Rochelle Waste Disposal

National Labor Relations Board - Board Decisions

Oct 20, 2008

353 N.L.R.B. 416 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 38
416
Rochelle Waste Disposal, LLC and International Un-
ion of Operating Engineers, Local 150, AFL–
CIO. Cases 33–CA–15298 and 33–RC–5002.
October 20, 2008
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On June 27, 2008, Administrative Law Judge George
Carson II issued the attached decision. The General
Counsel filed a brief in support of the judge’s decision.
The Respondent filed exceptions and a supporting brief,
the Charging Party filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
To establish a violation under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the General Counsel bears the burden of showing that union
animus was a motivating or substantial factor for the adverse employ-
ment action. The elements commonly required to support such a show-
ing are union or protected activity by the employee, employer knowl-
edge of that activity, and union animus on the part of the employer.
See, e.g., Consolidated Bus Transit, Inc., 350 NLRB 1064, 1064–1065
(2007). Chairman Schaumber notes that the Board and circuit courts of
appeal have variously described the evidentiary elements of the General
Counsel’s initial burden of proof under Wright Line, sometimes adding
as an independent fourth element the necessity for there to be a causal
nexus between the union animus and the adverse employment action.
See, e.g., American Gardens Management Co., 338 NLRB 644, 645
(2002). As stated in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4
(2003), since Wright Line is a causation analysis, Chairman Schaumber
agrees with this addition to the formulation, which the judge applied in
analyzing the circumstances of employee Jeff Jarvis’ discharge.
2 We shall substitute the Board’s standard language for certain pro-
visions of the judge’s recommended Order and notice.
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Rochelle Waste Disposal, LLC, Rochelle,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting International Union of Op-
erating Engineers, Local 150, AFL–CIO or any other
labor organization.
(b) Discharging or otherwise discriminating against
any employee because of that employee’s testimony in a
National Labor Relations Board proceeding.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in 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) Within 14 days from the date of this Order, offer
Jeff Jarvis full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(b) Make Jeff Jarvis whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in Rochelle, Illinois copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ROCHELLE WASTE DISPOSAL, LLC 417
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any material. In the event that,
during the pendency of these proceedings, the Respon-
dent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate 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 January 24, 2007.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
14 shall, within 14 days from the date of this Decision,
Order, and Direction, open and count the ballot of Jeff
Jarvis. The Regional Director shall then prepare and
serve on the parties a revised tally of ballots and issue the
appropriate certification.
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 discharge or otherwise discriminate
against any of you for supporting International Union of
Operating Engineers, Local 150, AFL–CIO or any other
labor organization.
WE WILL NOT discharge or otherwise discriminate
against any of you because of your testimony in a Na-
tional Labor Relations Board proceeding.
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, within 14 days from the date of the Board’s
Order, offer Jeff Jarvis full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Jeff Jarvis whole for any loss of earn-
ings and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Jeff Jarvis, and WE WILL, within 3 days there-
after, notify him in writing that this has been done and that
the discharge will not be used against him in any way.
ROCHELLE WASTE DISPOSAL, LLC
Ahavaha Pyrtel, Esq., for the General Counsel.
Lori L. Hoadley, Esq. for the Respondent.
Bryan P. Diemer, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. These cases
were tried in Peoria, Illinois on March 12 and April 18, 2008.
The complaint in the unfair labor practice case, Case 33–CA–
15298, issued on March 28, 2007, and alleges that the Respon-
dent discharged employee Jeff Jarvis in violation of Section
8(a)(1), (3), and (4) of the National Labor Relations Act.1 On
April 3, in representation Case 33–RC–5002, the Regional
Director issued a second supplemental decision on a challenged
ballot, the determinative ballot of Jarvis, and ordered that the
representation case be consolidated with the unfair labor prac-
tice case.2 I find that the Respondent did unlawfully discharge
Jarvis, that he should be offered reinstatement and made whole,
and that his ballot should be counted.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Rochelle Waste Disposal, LLC (the Com-
pany), is a corporation with facilities in Rochelle, Illinois,
where it is engaged in the business of providing waste disposal

1 All dates are in 2007 unless otherwise indicated. The charge was
filed on January 25.
2 The petition was filed on August 18, 2006, and, following two
hearings that inter alia related to the eligibility of employee Jeff Jarvis,
an election was conducted among employees of the Respondent in the
following appropriate unit on February 1, 2007:
All full-time and regular part-time heavy equipment operators in-
cluding the scale operator and the landfill supervisor employed by
the Employer at the Rochelle Municipal #2 landfill in Rochelle, Illi-
nois; EXCLUDING temporary employees employed through a tempo-
rary agency, office clerical and professional employees, guards and
supervisors as defined in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD418
services. The Company annually purchases and receives goods
and services valued in excess of $50,000 directly from points
located outside the State of Illinois. The Respondent admits,
and I find and conclude, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent admits, and I find and conclude, that Inter-
national Union of Operating Engineers, Local 150, AFL–CIO
(the Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Procedural Matters
The Company is one of several businesses involved either di-
rectly or indirectly in this proceeding. Clyde Gelderloos is a 50-
percent owner and managing partner of the Company, Rochelle
Waste Disposal, LLC. The other owner is Winnebago Reclama-
tion Service, an entity owned by William Charles Waste Com-
panies. Although it does not appear in the record of this pro-
ceeding, at a prior proceeding on June 25, 2008, Gelderloos
explained that he is the owner of Rochelle Disposal Services, a
waste hauling company that is one of the customers that pro-
vides waste to the landfill, Rochelle Municipal No. 2 Landfill.
The landfill is owned by the City of Rochelle and has been
operated by the Company since 1995.
At the relevant times herein, there were five permanent em-
ployees of Rochelle Waste Disposal and two temporary employ-
ees at the landfill. Employee Tracy Spires operated the scale
house. The temporary employees picked up loose debris and
performed other manual tasks. Employee Joe Nelson, who is
limited to light duty, operated the tipper, a piece of equipment
that tips enclosed trailers onto their ends so that the contents fall
out upon the landfill. The other three employees, Landfill Super-
visor Jeff Jarvis, Matt Cater, and Mike Grubic operated various
other pieces of equipment including a bulldozer, a scraper, and a
compactor.
The petition in the representation case was filed on August
18, 2006, and a hearing was held on September 1, 2006. On
September 28, 2006, the Regional Director issued a Decision
and Direction of Election in which, inter alia, he found that
Landfill Supervisor Jeff Jarvis was not a supervisor as defined
in Section 2(11) of the Act. On October 12, 2006, following the
decisions of the Board in Oakwood Healthcare, Inc., 348
NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717 (2006),
and Golden Crest Healthcare Center, 348 NLRB 727 (2006),
the Employer filed a request for review. On October 24, 2006,
the Regional Director issued an order advising that he was
treating the request for review as a motion for reconsideration.
Thereafter, on November 28, 2006, the representation hearing
was reopened. The only issue addressed was the supervisory
status of Jarvis. On December 20, 2006, the Regional Director
issued a Supplemental Decision in which he reaffirmed his
prior determination that Jarvis was not a supervisor as defined
in the Act. The Employer filed a request for review that was
denied by the Board on January 31, the day before the election
which was held on February 1.
The description of the appropriate unit identifies the position
of Jarvis as “landfill supervisor” and includes him in the unit.
Jarvis was terminated on January 24. The Union filed the
charge herein alleging that his discharge was unlawful on Janu-
ary 25. Jarvis attempted to vote in the election and his ballot
was challenged. The tally reflected two votes for the Union,
two votes against representation, and the determinative chal-
lenged ballot of Jarvis.
The initial hearing in these cases was held on June 25 and
26. On the first day of the hearing, Jarvis, the alleged discrimi-
natee in Case 33–CA–15298, failed to appear. The Union with-
drew the unfair labor practice charge in that case, and the hear-
ing proceeded with regard to the representation case, Case 33–
RC–5002, which related to the determinative challenged ballot
cast by Jarvis. Jarvis did appear on the second day of the hear-
ing, and the Union moved to reinstate the charge. The adminis-
trative law judge denied the motion without stating a reason for
the denial. The Union filed a request for special permission to
appeal the denial of its motion. On August 1, the administrative
law judge issued his decision relating to the representation case.
On December 28, the Board, in an unpublished Order, granted
the Union’s request for special permission to appeal and re-
versed the administrative law judge’s denial of the Union’s
motion to reinstate its previous withdrawal of the charge in
Case 33–CA–15298. The Board remanded these cases, directed
that the charge and complaint in Case 33–CA–15298 be rein-
stated, that the decision of the judge in Case 33–RC–5002 be
set aside, and that Case 33–CA–15298 be reconsolidated with
Case 33–RC–5002. The Board further directed that a new hear-
ing in the consolidated proceedings be held before a different
administrative law judge. By Order dated January 2, 2008,
Associate Chief Administrative Law Judge William N. Cates
assigned the case to me. The parties agreed to a trial date of
March 12, 2008.
At the hearing on March 12, 2008, alleged discriminate Jarvis
had a seizure while undergoing cross-examination. After a short
recess, counsel for the Respondent moved for a mistrial citing
concern that sympathy might affect my findings. I denied that
motion noting that what had occurred at the hearing did not color
my vision and that the facts upon which I would decide the case
were the facts regarding what happened a year ago in January
2007. I hereby reaffirm my denial of the motion for a mistrial. I
requested that counsel for the General Counsel present her re-
maining witnesses in order to assure that the hearing would be
completed in 1 day upon its resumption. None of the parties ob-
jected to that procedure, and counsel for the General Counsel did
present the witnesses. The parties thereafter agreed to reconvene
on April 18, 2008. On April 18, cross-examination of Jarvis was
completed, and the hearing concluded.
At the reconvened hearing on April 18, 2008, counsel for the
Charging Party filed a motion in limine requesting that the
Respondent be precluded from introducing any evidence that
would constitute relitigation of the finding of the Regional Di-
rector that Jarvis was not a supervisor. I ruled that I was not
going to preclude the Respondent from presenting its case, but
that, insofar as I determined that the evidence presented by the
Respondent did constitute a collateral attack upon the findings
in the representation case, I would then address the matter. The
Respondent, with its brief, filed a response to the Motion in
ROCHELLE WASTE DISPOSAL, LLC 419
limine citing portions of the decision of the Regional Director
and arguing that its evidence regarding the responsibilities of
Jarvis are not inconsistent with the finding of the Regional
Director that he was not a supervisor insofar as he did not exer-
cise independent judgment. No probative evidence was ad-
duced establishing that Jarvis was a supervisor as defined in the
Act. The motion is now moot.
B. Facts
1. The operation of the landfill
Rochelle Municipal No. 2 Landfill covers approximately 80
acres of land, 62 of which have been authorized to receive
waste, but of which only 32 are permitted to receive waste un-
der current regulations. Of those 32 acres, 29 have been used,
leaving only three. The Company applied for expansion in 2000
and 2002. The Company voluntarily abandoned the 2000 appli-
cation and the 2002 application was denied. In 2006, the Com-
pany again applied for expansion and that application was ap-
proved but with conditions that the Company found unaccept-
able. The Company appealed the conditions. Although the hear-
ings upon the 2006 application had concluded at the time of the
relevant events herein, the Company contends that any viola-
tion would reinforce “any kind of concern” that the City of
Rochelle might have regarding the expansion.
The landfill operates Monday through Friday from 6 a.m. un-
til 3:30 p.m. and on Saturday from 6 a.m. until 11 a.m. The
equipment operators arrive at 5 a.m., prepare the equipment for
the day, and move it to the area that is to receive waste. The
scale operator arrives by 6 a.m. and, at 6 a.m., begins allowing
vehicles to enter. Vehicles entering the landfill are weighed
and, when the weight is recorded, a ticket is created that auto-
matically reflects the time the vehicle entered. The vehicles are
reweighed as they leave and, when their empty weight is re-
corded, the time they leave is automatically recorded on the
ticket. The difference in weight is the amount of waste re-
ceived. The remaining four full time employees operate the
landfill using various pieces of equipment. A bulldozer is used
to excavate what are referred to as “cells,” pits into which
waste is dumped. The scraper is used to move the excavated
dirt and to stockpile nontoxic dirt received as waste but used to
cover garbage. The employee operating the compactor spreads,
shreds, and compacts the waste. The tipper, as described above,
dumps trailers containing waste. The equipment operators also
maintain the equipment and roads inside the landfill. At the end
of the day, the waste is covered with dirt or an alternate daily
cover such as foundry sand, contaminated but nontoxic soil,
construction or demolition debris, or tarps if there is insuffi-
cient other cover material. The employee working in the gar-
bage would apply the daily cover. Jarvis, who holds a certified
landfill operator certification from the Illinois Environmental
Protection Agency, would visually check, “[l]ooks good to
me,” to assure the cover complied with regulations.
At the relevant times herein, Joe Nelson, who had for many
years worked for Rochelle Disposal Services, the waste hauling
company, and who was and is limited to light duty, operated the
tipper and occasionally the scale which was normally operated
by Spires. Matt Cater, who had also worked for Rochelle Dis-
posal Services before coming to the landfill in 2002, spent
about 90 percent of his time operating the compactor. Jeff Jar-
vis, who had worked for Rochelle Disposal Services driving a
truck for over a year, from August 1992 until December 1993,
began working at the landfill on January 27, 2004. Jarvis could
and did operate all pieces of equipment and performed mainte-
nance. Mike Grubic had worked for Rochelle Disposal Services
from 1984 until 1993 initially as a driver and then as a me-
chanic. Like Jarvis, Grubic operated various pieces of equip-
ment and performed maintenance. Grubic was the least senior
equipment operator, having been hired at the landfill in May
2005.
Jarvis and Gelderloos both were certified landfill operators,
certified by the Illinois Environmental Protection Agency.
Regulations require that one certified operator be on site or
available at all times. Gelderloos typically came to the landfill
twice a day for about an hour.
2. Citations and practices at the landfill
The Ogle County Solid Waste Management Department is
responsible for assuring that the landfill complies with various
environmental regulations and, in that regard, performs regular
inspections at the landfill. Inspection reports from the Ogle
County Solid Waste Management Department are sent to Tho-
mas Hilbert, an employee of William Charles Waste Services,
who is identified on the reports as the “Certified Operator” of
the landfill, and to Clyde Gelderloos who is identified as the
“Permitted Operator.” An inspection on June 15, 2004, resulted
in the landfill being cited for various deficiencies including
recirculating leachate without a permit and not applying appro-
priate cover over areas which did not receive additional waste
or final cover within 60 days. An inspection on July 20, 2004,
revealed an additional violation in that there was “uncovered
refuse remaining from any previous operating day or at the
conclusion of any ongoing day.” An inspection on April 11,
2005, resulted in a violation notice for inadequately maintain-
ing a groundwater monitoring well. An inspection on March 30,
2006, resulted in a citation for failure to utilize a continuous
methane detection device in all buildings on the site. On July
28, 2006, the landfill was cited for not inspecting loads of con-
taminated soil to be used as daily cover and not maintaining a
log of the inspections. As a result of an inspection on Septem-
ber 15, 2006, the landfill received a violation notice dated No-
vember 6, 2006, setting out several violations including using
construction or demolition material as daily cover that did not
meet requirements in that it contained other waste and was not
properly shredded. The Company responded to all of the fore-
going citations and, with regard to the November 6, 2006, vio-
lation notice, the Solid Waste Management Department, on
January 7, accepted a compliance commitment agreement pre-
pared by Hilbert.
Jarvis, in uncontradicted testimony, denied that he was made
aware of the violations resulting from the September 15, 2006,
inspection. Employees Matt Cater and Mike Grubic confirmed
that the Company never made them aware of any citations re-
ceived by the landfill. Although Gelderloos claimed at this
hearing that he had verbally warned Jarvis, at the representation
hearing Gelderloos admitted that he had never disciplined Jar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD420
vis “because other employees did not do their jobs properly.”
Jarvis credibly testified that he had never been warned or disci-
plined.
With regard to the use of construction or demolition mate-
rial, Jarvis noted that the landfill was not permitted to receive
tires but that a large customer, Brackenbox, was bringing tires
to the landfill. When Jarvis brought this to the attention of
Gelderloos, Gelderloos told him, “[I]t just happens . . . have the
laborers get them moved to the inside of the cell where they
could be buried with garbage.” Jarvis explained that, shortly
after he began working at the landfill, he was in the process of
hauling clean dirt to use as daily cover because there was insuf-
ficient sand or demolition material. Gelderloos told him that
“that was enough dirt, to stop hauling it.” On another occasion,
after a heavy rainfall, Gelderloos directed Jarvis to pump con-
taminated water into a creek. Evan Buskohl, environmental
compliance manager with William Charles Waste Companies,
who works with Rochelle Waste and Winnebago Reclamation,
visited the landfill and observed what was occurring. He called
Jarvis, asked, “what we were doing,” and pointed out that they
could not pump the contaminated water into the creek. Jarvis
answered that he “was told to by the man who signs my
checks.” Shortly after this, Gelderloos told Jarvis to stop the
pump.
3. The January 13 inspection and immediate aftermath
On Saturday, January 13, the landfill closed at 11 a.m. Three
vehicles entered the landfill during the last half hour. A large
truck from Brackenbox containing over 18 tons of construction
or demolition debris arrived at 10:34 a.m. and departed at 10:56
a.m. One vehicle carrying less than a ton of household trash
entered at 10:35 a.m. and departed at 10:47 a.m. Another vehi-
cle carrying less than a ton of household trash entered at 10:46
a.m. and departed at 10:53 a.m. The employee timecards for
January 13 reflect that Nelson punched out at 11 a.m., Spires at
11:01 a.m., Cater at 11:07 a.m., Grubic at 11:09 a.m., and Jar-
vis at 11:09 a.m. Grubic, who had been working in the garbage,
would have been the employee responsible for applying the
cover. Jarvis, Grubic, and Cater all testified that the cover left
over the waste that day was adequate.
Joy Bliton, a solid waste management specialist/environ-
mental engineer for the Ogle County Solid Waste Management
Department, performs regular inspections at the landfill and
also receives complaints. She received two complaints late in
2006 regarding uncovered garbage after the landfill closed. On
November 28, 2006, she called Tom Hilbert regarding the first
complaint. On December 29, 2006, she spoke with Gelderloos
regarding the second complaint. On the afternoon of January
13, Bliton went to the closed landfill and, from its fenced pe-
rimeter, took photographs of the landfill with a digital camera.
Several of the photographs depict waste that was not fully
shredded and compacted as well as the presence of a tire.
I concur with the argument in the Respondent’s brief that the
time designations relating to the arrival and departure of vehi-
cles in the last half hour before the closure of the facility on
January 13, coupled with the timecard departure times of the
employees, contradicts their testimony that adequate cover was
applied that day. The photographs taken by Bliton confirm that
adequate cover was not applied. I find that the testimony of the
employees with regard to January 13 was inaccurate. As here-
inafter discussed, it is also immaterial to the issues herein.
Monday, January 15, was the Martin Luther King Jr., holi-
day, but the landfill operated that day. On that day, Engineering
Manager Hilbert received a call either from Steve Rypkema,
Bliton’s superior, or Bliton in which he was told of “concerns
over the complete lack of cover over the weekend,” and that a
violation notice would be issued. Hilbert was informed that
photographs had been taken, and he requested to see them. On
Wednesday, January 17, administrative assistant Sandy Golan
attempted to e-mail some of the photographs that Bliton had
taken to Hilbert. The e-mail stated that Bliton “asked me to e-
mail these pictures,” and requested that Hilbert let her know if
he did not receive them. Although Hilbert testified that he re-
ceived the pictures on that Wednesday, I find that he was mis-
taken in that regard because, on January 22, Golan sent Hilbert
a second e-mail stating, “I’m sorry it has taken so long to email
these pictures to you.” On January 31, Hilbert sent the photo-
graphs to Gelderloos giving the subject of the e-mail as “FW:
Pictures from Inspection on January 13” and stating
This was sent from Ogle County. It is a follow up to a verbal
notification from the Ogle County Waste Department that an
inspection was performed on Saturday afternoon on Jan. 13,
2007. It shows a clear lack of adequate daily cover. The other
thing that was a concern for the county was that the areas un-
covered faced away from the road giving the appearance that
was an intent to hide the areas which were not adequately
covered.
Any question please call.
Hilbert testified that he recommended to his boss, whom he
did not name, and Gelderloos that there be a “change in per-
sonnel at the landfill because we needed to ensure . . . we were
operating in compliance with . . . requirements.”
As already noted, Evan Buskohl is employed by William
Charles Waste Companies as an environmental compliance
manager with responsibilities for Rochelle Waste and Winne-
bago Reclamation. Winnebago Reclamation owns 50 percent of
Rochelle Waste. Buskohl did not work on the January 15 holi-
day. On the morning of January 16, Buskohl testified that he
met with Hilbert, who is his superior, and the manager of a
sister landfill, presumably Winnebago Reclamation, although
that was not stated in the record. Buskohl was informed that
“we have had cover issues” at the Rochelle landfill and was
asked if he would be willing to “go down there and run the
landfill.” Buskohl agreed to do so and went to the landfill that
afternoon. Jarvis recalled that Gelderloos introduced Buskohl
as operations manager; however, he signed the letter discharg-
ing Jarvis as “Operations Supervisor.” He did not identify him-
self as landfill supervisor, the term by which Jarvis is identified
in the description of the unit.
Gelderloos testified that “Well, when Mr. Jarvis decided he
was not a supervisor, I had to hire a supervisor,” and that Evan
Buskohl was brought on. When asked whether Buskohl was
brought on as a result of some event, Gelderloos responded;
“As a result principally of the incident on Saturday . . . where
the waste was left uncovered.” Gelderloos did not testify from
ROCHELLE WASTE DISPOSAL, LLC 421
whom he learned of the January 13 inspection, when he learned
of it, or what deficiencies were being claimed by Ogle County.
The e-mail from Hilbert to Gelderloos is dated January 31.
The Company introduced its payroll for February 9 which
does not include the name of Jarvis. The payroll also does not
include the name of Buskohl. Buskohl, unlike hourly employee
Jarvis, was salaried. The absence of his name on the Company
payroll suggests that he continued to be paid by William
Charles Waste Companies. Contrary to his testimony, Gelder-
loos did not “hire a supervisor.” Buskohl was sent by Hilbert.
Although Hilbert testified that he was told of “concerns over
the complete lack of cover over the weekend,” the only infor-
mation to which Buskohl testified was that there were “cover
issues.”
4. The discharge of Jeff Jarvis
Jarvis, with Cater and Grubic, contacted the Union in August
2006 and signed authorization cards. At the initial representa-
tion hearing held on September 1, 2006, those three employees
sat together immediately behind the union organizer, Mike
McCaffrey, and the attorney representing the Union. They
again sat together behind McCaffrey and the attorney represent-
ing the Union at the supplemental hearing on November 26,
2006. The Company contended that Jarvis was a statutory su-
pervisor and not eligible to vote. The Union contended that that
he was not a supervisor and was eligible to vote. Jarvis testified
regarding his duties and responsibilities. Gelderloos admitted
that the testimony of Jarvis was not consistent with the position
of the Company.
Jarvis was a certified landfill operator and could and did op-
erate all of the equipment at the landfill, including, when neces-
sary, the scale. Buskohl was not a certified landfill operator
and, according to his testimony, “mostly” operated the tool
carrier which he utilized as a “means for transportation.” Bus-
kohl testified that he also operated the tipper, which was em-
ployee Nelson’s job and, on a few occasions, the scraper and
also the bulldozer, “pushing piles of dirt,” but that he had “no
skill level of grading.” He never operated the compactor. He
admitted that he “wasn’t a very good operator.” As found in the
representation proceeding, Jarvis spent the “vast majority of his
time operating equipment or working in the shop.”
On January 16, as the employees were preparing to leave af-
ter Gelderloos introduced Buskohl, Buskohl recalls that Jarvis
commented that he guessed he was “not the supervisor any-
more.” Buskohl responded, “Well, you indicated that you
weren’t.”
The following morning, Buskohl informed Jarvis that demo-
lition material was no longer acceptable as cover, and the Com-
pany purchased more tarps. Employee Cater observed that,
soon after Buskohl arrived, the landfill began receiving con-
taminated but nontoxic soil and they “could actually prepare for
the next day with as much cover as we were getting at that
time.”
Thereafter, Buskohl evaluated the work force by observing
the employees and, on Monday, January 22, had each employee
evaluate himself regarding his competence in operating the
various pieces of equipment. Nelson operated only the tipper
and, occasionally, the scale. Jarvis operated everything and, on
a scale of 1 to 10, rated himself no lower than 8. Neither Grubic
nor Cater rated themselves higher than 7 on any piece of
equipment.
Buskohl claims that he determined that the landfill was over-
staffed and that he had to select one employee for discharge. He
did not consider discharging scale operator Spires. He did not
select Joe Nelson for termination because Nelson had previously
worked for Rochelle Disposal Services and, with the two compa-
nies, had 20 years of service. Due to Nelson’s workers compen-
sation injury, “whether we had him on site or not we were going
to pay him either way.” Buskohl considered Cater to be the best
compactor operator although he never observed Jarvis operate the
compactor. On the self evaluation, Cater rated his skill level on
the compactor at 7 and Jarvis rated himself at 9. He did not select
Grubic, the least senior employee, claiming that Grubic “had
good mechanical skills,” noting welding but then acknowledging
that welding did not “come to play too often,” and that Grubic
“had some electrical skills” and “was very important to the site in
my mind.”
At the hearing, prior to when Buskohl testified, employee
Matt Cater testified that on the afternoon of January 24, the
afternoon that Jarvis was discharged, he was offered a job as a
driver for Rochelle Disposal Services. He explained that Bus-
kohl requested Cater to come with him, and that they went to
the offices of Rochelle Disposal Services and met in an office
with Clyde Gelderloos and his son Chad Gelderloos, who man-
ages Rochelle Disposal Services. Buskohl said that the landfill
was overstaffed and that someone needed to be let go. He stated
that “Clyde Gelderloos and Chad Gelderloos were offering me
a packer route position,” i.e., driving for Rochelle Disposal
Services. Cater, like both Grubic and Jarvis, had previously
driven for Rochelle Disposal Services. Cater asked whether he
had to take the position, and Buskohl answered that he did not.
Cater then asked whether he was still employed at the landfill.
Buskohl answered that he was. Cater stated that he felt that he
was a good employee and that “I would take my odds and I
would go back to the landfill.” As they were returning, Buskohl
commented that “he thought it would be a lot easier if I did not
say anything to the other employees about what was said at the
meeting.”
In testimony that I can only characterize as bizarre, Buskohl
acknowledged the foregoing meeting and explained that it took
place because he was concerned about Cater “jumping ship,”
and he “wanted to verify that he wasn’t going to work at the
hauling company.” He noted that if Cater “was going to go to
the hauling company at a position, then I may have kept Jeff
[Jarvis] or Grubic.” Buskohl then claimed that there were no
vacant driving positions at Rochelle Disposal Services and that,
even if one did come open, he would not have considered either
Jarvis or Grubic “because they hadn’t proven their desire in the
past to operate at the hauling company.” Buskohl knew that
Jarvis had driven a truck for Rochelle Disposal Services for 1-
1/2 years because Jarvis told him so during his self evaluation
interview, and Buskohl recorded that answer on the form relat-
ing to Jarvis.
Cater credibly testified that Buskohl stated, in the presence
of Clyde and Chad Gelderloos, that they were offering him a
job. Clyde Gelderloos did not address this meeting, and Chad
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD422
Gelderloos did not testify. The fact that Buskohl would untruth-
fully represent to an employee that there was a position when in
fact there was no such position is disturbing. Insofar as the
position did not exist, it would appear that the trip to Rochelle
Disposal Services, at which Buskohl announced that Rochelle
Waste was overstaffed and that he was going to have to let
someone go, was a diversionary tactic to obfuscate his inten-
tions regarding Jarvis. Insofar as it did exist, the failure to offer
the position to Jarvis is consistent with a finding of a discrimi-
natory motive.
Buskohl acknowledged that Jarvis had a good working
knowledge of all pieces of equipment, “may have been the best
dozer operator,” had a good working knowledge with the site
pumps, and he had some safety training.” Buskohl decided that
Cater and Grubic “were the two people I wanted to work with
going forward.” Thus, Jarvis would be discharged. With regard
to “going forward,” there is no evidence that Buskohl’s as-
signment to the landfill was expected to be permanent. He left
in June.
When asked whether, in making the decision to discharge
Jarvis, he had taken into consideration the participation of Jar-
vis in the representation hearing, Buskohl answered,” I really
did not. I was aware of some poor judgment on the covering on
the 13th. I was aware of prior hearings, but I did not—it was
me running the landfill and who was going to best operate the
landfill going forward.” Buskohl conducted no investigation to
determine the responsibility for cover on January 13. If he had
done so, he would have learned that Grubic was in the garbage
and, therefore, was the employee responsible for applying the
cover.
On January 24, Buskohl informed Jarvis that he had evalu-
ated the workforce which was overstaffed, that he had to termi-
nate someone and “that someone was going to be me.” Jarvis
asked why. Buskohl repeated that he had “evaluated the work-
force, and I was the one he had chosen.” A letter to Jarvis,
dated January 24 and signed by Buskohl as Operations Supervi-
sor, states that he was terminated pursuant to “a necessary per-
manent reduction in force.”
After discharging Jarvis, Buskohl admitted that he “did al-
low” a temporary employee “to become familiar with the
loader, and he would occasionally operate the tipper.” Em-
ployee Grubic noted that, after Jarvis was discharged, mainte-
nance was not “getting done when it was supposed to get done”
and that, “[i]n the past, Jeff [Jarvis] did a lot of maintenance.”
Gelderloos denied any involvement in the decision of Bus-
kohl to discharge Jarvis. I find it incomprehensible that the
newly arrived operations supervisor would not consult with the
50-percent owner of the Company and managing partner who
had been at the landfill an average of twice a day for over 10
years, since 1995, when the Company began operating it, re-
garding the skills and competence of the employees who
worked there.
Gelderloos admitted that prior, to January 24, although there
had been fluctuations in the workload, he had never laid off any
employee. As set out in the briefs of the General Counsel and
Charging Party, documentary evidence establishes that the
volume of waste received at the landfill in 2007 exceeded that
received in 2006.
C. Analysis and Concluding Findings
The complaint alleges that the Respondent discharged Jarvis
because of his union activities and testimony at the representa-
tion case hearing in violation of Section 8(a)(1), (3), and (4) of
the Act. As with alleged 8(a)(3) violations, an analysis pursuant
to Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981). cert. denied 455 U.S. 989 (1982), is appli-
cable in cases involving the 8(a)(4) allegations. American Gar-
dens Management Co., 338 NLRB 644, 645 (2002). Although
the Respondent points out that Jarvis never informed the Re-
spondent that he had signed a union authorization card, the
Respondent does not deny that he twice sat with Cater and
Grubic behind union organizer McCaffery and the union attor-
ney, and Gelderloos admitted that the testimony of Jarvis was
not consistent with the position of the Respondent. The dis-
charge of Jarvis was an adverse employment action. The evi-
dence adduced by the General Counsel established “a motiva-
tional link, or nexus, between the employee’s protected activity
and the adverse employment action.
Although there are no independent 8(a)(1) allegations in the
complaint, “motive may be inferred from the total circum-
stances proved.” Fluor Daniel, Inc., 304 NLRB 970 (1991),
enfd. 976 F.2d 744 (11th Cir. 1992). Furthermore, “[t]iming
alone may suggest antiunion animus as a motivating factor in
an employer's action.” Sears, Roebuck & Co., 337 NLRB 443
(2002), citing Masland Industries, 311 NLRB 184, 197 (1993),
quoting NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th
Cir. 1984).
The Respondent argues that there is no basis for inferring
animus insofar as Jarvis was not terminated until some 5
months after he first testified. I note that an immediate termina-
tion would virtually assure a finding that the termination was
retaliatory. At the representation case hearings, Jarvis “testified
prominently and adversely to Respondent’s positions.” Success
Village Apartments, 348 NLRB 579, 599–600 (2006). Gelder-
loos characterized that testimony as being “when Mr. Jarvis
decided he was not a supervisor.” The Board, not Jarvis, deter-
mined that he was not a statutory supervisor and was, therefore,
eligible to vote. The Respondent does not address the fact that
removal of a known union adherent from the unit shortly before
a representation election “would materially reduce its [the un-
ion’s] prospect for a majority” and is evidence of a discrimina-
tory motive. Hapsco, Inc., 196 NLRB 936, 939 (1972); see also
Super Tire Stores, 236 NLRB 877, 883 (1978). The termination
letter given to Jarvis 8 days before the representation election
refers to “a necessary permanent reduction in force,” thereby
forestalling any claim of a reasonable expectation of recall. I
find that the foregoing wording was not accidental.”
The testimony of Gelderloos that Jarvis decided that he was
not a supervisor and that he therefore had to hire a supervisor
establishes the nexus between the testimony of Jarvis at the rep-
resentation hearings and his termination. The hostile tone in
which Gelderloos stated, “Well, when Mr. Jarvis decided he was
not a supervisor, I had to hire a supervisor,” revealed animosity
towards Jarvis that appears not to have moderated since those
hearings. Those hearings established that Jarvis was not a super-
visor. He had been employed since January 23, 2004. Although
the Respondent had been cited for multiple environmental viola-
ROCHELLE WASTE DISPOSAL, LLC 423
tions after his employment, Jarvis was not held responsible for
any of those violations. He had never been warned or disciplined.
Gelderloos claimed that he “had to hire a supervisor” and
that Buskohl was “brought on” because “the waste was left
uncovered on January 13.” The record establishes that no one
was hired. William Charles Waste Companies, the owner of the
Respondent’s other 50-percent owner, Winnebago Reclama-
tion, sent its Environmental Compliance Manager Buskohl to
the landfill. Buskohl’s name does not appear on the payroll of
Rochelle Waste that the Respondent placed into evidence.
The Respondent, in its brief, asserts that the January 13 vio-
lation was “blatant and intentional” and that the Respondent
“could no longer trust that Jarvis would keep the landfill in
compliance” and that “its only reasonable choice was to place a
responsible Site Supervisor at the landfill.” I disagree. As of
January 15, the Respondent had only one verbal report, “con-
cerns over the complete lack of cover over the weekend,”
which was substantively no different from the violation notice
of July 20, 2004, that revealed “uncovered refuse remaining
from any previous operating day or at the conclusion of any
ongoing day,” or the November 6, 2006, violation notice predi-
cated upon the September 15, 2006, inspection that cited the
Respondent for multiple infractions including using construc-
tion or demolition material as daily cover that did not meet
requirements in that it contained other waste and was not prop-
erly shredded. There was, on January 15, no evidence of a “bla-
tant and intentional” violation. The photographs taken by Bliton
were not received by Hilbert until January 22 and were not sent
to Gelderloos until January 31. There is no evidence that Bus-
kohl ever saw them. The Respondent conducted no investiga-
tion to determine responsibility for cover on January 13. If an
investigation had been conducted, the Respondent would have
learned that Grubic was in the garbage and, therefore, was the
employee responsible for applying the cover.
If, as the Respondent argues, the problem were trusting Jar-
vis, the Respondent would have discharged him for failure to
perform his job duties, duties that did not involve 2(11) super-
visory authority. There would be no reason to engage in the
charade of claiming that the landfill was overstaffed and then
purportedly evaluating the personnel. Neither on this occasion
or on any previous occasion did the Respondent warn or disci-
pline Jarvis for his own conduct or the conduct of one of his
fellow employees. The Respondent had received violation no-
tices in 2004, 2005, and 2006 but did not appoint Buskohl as
operations supervisor. Bliton had reported complaints of un-
covered garbage to both Hilbert and Gelderloos in November
and December 2006. Bliton did not report complaints to Jarvis.
Jarvis was never advised of the multiple violations cited as a
result of the inspection on September 15.
The denial by Clyde Gelderloos that he was involved in the
decision to terminate Jarvis is suspect in view of his involve-
ment in the offer of what Buskohl claims was a nonexistent job
as a driver for Rochelle Disposal Services to employee Cater.
Chad Gelderloos, the son of Clyde Gelderloos, was present
when Jarvis was discharged. Chad Gelderloos did not testify.
The landfill was not overstaffed. Buskohl did not replace
Jarvis. He did not regularly operate heavy equipment, and there
is no evidence that he performed maintenance. Although assert-
ing that he operated equipment for approximately 4 hours a
day, Buskohl admitted that at least two of those hours was driv-
ing the tool carrier which he utilized as his “primary mode of
transportation.” He claims to have operated the tipper, but that
was employee Nelson’s job, a job not regularly performed by
any of the other equipment operators. He states the on a few
occasions he operated the scraper and also the bulldozer, “push-
ing piles of dirt,” but that he had “no skill level of grading.” He
never operated the compactor. In short, Buskohl was an envi-
ronmental compliance manager, not a heavy equipment opera-
tor. As observed in the brief of the Charging Party, Buskohl
was “engaged in supervisory functions that had never been
performed at the landfill” and “was not operating equipment to
a degree or extent that would have made it necessary to lay off
one of the other equipment operators.” Buskohl’s testimony
regarding the need to reduce staff is contradicted by his admis-
sion that, following the discharge of Jarvis, he put a temporary
employee on the loader and tipper. The absence of Jarvis left a
gap that Buskohl had to fill, and he did not fill it himself. He
took the unprecedented action of assigning the operation of
equipment to a temporary employee. Employee Grubic noted
that, after Jarvis was discharged, maintenance was not “getting
done when it was supposed to get done” and that “[i]n the past,
Jeff [Jarvis] did a lot of maintenance. Jarvis, as found in the
representation proceeding, spent the vast majority of his time
operating heavy equipment and “in the shop” where mainte-
nance was performed. Buskohl did not have those skills.
As pointed out in Success Village Apartments, supra at 599–
600:
When a respondent’s stated motives for its actions are found
to be false, the circumstances warrant an inference that the
true motive is an unlawful one that the respondent desires to
conceal. Flour Daniel Inc., 304 NLRB 970, 971 (1991); Fast
Food Merchandisers, 291 NLRB 897, 898 (1988); Shattuck
Denn Mining Co., 362 F.2d 466, 470 (9th Cir. 1966). Thus,
proof that a respondent’s explanation is unworthy of credence
is simply one form of circumstantial evidence that is probative
of intentional discrimination, from which the trier of fact can
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose,
as the Supreme Court phrased it, as “affirmative evidence of
guilt.” Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000).
The offer of what Buskohl claims was a nonexistent position
to Cater was a ruse. Cater’s testimony regarding the offer of the
position was uncontradicted by either Clyde or Chad Gelder-
loos. I do not accept the testimony of Buskohl that the offer was
to determine whether Cater might “jump ship.” There is no
evidence that Cater would “jump ship.” When employed at the
landfill, Cater had driven for Rochelle Disposal Services on
occasions that he was asked to do so because “I got to do what
they say.” As the Charging Party points out in its brief, if Cater
had taken the position, the Respondent would have removed a
union supporter from the unit and achieved the objective of
remaining union free. I need not address or determine what
would have occurred if Cater had accepted the position. He did
not. On this record it appears that the offer was designed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD424
obfuscate the Respondent’s intentions with regard to Jarvis.
Confirmation of my conclusion in that regard is the fact that the
Respondent did not offer the position to Jarvis after Cater de-
clined it. Jarvis had driven for Rochelle Disposal Services for a
year and a half, and Buskohl knew that as a result of the self
evaluation interview in which he recorded that answer on the
form relating to Jarvis.
The Respondent argues that Buskohl determined to discharge
Jarvis after evaluating the skills and situations of the employees
and concluding that Cater was the best compactor operator.
Buskohl never observed Jarvis operate the compactor. After
observing the employees for a week and, purportedly, without
any input from Gelderloos, he concluded that Grubic “was an
exceptional mechanic” and that his skills “were more important
to the landfill operation that those of Jarvis.” Jarvis was a certi-
fied landfill operator who could operate all of the equipment at
the landfill. Insofar as Grubic “exceeded . . . expectations” as a
scraper operator once Jarvis was gone, Buskohl questioned
whether Jarvis was the best scraper operator although he ac-
knowledged that Jarvis “may have been the best dozer opera-
tor.” He admitted that Jarvis had a “good working knowledge
with the site pumps, and . . . safety training,” qualifications that
Buskohl did not claim Cater or Grubic possessed.
Buskohl did not testify that he disagreed with the self ratings
of the employees regarding their competence upon the machin-
ery they operated. Neither Cater or Grubic rated themselves
higher than Jarvis with regard to competence in the operation of
any piece of heavy equipment. Although Buskohl considered
Cater to be the best compactor operator, he never observed
Jarvis operate the compactor, and Cater rated himself at 7
whereas Jarvis rated himself at 9.
The Respondent argues that the determination to discharge
Jarvis was a business decision. I disagree. The decision was a
retaliatory decision made against Jarvis for his support of the
Union and his testimony at the representation hearing at which
Clyde Gelderloos felt that “Jarvis decided he was not a supervi-
sor.” I find the claim of noninvolvement by Gelderloos in the
decision to discharge Jarvis to be incredible in view of the real-
ity that he had managed the landfill for over a decade and pur-
portedly continued to do so after Buskohl was sent there by
William Charles Waste Companies. The failure of Gelderloos
to address the meeting at which Cater was offered a driving
position further confirms my finding that the offer was a ruse
designed to obfuscate the determination of the Respondent to
discharge Jarvis.
I need not speculate with regard to what would have oc-
curred in the absence of the serendipitous occurrences of the
January 13 inspection and telephone call to Hilbert on January
15 which gave the Respondent the excuse of ostensibly over-
staffing the landfill by sending Buskohl. If the Respondent had
terminated Jarvis shortly after either the first or supplemental
representation case hearing, its motivation would have been
obvious. I find it equally obvious that, following the serendipi-
tous occurrences, the termination of Jarvis 8 days before the
election purportedly because of “a necessary permanent [em-
phasis added] reduction in force,” was motivated by his pro-
tected activity.
Buskohl was not a truthful witness. I have found that the
credible testimony of Cater, undenied by either Clyde or Chad
Gelderloos, establishes that a position was offered to Cater.
Thus, Buskohl either was untruthful to Cater when offering to
him what he now contends was a nonexistent position, or un-
truthful at the hearing when he testified that no position existed.
With regard to the decision to discharge Jarvis, when asked
whether he had taken into consideration the participation of
Jarvis in the representation hearing, Buskohl answered, “I
really did not. I was aware of some poor judgment on the cov-
ering on the 13th. I was aware of prior hearings, but I did not.”
His dismissive, “I really did not,” was not credible. His gratui-
tous reference to alleged but uninvestigated “poor judgment”
on January 13 seemed contrived and was not responsive. His
responsive answer acknowledged his awareness of the “prior
hearings.” I find that the testimony of Buskohl that considera-
tion of the prior hearings “really did not” relate to his discharge
decision was incredible and that the truth is the opposite of that
testimony. NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
(1962).
At the representation case hearings, Jarvis “testified promi-
nently and adversely to Respondent’s positions” and Clyde
Gelderloos felt that Jarvis, not the Board, “decided he was not a
supervisor.” The Respondent thereafter seized upon the verbal
report of a cover violation to assign Environmental Compliance
Manager Buskohl, who did not operate heavy equipment, to the
landfill. Buskohl, claiming that the landfill was overstaffed,
evaluated the employees and, purportedly with no input from
Gelderloos, retained Cater and Grubic, the least senior em-
ployee, neither of whom had rated themselves higher than Jar-
vis with regard to their competence in operating equipment that
Buskohl did not operate. Buskohl, acting for the Respondent
and purportedly with no involvement by Clyde Gelderloos,
took the unprecedented action of discharging Jarvis pursuant to
a reduction in force. Clyde Gelderloos had never laid off any
employee notwithstanding fluctuations in the workload. Jarvis
was not offered the position of a driver for Rochelle Disposal
Services, the position offered to Cater in the presence of Clyde
Gelderloos shortly before Jarvis was discharged.
The General Counsel has established that the removal of Jeff
Jarvis from the unit by discharging him 8 days before the repre-
sentation election was motivated by his union activity and tes-
timony adverse to the position of the Respondent. The Respon-
dent has not established that he would have been discharged in
the absence of that activity and testimony. By discharging Jeff
Jarvis, the Respondent violated Section 8(a)(1), (3), and (4) of
the Act.
D. The Representation Case
I have found that the Respondent unlawfully discharged Jar-
vis because of his union activity and testimony at a representa-
tion case hearing. But for the unlawful discharge, Jarvis would
have been employed on February 1. His position as landfill
supervisor is specifically included in the unit. I shall recom-
mend that the challenge to his ballot be overruled and that it be
opened and counted.
CONCLUSIONS OF LAW
1. By discharging Jeff Jarvis because he engaged in pro-
ROCHELLE WASTE DISPOSAL, LLC 425
tected union activity, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
2. By discharging Jeff Jarvis because of his testimony in a
National Labor Relations Board representation hearing, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (4) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Jeff Jar-
vis it must offer him reinstatement and make him whole for any
loss of earnings and other benefits, computed on a quarterly
basis from January 24, 2007, to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]