Rochelle Waste Disposal, LLC v. Nat'l Labor Relations Bd.

• Decision Date: 12 April 2012
• Docket Number: 10–3872,Nos. 10–3213,10–3701,11–1011.,s. 10–3213
• Citation: 673 F.3d 587,192 L.R.R.M. (BNA) 3061
• Parties: ROCHELLE WASTE DISPOSAL, LLC, Petitioner/Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner,andInternational Union of Operating Engineers, Local 150, AFL–CIO, Intervening Respondent/Cross–Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

192 L.R.R.M. (BNA) 3061
673 F.3d 587

ROCHELLE WASTE DISPOSAL, LLC, Petitioner/Cross–Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner,andInternational Union of Operating Engineers, Local 150, AFL–CIO, Intervening Respondent/Cross–Petitioner.

Nos. 10–3213

10–3701

10–3872

11–1011.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 2011.Decided March 8, 2012.Rehearing Denied April 12, 2012.

[673 F.3d 588]

Joshua G. Vincent (argued), Attorney, Hinshaw & Culbertson, Chicago, IL, for Petitioner/Cross–Respondent.

Linda Dreeben, Attorney, Robert J. Englehart, Supervisory Attorney, David A. Seid (argued), Attorney, National Labor Relations Board, Office of the General Counsel, Washington, DC, Leonard J. Perez, Attorney, National Labor Relations Board, Region 33, Peoria, IL, for Respondent in No. 10–3212.

Linda Dreeben, Attorney, Robert J. Englehart, Supervisory Attorney, David A. Seid (argued), Attorney, National Labor Relations Board, Office of the General Counsel, Washington, DC, Claude T. Harrell, Jr., Attorney, National Labor Relations Board, Region 14, St. Louis, MO, Leonard J. Perez, Attorney, National Labor Relations Board, Region 33, Peoria, IL, for Respondent/Cross–Petitioner in Nos. 10–3701 and 11–1011.Linda Dreeben, Attorney, Robert J. Englehart, Supervisory Attorney, David A. Seid (argued), Attorney, National Labor Relations Board, Office of the General Counsel, Washington, DC, Claude T. Harrell, Jr., Attorney, National Labor Relations Board, Region 14, St. Louis, MO, for Petitioner in No. 10–3872.Dale D. Pierson, Attorney, IUOE Local 150 Legal Department, Countryside, IL, for Intervening Respondent/Cross–Petitioner.

Before EASTERBROOK, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.

[673 F.3d 589]

WILLIAMS, Circuit Judge.

Rochelle Waste Disposal, LLC, the employer in this action, operates a municipal landfill in Rochelle, Illinois. At the time of the events leading to this dispute, the employer had five permanent employees, including Jeff Jarvis, the central character in this drama. Jarvis worked under the title “Landfill Supervisor,” but as we shall soon have to ask ourselves, “What's in a name?” Jarvis and two other employees began to discuss the possibility of unionizing, but when faced with the possibility of a bargaining unit being formed, Rochelle Waste Disposal asserted that Jarvis was, as his title suggested, a “supervisor” and therefore ineligible for inclusion. The dispute was heard by the Regional Director of the National Labor Relations Board, who found that Jarvis was not, in fact, a supervisor. Eight days before the election, Jarvis was terminated for what Rochelle Waste now says was an egregious violation in failing to cover the landfill's garbage. At the time of his firing, Jarvis was told he was being let go because of a reduction in force. Regardless, Jarvis cast a vote, and the final vote tally was 3–2 in favor of unionizing. Rochelle Waste challenged the ballot and refused to bargain with the newly formed collective bargaining unit. An Administrative Law Judge found that Jarvis was improperly discharged.

The National Labor Relations Board affirmed the decision of the Regional Director that Jarvis did not have supervisory status, and the Administrative Law Judge's finding that Jarvis was improperly terminated. Rochelle Waste seeks review of those decisions, and the General Counsel of the Board has filed cross-applications for enforcement of the orders. We conclude that although Rochelle Waste called Jarvis a “supervisor,” the Board's determination that he lacked authority “responsibly to direct” other employees under section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11), contains no legal error and is supported by substantial evidence. We also find that the Board's conclusion that Jarvis was discharged based on his protected union activity is supported by substantial evidence. We therefore deny the employer's petition for review and grant the General Counsel's application for enforcement of the Board's orders.

I. BACKGROUND

Rochelle Waste Disposal (“Rochelle Waste”) operates Municipal Landfill Number 2, a landfill owned by the City of Rochelle, Illinois. Rochelle Waste is co-owned by Clyde Gelderloos and Winnebago Reclamation Service, an entity owned by William Waste Companies. Gelderloos is also an owner of Rochelle Disposal Services, a separate waste hauling company that provides waste to the landfill.

As of January 2007, the landfill had five permanent employees (Jeff Jarvis, Tracy Spires, Joe Nelson, Matt Cater, and Mike Grubic) and two temporary employees. Jarvis had worked as a truck driver for Rochelle Disposal Services from August 1992 until December 1993, and began working for Rochelle Waste at the landfill on January 27, 2004. Jarvis spent eighty to ninety-five percent of his day running heavy equipment, and the remainder of his day operating pumps, servicing equipment, and performing special tasks. Jarvis held a Class A Solid Waste Site Operator's Certificate as issued by the Illinois Environmental Protection Agency (“IEPA”), and Illinois law requires that landfills have at least one certificate holder on staff. 225 ILCS 230/1004. The exact nature of Jarvis's job and daily tasks is much disputed and discussed in greater detail below. Jarvis's title at Rochelle Waste was “Landfill Supervisor.”

[673 F.3d 590]

In mid-August 2008, Jarvis and two other Rochelle Waste employees, Grubic and Cater, began discussing the possibility of organizing a union. The three met with an organizer from the International Union of Operating Engineers, Local 150, and signed union authorization cards. On August 18, the Union filed a representation petition with the National Labor Relations Board (“NLRB” or “Board”) to represent Rochelle Waste's scale and heavy equipment operators. But Rochelle Waste challenged the proposed bargaining unit on the ground that Jarvis's “Landfill Supervisor” position was supervisory under Section 2(11) of the National Labor Relations Act (“NLRA”). See 29 U.S.C. § 152(11). Such a designation would render Jarvis ineligible for inclusion in the bargaining unit. Hearings were conducted, and Jarvis testified before a hearing officer of the Board in the presence of Gelderloos. On September 28, 2006, the Regional Director of the NLRB issued a Decision and Direction of Election, finding that Jarvis's “Landfill Supervisor” position was not, as the title suggested, supervisory. The Regional Director's decision included Jarvis in the bargaining unit and directed a secret-ballot election.

Shortly thereafter, the NLRB issued its decision in Oakwood Healthcare Inc., 348 NLRB 686 (2006), in which the Board reassessed its interpretation of certain section 2(11) terms relevant to the determination of supervisory status in light of the Supreme Court's decision in NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001). Rochelle Waste filed what the Regional Director considered a motion for reconsideration, and the Regional Director vacated his opinion relating to supervisory status and reopened the proceedings for another hearing. Jarvis testified at a second hearing, and Gelderloos was again present. The Regional Director issued a Supplemental Decision and Direction of Election which reaffirmed his prior determination that Jarvis was not in a supervisory position and again directed a secret-ballot election, scheduled for February 1, 2007. Rochelle Waste filed a request for review with the Board, which was denied.¹

Meanwhile, in October 2006, the City of Rochelle applied for approval from the Ogle County Solid Waste Management Department to expand the landfill. The landfill had a history of IEPA-issued violations, including one dated September 15, 2006 based on a lack of compliance with the “cover” requirement. IEPA regulations require that the “working face” of the landfill be covered at the end of each day, typically with soil, tarps, sand, or demolition debris, in order to contain odors, repel animals, and prevent blowing litter. Rochelle Waste claims that Tom Hilbert, the company's Engineering Manager, informed Jarvis about the September violation and the need to be in compliance during the expansion application process, and that Jarvis's responsibilities included verifying that the working face was properly covered. However, Rochelle Waste's employees, including Jarvis, claim that the company never informed them of any environmental violations and that no employee was disciplined for such violations. On January 5, 2007, the Ogle County Solid

[673 F.3d 591]

Waste Management Department accepted a compliance commitment from Rochelle Waste to resolve the cover violation that led to the September 15, 2006 citation.

On Saturday, January 13, 2007, before any decision on the expansion application, Ogle County conducted an unannounced, after-hours inspection of the landfill because of complaints about uncovered waste. The inspector found uncovered waste and tarps to the side of the waste that could have been used for cover, but were not. Jarvis, Grubic, and Cater all testified that the garbage was adequately covered before they left the landfill that Saturday morning. After the hearings on the landfill's expansion plan, Rochelle Waste was cited and fined $500 for the January 13, 2007 violation. Ogle County eventually granted Rochelle Waste's and the City of Rochelle's expansion plan with certain conditions.

On January 16, 2007, Gelderloos informed Rochelle Waste's full-time employees that Evan Buskohl, then Environmental Compliance Officer for William Charles Waste Companies, would be taking over as Operations Manager of the landfill. Rochelle Waste claims that this change was made in response to the January 13 violation. The General Counsel of the Board denies that there was any correlation, pointing to Gelderloos's later statement that, “Well, when Mr. Jarvis decided he was not a...