Rochelle Waste Disposal, LLC

National Labor Relations Board - Board Decisions

Aug 23, 2010

355 N.L.R.B. 578 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 100
578
Rochelle Waste Disposal, LLC and International Un-
ion of Operating Engineers, Local 150, AFL–
CIO. Cases 33–CA–15298, 33–CA–15765, and
33–RC–5002
August 23, 2010
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On April 30, 2009, the two sitting members of the
Board issued a Decision and Order in Case 33–CA–
15765, reported at 354 NLRB (not reported in Board
volumes).1 Thereafter, the Respondent filed a petition
for review in the United States Court of Appeals for the
Seventh Circuit, and the General Counsel filed a cross-
application for enforcement. The court of appeals, on its
own motion, consolidated Case 33–CA–15765 with
Cases 33–CA–15298 and 33–RC–5002, which were
pending before the court pursuant to an earlier petition
for review and cross-application for enforcement in those
matters.2 On June 17, 2010, the United States Supreme
Court issued its decision in New Process Steel, L.P. v.
NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of
the Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded
these cases for further proceedings consistent with the
Supreme Court’s decision.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.3

1 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 powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 On October 20, 2008, the two sitting members of the Board issued
a Decision, Order, and Direction in Cases 33–RC–5002 and 33–CA–
15298, reported at 353 NLRB 416 (2008). That decision adopted the
judge’s finding inter alia that the Respondent violated Sec. 8(a)(3), (4),
and (1) by discharging employee Jeff Jarvis, and directed the Regional
Director to open and count Jarvis’s ballot, prepare and serve a revised
tally of ballots, and issue an appropriate certification. Following the
October 20, 2008 Decision, Order, and Direction, the parties entered a
settlement agreement that satisfied the backpay and reinstatement obli-
gations of the Order.
3 Consistent with the Board's general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. The Board’s April 30, 2009 decision (354 NLRB
No. 18) (not reported in Board volumes) states that the
Respondent is precluded from litigating any representa-
tion issues because, in relevant part, they were or could
have been litigated in the prior representation proceed-
ings. The preelection representation issues raised by the
Respondent were considered by a three-member panel
which denied the Respondent’s request for review. Ac-
cordingly, we give that decision preclusive effect.4
However, the postelection representation issues raised by
the Respondent were resolved in a two-member decision
and we do not give that decision preclusive effect.
We have considered the postelection representation
and unfair labor practice issues raised by the Respondent.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs, and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the October 20, 2008 Deci-
sion, Order, and Direction, reported at 353 NLRB 416,
which is incorporated herein by reference.5
Accordingly, we find that the election was properly
held and the tally of ballots is a reliable expression of the
employee’s free choice, and we will issue an appropriate
certification.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Union of Operating Engineers,
Local 150, AFL–CIO, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

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

panel had the opportunity to participate in the adjudication of this case
prior to the issuance of this decision.
4 On August 16, 2010, the Respondent filed a Motion for Leave to
File Supplemental Brief in Opposition to the General Counsel’s Motion
for Summary Judgment. This motion, however, seeks reconsideration
of a supervisory issue resolved by a three-member panel, which issue
the Respondent did not preserve in the consolidated postelection repre-
sentation and unfair labor practice proceeding. In these circumstances,
we deny the Respondent’s motion.
5 During the course of the litigation in Cases 33–RC–5002 and 33–
CA–15298 the two sitting members of the Board issued a decision
denying the Respondent’s motion for reconsideration of a procedural
ruling made by a three-member panel. The Respondent did not thereaf-
ter file exceptions regarding the ruling or the denial of its motion for
reconsideration. Thus, those matters are not before us and may not be
raised on review.
ROCHELLE WASTE DISPOSAL

579
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.
Notice to Show Cause
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. courts of appeals. Although
the Respondent’s legal position may remain unchanged,
it is possible that the Respondent has or intends to com-
mence bargaining at this time. It is also possible that
other events may have occurred during the pendency of
this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before September 2, 2010, to conform
with the current state of the evidence;
2. The Respondent’s answer to the amended complaint
is due on or before September 16, 2010, and
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before October 7, 2010 (with affidavit of
service on the parties to this proceeding), as to why the
Board should not grant the General Counsel’s Motion for
Summary Judgment. Any briefs or statements in support
of the motion shall be filed by the same date.