Rochelle Waste Disposal, LLC

National Labor Relations Board - Administrative Judge Opinions

Jun 27, 2008

33-CA-015298 (N.L.R.B. Jun. 27, 2008)

JD(ATL)–23–08
Rochelle, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
ROCHELLE WASTE DISPOSAL, LLC
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 150, AFL-CIO
Cases 33–CA–15298
33–RC–5002
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 Respondent 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 practice 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 demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the following

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 including the scale operator
and the landfill supervisor employed by the Employer at the Rochelle Municipal #2 landfill in
Rochelle, Illinois; EXCLUDING temporary employees employed through a temporary
agency, office clerical and professional employees, guards and supervisors as defined in
the Act.
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Findings of Fact
I. Jurisdiction
The Respondent, Rochelle Waste Disposal, LLC, the Company, is a corporation with
facilities in Rochelle, Illinois, where it is engaged in the business of providing waste disposal
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 International Union of Operating
Engineers, Local 150, AFL-CIO, the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background and Procedural Matters
The Company is one of several businesses involved either directly 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 Reclamation Service, an entity
owned by William Charles Waste Companies. Although it does not appear in the record of this
proceeding, at a prior proceeding on June 27, 2008, Gelderloos explained that he is the owner
of Rochelle Disposal Services, a waste hauling company that is one of the customers that
provides 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 employees of Rochelle Waste
Disposal and two temporary employees 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 supervisor 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 No. 37 (2006), Croft Metals,
Inc., 348 NLRB No. 38 (2006), and Golden Crest Healthcare Center, 348 NLRB No. 39 (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
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the charge herein alleging that his discharge was unlawful on January 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 challenged 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 discriminatee in Case No. 33–CA–15298, failed to appear. The
Union withdrew the unfair labor practice charge in that case, and the hearing proceeded with
regard to the representation case, Case No. 33–RC–5002, which related to the determinative
challenged ballot cast by Jarvis. Jarvis did appear on the second day of the hearing, and the
Union moved to reinstate the charge. The administrative 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 reversed 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 reinstated, 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 hearing 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 happed 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 remaining witnesses in order to assure that the hearing would be completed in one
day upon its resumption. None of the parties objected 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 Director 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 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 exercise independent judgment. No probative evidence was adduced
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
under current regulations. Of those 32 acres, 29 have been used, leaving only three. The
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Company applied for expansion in 2000 and 2002. The Company voluntarily abandoned the
2000 application and the 2002 application was denied. In 2006, the Company again applied for
expansion and that application was approved but with conditions that the Company found
unacceptable. The Company appealed the conditions. Although the hearings upon the 2006
application had concluded at the time of the relevant events herein, the Company contends that
any violation 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. until 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 automatically reflects the time the vehicle
entered. The vehicles are reweighed as they leave and, when their empty weight is recorded,
the time they leave is automatically recorded on the ticket. The difference in weight is the
amount of waste received. 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 insufficient other cover material. The employee working in the garbage 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 Disposal Services before coming to the landfill in
2002, spent about 90 percent of his time operating the compactor. Jeff Jarvis, 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 maintenance. Mike Grubic had worked for Rochelle Disposal
Services from 1984 until 1993 initially as a driver and then as a mechanic. Like Jarvis, Grubic
operated various pieces of equipment and performed maintenance. Grubic was the least senior
equipment operator, having been hired at the landfill in May 1995.
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 Thomas 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
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landfill being cited for various deficiencies including recirculating leachate without a permit and
not applying appropriate 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
maintaining 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 contaminated soil to be used
as daily cover and not maintaining a log of the inspections. As a result of an inspection on
September 15, 2006, the landfill received a violation notice dated November 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 foregoing citations and, with regard to the November 6, 2006,
violation notice, the Solid Waste Management Department, on January 7, accepted a
compliance commitment agreement prepared 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 received 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 Jarvis “because other
employees did not do their jobs properly.” Jarvis credibly testified that he had never been
warned or disciplined.
With regard to the use of construction or demolition material, 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
insufficient 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
contaminated 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 vehicle carrying less than a ton of household trash entered at 10:46 a.m. and departed
at 10:53 a.m. The employee time cards for January 13 reflect that Nelson punched out at 11:00
a.m., Spires at 11:01 a.m., Cater at 11:07 a.m., Grubic at 11:09 a.m., and Jarvis 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.
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Joy Bilton, a Solid Waste Management Specialist/Environmental 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, Bilton went to the closed landfill and, from its fenced
perimeter, 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 vehicles in the last half hour before the closure of the facility on
January 13, coupled with the time card departure times of the employees, contradicts their
testimony that adequate cover was applied that day. The photographs taken by Bilton confirm
that adequate cover was not applied. I find that the testimony of the employees with regard to
January 13 was inaccurate. As hereinafter discussed, it is also immaterial to the issues herein.
Monday, January 15, was the Martin Luther King, Jr., holiday, but the landfill operated
that day. On that day, Engineering Manager Hilbert received a call either from Steve Rypkema,
Bilton’s superior, or Bilton 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 Bilton
had taken to Hilbert. The e-mail stated that Bilton “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
received the pictures on that Wednesday, I find that he was mistaken 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 photographs 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 uncovered 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 personnel at the landfill because we needed to ensure
that … 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
Winnebago Reclamation. Winnebago Reclamation owns 50 percent of Rochelle Waste.
Buskohl did not work on the January 15 holiday. 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 discharging Jarvis as “Operations Supervisor.” He did not identify
himself as landfill supervisor, the term by which Jarvis is identified in the description of the unit.
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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
whom he learned of the January 13 inspection, when he leaned 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,
Gelderloos 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
information 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 representation 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
representing the Union at the supplemental hearing on November 26, 2006. The Company
contended that Jarvis was a statutory supervisor 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 operate all of the equipment
at the landfill, including, when necessary, 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.” Buskohl testified that he also operated the tipper, which was
employee 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 after Gelderloos introduced
Buskohl, Buskohl recalls that Jarvis commented that he guessed he was “not the supervisor
anymore.” Buskohl responded, “Well, you indicated that you weren’t.”
The following morning, Buskohl informed Jarvis that demolition material was no longer
acceptable as cover, and the Company purchased more tarps. Employee Cater observed that,
soon after Buskohl arrived, the landfill began receiving contaminated 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 workforce 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.
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Buskohl claims that he determined that the landfill was overstaffed 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 companies, had 20 years of service. Due to Nelson’s
workers compensation 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 Buskohl 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 manages 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 one and one half years because Jarvis told him so during his self evaluation interview, and
Buskohl recorded that answer on the form relating 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 Gelderloos did not testify. The fact that Buskohl would untruthfully 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 intentions regarding Jarvis.
Insofar as it did exist, the failure to offer the position to Jarvis is consistent with a finding of a
discriminatory 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
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to “going forward,” there is no evidence that Buskohl’s assignment 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 Jarvis 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 evaluated the workforce which was
overstaffed, that he had to terminate someone and “that someone was going to be me.” Jarvis
asked why. Buskohl repeated that he had “evaluated the workforce, and I was the one he had
chosen.” A letter to Jarvis, dated January 24 and signed by Buskohl as Operations Supervisor,
states that he was terminated pursuant to “a necessary permanent reduction in force.”
After discharging Jarvis, Buskohl admitted that he “did allow“ a temporary employee “to
become familiar with the loader, and he would occasionally operate the tipper.” 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.”
Gelderloos denied any involvement in the decision of Buskohl to discharge Jarvis. I find
it incomprehensible that the newly arrived Operations Supervisor would not consult with the 50
per cent 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, regarding
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 representation case hearing in violation of Section 8(a)(1), (3)
and (4) of the Act. As with alleged Section 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 applicable in cases involving Section 8(a)(4) allegations. American Gardens
Management Co., 338 NLRB 644, 645 (2002). Although the Respondent points out that Jarvis
never informed the Respondent 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 attorney, and Gelderloos admitted that the testimony of Jarvis was not consistent with
the position of the Respondent. The discharge of Jarvis was an adverse employment action.
The evidence adduced by the General Counsel established “a motivational link, or nexus,
between the employee’s protected activity and the adverse employment action.
Although there are no independent Section 8(a)(1) allegations in the complaint, “motive
may be inferred from the total circumstances 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),
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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 five months after he first testified. I note that an immediate
termination 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, Inc., 348 NLRB No. 28, JD slip op at 22 (2006).
Gelderloos characterized that testimony as being “when Mr. Jarvis decided he was not a
supervisor.” The Board, not Jarvis, determined 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 union’s] prospect for a majority” and is evidence of a discriminatory motive. Hapsco,
Inc., 196 NLRB 936, 939 (1972); see also Super Tire Stores, 236 NLRB 877, 883 (1978). The
termination letter given to Jarvis eight 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 representation 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 supervisor. He had been employed since January
23, 2004. Although the Respondent had been cited for multiple environmental violations 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 Reclamation, 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 violation 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, “concerns
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 predicated upon the September 15, 2006, inspection that cited the Respondent
for multiple infractions 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. There
was, on January 15, no evidence of a “blatant and intentional” violation. The photographs taken
by Bilton were not received by Hilbert until January 22 and were not sent to Gelderloos until
January 31. There is no evidence that Buskohl ever saw them. The Respondent conducted no
investigation 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.
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If, as the Respondent argues, the problem were trusting Jarvis, the Respondent would
have discharged him for failure to perform his job duties, duties that did not involve Section
2(11) supervisory 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 discipline Jarvis for his own
conduct or the conduct of one of his fellow employees. The Respondent had received violation
notices in 2004, 2005, and 2006 but did not appoint Buskohl as Operations Supervisor. Bilton
had reported complaints of uncovered garbage to both Hilbert and Gelderloos in November and
December 2006. Bilton 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 involvement 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
asserting that he operated equipment for approximately four hours a day, Buskohl admitted that
at least two of those hours was driving 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, “pushing piles of dirt,” but that he
had “no skill level of grading.” He never operated the compactor. In short, Buskohl was an
Environmental Compliance Manager, not a heavy equipment operator. 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 admission 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 maintenance was performed. Buskohl did not have those skills.
As pointed out in Success Village Apartments, Inc., supra, JD slip op at 22:
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
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Gelderloos. 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 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 declined 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 Certified 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
acknowledged that Jarvis “may have been the best dozer operator.” 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 machinery 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 supervisor.” I find the claim of noninvolvement by Gelderloos in
the decision to discharge Jarvis to be incredible in view of the reality that he had managed the
landfill for over a decade and purportedly 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 occurred 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 overstaffing 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 serendipitous occurrences, the termination of Jarvis eight days before the
election purportedly because of “a necessary permanent [emphasis added] reduction in force,”
was motivated by his protected 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.
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Thus, Buskohl either was untruthful to Cater when offering to him what he now contends was a
nonexistent position, or untruthful 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 covering on the 13th. I was aware of prior hearings,
but I did not.” His dismissive, “I really did not,” was not credible. His gratuitous 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 consideration 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 prominently 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
employee, neither of whom had rated themselves higher than Jarvis 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 eight days before the representation election was motivated by his union
activity and testimony adverse to the position of the Respondent. The Respondent 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 Jarvis because of his union
activity and testimony at a representation 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 recommend 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 protected union activity, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 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.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Jeff Jarvis 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 reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
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 because of that
employee’s membership in or activities on behalf of International Union of Operating 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 representation proceeding.
(c) In any like or related manner interfering with, restraining, 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 position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
(b) Make whole Jeff Jarvis 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
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 Jeff Jarvis in writing that this has been
done and that the discharge will not be used against him in any way.

3 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.
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(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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Subregion, post at its facilities in Rochelle,
Illinois, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Subregion 33, 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. 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 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 January 24, 2007.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that Case 33–RC–5002 is severed from Case 33–CA–15298 and
that it is remanded to the Regional Director for Subregion 33 for action consistent with the
direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Subregion 33 shall, within 14 days from
the date of this decision, 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.
Dated, Washington, D.C., June 27, 2008.
_____________________
George Carson II
Administrative Law Judge

4 If this Order is enforced by a Judgment of the 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(ATL)–23–08
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 had 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 because of your
membership in or activities on behalf of 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 National Labor Relations Board representation case hearing.
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 and WE WILL
make him 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 decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to our unlawful discharge of Jeff Jarvis and within 3 days thereafter notify him in
writing that this has been done and that the failure to reinstate them will not be used against
him in any way.
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.
ROCHELLE WASTE DISPOSAL, LLC
(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.
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2
300 Hamilton Boulevard, Suite 200, Peoria, IL 61602-1246
(309) 671–7080, Hours: 8:30 a.m. to 5:00 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, (309) 671-7085