Republic Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 9, 2012

25-CA-031683 (N.L.R.B. Mar. 9, 2012)

JD–14–12
Argos, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
REPUBLIC SERVICES, INC.
and Cases 25-CA-31683
25-CA-31708
INTERNATIONAL UNION OF OPERATING 25-CA-31709
ENGINEERS, LOCAL UNION NO. 150, 25-CA-31813
AFL-CIO, a/w INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-CIO
Raifael Williams, Esq.,
for the General Counsel.
Dennis M. Devaney and Jeffrey Wilson, Esqs.,
(Devaney Jacob Wilson, PLLC) Troy, Michigan
for the Respondent.
Charles R. Kiser, Esq., Chicago, Illinois,
for the Charging Party.
SUPPLEMENTAL DECISION FOLLOWING REMAND
ARTHUR J. AMCHAN, Administrative Law Judge. Respondent is a large nationwide
company engaged in waste collection and disposal. It operates the Countyline Landfill near
Argos, Indiana, the only facility at issue in this case. The Union began representing unit
employees at the Countyline Landfill in 1994. On January 1, 2009, Respondent merged with
Allied Waste and began operating the landfill. It recognized the Union and agreed to abide by
the collective bargaining agreement between Allied Waste and the Union.1 That agreement ran
from January 1, 2008 until December 31, 2010.
On November 9, 2010, Respondent terminated the employment of 3 of the 7 bargaining
unit members at that site, Travis Pugh, Mike Fairchild and Jason Wiegand.2 The Union filed
grievances regarding all three discharges on November 10. As of November 11, 2010,
Respondent had received notification from three of the four remaining bargaining unit members
that they no longer wished to be represented by the Charging Party. On November 11, 2010,
Respondent withdrew recognition of the Charging Party Union as the exclusive collective
bargaining representative of its equipment operators and mechanics at the Countyline Landfill.

1 The agreement was more technically between the Union and the Countyline Landfill Partnership.
2 In my initial decision I stated that Respondent terminated 3 of the 6 bargaining unit members on
November 9. Dennis Jaeger, who had been laid off in October 2010 and was recalled on November 9,
must also be considered to be a member of the unit as of November 11.
JD–14–12
2
On November 12, Respondent began the process of transferring Wayne “Mike” Miller
from its non-union Wabash facility to Countyline. Respondent characterized this as a temporary
transfer.3 Miller worked at Countyline at least until May 11, 2011. Respondent states in its
remand brief that Miller transferred back to Wabash and that another employee Bobby Arnold
transferred to Countyline at some unspecified date since May. In my initial decision I found that 5
Respondent did not violate its collective bargaining agreement with the Union by transferring
Miller instead of utilizing the union hiring hall to replace the discharged employees.
The General Counsel contends that Respondent violated Section 8(a)(5) and (1) of the
Act in withdrawing recognition and refusing to meet and bargain with the Union for a successor 10
collective bargaining agreement to the contract that expired on December 31, 2010.4
On June 21, 2011, I issued an initial decision in this matter. I concluded that the Act did
not prohibit Respondent from refusing to meet and bargain with the Union for a successor
agreement.5 I also found that Respondent did not violate the Act by making unilateral changes in 15
unit employees’ conditions of employment after the expiration of the collective bargaining
agreement. However, I stated that if the arbitration resulted in the reinstatement of the three
discharged employees, Respondent would be obligated to resume recognition of the Union and
bargain for a successor contract.
20
During 2011 arbitrators found that Respondent did not have just cause to discharge
Travis Pugh, Mike Fairchild and Jason Wiegand. Pugh and Fairchild were reinstated with full
backpay and benefits. Wiegand was reinstated subject to a 90 day suspension, with
correspondingly reduced backpay and benefits.
25

3 It is unclear as to when Miller actually began working at Countyline, however, it was not prior to
November 12. November 11 is the date that Respondent withdrew recognition and which controls the
issue as to whether Respondent could legally do so. Therefore, Miller can not be considered in
determining whether the Union represented a majority of employees for purposes of this case, Levitz
Furniture Co. of the Pacific, 333 NLRB 717, 725 (2001). As noted in my initial decision at slip opinion
page 10, n. 8, this case is not an anticipatory withdrawal case. Respondent herein withdrew recognition
on November 11, G.C. Exhs. 8, 30 and 31. Moreover, Respondent never treated Miller as a bargaining
unit member. It did not deduct union dues from his paycheck prior to the expiration of the collective
bargaining agreement as it did belatedly with other unit members, nor did it pay into the union fringe
benefit funds for Miller, Tr. 270-71.
4 In October 2010, Union Business Agent James Gardner sent a letter to Holly Ann Georgell,
Respondent’s Midwest Region Labor Relations Director, requesting bargaining for a successor
agreement. On October 22, Georgell responded, asking Gardner to suggest dates in November
2010 for bargaining sessions.
5 Also, the General Counsel alleged that Respondent violated Section 8(a)(5) and (1) by
unilaterally implementing a 401(k) program and changing its health insurance program, by
giving unit employees a wage increase and changing the manner in which vacation benefits were
accorded to unit employees. The import of my initial decision was that changes Respondent
made after the expiration of the collective bargaining agreement were not illegal. As a result of
this decision I conclude that all unilateral changes in the terms of employment of unit employees
violated Section 8(a)(5) and (1) of the Act.
JD–14–12
3
On December 29, 2011, the Board granted the General Counsel’s motion to remand this
case to me to consider the affect of the arbitration awards. It ordered me to prepare this
supplemental decision. In a conference call on January 5, 2012, the parties agreed that no further
live testimony was necessary. The next day, I issued an order receiving the arbitration awards
into the record and set a briefing schedule. I also granted the parties leave to move for the 5
admission of other documentary evidence.6
On February 10, 2012, Respondent sent Travis Pugh, Mike Fairchild and Jason Wiegand
offers of reinstatement. On February 13. 2012, all three accepted Respondent’s offer.
10
The General Counsel, Respondent and the Charging Party filed briefs regarding the
remand issue on March 5, 2011.
Unilateral Changes after the expiration of the collective bargaining agreement
15
After the expiration of the contract on January 1, 2011, Respondent implemented several
unilateral changes in wages and working conditions of unit employees. In February 2011 it
changed its vacation pay policy to comport with that at other non-union locations. In March, it
raised unit employees’ wages.
Analysis20
In order to withdraw recognition from an incumbent union, an employer must show that
the Union had actually lost its majority status when the Respondent withdrew recognition, Levitz
Furniture Co. of the Pacific, 333 NLRB 717 (2001). In Levitz, the Board overruled the line of
cases permitting withdrawal of recognition from an incumbent union on the basis of the 25
employer’s good faith doubt as to the union’s majority status.
An employer may not lawfully withdraw recognition while a collective bargaining
agreement is in effect, because an incumbent union enjoys a conclusive presumption of majority
status during the life of the contract (up to 3 years), Auciello Iron Works, Inc. v. NLRB, 517 U.S. 30
781, 187 (1996). However, under the “anticipatory withdrawal” cases, an employer faced with
evidence that an incumbent union has lost majority support during the term of collective-
bargaining agreement may lawfully refuse to negotiate a successor agreement and announce that
it will not recognize the Union after the contract expires, Abbey Medical, 264 NLRB 969 (1982),
enfd. Mem. 709 F.2d 1514 (9th Cir. 1983). The loss of majority support on which the employer 35
relies cannot be the result of unfair labor practices. Moreover, such an employer must continue
to recognize and bargain with the union until the collective bargaining agreement expires.
On November 11, 2010 Respondent had evidence that the Union had lost majority status
in the Countyline unit, assuming that it was entitled to exclude the three terminated employees 40
from its calculation of the number of employees in the bargaining unit. The General Counsel
argued in its initial brief that Respondent was not entitled to withdraw recognition until the
grievances filed by the three discharged employees were resolved.

6 The Charging Party did not move for the admission of Respondent’s offers of reinstatement and the
acceptance of the offers by the three discharged employees. It attached these documents as exhibits to its
brief. The documents certainly appear to be authentic and I will assume they are accurate.
JD–14–12
4
I rejected this argument. However, now that the arbitrations have been decided in favor
of the three terminated employees, I conclude that Respondent illegally withdrew recognition
from the Union and must be ordered to bargain for a successor contract.
In Levitz, the Board stated that an employer who withdraws recognition from an 5
incumbent union, in the honest but mistaken belief that the union has lost majority support,
should be found to violate Section 8(a)(5). It further observed that an employer with objective
evidence that the union has lost majority support…withdraws recognition at its peril. If the
union challenges the withdrawal in an unfair labor practice proceeding, the employer will have to
prove that the union in fact had lost majority support at the time it withdrew recognition, 333 10
NLRB at 725. Applying this logic to the instant case, I find that Respondent violated the Act by
withdrawing recognition from the Charging Party on November 11, 2010. As the results of the
arbitrations establish, the Union had not lost majority support as of that date.
Respondent in its brief argues that the Board should not issue a bargaining order because 15
Jason Wiegand would have still been on his suspension when the collective bargaining
agreement expired on December 31, 2010 (90 days from November 9). I reject this argument.
Wiegand’s situation is best analogized to that in Board cases determining the eligibility of
employees, who have been laid off or terminated, to vote in a representation election. From
those cases I conclude that Wiegand has been a member of the bargaining unit at all times 20
material in this case. Thus, the Union represented 4 of the 7 unit employees when Respondent
withdrew recognition on November 11.
In Grand Lodge Int’l Association of Machinists, 159 NLRB 137, 142 (1966), the Board
ordered that employees seeking reinstatement pursuant to the LMRDA be allowed to vote 25
subject to challenge. In Ms. Desserts, 299 NLRB 236 (1990), the Board ordered that a
terminated employee’s ballot be counted after the arbitrator had ruled that he was unjustly
terminated. In Red Arrow Freight Lines, 278 NLRB 965 (1986) the Board held that an employee
on sick leave was eligible to vote absent evidence that the employee had been terminated or
resigned. Laid-off employees are eligible to vote if they have a reasonable expectancy of recall 30
in the near future, Higgins, Inc., 111 NLRB 797 (1955). Clearly, Jason Wiegand, justifiably
suspended for 90 days on November 9, had a reasonable expectation that he would be reinstated
in the near future.
Therefore, this record establishes that the Union had not lost majority support when 35
Respondent withdrew recognition from it on November 11. Respondent therefore violated
Section 8(a)(5) and (1) of the Act and must be required to bargain with the Union for a successor
collective bargaining agreement and if the Union so requests, rescind all unilateral changes in the
terms and conditions of unit members’ employment.
40
CONCLUSIONS OF LAW (INCLUDING THOSE CONTAINED IN THE INITIAL June 21,
2011 DECISION)
Respondent, Republic Services, Inc. has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a) (5) and (1) by the following conduct:45
1. Withdrawing recognition of the Union on November 11, 2010.
JD–14–12
5
2. Denying union officials access to Respondent’s facility on November 12, and
December 13, 2010.
3. Requiring Respondent’s agents to accompany union representatives while at
Respondent’s facility on December 16, 2010.5
4. Temporarily ceasing the deduction of union dues from employee’s paychecks.
5. Unilaterally offering unit employees 401(k) and health insurance benefits during the
life of its collective bargaining agreement with the Union.10
6. Unilaterally providing health insurance benefits to Carleen Condon during the life of
the collective bargaining agreement.
7. Making unilateral changes in the terms and conditions of unit employees’ employment15
after the expiration of its collective bargaining agreement with the Union.
8. Refusing to bargain for a successor agreement with the Union.
Respondent also engaged in unfair labor practices within the meaning of Section 8(a)(1) 20
on December 16, 2010 by engaging in the surveillance of employees’ union activities and in
interrogating them as to whether they wished to speak to union representatives.
REMEDY
25
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the 30
following recommended7
ORDER
The Respondent, Republic Services, Inc., its officers, agents, successors, and assigns, 35
shall
1. Cease and desist from
(a) Coercively interrogating any employee about union support or union activities.40
(b) Placing under surveillance the union or other protected activities of employees.

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD–14–12
6
(c) Failing to adhere to all the terms of the collective bargaining agreement with the
Union that expired on December 31, 2010 until it has negotiated a successor collective
bargaining agreement with the Union or has negotiated to impasse.
(d) Dealing directly with employees when they are represented by a labor organization.5
(e) Refusing to bargain with the Union for a successor agreement to its collective
bargaining agreement with the Union.
(f) In any like or related manner interfering with, restraining, or coercing employees in 10
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Bargain with the Union as the exclusive representative of its equipment operators and 15
mechanics concerning terms and conditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(b) At the Union’s request rescind all unilateral changes made in the terms and
conditions of bargaining unit members’ employment and return these conditions to the status quo 20
that existed when the collective bargaining agreement expired on December 31, 2010.
(c) Make unit employees whole for any loss of earnings and/or other benefits sustained as
a result of Respondent’s unlawful withdrawal of recognition and unilateral changes.
25
(d) Within 14 days after service by the Region, post at its Argos, Indiana landfill copies
of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In 30
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent 35
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since November 11, 2010.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn 40
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–14–12
7
Dated, Washington, D.C., March 9, 2012.
____________________
Arthur J. Amchan5
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain with International Union of Operating Engineers, Local No.
150 as the exclusive collective bargaining representative of our equipment operators and
mechanics at the Countyline Landfill.
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT place your union or other protected activities under surveillance.
WE WILL NOT deal with you directly when you are represented by a labor organization,
including International Union of Operating Engineers, Local No. 150.
WE WILL NOT unilaterally offer or provide you benefits during the life of any collective
bargaining agreement we have with any labor organization, including International Union of
Operating Engineers, Local No. 150.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the bargaining unit.
WE WILL adhere to all the terms and conditions of any collective bargaining agreement that we
had with International Union of Operating Engineers, Local No. 150, until we either negotiate a
successor collective bargaining agreement or negotiate to impasse.
WE WILL make bargaining unit members whole for any loss of earnings or other benefits
resulting from our illegal withdrawal of recognition from International Union of Operating
Engineers, Local No. 150, and/or illegal unilateral changes in the terms and conditions of their
employment.
REPUBLIC SERVICES, INC.
(Employer)
Dated _________________________ By ____________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (317) 226-7413.