
15 this way.
16 In the normal course of backing a
17 tractor-trailer into a truck staging area, doing it
18 correctly, is there any reason to ram the trailer into
19 the wooden bumper block?
20 A. No.
21 Q. Okay. And in your experience since 1990 have
22 you noticed an inordinate amount of time when drivers
23 appeared to be angry and just wanted to ram their
24 trailers into the wooden bumper blocks?
L.A. REPORTING (312) 419-9292
1161
1 A. No.
2 Q. Have you noticed that at all where truck
3 drivers seemed to for some reason wanted to just ram
4 their trailers into that wooden bumper block?
5 A. No.
6 Q. If that happens at all how frequently does it
7 happen when somebody hits it too fast?
8 MR. KAISER: Objection, calls for speculation
9 unless he can lay a foundation.
10 MR. KOLAR: Let me ask.
11 BY MR. KOLAR:
12 Q. Have you ever seen a tractor-trailer driver
13 ram into the wooden bumper blocks at which you felt was
14 too fast a speed?
15 A. Not that I recall.
16 Q. It might have happened?
17 A. Sure. I mean, it's possible.
18 Q. But you don't recall seeing that happen,
19 right?
20 A. No.
21 Q. As Vice-President of Distribution is that
22 something that you would stand for?
23 A. No.
24 MR. KAISER: Objection, calls for speculation.
L.A. REPORTING (312) 419-9292
1162
1 HEARING OFFICER KNITTLE: Overruled.
2 BY MR. KOLAR:
3 Q. Jack, have you ever been on Wedgewood Street
4 where the Rotis, the Webers and Mr. Rosenstrock live
5 on?
6 A. Yes.
7 Q. Were you in a car or walking? Explain that
8 to us.
9 A. I drove through the neighborhood.
10 Q. Did you put your windows down?
11 A. On a summer day I may have.
12 Q. Well, were you there when LTD had trucking
13 operations going on?
14 A. Yes.
15 Q. When was that, do you remember?
16 A. Boy. There is no specific date. I mean, I
17 periodically drive through there just sightseeing
18 really.
19 Q. What was your observation of noise on the
20 occasion or occasions that you were on Wedgewood?
21 A. There was none. I didn't hear anything as I
22 drove down the road.
23 Q. And in the last couple weeks were you in a
24 car with Mr. Hara and another gentleman sitting on the
L.A. REPORTING (312) 419-9292
1163
1 north end of the LTD parking lot?
2 A. Yes.
3 Q. What time was that?
4 A. About 7:30 at night, 7 o'clock.
5 Q. On that occasion did you make an attempt to
6 hear any noise from the LTD trucking operations?
7 A. Yes.
8 Q. How did you do that and what did you hear?
9 A. The gentleman that was driving, he was asked
10 to stop his car and open up the windows. I was sitting
11 in the back seat. Mike was in the front seat with the
12 other gentleman. And we asked him to turn his car off,
13 and we sat and listened for a couple minutes.
14 Q. What did you hear?
15 A. We heard very little at that time. I mean,
16 there wasn't -- nothing that was extraordinarily loud
17 or anything. I believe I may recall the yard tractor
18 was moving but it was a very -- it was a sound that
19 wasn't, you know, what I would call loud.
20 Q. Can you hear the tollway from your trucking
21 area?
22 A. Yes.
23 Q. Do you have any personal experience with
24 tollway noise?
L.A. REPORTING (312) 419-9292
1164
1 A. Yes. Where my family and I live we live
2 within a half mile of the tollway.
3 Q. Does the tollway sound louder when it's wet?
4 A. Yes, especially when we have a northeast or
5 east wind, and we happen to live on the west side, and
6 it can be quite loud.
7 Q. Do you remember the questions by Mr. Kaiser
8 about the meeting with you, Mike Hara, Karen Roti,
9 Anthony Roti?
10 A. Yes.
11 Q. During that meeting at some point did Tony
12 Roti say to Mike Hara something about going to the
13 papers or going to the newspapers about LTD being a bad
14 neighbor or not caring about his kids, something like
15 that?
16 A. Yes.
17 Q. So you heard that?
18 A. Yes, I did.
19 Q. And how far -- where were you seated? Where
20 was Karen Roti seated and where were Mike and Tony
21 seated roughly?
22 A. I would estimate that we were all sitting
23 within the confines of like along that table there.
24 Q. About a six foot table?
L.A. REPORTING (312) 419-9292
1165
1 A. Well, Michael's desk -- if we would say
2 Michael was on this side of the desk, the Rotis were to
3 the left of Mike and I was to the right of Mike. And I
4 was sitting alongside of -- I don't know, was it Mr. or
5 Mrs.? I want to say Mrs. was sitting in the middle and
6 Mr. was on the left but, you know --
7 Q. Mike was sitting at his desk?
8 A. Yes.
9 Q. And then on other side of the desk you had
10 yourself and Mr. and Mrs. Roti?
11 A. Yes.
12 Q. And you heard Mr. Roti say something about
13 papers or the newspaper?
14 A. Yes.
15 Q. And how many feet from you was Karen Roti at
16 the time that Tony Roti said that?
17 A. She was within three, four feet of me.
18 Q. And did Mr. Roti whisper that when he said
19 something about the papers or the newspapers?
20 A. No.
21 Q. Was it heated at that time?
22 A. He seemed agitated. It almost seemed like a
23 threat.
24 MR. KAISER: Objection. What's my proper
L.A. REPORTING (312) 419-9292
1166
1 objection? It's not nonresponsive, it's --
2 HEARING OFFICER KNITTLE: Voluntary?
3 MR. KOLAR: Volunteered.
4 MR. KAISER: Volunteered, exactly. Move to
5 strike.
6 HEARING OFFICER KNITTLE: I'll sustain that.
7 BY MR. KOLAR:
8 Q. In your opinion did Mr. Roti's comment seem
9 like a threat?
10 A. Yes.
11 Q. You remember on one occasion walking Mr.
12 Kaiser and Greg Zak through the warehouse?
13 A. Yes.
14 Q. You took them in the '86, '87 and '95
15 sections?
16 A. Yes.
17 Q. And exited through the office if I recall?
18 A. Yes.
19 Q. Did you ever walk Paul Schomer through any
20 part of the warehouse? I don't know if you did.
21 A. I don't know that we walked through the whole
22 building. I believe he was by the dock.
23 Q. But Mr. Zak, you remember showing Mr. Zak the
24 area where the trucks inside the building make contact
L.A. REPORTING (312) 419-9292
1167
1 with the dock?
2 A. Yes.
3 Q. And there was something there that raises up
4 and goes into the bed of the truck, right?
5 A. Yes.
6 Q. What's that called?
7 A. That's called a dock leveler.
8 Q. Did he say something to you about your dock
9 levelers?
10 A. Yes.
11 Q. What did he say?
12 A. He had indicated that especially I think the
13 one that we looked at was noisy. I mean, it was giving
14 off a -- when you activated it, the metal -- there is a
15 portion that flips down. It's about a 12 to 18 inch
16 piece of metal. And what it does is it extends the
17 dock leveler out onto the trailer bed. And when the
18 trailer is pulled out, what can happen is that the dock
19 leveler will slam down, and this 12 to 18 inch piece of
20 metal will hit the side of the building or up against
21 itself, the dock leveler.
22 Q. Okay. And has LTD done anything since that
23 date regarding its dock levelers?
24 A. Yes. We brought in a company that does PM
L.A. REPORTING (312) 419-9292
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1 work on dock levelers and --
2 Q. What does that mean?
3 A. Preventative maintenance. And what they did
4 is --
5 MR. KAISER: I'm going to object. I don't know if
6 we have heard testimony about complaints of noise
7 emanating from dock levelers, so I don't know that any
8 repairs to that area would be material to the
9 complaints in this case.
10 MR. KOLAR: We heard complaints about metal on
11 metal sounds.
12 HEARING OFFICER KNITTLE: Are you talking about
13 strictly in Mr. Voigt's testimony?
14 MR. KAISER: No, throughout the hearing.
15 HEARING OFFICER KNITTLE: If it's throughout the
16 hearing, if that's your objection, I'm going to
17 overrule it. If it weren't beyond the scope of
18 redirect, I would reconsider it. I don't know, but I
19 think we can still get to that. He could call him on
20 his own case in chief.
21 BY MR. KOLAR:
22 Q. You had a company come in and what?
23 A. What they did is they would replace worn
24 parts that would bring it down at a slower rate similar
L.A. REPORTING (312) 419-9292
1169
1 to like a hatchback, you know, the cylinders that are
2 used to bring down a car trunk or whatever.
3 Q. Let me show you Respondent's Exhibit 36.
4 Take a look at that. Tell us what this group of
5 documents is.
6 A. This is what we put together, a good neighbor
7 policy. We put a sign up on the retaining wall. I
8 believe we have a sign up on the door where the truck
9 drivers enter the building.
10 Q. The sign, is that shown -- we have another
11 photo, but is that shown on the last page where it's
12 located?
13 A. Yes.
14 Q. You have got a color copy there, the
15 original, right?
16 A. Yes. I believe we also have a smaller sign
17 that goes above the door where the truck drivers walk
18 in.
19 Q. That's by receiving?
20 A. Yes.
21 Q. And that's what this indicates, second sign
22 by receiving, right?
23 A. Yes. Oh, yes. There it is, yes.
24 Q. Did you give any sort of written document
L.A. REPORTING (312) 419-9292
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1 regarding the good neighbor policy to drivers that come
2 to the facility?
3 A. Yes.
4 Q. Which one of these pages would be like that
5 document or the document if you recall?
6 A. Well, we have the Page 2.
7 Q. It looks like some of these are duplicates, I
8 guess.
9 A. Yes.
10 Q. But Page 2, the text of that page --
11 A. Yes.
12 Q. -- something like this was given to the truck
13 drivers?
14 A. Yes.
15 Q. Did you as part of this program send anything
16 to the trucking companies?
17 A. Yes, we did.
18 Q. What was that?
19 A. We sent them a letter about our good neighbor
20 policy and to known truck companies that we do business
21 with.
22 Q. And at one point did you learn that trailers
23 were parking up on the north end of the LTD parking
24 lot?
L.A. REPORTING (312) 419-9292
1171
1 A. Yes.
2 Q. A couple years ago?
3 A. Yes.
4 Q. What, if anything, did you do relative to
5 that?
6 A. We put a sign up that said no trucks allowed
7 up there. And then we monitor it with -- we have
8 security personnel that monitor that area.
9 Q. How would you get a truck up to the auto
10 parking area?
11 A. Instead of taking a left turn down towards
12 the trucking dock they would go straight.
13 Q. Do you have anybody posted there?
14 A. Yes, we do.
15 Q. What is that person's job?
16 A. Their job is to give people authorization to
17 go up into that parking lot and obviously trucks are
18 not authorized.
19 Q. Do you hear horns honk occasionally at your
20 facility?
21 A. I haven't heard it in over a year I would
22 say.
23 Q. Is it accurate to state that as part of your
24 good neighbor policy you prohibit unnecessary horn
L.A. REPORTING (312) 419-9292
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1 blowing?
2 A. Yes.
3 Q. You didn't tell truckers "don't blow a horn
4 if you're about to hit somebody," right?
5 A. No.
6 Q. So if they think it's necessary for safety
7 reasons to blow their horn that's still okay with LTD?
8 A. Yes.
9 Q. What about the doors on the trailers, the
10 back of trailers, has LTD done anything to prohibit
11 those from swinging open and swinging closed, making
12 banging noises?
13 A. Those are required to be hitched. There --
14 as the doors are opened up they have a hook that can be
15 hooked onto the side of the trailer in the open
16 position.
17 Q. At any point did you ever speak to CTC about
18 complaints about how the yard tractor driver was
19 operating the yard tractor?
20 A. Yes.
21 Q. What did you tell somebody from CTC?
22 A. Well, I spoke to -- I believe it was Ty Clark
23 at one time and there was another individual that we
24 had a particular driver in this instance that we felt
L.A. REPORTING (312) 419-9292
1173
1 was driving at a high rate of speed which would raise
2 the RPMs of the yard tractor and, you know, make it
3 louder. We asked that that speed be kept at a minimum
4 which would be, you know, to whatever was necessary for
5 them to get the job done.
6 Q. And the yard tractor, if I understand
7 correctly, has this big disk like thing on the back
8 which is the fifth wheel?
9 A. Yes.
10 Q. And that fifth wheel itself hydraulically
11 goes up and down?
12 A. Yes.
13 Q. And the purpose of it moving up hydraulically
14 is to lift a trailer off its --
15 A. Legs.
16 Q. -- legs?
17 A. Yes.
18 Q. So what if -- so you're saying, if I
19 understand, if the legs on a trailer are at a certain
20 height, then the yard tractor doesn't have to activate
21 and operate the fifth wheel as much?
22 A. True.
23 What would be a situation is that if the legs
24 are turned down and extended to their maximum,
L.A. REPORTING (312) 419-9292
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1 obviously then the bed of the trailer or where the pin
2 would be would be at its highest level, therefore, when
3 a fifth wheel is backed into it that, that would have
4 very little resistance and would make for a quieter
5 connection.
6 Q. And with engaging a tractor and a trailer
7 together is there a certain -- to your knowledge, in
8 the distribution business here since 1990, is there a
9 certain speed that has to be maintained in order to
10 engage a tractor and a trailer?
11 A. Well, there has to be some degree of contact
12 there that would substantiate, you know, to the driver
13 that there is a connection, and that when a driver
14 would pull away, trying to pull the trailer with the
15 tractor, that it was connected properly.
16 Q. Is there to your knowledge a trucking reason
17 why a driver of a tractor wanted to make contact with
18 the trailer and at an excessive rate of speed?
19 A. No.
20 Q. You're familiar with the corporate office
21 building to your east?
22 A. Yes.
23 Q. And you understand that to be Corporate 100?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. Is this Corporate 100?
2 A. Yes, it is.
3 Q. Let me just put "C-100" on that.
4 That doesn't mean complainants' exhibit but
5 where I wrote "C-100" is the Corporate 100 office
6 building, right?
7 A. Yes.
8 Q. Is that a garbage facility in this area
9 that's circled that has a "3" and a "G" by it?
10 A. Yes.
11 Q. Have you ever looked inside that enclosure?
12 A. Yes.
13 Q. What's in there?
14 A. There is two dumpsters. It appears to be
15 units that the garbage truck would back into and pick
16 it up and dump the garbage into the truck and then they
17 set it back down.
18 Q. And what's the size of one of those
19 dumpsters?
20 A. Half the size of a car or the size of a small
21 car.
22 Q. When Roger Harmon did the noise measurements
23 on I think it was September 23rd and 24, 1997, meaning
24 11 p.m., etc. into the early morning hours, to your
L.A. REPORTING (312) 419-9292
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1 knowledge was that a typical fall evening in terms of
2 LTD's operations?
3 A. Yes.
4 MR. KAISER: Objection, basis foundation.
5 MR. KOLAR: They're there seven years by that
6 time.
7 HEARING OFFICER KNITTLE: Why don't you lay a
8 little bit of foundation, Mr. Kolar.
9 BY MR. KOLAR:
10 Q. Late September 1997, would LTD have been into
11 its Christmas season?
12 A. Yes.
13 Q. And is it busier at LTD in the Christmas
14 season?
15 A. Yes.
16 Q. Did LTD have a night second shift in the fall
17 of 1997?
18 A. Yes.
19 Q. And you knew that -- strike that.
20 Did anybody tell you that Mr. Thunder wanted
21 to measure noise and he wanted to do it on a typical
22 night in the fall season?
23 A. Yes.
24 Q. And to your knowledge the activities on the
L.A. REPORTING (312) 419-9292
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1 night when Roger Harmon was out there actually taking
2 measurements was a typical night for the 1997 season?
3 A. Yes.
4 Q. And did you do anything to try to reduce
5 truck traffic for that night?
6 A. No.
7 Q. Steer trucks away?
8 A. No.
9 Q. Have fewer employees that night?
10 A. No.
11 Q. Let me try to do this quickly but I'll show
12 you some photos which have been marked previously as
13 Respondent's Exhibits 51 through 85. Now I think on
14 two occasions you, before right now, you have been
15 through these photos?
16 A. Yes.
17 Q. Do these -- we'll talk about what they show,
18 but do every one of these photos truly and accurately
19 depict the scene as it would exist today at LTD
20 Commodities and the surrounding area?
21 A. Yes.
22 Q. 51. What does 51 show?
23 A. This is the new building, the -- what we call
24 the Pizzuiti building. It looks to be the east side of
L.A. REPORTING (312) 419-9292
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1 the Corporate 100 parking lot looking south.
2 Q. That would be this new office building to the
3 southeast of Corporate 100?
4 A. Yes.
5 Q. 52?
6 A. This looks like we're looking at LTD's
7 building and the Corporate 100 building side by side
8 almost where the cul-de-sac would be and we're looking
9 to the south.
10 Q. So it just gives this perspective of the
11 proximity of LTD and Corporate 100, right?
12 A. Yes.
13 Q. 53, is that Corporate 100?
14 A. Yes.
15 MR. KOLAR: It's a little quicker if I can lead.
16 MR. KAISER: Lead.
17 BY MR. KOLAR:
18 Q. 54, does that to you look like a view from
19 the east end of Corporate 100's parking lot looking
20 west towards your property?
21 A. Yes.
22 Q. And 55, is that the same view?
23 A. It looks like we're a little farther east
24 but -- I mean farther to the west but it's the same
L.A. REPORTING (312) 419-9292
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1 view.
2 Q. And in the background this wooden structure,
3 is that the area where Corporate 100 keeps its garbage
4 cans?
5 A. Yes.
6 Q. 56 and 57, what do those show?
7 A. 56 is a view from our southwest corner of the
8 building showing the tollbooth for getting onto 94
9 northbound.
10 Q. 58 and 59?
11 A. And I guess this is the tollbooth here.
12 Q. So those both show the -- basically the
13 tollbooths?
14 A. 57.
15 Q. 58 and 59?
16 A. This is a view to the west showing the
17 tollway, Interstate 94.
18 Q. So both of those are from LTD's property
19 looking west at the tollway traffic and the tollway?
20 A. Yes. From our property, yes, from LTD.
21 Q. 60, that's sort of a view from LTD's property
22 looking to the southwest?
23 A. Yes.
24 Q. You can see the tollway?
L.A. REPORTING (312) 419-9292
1180
1 A. And 22 can be seen here.
2 Q. You barely see a car on 22?
3 A. Yes.
4 Q. Then here we got 61, 62, 63, what do those
5 show?
6 A. This is -- it appears to be from across the
7 Interstate 94 looking at LTD and showing traffic and
8 also showing the on-ramp northbound where the tollbooth
9 is.
10 Q. So these would be photos on the west side of
11 the tollway looking east across northbound lanes to LTD
12 Commodities?
13 A. Yes.
14 Q. 64, does that look like a view looking south
15 along the east side of LTD towards Route 22?
16 A. Yes.
17 Q. And then 65 and 66?
18 A. These are pictures of our building from the
19 south side looking to the north.
20 Q. That's the circular thing we see here on
21 Exhibit 89, right?
22 A. Correct.
23 Q. Part of the new addition?
24 A. The lunch room.
L.A. REPORTING (312) 419-9292
1181
1 Q. And 67 and 68, if I understand, the west side
2 of LTD, and that shows us the line where the '95
3 expansion was connected to the original, right?
4 A. That's correct.
5 Q. And one of those I think shows the office
6 looking north. You can see the office part of LTD,
7 correct?
8 A. Yes, 67 shows the office part.
9 Q. 69 and 70?
10 A. This appears to be pictures from our
11 property. 69 would be looking at our building looking
12 from across the pond.
13 Q. The pond by the tollway looking east?
14 A. Yes. Looking east, correct, on the north
15 side of our building. And then it appears that this
16 picture is in the north -- the far northwest corner of
17 our property looking east at our parking lot along the
18 north edge of the building. No. 70.
19 Q. 71, that's a perspective from where, looking
20 in what direction?
21 A. This is from the edge of our property looking
22 south. Approximately the middle of the property, based
23 on the numbering of the doors here, doors 18 and 16,
24 that would be the middle.
L.A. REPORTING (312) 419-9292
1182
1 Q. 72, that's basically sort of the below-grade
2 truck dock area?
3 A. Yes.
4 Q. The doors are closed there?
5 A. Yes.
6 Q. All right. 73, it's the same area but it
7 shows the yard tractor pulling a trailer towards the
8 person with the camera, right?
9 A. Yes.
10 Q. 74 shows the same area but it's got the yard
11 tractor without a trailer?
12 A. Correct.
13 Q. And it looks like we got the tractor of a kix
14 truck in one of the bays?
15 A. Yes.
16 Q. 75?
17 A. That would be the north side of the truck
18 staging area, and that would show the pylons and the
19 bumpers that the trucks are backed into.
20 Q. And this concrete block wall, that's the wall
21 we described earlier that was an upgrade in 1994-'95
22 when the warehouse expansion was added?
23 A. Yes, that's a brick retaining wall.
24 Q. And down below these cement like pillars,
L.A. REPORTING (312) 419-9292
1183
1 what do those do?
2 A. Those hold the springs and the wood and the
3 rubber bumpers.
4 Q. And 76 shows the top of one of those pillars
5 and a part of the wooden bumper, right?
6 A. Correct.
7 Q. And it's a little difficult to see but it
8 looks like there is a trailer up against the rubber
9 part connected to the wood?
10 A. Yes.
11 Q. And there is a spring between the cement
12 pillar and the wood?
13 A. Yes.
14 Q. In this case you really can't see the spring
15 because it looks like it's compressed a little?
16 A. Yes.
17 Q. 77, that's the sign you mentioned earlier?
18 A. Yes, it's the one on the retaining wall, the
19 good neighbor policy.
20 Q. I think the complainants talked about these
21 but 78, 79, 80, 81, 82 basically I think show kind of
22 homes to the north. And then LTD's building is in the
23 background sort of to the south, right?
24 A. I recognize 79 as the Rotis' residence
L.A. REPORTING (312) 419-9292
1184
1 looking from our property to the north. And I
2 recognize on 81 that LTD is in the background
3 indicating that we're on the north edge of the property
4 here looking to the south.
5 Q. Skip 83. I think Mr. Rosenstrock identified
6 this as his house.
7 84, that's your parking lot?
8 A. Yes.
9 Q. Looking sort of to the northeast?
10 A. Yes.
11 Q. And then 85, the last photo, 85?
12 A. 85 looks to be a picture from the bridge
13 along the east side of the distribution center looking
14 north.
15 Q. The new bridge looking directly north?
16 A. Yes.
17 Q. And we see the roof of a house in the back?
18 A. Yes.
19 Q. Let me ask you a few questions about that
20 overtime document from 1998. If an employee works any
21 time on a Saturday what is that considered?
22 A. It would be considered overtime provided they
23 worked 40 hours between Monday and Friday, and it is
24 assumed then that Saturday would be overtime.
L.A. REPORTING (312) 419-9292
1185
1 Q. So if we see six hours overtime on a Saturday
2 on this document 55, that would be you think --
3 A. That was strictly Saturday work which is --
4 Q. Only six hours total?
5 A. Yes.
6 Q. And most likely in the first shift?
7 A. Yes.
8 Q. Let me check my calendar here for 1998. You
9 can see that the Saturdays were the 3rd, the 10th, the
10 17th, the 24th and the 31st, right?
11 A. Of October, yes.
12 Q. Right.
13 And no overtime on October 17th, right?
14 A. Correct.
15 Q. No overtime on October 24th?
16 A. Correct.
17 Q. No overtime on October 31st?
18 A. Correct.
19 Q. And there would be no Sundays here, right?
20 A. No.
21 Q. I mean, is there any overtime at all for
22 October 4th?
23 A. No.
24 Q. 11th?
L.A. REPORTING (312) 419-9292
1186
1 A. No.
2 Q. 18th?
3 A. No.
4 Q. 25th?
5 A. No.
6 Q. Is there any -- let's go to November. Is
7 there any -- skip ahead a month. You can see that in
8 November 1998 the Saturdays were the 7th, the 14th, the
9 21st and the 28th, right?
10 A. Right.
11 Q. And here it looks like overtime the first
12 time was November 16th, right, on your --
13 A. Yes.
14 Q. So there was no overtime on November 7th and
15 14th, correct?
16 A. Yes.
17 Q. And no overtime on November 21st, correct?
18 A. Yes.
19 Q. One hour on November 28th?
20 A. Yes.
21 Q. December 5th was a Saturday, right?
22 A. Yes.
23 Q. In 1998?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. Any overtime on December 5th?
2 A. No.
3 Q. There was overtime on December 12th, right?
4 A. Yes.
5 Q. Six hours.
6 Any overtime on December 19th?
7 A. No.
8 Q. And again no Sundays worked in December 1998?
9 A. No.
10 Q. Right?
11 A. No.
12 Q. Right?
13 A. That's correct.
14 Q. It's that negative thing.
15 In your experience during this whole noise
16 complaint era did anybody ever complain to you about
17 noise other than the Kaufmans, the Roti's, the Webers
18 or the Rosenstrocks?
19 A. Not that I'm aware of.
20 Q. I mean, like Kendra Karasik never sent you
21 letter, am I correct?
22 A. No.
23 Q. I got to ask the questions better.
24 Did Kendra Karasik ever send you a letter
L.A. REPORTING (312) 419-9292
1188
1 complaining about noise?
2 A. No.
3 Q. Did she ever call you and complain about
4 noise? Did Cindy Lakin ever call you and complain
5 about noise?
6 A. No.
7 Q. Ever sent you a letter?
8 A. No.
9 Q. And your first knowledge of them apparently
10 complaining about LTD's noise is today when they walked
11 into the hearing room?
12 A. That's correct.
13 Q. Complainants' Exhibit 20, you had said that's
14 your handwriting on the last page?
15 A. Yes.
16 Q. Your handwriting -- are you taking down notes
17 of what someone told you Paul Schomer was alleging, at
18 least some of this, right?
19 A. That's correct.
20 Q. I mean, for here it says, "class B, not
21 class C," is that what you believe?
22 A. No.
23 Q. So that's something that you were told
24 Schomer was now taking the position on, right?
L.A. REPORTING (312) 419-9292
1189
1 A. Yes.
2 Q. "Barrier, north wall and south side," again,
3 that's something you were told Schomer wants you to do?
4 A. Yes.
5 Q. Right?
6 A. Yes.
7 MR. KOLAR: Okay. I got a platt of survey which I
8 know you looked at once in my office. The first page
9 has all my writing on it, the second page is the same
10 thing. Do you have any objection if I submit this?
11 MR. KAISER: If you lay a foundation I have no
12 objection. You want admit to that for stipulation?
13 MR. KOLAR: Yes.
14 MR. KAISER: Is that in connection with --
15 MR. KOLAR: I guess it shows where Lakeside Drive
16 ends and where LTD begins. Otherwise in my case I
17 guess I'll -- I don't think I have to call it a survey.
18 It's a certified survey.
19 HEARING OFFICER KNITTLE: Yeah, as long as it's a
20 certified survey we usually allow those in. But I
21 would double check before I offer it.
22 MR. KAISER: That's fine.
23 HEARING OFFICER KNITTLE: That's what we usually
24 do, but if you have an objection I wouldn't do it.
L.A. REPORTING (312) 419-9292
1190
1 MR. KAISER: I had no objection. I'd like to look
2 at the handwritten notes.
3 HEARING OFFICER KNITTLE: Let's go off for a
4 little bit while we do that.
5 (Discussion off the record.)
6 HEARING OFFICER KNITTLE: You want to go back on,
7 Joe?
8 MR. KOLAR: Yes.
9 BY MR. KOLAR:
10 Q. Do you have any recollection of a telephone
11 call or a personal conversation with Karen Roti where
12 you said to her something like "The yard pig makes
13 noise at 95 to 99 decibels"?
14 A. I don't recall giving that specific number.
15 Q. You might have said something about the old
16 yard pig being noisy?
17 A. Yes.
18 Q. But you don't remember a specific decibel you
19 would have given her?
20 A. Right.
21 MR. KOLAR: I don't have anything else.
22 MR. KAISER: If I may.
23 HEARING OFFICER KNITTLE: Please.
24
L.A. REPORTING (312) 419-9292
1191
1 REDIRECT EXAMINATION
2 BY MR. KAISER:
3 Q. With respect to the overtime, Mr. Voigt, and
4 Complainants' Exhibit 55 I had understood during the
5 course of my direct that while you thought it was the
6 fact that this referred -- that overtime worked on
7 Saturdays would be hours in excess of 40 hours during
8 the week, is that right?
9 A. Yes.
10 Q. Do you know as you sit here today whether in
11 fact LTD operated on Saturdays other than those shown
12 here, September 12th and September 19th? Did it
13 operate any other Saturdays during September of 1998?
14 A. I would assume that that's correct.
15 Q. Do you know as you sit here today --
16 A. That what?
17 Q. -- for a fact that on the other Saturdays,
18 for instance, September 5th or September 26th, that LTD
19 did not operate at all on those Saturdays?
20 A. The distribution center would have reflected
21 those hours. I would say, no, we did not.
22 Q. So then it's your testimony during September
23 of 1998 LTD, with the exception of the 12th and the
24 19th, was only working five days a week?
L.A. REPORTING (312) 419-9292
1192
1 A. Yes.
2 Q. So its operations on those weeks would have
3 only begun at 5:30 or 6:00 in the morning on Monday,
4 and by 12:30 a.m. on Friday night LTD would have been
5 done for the week?
6 A. Yes.
7 Q. On those shortened weeks where there was no
8 overtime, right?
9 A. Yes.
10 Q. Now, with respect to whether a driver might
11 slam a trailer into the bumpers at LTD's dock staging
12 area, you don't know personally every driver who comes
13 into LTD's dock area, do you?
14 A. No.
15 Q. And in fact there are a lot of drivers who
16 come in and out of LTD, right?
17 A. Yes.
18 Q. And any given day you don't know what
19 experiences those drivers have had, do you?
20 A. No.
21 Q. And you don't know whether they're in a calm
22 centered mood or whether they have some anger of some
23 sort, do you?
24 A. No.
L.A. REPORTING (312) 419-9292
1193
1 Q. And your job frankly is not -- you're not
2 dock supervisor, are you?
3 A. No.
4 Q. I mean, you have people whose job it is to
5 watch the dock area and see what happens in the dock,
6 right?
7 A. Yes.
8 Q. Those are people who report to you, right?
9 A. Yes.
10 Q. In fact on a given week you probably spent
11 less than five hours a week out in the dock area,
12 right?
13 A. Yes.
14 Q. I mean, your job is an office job, right?
15 A. Yes.
16 Q. You're an executive, right?
17 A. Yes.
18 Q. This person who LTD currently employs to keep
19 trucks and other traffic from going up into the north
20 parking lot, what other responsibilities does that
21 person have?
22 A. Well, there is multiple people that do it.
23 Someone covers during breaks and that person may be a
24 van driver at times.
L.A. REPORTING (312) 419-9292
1194
1 Q. The "van driver" being the way you get your
2 employees from the train station to the LTD facility?
3 A. Driving employees.
4 Q. I mean, are you telling me that the only
5 responsibility that person has standing there at the
6 north end of Lakeside Drive is to make sure people
7 don't come up into LTD's north parking lot?
8 A. Yes. And also to help with truck traffic
9 down below giving them some direction.
10 Q. All right. Help give some direction to the
11 truck traffic.
12 I mean, even with the expansion, and LTD
13 expanded substantially the area it has under roof in
14 Bannockburn, right? I mean, you doubled your capacity?
15 I mean, you went from 200,000 square feet under roof to
16 350,000 or 400,000 square feet under roof, right, by
17 1995?
18 A. Yes.
19 Q. But despite that expansion, LTD didn't
20 measurably enlarge its dock area, did it?
21 A. No.
22 Q. And it's a little tight back in that dock
23 area, isn't it?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1195
1 Q. So one of the functions that this person who
2 supervises and patrols Lakeside Drive does is help the
3 trucks get in and out of LTD's dock area, right?
4 A. Yes.
5 Q. Now, this good neighbor policy, how much time
6 did you spend personally developing that policy?
7 A. A couple hours.
8 Q. And how many hours did your staff spend on
9 that project?
10 A. Similar.
11 Q. So all total there were a couple hours you
12 spent and a couple hours your staff spent?
13 A. Yes.
14 Q. And then you spent a little time distributing
15 the good neighbor policy to the drivers -- the hundreds
16 of drivers who come in and out of LTD's docks, right?
17 A. It's done daily.
18 Q. Let's be honest, that wasn't an enormous
19 expenditure of either time or money for LTD, was it?
20 A. No.
21 Q. And with respect to disconnecting the backup
22 beeper at various points during the summer and fall of
23 1999, that didn't cost LTD too much, did it?
24 A. No.
L.A. REPORTING (312) 419-9292
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1 Q. And repairing these dock levelers inside so
2 that instead of them slamming down they would lower
3 like the hatchback of a car, that cost under $100,000,
4 didn't it?
5 A. Correct.
6 Q. Do you know exactly how much that did cost?
7 A. No.
8 Q. Do you know whether it cost under $20,000?
9 A. I would say that's true.
10 Q. Did it cost under $10,000?
11 A. I don't know.
12 Q. Certainly below $20,000?
13 A. Yes.
14 Q. And that was to improve the performance of
15 the dock levelers at all 26 docks?
16 A. Twenty --
17 Q. 24?
18 A. Yes, 24, 23.
19 Q. Not the two docks that are at ground level
20 but all 24 that are docks, raised docks?
21 A. Yes.
22 Q. Now, you told us on cross examination that
23 you and your family live approximately one half mile
24 east of Tollway 290?
L.A. REPORTING (312) 419-9292
1197
1 A. 294.
2 Q. 294, excuse me.
3 And that's the same tollway that's located
4 just to the west of LTD's facility?
5 A. Yes.
6 Q. And you live north or south of Route 22?
7 A. North.
8 Q. You live south of Route 60?
9 A. North.
10 Q. North of Route 60.
11 You live between Route 60 and Route 176?
12 A. No, I live just south of 137.
13 Q. Just south of 137. All right. Thank you.
14 Well, what community do you live in?
15 A. Green Oaks.
16 Q. Green Oaks.
17 Now, that tollway noise that you testified
18 you can hear in your home, particularly when the
19 pavement is wet and the wind is from the northeast --
20 A. Yes.
21 Q. -- does that tollway noise interfere with
22 your ability to sit in your home and read a book or
23 magazine?
24 A. No.
L.A. REPORTING (312) 419-9292
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1 Q. Does that tollway noise interfere with your
2 ability to sit in your home and use your computer?
3 A. No.
4 Q. Does that tollway noise, even when the
5 pavement is wet and the wind is blowing from the
6 northeast, interfere with your ability to comfortably
7 enjoy your home with your wife and children?
8 A. If it's wet in the eastbound lane it could.
9 Q. Has it?
10 A. Yes.
11 Q. In what ways?
12 A. We had a graduation party, and we were on the
13 deck and in the sunroom. And we had to close the
14 windows because it happened to be the Harley Davidson
15 reunion in Milwaukee. And it was a Sunday and
16 everybody was coming home. And I didn't care to hear
17 the motorcycles going by.
18 Q. All right. So on that day, graduation day,
19 when the Harley Davidson motorcycle riders were on
20 parade, you felt you had to go inside and close your
21 doors and windows?
22 A. Yes.
23 Q. Now, we were talking about and trying to
24 determine whether the total number of trucks in and out
L.A. REPORTING (312) 419-9292
1199
1 of LTD's Bannockburn facility is greater than, equal to
2 or less than the total volume of trucks that went into
3 LTD's Bannockburn facility in 1998, do you recall that
4 questioning?
5 A. Yes.
6 Q. Do you know whether LTD's total volume of
7 goods shipped during 1999 is greater than the total
8 volume of goods shipped during 1998?
9 A. For the year?
10 Q. Well, so far. Obviously, we're not done yet
11 with '99, but you must have some numbers from September
12 and October?
13 A. Right.
14 For the Christmas season of 1999 we have
15 shipped less -- the unit measure that we use is
16 invoices. We have shipped less invoices out of the
17 Bannockburn Distribution Center compared to 1998.
18 Q. Can you tell by virtue of the invoice how big
19 the load was that corresponded to the invoice? I mean,
20 you could have fewer invoices but more boxes going out,
21 wouldn't you agree?
22 A. You could.
23 Q. I mean, if the orders were for more goods,
24 you would have more boxes, right?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. I mean, you could have a single invoice that
3 could be for a shipment no bigger than Mr. Kolar's
4 briefcase and then you could have a single invoice that
5 would include an order that would be as big as Mr.
6 Kolar's table here, right?
7 A. Correct. But I do recall looking at some
8 numbers from 1999 for October and the number being
9 between 55 and 60 trailers per day coming out of
10 Bannockburn. And I believe those numbers are less than
11 what's shown on your chart that you handed to me that
12 apparently we gave to you. I don't know which exhibit
13 it is.
14 Q. Complainants' Exhibit 56.
15 A. I believe the number is less.
16 Q. All right. Is it fair -- I mean, you just
17 spent a moment looking at Complainants' Exhibit 56
18 which shows outbound trailer traffic for December of
19 1998?
20 A. Yes.
21 Q. And I take it you didn't find support for
22 your belief in the figures you just looked at on Page 1
23 on Complainants' Exhibit 56?
24 A. Well, we're not comparing the same months, so
L.A. REPORTING (312) 419-9292
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1 I can't answer that question that way.
2 Q. Right. So you have a feeling -- I mean,
3 let's just make it as clear as we can for the record.
4 You have some feeling that the volume from
5 Bannockburn is less than it was a year ago but you're
6 not sure if that's in fact true or exactly where that
7 feeling came from, is that fair?
8 A. I feel pretty confident that we have less
9 volume because I know we're shipping less invoices.
10 And it's a direct correlation to shipments going out
11 the door. And the more shipments that go out the door
12 or the less shipments, there is a direct correlation to
13 the number of trailers that are involved.
14 Q. But that would assume, and that was my point
15 with Mr. Kolar's briefcase and the table comparison,
16 that would assume that the invoices from '98 and the
17 invoices from '99 were identical and that the size of
18 the order from '98 to '99 didn't grow, isn't that the
19 assumption?
20 A. There is a factual backing of that assumption
21 because what we consider as a line count per invoice
22 stays consistently at the same number between 1.68 and
23 1.72 which is pieces per invoice.
24 Q. So you're telling me that the average LTD
L.A. REPORTING (312) 419-9292
1202
1 invoice contains an order for between 1.68 and 1.72
2 items?
3 A. Yes.
4 Q. I don't quite understand. LTD seems to
5 represent that you have to order in volumes of three or
6 more, is that right?
7 A. It is advertised.
8 Q. But is it possible -- I mean, for instance,
9 with the dartboard that we were looking at earlier
10 today on Page 91 of the Christmas catalog, do you
11 really have to order three of those or can you get away
12 with just ordering one dartboard?
13 A. You can get away with one.
14 Q. And it seems to me, from what you're telling
15 me, that if the average invoice is for 1.68 to 1.72
16 items, you might be shipping one dartboard and one
17 Civil War puzzle, and that would be the size of an
18 average order, is that right?
19 A. No. The term "invoice" has a different
20 meaning to us than it does to you.
21 Q. Well, what's your meaning, LTD's meaning?
22 A. If you order one of these items on a page,
23 that would be considered an invoice. It's because of
24 an old -- it was from years ago back in -- before my
L.A. REPORTING (312) 419-9292
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1 time we didn't have a catalog. We sent out envelopes
2 with flyers, and the customers would send back the
3 yellow card that corresponded with the flyer that they
4 received or, you know, any of the yellow cards. And
5 each yellow card was generating an invoice to LTD. It
6 was the way that they did business before the catalog.
7 That has never changed our way of looking at
8 our volume of work and business. It's been a
9 consistent unit of measure. But to say an invoice is
10 what we would consider an invoice such as going to a
11 car shop and getting, you know, shock absorbers and
12 tires and wiper blades all on one invoice, that's not
13 considered one invoice to us. That would be three
14 invoices to us.
15 Q. I see. So a shipment to a business if you
16 sent one Civil War puzzle and one dartboard, that would
17 be two invoices?
18 A. Yes.
19 Q. Even though they're ordered at the same time
20 and going to the same destination?
21 A. Yes.
22 Q. Let me ask you this if I may. If you ordered
23 12 dartboards at the same time going to the same place
24 would that be one invoice or 12 invoices?
L.A. REPORTING (312) 419-9292
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1 A. One invoice.
2 Q. So if it's the same item, regardless of
3 quantity shipped, it's one invoice?
4 A. Correct.
5 Q. So that gets me back to my point that unless
6 you analyze those invoices, that number alone doesn't
7 permit, with any level of precision that I think the
8 Board could rely on, whether the volume from LTD's
9 Bannockburn facility is up, down or the same as 1998?
10 A. I disagree because I said that the number of
11 pieces per invoice has consistently been the same over
12 the last five to ten years that I have been there.
13 Q. And you looked at the numbers for 1999 and
14 seen that that same 1.68 to 1.72 pieces per invoice has
15 stayed the same?
16 A. Yes.
17 Q. Now, with respect to noise measurements
18 obtained by Tom Thunder and his crew, actually by Mr.
19 Harmon on behalf of Mr. Thunder, you have seen C-57,
20 which shows the inbound shipments and the outbound
21 shipments for LTD's Bannockburn facility in 1997,
22 correct?
23 A. Yes.
24 Q. And you didn't tell Mr. Thunder or direct
L.A. REPORTING (312) 419-9292
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1 him, "Tom, wait until October, that's our busy month,
2 let's see what the noise is like during our busiest
3 month," you didn't tell him that, did you?
4 A. No.
5 Q. When he said, "I'm going to go out there in
6 September" you told him, "Great, go ahead," right?
7 A. Right.
8 Q. You didn't hold him back and say, "That's not
9 really our peak month, why don't you wait 'till
10 October"?
11 A. Well, what do you consider a "peak month"?
12 The month of October is what we consider a five week
13 month, and the month of September is a four week month,
14 so when you look at it on a per week basis, I think
15 that would be fairly consistent.
16 Q. Thank you, Mr. Voigt. Well, that clears that
17 up.
18 Mr. Voigt, what was your role in LTD's
19 extension to the south in 1994 and 1995?
20 A. I worked with consultants or a consultant,
21 and we then designed what we felt was the appropriate
22 needs for the company along with an architectural firm.
23 Q. Was that Lohan & Associates, L-o-h-a-n, was
24 that the architectural firm?
L.A. REPORTING (312) 419-9292
1206
1 A. Yes.
2 Q. And as between you and Mr. Hara who had
3 responsibility for the day-to-day work in connection
4 with LTD's expansion to the south in '94 and '95?
5 Do you understand the question?
6 A. Could you repeat it.
7 Q. Well, who had more -- I mean, what was Mike
8 Hara's role in the expansion and what was your role in
9 the expansion?
10 A. My role is to offer advice and technical
11 knowledge. Mr. Hara's role is to bless it and give it
12 the okay.
13 Q. But on the day-to-day then decision making
14 when people would call to talk about the expansion or
15 when the Village of Bannockburn would want information
16 from LTD about the expansion, would you be the person
17 to pull that information together and provide it either
18 to the architects or to the Village of Bannockburn or
19 whomever needed information in that moment?
20 A. Yes.
21 (Complainants' Exhibit No. 60
22 was marked for
23 identification.)
24
L.A. REPORTING (312) 419-9292
1207
1 BY MR. KAISER:
2 Q. I want to show you what I'm marking for
3 purposes of identification as Complainants' Exhibit 60.
4 And at the moment I don't have a copy of this, but I'll
5 show it to Mr. Kolar before I show it to Mr. Voigt.
6 MR. KOLAR: Show me what you're interested in.
7 BY MR. KAISER:
8 Q. And just to clarify things, Mr. Kolar was
9 counsel for LTD in connection with LTD's expansion in
10 1994 and 1995, was he not?
11 A. Yes.
12 Q. All right. Now, I'm showing you what's been
13 marked for purposes of identification as C-60.
14 Do you recognize this building permit
15 preapplication for zoning and architectural review
16 approval dated 2-17-94?
17 A. Yes.
18 Q. Is this a true and accurate copy of that
19 four-page document?
20 A. Yes.
21 Q. And in that document LTD refers to what it's
22 doing, "applicant's interest in subject property," and
23 what does it say in that line beyond?
24 A. "Warehouse addition."
L.A. REPORTING (312) 419-9292
1208
1 Q. And where it says, "have any variations or
2 special use permits been granted for this property?",
3 which box did LTD check?
4 A. "Yes."
5 Q. And "If yes, please identify the ordinance or
6 other document granting such zoning relief (use
7 separate sheet)."
8 What document is identified there?
9 A. Ordinance No. 93-37.
10 (Complainants' Exhibit No. 61
11 was marked for
12 identification.)
13 BY MR. KAISER:
14 Q. I want to show you what I'm marking for
15 purposes of identification as Village of Bannockburn
16 ordinance No. 93-37. I'm marking that for purposes of
17 identification as Complainants' Exhibit 61.
18 And, again, I apologize I have only one copy
19 of this, and I'm going to show it to Mr. Kolar.
20 MR. KOLAR: Let the record reflect he's using my
21 stapler too.
22 BY MR. KAISER:
23 Q. If I may, I'm showing you what's been marked
24 now for purposes of identification as Complainants'
L.A. REPORTING (312) 419-9292
1209
1 Exhibit 61, Village of Bannockburn's ordinance 93-37.
2 MR. KOLAR: For the record that's not executed
3 on -- it looks similar to the one that I remember or at
4 the end of their expansion but it's not executed.
5 HEARING OFFICER KNITTLE: Are you objecting to the
6 exhibit, Mr. Kolar?
7 MR. KOLAR: I'm not sure what its purpose is. It
8 says "warehouse." If that's his purpose, he wants to
9 show that it says "warehouse" --
10 MR. KAISER: Right, that's all I'm looking for.
11 MR. KOLAR: For that purpose, no. It uses the
12 generic term "warehouse."
13 BY MR. KAISER:
14 Q. Right, it uses the generic term "warehouse."
15 It talks about, again, an ordinance amending the zoning
16 map of the Village of Bannockburn granting a special
17 permit and a height variation for a business
18 headquarters planned development at 2800 Lakeside
19 Drive.
20 MR. KOLAR: Actually, the only other point I would
21 make then, and if Mr. Kaiser would look into this
22 further, Bannockburn would tell him that the property
23 is no longer zoned E commercial park district. So I
24 would object in terms of he's got the zoning
L.A. REPORTING (312) 419-9292
1210
1 highlighted, and he's representing that to be the
2 current zoning of the property.
3 MR. KAISER: No, I'm not saying that. I'm just
4 saying this is what it may have been back in 1994.
5 BY MR. KAISER:
6 Q. And was it your understanding, Mr. Voigt,
7 that LTD was seeking approval from the Village of
8 Bannockburn to obtain a special permit and height
9 variation for a business headquarters planned
10 development at 2800 Lakeside Drive?
11 A. Yes.
12 Q. And on Exhibit C-60 where it says,
13 "description of proposed work," it says, "warehouse
14 expansion consisting of 147,500 gross square feet," is
15 that right?
16 A. Yes.
17 Q. It talks about "a truck waiting area at the
18 existing truck dock will be restriped as a result and
19 landscape screening will be added," is that right?
20 A. Yes.
21 Q. But LTD didn't propose -- other than
22 landscape screening, it didn't propose to build a noise
23 wall along the north boundary of its dock area, did it?
24 A. No.
L.A. REPORTING (312) 419-9292
1211
1 Q. And would you agree that the Village of
2 Bannockburn in their ordinance No. 93-37 described the
3 then existing use of the subject property as an
4 existing warehouse and office facility?
5 A. Yes.
6 (Complainants' Exhibit Nos. 62
7 and 63 were marked for
8 identification.)
9 BY MR. KAISER:
10 Q. I'm showing you what's been marked for
11 purposes of identification as Complainants' Exhibit 62
12 and Complainants' Exhibit 63. They're both letters
13 from Lohan & Associates, L-o-h-a-n, to David
14 Lothspeich, Village Administrator, Village of
15 Bannockburn, both dated February 21, 1994.
16 I'm showing those to Mr. Kolar.
17 HEARING OFFICER KNITTLE: What was the date?
18 MR. KAISER: The date is February 21, 1994.
19 BY MR. KAISER:
20 Q. Do you recognize those two letters?
21 A. Yes.
22 Q. And I see you were cc'd on them, Mr. Voigt?
23 A. Yes.
24 Q. When you were working on LTD's expansion back
L.A. REPORTING (312) 419-9292
1212
1 in February of 1994, and LTD had retained Lohan &
2 Associates to assist them, was that what Lohan &
3 Associates was referring to the project as, LTD's
4 warehouse expansion?
5 A. Yes.
6 MR. KOLAR: Objection. I think these would be
7 hearsay. They're business records from another
8 company, but I guess to the extent that he has notice
9 that a third-party called it a "warehouse expansion,"
10 that might be okay, but the whole text of the letter
11 otherwise is just hearsay.
12 HEARING OFFICER KNITTLE: So on a limited basis,
13 Mr. Kolar, you don't object?
14 MR. KOLAR: Yes, on a limited basis.
15 BY MR. KAISER:
16 Q. Did you ever send Lohan & Associates a letter
17 saying, "please refrain from describing this project as
18 LTD's warehouse expansion, you should know that this is
19 in fact an expansion of our freight forwarding" --
20 A. No.
21 Q. -- "enterprise"?
22 A. No.
23 Q. You didn't send such a letter?
24 A. No.
L.A. REPORTING (312) 419-9292
1213
1 Q. In fact, at least in the way people talk
2 about these things in an everyday sort of way, I mean,
3 what you did was expand the warehouse, right, back in
4 1994?
5 A. Yes.
6 Q. And you're aware we're going to hear Mr.
7 Cracower tell us, "Well, that's the way the lay people
8 use it, yeah, somebody who's not trained as I am would
9 call it a warehouse, but for $285 an hour I'm calling
10 it a freight forwarding facility," right?
11 MR. KOLAR: Objection, this sounds like rebuttal
12 and beyond the scope.
13 HEARING OFFICER KNITTLE: Sustained.
14 MR. KAISER: I apologize.
15 I'd like to show the witness --
16 MR. KOLAR: I ask that the reference to $285 an
17 hour be stricken unless we also put in there the $2,000
18 that Mr. Schomer got from his client.
19 MR. KAISER: I think we got that in there.
20 HEARING OFFICER KNITTLE: Do I have to strike
21 anything?
22 MR. KOLAR: No. The $2,000 that Mr. Schomer got
23 is in the record.
24
L.A. REPORTING (312) 419-9292
1214
1 (Complainants' Exhibit No. 64
2 was marked for
3 identification.)
4 BY MR. KAISER:
5 Q. I'd like to show you finally -- perhaps not
6 finally -- Village of Bannockburn ordinance No. 94-12
7 which does appear to be signed.
8 Mr. Voigt, I'm showing you -- and please be
9 careful, these staples are in here in such a way that
10 they may pose a hazard to one's thumb.
11 Village of Bannockburn ordinance No. 94-12,
12 have you ever seen this, an ordinance amending
13 ordinance 93-37 and granting detailed and final plan
14 approval for a business headquarters planned
15 development at 2800 Lakeside Drive?
16 A. No, I don't recall seeing this.
17 Q. You don't recall seeing that?
18 A. No.
19 Q. How was it you understood that LTD was
20 permitted to go ahead and build the south addition?
21 A. We had to go forward to the Village or, you
22 know, Lohan & Associates.
23 Q. The Village of Bannockburn?
24 A. The Village of Bannockburn.
L.A. REPORTING (312) 419-9292
1215
1 Q. And gain approval, right?
2 A. Yes.
3 Q. Well, who told you or how did you find out
4 that, hey, the Village of Bannockburn has approved the
5 development, we can go forward?
6 A. Michael.
7 Q. Michael Hara told you that?
8 A. Yes.
9 Q. Did he ever show you a document that seemed
10 to be the place at which or in which the Village of
11 Bannockburn expressed that approval?
12 A. Not that I recall.
13 Q. So when you look at this ordinance number
14 94-12 that's not something you recognize?
15 A. No.
16 Q. But you note that in -- well, did you ever
17 hear of anyone in the Village of Bannockburn refer to
18 LTD seeking approval for the expansion of its freight
19 forwarding activities?
20 A. No.
21 Q. Or its freight forwarding facility?
22 A. No.
23 Q. In discussions with the Village of
24 Bannockburn isn't it true that you have always referred
L.A. REPORTING (312) 419-9292
1216
1 to it as the expansion of LTD's warehouse and office
2 facility?
3 A. Yes.
4 MR. KAISER: I would at this time move for the
5 admission into evidence of Complainants' C-64. It does
6 appear to be certified in every possible way and its
7 authenticity beyond question. I mean, as Mr. Kolar
8 knows, I have Village Administrator David Lothspeich
9 under subpoena and I could bring him in at this point
10 virtually for the sole purpose of authenticating this
11 document but --
12 HEARING OFFICER KNITTLE: Is it a certified public
13 record?
14 MR. KOLAR: No objection.
15 MR. KAISER: It may very well qualify as a
16 certified public record. It's got all the signatures.
17 HEARING OFFICER KNITTLE: He didn't object so I
18 will admit it.
19 MR. KAISER: Thank you.
20 (Complainants' Exhibit No. 64
21 was admitted into evidence.)
22 HEARING OFFICER KNITTLE: That's the only one that
23 you moved to admitted though?
24 MR. KAISER: Yes.
L.A. REPORTING (312) 419-9292
1217
1 At this point I would move to admit C-63,
2 Lohan & Associates February 21, 1994 letter.
3 HEARING OFFICER KNITTLE: Mr. Kolar.
4 I'm jumping in if that's okay, Mr. Kaiser.
5 MR. KAISER: Yes.
6 MR. KOLAR: Again, sixty -- I guess you got a copy
7 of it.
8 I think 62 and 63 are hearsay. It's a
9 business record by Lohan & Associates. I guess for the
10 limited purpose that Jack Voigt got a letter that said
11 "warehouse" on it -- if it's for the limited purpose
12 that he knew Lohan called it a "warehouse," that would
13 probably be legally okay.
14 HEARING OFFICER KNITTLE: Is that sufficient, Mr.
15 Kaiser, if we admit it for that limited purpose?
16 MR. KAISER: Yes, along with his testimony that he
17 never sent him a letter saying don't call it that, call
18 it something else.
19 HEARING OFFICER KNITTLE: Okay. Then that will be
20 admitted as reflected on the record with Mr. Kaiser's
21 qualification.
22 MR. KAISER: Thank you.
23
24
L.A. REPORTING (312) 419-9292
1218
1 (Complainants' Exhibit Nos. 62
2 and 63 were admitted into
3 evidence.)
4 MR. KAISER: C-60 is the building permit
5 preapplication for zoning and architectural review and
6 approval.
7 HEARING OFFICER KNITTLE: Mr. Kolar.
8 MR. KOLAR: That's fine.
9 HEARING OFFICER KNITTLE: That will be admitted.
10 (Complainants' Exhibit No. 60
11 was admitted into evidence.)
12 HEARING OFFICER KNITTLE: 61.
13 MR. KAISER: C-61 is the Village of Bannockburn's
14 ordinance 93-37 referenced in C-60. This is the
15 document that doesn't carry the -- well, it's not
16 signed by the Village representatives. I'm looking to
17 have it admitted only for the sole purpose that the
18 project was referred to as granting a special permit
19 and height variation for a business headquarters and
20 planned development and not for the truth of the
21 matters asserted therein other than the description of
22 the facility as existing office and warehouse facility.
23 MR. KOLAR: Before we reconvene this hearing,
24 couldn't you get a signed copy of 93-37 so that I know
L.A. REPORTING (312) 419-9292
1219
1 it's the final and not the draft? As you know I was
2 counsel and I got a lot of drafts of these things.
3 HEARING OFFICER KNITTLE: Is that a problem, Mr.
4 Kaiser? I'd even give you leave to send it into me if
5 you wanted to.
6 MR. KOLAR: That would be fine. I just got a lot
7 of drafts of these documents when the warehouse was
8 being built.
9 MR. KAISER: Right. I appreciate that. Yeah, I
10 can do that.
11 HEARING OFFICER KNITTLE: I'll note that that one
12 is reserved, and after you and Mr. Kolar get together
13 you can just mail it to me.
14 MR. KAISER: All right.
15 HEARING OFFICER KNITTLE: Can you give me a copy
16 of C-64 just so I can jot down what it is? I think Mr.
17 Voigt still has it.
18 MR. KOLAR: It's ordinance 94-12?
19 MR. KAISER: Yes.
20 BY MR. KAISER:
21 Q. With respect to the expansion, '94-'95
22 expansion, and what the truck dock area looked like
23 before the expansion, isn't it true that there were not
24 these above-ground bumpers at the north end of the
L.A. REPORTING (312) 419-9292
1220
1 truck staging area until the dock was expanded and
2 enhanced in '94-'95?
3 A. Correct.
4 MR. KAISER: Thank you, Mr. Voigt. I have no
5 further questions.
6 MR. KOLAR: I just have a couple.
7 HEARING OFFICER KNITTLE: Okay.
8 RECROSS EXAMINATION
9 BY MR. KOLAR:
10 Q. The guard on your property at the entrance to
11 the auto parking lot and the area where you enter the
12 truck staging area, he was stationed there as part of
13 your good neighbor policy?
14 A. Yes.
15 Q. He's there everyday?
16 A. Yes.
17 Q. Now, is the big building on your lot that's
18 generically called a warehouse, is that used by or open
19 to the public?
20 A. No.
21 Q. And inside that warehouse in an nutshell you
22 pack and crate merchandise?
23 A. Correct.
24 Q. In fact that warehouse, would you agree, is
L.A. REPORTING (312) 419-9292
1221
1 functionally and organizationally linked to the
2 activity of packing and crating merchandise?
3 A. Yes.
4 Q. And this phrase -- strike that.
5 One time LTD made an application to expand
6 its warehouse to the south and Bannockburn turned you
7 down?
8 A. Yes.
9 Q. And then you came back in '93 or '94 for a
10 second try?
11 A. Yes.
12 Q. And initially you were doing it just you and
13 Mike working with the Bannockburn officials, right?
14 A. Yes.
15 Q. Somewhere down the road you got my law firm
16 involved?
17 A. Yes.
18 Q. We helped you through meeting after meeting
19 after meeting, right?
20 A. Yes.
21 Q. And eventually you got approval?
22 A. Yes.
23 Q. And it's Bannockburn that came up with this
24 "business headquarters" phrase as something they wanted
L.A. REPORTING (312) 419-9292
1222
1 to apply to your use, right?
2 A. Yes.
3 Q. In fact do you remember meetings where there
4 were a lot of discussions over what "business
5 headquarters" is going to actually mean?
6 A. Yes.
7 Q. Do you recall Bannockburn came up with
8 "business headquarters" hoping it could control the use
9 of that property in the future if you ever sold it,
10 right?
11 A. Yes.
12 MR. KOLAR: I don't have anything else.
13 HEARING OFFICER KNITTLE: Mr. Kaiser.
14 MR. KAISER: Just briefly
15 FURTHER REDIRECT EXAMINATION
16 BY MR. KAISER:
17 Q. And in the give and take with the Village of
18 Bannockburn over even the definition of "business
19 headquarters" eventually LTD and Bannockburn agreed
20 that at least a part of LTD's operations and part of
21 the approval for the expansion to the south involved
22 permitting of a business headquarters within LTD's
23 property located in Bannockburn?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1223
1 Q. And your office is in that business
2 headquarters, right?
3 A. Yes.
4 Q. And Mr. Hara's office is in that business
5 headquarters, isn't it?
6 A. Yes.
7 MR. KAISER: Thank you. I have no further
8 questions.
9 HEARING OFFICER KNITTLE: Anything on those couple
10 questions, Mr. Kolar?
11 MR. KOLAR: No.
12 HEARING OFFICER KNITTLE: Thank you.
13 Actually, let's go off the record real quick.
14 (Discussion off the record.)
15 HEARING OFFICER KNITTLE: I have got C-55,
16 overtime schedule for LTD for 1998. Do you move to
17 admit that?
18 MR. KAISER: Yes.
19 HEARING OFFICER KNITTLE: That's admitted. No
20 objection.
21 (Complainants' Exhibit No. 55
22 was admitted into evidence.)
23 HEARING OFFICER KNITTLE: I have got 56 as a
24 trailer chart for LTD for the month of 12-98.
L.A. REPORTING (312) 419-9292
1224
1 MR. KAISER: Along with a --
2 MR. KOLAR: That's fine.
3 HEARING OFFICER KNITTLE: That will be admitted.
4 (Complainants' Exhibit No. 56
5 was admitted into evidence.)
6 HEARING OFFICER KNITTLE: 57 is the monthly
7 summary of LTD's '96 and '97 Christmas seasons.
8 Do you move to admit that, Mr. Kaiser?
9 MR. KAISER: Yes.
10 MR. KOLAR: That's fine.
11 HEARING OFFICER KNITTLE: That's admitted.
12 (Complainants' Exhibit No. 57
13 was admitted into evidence.)
14 HEARING OFFICER KNITTLE: 58 is the Lothspeich to
15 Voigt -- I think it's a letter of 12-19-96.
16 MR. KOLAR: This one I had a problem with because
17 it has Bannockburn noise -- apparent noise regulation.
18 The zoning ordinance is allegedly dealing with noise.
19 There is no -- I guess it's prejudicial. Bannockburn
20 didn't take any action against LTD, so I don't think
21 there should be any ordinance in here that deals with
22 noise and here's one, an ordinance adopting morals and
23 conduct code.
24 HEARING OFFICER KNITTLE: What's the relevance,
L.A. REPORTING (312) 419-9292
1225
1 Mr. Kaiser, since it's not a part of this case?
2 MR. KAISER: Well, certainly the communication as
3 early as 12-19-96. The Village of Bannockburn, through
4 its representative David Lothspeich, is communicating
5 with Jack Voigt about noise issues. So that's really
6 its intention, not that there is a violation, but just
7 that there are communications, and that part of that
8 communication is the Village of Bannockburn sending Mr.
9 Voigt copies of its noise regulations to provide him
10 presumably with notice of those or just in an effort to
11 be helpful. I'm not arguing that they're in violation
12 or ever were in violation, but I'm just saying this is
13 something Mr. Voigt received from the Village of
14 Bannockburn in December of '96 relatively early into
15 the case, and it's a piece of the story that we're
16 telling.
17 HEARING OFFICER KNITTLE: Okay. And I take it,
18 Mr. Kolar, you did object to this for reasons already
19 said?
20 MR. KOLAR: Right.
21 HEARING OFFICER KNITTLE: I'm going to deny this.
22 I don't think it's relevant to any issue on this case.
23 MR. KAISER: Well, I would ask then that if you're
24 going to deny it, I would ask that at least the fax
L.A. REPORTING (312) 419-9292
1226
1 cover sheet would be allowed in if not the regulations
2 that were attached thereto.
3 HEARING OFFICER KNITTLE: What's the purpose of
4 the fax cover sheet?
5 MR. KAISER: Just to note the notice at that
6 point.
7 HEARING OFFICER KNITTLE: Right. My problem isn't
8 any authentication issue, I still don't see how it's
9 relevant, the fact that they had notice that
10 Bannockburn communicated to them about noise issues. I
11 can't see how it's relevant to either the numerical
12 noise violation or the nuisance noise violation. If
13 you can tell me how, I'd be more than willing to
14 reconsider.
15 MR. KAISER: I'm having it as part of the
16 chronology of the case, and I don't think there is -- I
17 don't think there is really an issue of prejudice given
18 that we're dealing with the Board and not a jury, but
19 it's a judgment call that you're asked to make. And if
20 you have made -- I have made my argument and you have
21 made your call. I guess we stand at that.
22 HEARING OFFICER KNITTLE: I just wanted to tell
23 you why I wasn't admitting it and let you have another
24 shot at it if you wanted. I'll still deny that.
L.A. REPORTING (312) 419-9292
1227
1 Invoices though I'm going to admit.
2 Mr. Kolar, you want to make further argument
3 on that or have you said all you want to say?
4 MR. KOLAR: I think I said all I want to say and
5 quite well I might add.
6 HEARING OFFICER KNITTLE: I think it was artfully
7 done.
8 You can step down then.
9 MR. KAISER: Do we have anything else?
10 MR. KOLAR: 62 and 63, what were those again?
11 MR. KAISER: 62 and 63 are Lohan & Associates
12 letters of February 21, 1994 to Lothspeich referencing
13 LTD's warehouse expansion.
14 HEARING OFFICER KNITTLE: Right.
15 And C-61 was reserved.
16 MR. KOLAR: 62 and 63 though you allowed that just
17 as to notice to LTD that their architects were calling
18 it a warehouse.
19 HEARING OFFICER KNITTLE: Right. And we were
20 having a back and forth about that, and you didn't
21 object if it was for a limited purpose and I admitted
22 it under that.
23 MR. KOLAR: Right.
24 HEARING OFFICER KNITTLE: For that limited
L.A. REPORTING (312) 419-9292
1228
1 purpose. Excuse me.
2 MR. KAISER: Is there anything else that we showed
3 this witness but haven't at this point addressed?
4 I'm looking for 59. What is 59?
5 HEARING OFFICER KNITTLE: Those were invoices that
6 I admitted.
7 MR. KAISER: I see.
8 HEARING OFFICER KNITTLE: Mr. Kaiser, there were a
9 number of exhibits from the very first day that you
10 were going to tie up with Voigt that I know you talked
11 about a bunch of them. You may want to move for them
12 as well.
13 MR. KAISER: Yes, I would at this point.
14 HEARING OFFICER KNITTLE: You want me to tell you
15 which ones I don't have admitted that might be handled
16 here?
17 MR. KAISER: Yes.
18 HEARING OFFICER KNITTLE: I have C-5, which is a
19 Kaufman letter to Voigt 12-10-96.
20 MR. KAISER: Move for its admission at this time.
21 MR. KOLAR: No objection.
22 HEARING OFFICER KNITTLE: That will be admitted.
23 (Complainants' Exhibit No. 5
24 was admitted into evidence.)
L.A. REPORTING (312) 419-9292
1229
1 HEARING OFFICER KNITTLE: I have C-13, which is a
2 memo dated 11-2-97 from Thunder to Voigt.
3 MR. KOLAR: No objection.
4 HEARING OFFICER KNITTLE: That will be admitted.
5 (Complainants' Exhibit No. 13
6 was admitted into evidence.)
7 HEARING OFFICER KNITTLE: I have C-14, which is a
8 memo from Thunder to Voigt dated 11-14-97.
9 MR. KOLAR: No objection.
10 HEARING OFFICER KNITTLE: That's admitted.
11 (Complainants' Exhibit No. 14
12 was admitted into evidence.)
13 HEARING OFFICER KNITTLE: I have C-17, which is a
14 fax from Lothspeich to Voigt. I don't have a date on
15 that.
16 MR. KAISER: 12-8-97.
17 HEARING OFFICER KNITTLE: Could very well be.
18 MR. KOLAR: This one is sort of like the
19 ordinance. This refers to no loading activities on
20 Sundays.
21 I guess he's not claiming a violation here,
22 he's just pointing out -- I still think to a certain
23 extent it's sort of prejudicial, and he's reminding
24 that the Bannockburn police monitor the situation to
L.A. REPORTING (312) 419-9292
1230
1 see if there is any violations of the ordinance, and we
2 haven't heard anything about the Bannockburn police
3 citing LTD or --
4 HEARING OFFICER KNITTLE: Can I just see it?
5 I didn't mean to interrupt you, Mr. Kolar.
6 MR. KOLAR: That's okay.
7 HEARING OFFICER KNITTLE: I'll allow this one in.
8 I don't think it's prejudicial to the same extent that
9 other one is.
10 (Complainants' Exhibit No. 17
11 was admitted into evidence.)
12 HEARING OFFICER KNITTLE: The next I have is C-18,
13 Acoustical Associates' draft report dated 12-23-97.
14 MR. KOLAR: That's fine.
15 HEARING OFFICER KNITTLE: That's admitted.
16 (Complainants' Exhibit No. 18
17 was admitted into evidence.)
18 HEARING OFFICER KNITTLE: Next I guess is the
19 actual report dated 1-8-98.
20 MR. KOLAR: That's fine.
21 HEARING OFFICER KNITTLE: That's admitted.
22 (Complainants' Exhibit No. 19
23 was admitted into evidence.)
24 HEARING OFFICER KNITTLE: The next is Schomer to
L.A. REPORTING (312) 419-9292
1231
1 Thunder. That doesn't come into play here.
2 C-24 is an E-mail, Sejud to Voigt. There are
3 two of them I guess, 3-3-98 and 3-5-98. I don't --
4 MR. KOLAR: Which one, 24?
5 HEARING OFFICER KNITTLE: 24.
6 MR. KOLAR: What did you have for 23?
7 HEARING OFFICER KNITTLE: That was the Schomer to
8 Thunder letter. I didn't think Mr. Kaiser was trying
9 to admit that here.
10 MR. KAISER: I'll move to admit it at this point.
11 I think on the offhand they don't call Mr. Thunder --
12 HEARING OFFICER KNITTLE: I have a quick question
13 too before we get into that. Was it Schomer that you
14 did the evidence deposition on?
15 MR. KAISER: Yes.
16 HEARING OFFICER KNITTLE: I want to talk about
17 that before we leave.
18 MR. KAISER: Right.
19 HEARING OFFICER KNITTLE: If we need to save some
20 time, I don't know if there were any arguments you want
21 to make about anything involving the deposition, but I
22 think maybe next time we get together we can start off
23 with that. Is that part of your case in chief, Mr.
24 Kaiser?
L.A. REPORTING (312) 419-9292
1232
1 MR. KAISER: Yes.
2 Well, I do want to move for its admission but
3 obviously subject to Mr. Kolar's right to address with
4 you objections today.
5 HEARING OFFICER KNITTLE: Well, since, we're
6 holding over your case in chief anyway 'till the next
7 go-around, maybe we can do it just at the beginning
8 there. Would that be okay with you?
9 MR. KAISER: Fine.
10 MR. KOLAR: Fine.
11 23 I think we could just ask Tom Thunder
12 about.
13 MR. KAISER: I think Schomer has got it in anyway.
14 I mean, it's one of his letters, and I don't think you
15 objected to it.
16 HEARING OFFICER KNITTLE: Let's reserve that until
17 we see the evidence deposition.
18 MR. KAISER: All right.
19 HEARING OFFICER KNITTLE: What about the Sejud to
20 Voigt, C-24?
21 MR. KOLAR: No objection.
22 HEARING OFFICER KNITTLE: That's admitted.
23 (Complainants' Exhibit No. 24
24 was admitted into evidence.)
L.A. REPORTING (312) 419-9292
1233
1 HEARING OFFICER KNITTLE: C-25 is a March 9, '98
2 letter from Voigt to Berman.
3 MR. KOLAR: This is Jack to Marvin Berman. No
4 objection.
5 HEARING OFFICER KNITTLE: Admitted.
6 (Complainants' Exhibit No. 25
7 was admitted into evidence.)
8 HEARING OFFICER KNITTLE: The next one that I have
9 is a 5-19-98 letter from Thunder to Voigt. That's
10 C-31.
11 MR. KOLAR: What about No. 30?
12 HEARING OFFICER KNITTLE: I have 30 as being
13 admitted. I think Mr. Kaiser moved to admit that
14 during his testimony of Voigt's -- oh, no, that was
15 admitted with Hara I think actually. Actually, I don't
16 have a recollection as to when it was admitted, but I
17 do have that I have admitted it. Did you object to
18 that? We could do it again? It will be on the record,
19 but I'm pretty sure we have done this already.
20 MR. KAISER: I think we did cover this. Jack said
21 he received it and considered it.
22 MR. KOLAR: Mike said he didn't and Jack said he
23 did.
24 HEARING OFFICER KNITTLE: Yeah, that's why it
L.A. REPORTING (312) 419-9292
1234
1 wasn't stipulated to in the beginning.
2 MR. KOLAR: Let me check.
3 It's 30?
4 HEARING OFFICER KNITTLE: C-30.
5 MR. KOLAR: 30, did receive. Okay. That's fine.
6 HEARING OFFICER KNITTLE: C-31 is the 5-19-98
7 letter from Thunder to Voigt.
8 I'm sorry, Mr. Voigt, you don't take any
9 offense that I keep saying "Voigt" instead of
10 "Mr. Voigt" and/or "Jack," do you?
11 THE WITNESS: No.
12 HEARING OFFICER KNITTLE: It's just how I take my
13 notes.
14 THE WITNESS: No problem.
15 MR. KOLAR: He said he received it.
16 HEARING OFFICER KNITTLE: That will be admitted.
17 (Complainants' Exhibit No. 31
18 was admitted into evidence.)
19 HEARING OFFICER KNITTLE: C-32 is June 5, '98
20 letter from Thunder to Voigt.
21 MR. KOLAR: I guess he said he received it for
22 what its worth.
23 HEARING OFFICER KNITTLE: That's admitted.
24 MR. KAISER: And read it.
L.A. REPORTING (312) 419-9292
1235
1 MR. KOLAR: He said he read everything he
2 received.
3 HEARING OFFICER KNITTLE: He's a diligent
4 employee.
5 (Complainants' Exhibit No. 32
6 was admitted into evidence.)
7 HEARING OFFICER KNITTLE: C-36 is barrier
8 calculations. I don't know what you want to do. We
9 haven't moved that one, and I don't know --
10 MR. KAISER: He didn't see it, so, right, I can't
11 move for that at this point.
12 HEARING OFFICER KNITTLE: Let me continue here.
13 MR. KOLAR: What about 40, was that -- the Web
14 pages, are those in?
15 MR. KAISER: Yeah, I was just going to ask, I
16 wasn't sure what those were. Is that 40?
17 MR. KOLAR: Right.
18 HEARING OFFICER KNITTLE: I'm not there yet.
19 Those are already admitted.
20 MR. KOLAR: The Web pages made it in?
21 HEARING OFFICER KNITTLE: Yes.
22 I have a question mark next to C-39, the
23 noise reg's but we took care of that last night.
24 MR. KOLAR: Right.
L.A. REPORTING (312) 419-9292
1236
1 HEARING OFFICER KNITTLE: I have an admission in
2 red ink, which is something I used only yesterday or
3 the day before. You want to make a further objection
4 to that, Mr. Kolar?
5 MR. KOLAR: No, I think Jack identified those as
6 the Web pages anyway, right?
7 THE WITNESS: Yes.
8 MR. KOLAR: What about 47? We didn't use 47 as I
9 recall.
10 HEARING OFFICER KNITTLE: That was reserved.
11 That was my error. I think I might have given it the
12 wrong number.
13 MR. KOLAR: It's nothing. You can use that in the
14 future.
15 MR. KAISER: Thank you.
16 HEARING OFFICER KNITTLE: That covers all of his.
17 We have got a bunch of those photos, Mr. Kolar.
18 MR. KOLAR: I would just introduce all mine. You
19 can put them in now, I don't care, or we can do it in
20 our case.
21 HEARING OFFICER KNITTLE: Why don't you do it in
22 your case. It doesn't matter to me. Do you have a
23 preference, Mr. Kaiser?
24 MR. KAISER: I'm always in favor of getting things
L.A. REPORTING (312) 419-9292
1237
1 in the record so --
2 HEARING OFFICER KNITTLE: I think you covered
3 foundation on all those anyways?
4 MR. KAISER: Right. They're ready to go. Let's
5 put them in.
6 HEARING OFFICER KNITTLE: Unless you want to keep
7 them with you?
8 MR. KOLAR: Do you want to hold all the stuff?
9 HEARING OFFICER KNITTLE: I generally hold the
10 stuff that's been admitted, so if you want to look at
11 them --
12 MR. KOLAR: I guess I would rather wait. And I
13 will state on the record I will move to admit these,
14 but if I move to admit them, I don't have them in my
15 possession anymore.
16 HEARING OFFICER KNITTLE: Well, I'd make an
17 exception if you wanted them.
18 MR. KAISER: So why don't we admit them and you
19 keep them?
20 MR. KOLAR: Okay. Fine. 51 to 85, Respondent's.
21 HEARING OFFICER KNITTLE: Any objections to R-51
22 to 85, Mr. Kaiser?
23 MR. KAISER: No.
24 HEARING OFFICER KNITTLE: Those will be admitted.
L.A. REPORTING (312) 419-9292
1238
1 (Respondent's Exhibit Nos. 51
2 to 85 were admitted into
3 evidence.)
4 HEARING OFFICER KNITTLE: What about the good
5 neighbor policy stuff, Mr. Kolar?
6 MR. KOLAR: Sure, I'll move to admit 36.
7 HEARING OFFICER KNITTLE: I think I have that as
8 47. R-47. I'm wrong though. 47 is -- good neighbor
9 is 36.
10 HEARING OFFICER KNITTLE: Yes, I see that.
11 Mr. Kaiser, good neighbor.
12 MR. KAISER: No objection.
13 HEARING OFFICER KNITTLE: That will be admitted
14 too.
15 (Respondent's Exhibit No. 36
16 was admitted into evidence.)
17 HEARING OFFICER KNITTLE: We have got other
18 respondent's but you want to do the rest of those as I
19 recall during your case, right, Mr. Kolar?
20 MR. KOLAR: Yes, including these aerials I guess
21 we'll do 88 and 89 that have been referred to ad
22 nauseam.
23 HEARING OFFICER KNITTLE: I have got a bunch of
24 yours but they were these aerials and there was a
L.A. REPORTING (312) 419-9292
1239
1 couple letters.
2 MR. KOLAR: Right. R-75 I have a picture.
3 HEARING OFFICER KNITTLE: Here we go. Let me
4 cross that off.
5 MR. KOLAR: I'll do the rest of mine -- what about
6 28? I just have that marked as the plat of survey that
7 I should -- the LTD plat of survey. Steve and I agreed
8 on that and I gave that No. 28.
9 HEARING OFFICER KNITTLE: 28, the plat.
10 MR. KOLAR: I'll give that to you now. We even
11 put a highlighted line on the line between LTD and
12 Lakeside Drive.
13 HEARING OFFICER KNITTLE: Okay. And Mr. Kaiser
14 you didn't object to that?
15 MR. KOLAR: No objection.
16 HEARING OFFICER KNITTLE: That's in.
17 (Respondent's Exhibit No. 28
18 was admitted into evidence.)
19 HEARING OFFICER KNITTLE: What about -- I have got
20 R-40 and R-34. This is a Schomer letter and a land use
21 coding manual. You want to save all that for your case
22 in chief?
23 MR. KOLAR: Yes.
24 HEARING OFFICER KNITTLE: Real estate listings.
L.A. REPORTING (312) 419-9292
1240
1 MR. KOLAR: Right. I'll wait.
2 HEARING OFFICER KNITTLE: Okay. That's all I have
3 of yours.
4 MR. KOLAR: Here's the good neighbor 36 and the
5 survey 28.
6 HEARING OFFICER KNITTLE: Okay.
7 MR. KOLAR: Unless you want me to retain them.
8 HEARING OFFICER KNITTLE: Why don't you retain all
9 your stuff if you're not going to -- if it's not going
10 to bother you, Mr. Kolar.
11 MR. KOLAR: No.
12 HEARING OFFICER KNITTLE: Then I don't have to go
13 through and separate which of the respondents I have
14 and which I don't. I won't have to note that then.
15 As to my recollection I have all of the
16 complainants' exhibits that have been offered to this
17 point, correct?
18 MR. KAISER: Yeah, I think you have got --
19 HEARING OFFICER KNITTLE: Did we go through those
20 ones we missed yesterday and supply them?
21 MR. KAISER: Most of them are here. I'm just
22 looking.
23 Here is 1 and 2.
24 HEARING OFFICER KNITTLE: The one I was missing
L.A. REPORTING (312) 419-9292
1241
1 was 4.
2 MR. KAISER: Here is 4.
3 HEARING OFFICER KNITTLE: 12 --
4 MR. KOLAR: Is Jack done?
5 HEARING OFFICER KNITTLE: Jack is done. I'm
6 sorry, Jack, you can step down.
7 MR. KAISER: 12 is now in place.
8 HEARING OFFICER KNITTLE: 15 and 16.
9 MR. KAISER: 15 and 16 are now in place.
10 HEARING OFFICER KNITTLE: 21 and 22.
11 MR. KAISER: 21 and 22 are now in place.
12 HEARING OFFICER KNITTLE: And C-50 was the only
13 other one I was missing.
14 MR. KAISER: Which is what exactly?
15 HEARING OFFICER KNITTLE: Which is --
16 MR. KAISER: I don't have C-50.
17 HEARING OFFICER KNITTLE: That Thursday's night
18 log, Roti.
19 MR. KOLAR: That's not in.
20 HEARING OFFICER KNITTLE: Right, but I still want
21 it if at all possible.
22 This, just for both of yours information, is
23 the most exhibits I have ever had.
24 MR. KAISER: It's a lot of exhibits, no question.
L.A. REPORTING (312) 419-9292
1242
1 I need to get you a Roti log. I'm not sure
2 if I have that.
3 HEARING OFFICER KNITTLE: The last thing, before
4 we let the court reporter go, is the evidence
5 deposition. You want to -- I know we're going to go
6 over that at the next time, but if you want to move for
7 the admission of that, reserving any arguments that Mr.
8 Kolar may have, then I could read it before the next
9 go-around so I could be well versed.
10 MR. KAISER: Right. Now I don't have the exhibits
11 copied but I do have --
12 HEARING OFFICER KNITTLE: That's fine.
13 MR. KAISER: I went to my office this morning
14 specifically with the purpose of making a copy of that
15 transcript.
16 (Complainants' Exhibit No. 65
17 was marked for
18 identification.)
19 MR. KAISER: I'm marking for purposes of
20 identification as Complainants' Exhibit 65 the evidence
21 deposition taken last Friday, October 29th, of Paul
22 Schomer. I'm tendering a copy of the transcript,
23 though not the exhibits, to Mr. Knittle at this time.
24 HEARING OFFICER KNITTLE: Mr. Kolar.
L.A. REPORTING (312) 419-9292
1243
1 MR. KOLAR: Fine. Subject to ruling on my
2 objections.
3 HEARING OFFICER KNITTLE: That will be admitted
4 subject to objections.
5 (Complainants' Exhibit No. 65
6 was admitted into evidence.)
7 HEARING OFFICER KNITTLE: And I appreciate that.
8 I just wanted to read it before we started up.
9 MR. KOLAR: Good reading.
10 HEARING OFFICER KNITTLE: Thank you both very
11 much.
12 MR. KOLAR: Thank you.
13 MR. KAISER: Thank you.
14 (Which were all the
15 proceedings had in the
16 above-captioned cause at this
17 time.)
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
1244
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF C O O K )
3 I, DEBORAH T. BRAUER, Certified Shorthand
4 Reporter and Notary Public in and for the County of
5 Lake, State of Illinois, do hereby certify that I
6 caused to be reported in shorthand and thereafter
7 transcribed the foregoing transcript of proceedings.
8 I further certify that the foregoing is a
9 true, accurate and complete transcript of my shorthand
10 notes so taken as aforesaid; and further, that I am not
11 counsel for nor in any way related to any of the
12 parties to this action, nor am I in any way interested
13 in the outcome thereof.
14 IN TESTIMONY WHEREOF, I have hereunto set my
15 hand and affixed my notarial seal this 18th day of
16 November, 1999.
17
18 ________________________________
Deborah T. Brauer, CSR
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20
21
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23
24
L.A. REPORTING (312) 419-9292