Rochelle Waste Disposal, LLC v. National Labor Relations Board

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-3213, 10-3701, 10-3872 & 11-1011

R OCHELLE W ASTE D ISPOSAL, LLC,

Petitioner/Cross-Respondent,

v.

N ATIONAL L ABOR R ELATIONS B OARD ,

Respondent/Cross-Petitioner,

and

INTERNATIONAL U NION OF O PERATING

E NGINEERS, L OCAL 150, AFL-CIO,

Intervening Respondent/Cross-Petitioner.

Petitions for Review and Cross-Applications

for Enforcement of Orders of the

National Labor Relations Board.

Nos. 33-CA-15298, 33-CA-15765 & 33-RC-5002.

A RGUED S EPTEMBER 19, 2011—D ECIDED M ARCH 8, 2012

Before EASTERBROOK, Chief Judge, and KANNE and

W ILLIAMS, Circuit Judges.

2 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

W ILLIAMS, 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 em-

ployees, including Jeff Jarvis, the central character in

this drama. Jarvis worked under the title “Landfill Super-

visor,” 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 deci-

sion 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

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 3

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 equip-

4 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

ment, 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.”

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 chal-

lenged 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 designa-

tion 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 pres-

ence 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.

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 5

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

(2001). Rochelle Waste filed what the Regional Director

considered a motion for reconsideration, and the Re-

gional Director vacated his opinion relating to super-

visory status and reopened the proceedings for an-

other 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

1

The decision of a regional director becomes final either if the

parties fail to request a review by the Board or the Board denies

such a request. See 29 C.F.R. § 102.67(f); see also NLRB v.

Friendly Cab Co., Inc., 512 F.3d 1090, 1102 (9th Cir. 2008); see

also Magnesium Casting Co. v. NLRB, 401 U.S. 137, 138 n.2

(1971) (“Denial of a request for review shall constitute an

affirmance of the regional director’s action . . . .”). We refer to

the Regional Director’s decision throughout this opinion as

the decision of “the Board.”

6 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

landfill had a history of IEPA-issued violations, including

one dated September 15, 2006 based on a lack of compli-

ance 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 viola-

tion and the need to be in compliance during the expan-

sion application process, and that Jarvis’s responsi-

bilities included verifying that the working face was

properly covered. However, Rochelle Waste’s em-

ployees, 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 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 in-

spector 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

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 7

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 supervisor, I had to hire a supervisor.”

Rochelle Waste claims that shortly after Buskhol was

brought in, the landfill lost one of its major customers,

and that the waste volume at the site declined. Buskhol

claims that as a result, Rochelle did not need all of its

current employees to operate the landfill, and that

a reduction in force was necessary. Buskhol met indi-

vidually with each employee and had each one fill out

a self-evaluation form. He decided to keep Tracy Spires

based on her expertise as a scale house operator, and

decided to keep another employee, Joe Nelson, because

he was the most senior and the company was accom-

modating a worker’s compensation injury he suffered.

Of the three other employees (who coincidentally were

the three seeking to unionize), Buskhol evaluated each

employee’s skill level with various equipment. He

asked Matt Cater whether he would be interested in a

transfer to the hauling company if a position became

available, but Cater said he preferred to stay at the landfill.

8 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

Later that day, Buskohl and Gelderloos’s son met with

Jarvis. Buskohl informed Jarvis that the landfill was

overstaffed and that he had to terminate someone.

Buskohl explained that he had evaluated the workforce,

and “that someone was going to be [you, Jarvis].” Jarvis

asked why. Buskohl repeated that he had “evaluated

the workforce” and that Jarvis was the one “he had cho-

sen.” Buskhol later stated at the hearings that one of the

deciding factors was the January 13 cover violation, and

that Jarvis was responsible for the daily cover. However,

this was not articulated to Jarvis at the time of firing on

January 22, 2007, which was eight days before the pre-

scheduled NLRB election. A letter to Jarvis dated Janu-

ary 25, 2007 states only that he was terminated due to

a “necessary permanent reduction in force.” The

Union challenged Jarvis’s firing.

The employees went ahead with the pre-scheduled

election on February 1, 2007. Jarvis cast a ballot, which

resulted in a 3-2 vote in favor of the bargaining unit.

Rochelle Waste challenged Jarvis’s ballot on the basis

that he was not an employee, which was consolidated

with the Union’s challenge to Jarvis’s firing as unlawful.

An Administrative Law Judge (“ALJ”) held hearings on

the issues, and then issued a decision finding that

Jarvis’s discharge was a violation of sections 8(a)(1), (3),

and (4) of the National Labor Relations Act, 29 U.S.C.

§ 158(a). A two-member Board adopted the ALJ’s ruling

in its entirety. Rochelle Waste subsequently filed a

petition for review in this court and the General Counsel

of the Board filed a cross-application for enforcement.

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 9

Following the Board’s ruling, the Union was certified

as the employees’ exclusive collective bargaining repre-

sentative on November 6, 2008. The Union requested

that Rochelle Waste bargain collectively with it, but

Rochelle Waste refused, causing the Union to file a com-

plaint with the Board challenging Rochelle Waste’s

refusal to bargain. The Regional Director entered sum-

mary judgment against Rochelle Waste for its refusal

to bargain in violation of sections 8(a)(1) and (5) of

the National Labor Relations Act, 29 U.S.C. § 158(a), and

a two-member Board subsequently issued a decision

affirming the Regional Director’s ruling. Rochelle Waste

filed another petition for review with this court, and

the General Counsel filed a cross-application for enforce-

ment.

We consolidated Rochelle Waste’s petitions for review

and the General Counsel’s cross-applications, but after

oral argument we remanded the cases to the Board in

light of the Supreme Court’s intervening decision in

New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (June 17,

2010). In that case, the Supreme Court held that in order

to exercise the delegated authority of the Board, a panel

of the Board must consist of three members.

On August 23, 2010, the Board issued an order by a three-

member panel that adopted and affirmed the previous

decision finding that Jarvis was not a supervisor and

that both his termination and the failure to count his

ballot violated the NLRA. Rochelle Waste filed a

petition for review in this court, and the Board filed a

cross-application for enforcement of the order. On Decem-

10 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

ber 13, 2010, the Board issued another order by a three-

member panel finding that Rochelle Waste wrongfully

refused to bargain. The Board filed for enforcement, and

Rochelle Waste filed a petition for review. We again

consolidated the appeals, granted the Union leave to

intervene, and heard re-arguments.

II. ANALYSIS

This court will enforce the NLRB’s orders if its factual

findings are supported by substantial evidence and

its conclusions have a reasonable basis in the law.

Bloomington-Normal Seating Co. v. N.L.R.B., 357 F.3d 692,

694 (7th Cir. 2004) (citing Dilling Mech. Contractors, Inc.

v. NLRB, 107 F.3d 521, 523-24 (7th Cir. 1997)). The sub-

stantial evidence test “requires not the degree of evi-

dence which satisfies the court that the requisite fact ex-

ists, but merely the degree that could satisfy the reason-

able fact finder.” FedEx Freight E., Inc. v. NLRB, 431 F.3d

1019, 1025-26 (7th Cir. 2005) (quoting ATC Vancom of Cal.

v. NLRB, 370 F.3d 692, 695 (7th Cir. 2004)) (emphasis

in original). We give particular deference to the Board’s

credibility determinations, “which we will disturb only

in extraordinary circumstances.” Id. at 1026 (citing SCA

Tissue N. Am. v. NLRB, 371 F.3d 983, 988 (7th Cir. 2004)).

A. The Board’s Conclusion that Jarvis Lacked Super-

visory Status Is Supported By Substantial Evidence

Section 2(3) of the National Labor Relations Act ex-

cludes from the definition of employee “any individual

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 11

employed as a supervisor.” 29 U.S.C. § 152(3). Any indi-

vidual employed as a supervisor, therefore, is not eligible

to be included in a bargaining unit. Section 2(11) states:

The term “supervisor” means any individual

having authority, in the interest of the employer,

to hire, transfer, suspend, lay off, recall, promote,

discharge, assign, reward, or discipline other

employees, or responsibly to direct them, or to

adjust their grievances, or effectively to recom-

mend such action, if in connection with the fore-

going the exercise of such authority is not of a

merely routine or clerical nature, but requires

the use of independent judgment.

29 U.S.C. § 152(11). Individuals are considered statutory

supervisors “if (1) they hold the authority to engage in

any 1 of the 12 listed supervisory functions, (2) their

exercise of such authority is not of a merely routine or

clerical nature, but requires the use of independent judg-

ment, and (3) their authority is held in the interest of

the employer.” NLRB v. Kentucky River Cmty. Care, Inc.,

532 U.S. 706, 713 (2001) (internal quotation marks and

citation omitted). We apply a deferential standard

of review to the Board’s determination of super-

visory status because “it rests, at least in part, on a

factual finding.” NLRB v. GranCare, Inc., 170 F.3d 662,

666 (7th Cir. 1999); see also NLRB v. Meenan Oil Co., 139

F.3d 311, 320 (2d Cir. 1998) (“Supervisory status within

the meaning of Section 2(11) of the NLRA is a question

of fact . . . .”) (citation omitted). “As the issue is pri-

marily one of fact, the Board’s determination regarding

12 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

the supervisory status of an employee will not be over-

turned as long as substantial evidence exists to support

the Board’s finding.” NLRB v. Adam & Eve Cosmetics, Inc.,

567 F.2d 723, 726-27 (7th Cir. 1977) (citation omitted).

Before moving on, we describe in some greater detail

Jarvis’s daily tasks and responsibilities. Jarvis testified

that he reported to Gelderloos, and that his typical work-

day began at 5:00 a.m. and normally ended around

4:00 p.m. depending on when the last dump trucks

came in. He spent his first hour servicing equipment so

that the equipment was ready to run by 6:00 a.m., and

testified that the maintenance manuals directed the

schedule for the servicing of equipment. Jarvis ad-

mitted that he was responsible for hauling enough

cover dirt on a daily basis. Beyond that, he stated that

“there are certain other tasks that Clyde [Gelderloos] and

I discuss sometimes,” such as grinding yard waste,

“seeding” slopes for grass growth, loading and moving

fences, and watering roads to prevent dust. Jarvis also

testified that some of these tasks were understood as

routine jobs. When asked whether he assigned work to

other employees, he stated that each employee had a

specific set of tasks and was assigned to specific equip-

ment, and that “they know their duty every day.” Jarvis

stated that he only monitored other employees’ work to

the extent it affected his own tasks, (such as ensuring

that the garbage was placed in a way that allowed

daily cover), and that he was never disciplined or repri-

manded because another employee was not doing his

or her job properly. Jarvis was familiar with IEPA guide-

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 13

lines and the requirements to cover the working face

and prevent debris from being windblown.

Other employees testified that on occasion, Jarvis

asked them to call the city electric company when

power was down (characterized as “requests”), or that

he would arrange for coverage when one employee

was out. There was conflicting testimony as to whether

Jarvis granted vacation days, with Tracy Spires testi-

fying that on one occasion she received approval

from Jarvis, but that on other occasions it was Gelderloos

who granted leave. On one occasion, Jarvis made a state-

ment to one of the machine operators that the operator

was allowing his machine to “idle” for too long. There

was also conflicting testimony as to whether Jarvis had

the authority to decide who stayed and who did not

when the landfill was kept open late, but there were

no specific instances mentioned when Jarvis actually

exercised this alleged authority.

The parties disagree as to whether Jarvis had authority

“responsibly to direct” other employees as meant by

Section 2(11) of the NLRA.2 To establish that an em-

2

The Board also found that Rochelle Waste had failed to

establish by a preponderance of the evidence that the landfill

supervisor “assigned” employees under section 2(11) or that he

exercised independent judgment when making assignments.

Specifically, the Board found that Jarvis lacked authority to

assign lunch periods, grant vacation time, or assign or compel

overtime tasks. Rochelle Waste does not appear to challenge

the “assignment” findings of the Board.

14 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

ployee has the authority responsibly to direct another co-

worker, the employee must be accountable for the co-

worker’s performance. Loparex LLC v. NLRB, 591 F.3d

540, 549 (7th Cir. 2009) (citing Adam & Eve Cosmetics, Inc.,

567 F.2d at 728). The Board addressed this part of the

statute in Oakwood Healthcare, Inc., 348 NLRB 686, 691-92

(2006), finding that “for direction to be ‘responsible,’ the

person directing and performing the oversight of the

employee must be accountable for the performance of

the task by the other, such that some adverse con-

sequence may befall the one providing the oversight if

the tasks performed by the employee are not per-

formed properly.” Additionally, an employee must have

“authority to take corrective action, if necessary” and

be subject to negative consequences for a failure to

take such action. Loparex LLC, 591 F.3d at 549-50 (quoting

Oakwood Healthcare, Inc., 348 NLRB at 692).

The Board found that although there were some in-

stances where Jarvis directed equipment operators as to

the placement of garbage, the direction was sporadic

and there was no evidence that such direction was “re-

sponsible.” According to the Board, Rochelle Waste

failed to establish by a preponderance of the evidence

that Jarvis was “held accountable” for the performance

of other employees, and it found that there was insuf-

ficient evidence that Jarvis could “take any action to

correct the work performance of the employees.”

To address the “corrective action” finding first,

Rochelle Waste argues that the Board misapplied the

legal standard by conflating “corrective action” and

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 15

“disciplinary action,” the latter of which is separately

listed in section 2(11) as a ground for finding supervisory

status. 29 U.S.C. § 152(11) (“The term ‘supervisor’ means

any individual having authority, in the interest of the

employer, to . . . discipline other employees . . . .”).

In Loparex LLC v. NLRB, the employer brought a chal-

lenge to the Board’s holding in Oakwood Healthcare

on the ground that the Board read into the statute an

additional requirement that a supervisor must have

the capacity to take “corrective actions.” 591 F.3d at 550.

The employer in Loparex argued that section 2(11) of the

Act already had a separate reference to “discipline,” and

that requiring “corrective action” as part of “responsibly

to direct” would read the “disciplinary action” phrase

out of the statute. Id. We disagreed, finding the Board’s

reading in Oakwood Healthcare permissible. We stated

that “the reference to responsible direction in section 2(11)

of the Act may be ambiguous,” and that we therefore

owe Chevron deference to the Board’s decision in

Oakwood Healthcare. Id. (citing Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).

And we found that “the Board is entitled to take the

position that it would be incongruous to hold someone

accountable for the conduct of others she could not

control or correct.” Id. (citation omitted) (emphasis

added). At the same time, we noted that “the Board

must be careful to distinguish between corrective and

disciplinary action in order to ensure that each part of

section 2(11) has meaning.” Id. at 550. We provided the

following example: “[A]n employee might be said to

take corrective action if she requires a coworker to stay

late to complete a project that has fallen behind schedule.

16 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

Placing this small burden on the employee, however,

would not amount to disciplinary action that could

affect the employee’s job status.” Id. at 550-51.

In this case, Jarvis made a “statement” to an equip-

ment operator that the operator was idling his machine

too long. The Board found that there was “no evidence

[Jarvis’s] statement lead [sic] to any personnel

actions or had any impact on the employee. Such ‘oral

reprimand,’ therefore, does not constitute disciplinary

authority.” Rochelle Waste contends that this reference

to disciplinary authority shows that the Board conflated

corrective and disciplinary action, which they claim flies

in the face of Oakwood Healthcare and Loparex. We dis-

agree. First, the Board found that in the examples put

forth by Rochelle Waste as evidence of Jarvis taking

corrective action (where the owner told Jarvis about

two employees not conducting their work properly),

“[t]he owner did not state what actions, if any, [Jarvis]

took to correct these performance problems.” This

finding is independent of any discussion of discipline,

and is supported by the record. Second, to the extent

the Board addressed the claim that Jarvis had told

another employee to stop idling in the context of “disci-

plinary authority,” it was Gelderloos himself who

offered that example when asked for examples of

Jarvis doling out discipline. Regardless, in the ex-

ample we gave in Loparex to distinguish corrective and

disciplinary action, we stated that “an employee might

be said to take corrective action if she requires a

coworker to stay late to complete a project . . . .” 591 F.3d

at 550-51 (emphasis added). Corrective action, to be

corrective, must have some force behind it or place some

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 17

“small burden on the employee.” Id. at 551. In this case,

the Board made a specific finding that Jarvis’s state-

ment did not have “any impact on the employee,” and

Rochelle Waste does not point to anything in the

record showing this to be untrue. Rochelle Waste has

not shown that the equipment stopped idling because

Jarvis placed a burden or requirement on the employee,

nor have they shown that the operator should have

stopped idling because of such a burden or require-

ment. We find that the Board did not misapply a legal

standard, and we are satisfied that the Board’s conclu-

sion that Jarvis lacked authority to take corrective action

is supported by substantial evidence.3

Rochelle Waste also challenges the Board’s findings

on accountability, namely, that the Board erred in finding

that Jarvis did not suffer “adverse consequences” for the

performance of other employees. The Board’s error,

3

Gelderloos did testify to telling Jarvis that an equipment

operator was not running a particular machine correctly, and

that he told Jarvis that the “employee has to stop—the em-

ployee’s actions have to be corrected.” Gelderloos also

testified that he informed Jarvis that a particular employee

had to work faster to spread waste. Jarvis denied that the

owner instructed him to take any actions with respect to

correcting the employee’s performance. The Board found that

Gelderloos “did not state what actions, if any, [Jarvis] took

to correct these performance problems,” and it found no

corrective action. Rochelle Waste does not argue that this

finding was a misapplication of the “responsibly to direct”

standard, and we find it to be a factual determination that

is supported by substantial evidence.

18 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

Rochelle Waste contends, was focusing on whether

Jarvis had, in fact, suffered such consequences, rather

than examining if he was at risk for suffering such conse-

quences. According to Rochelle Waste, scouring the

record for actual instances of adverse consequences ex-

empts those supervisors whose supervision is done well.

(The irony in Rochelle Waste’s later claim that Jarvis

performed so poorly as to be fired is not lost on us).

The proper inquiry, however, is whether the purported

supervisor is at risk of suffering adverse consequences

for the actual performance of others, not his own perfor-

mance in overseeing others. Mars Home for Youth v. NLRB,

666 F.3d 850, 2011 WL 5068084, at *2 (3d Cir. 2011); see

also Oakwood Healthcare, 348 NLRB at 691-92 (focusing

on the “adverse consequence” that “befall[s] the one

providing the oversight if the tasks performed by the em-

ployee are not performed properly” (emphasis added)).

Regardless, this is not a case where the other employees

had perfect performance. Gelderloos testified that there

were two occasions on which equipment operators

were performing inadequately, and that he informed

Jarvis of this. Though Gelderloos characterized his dis-

cussion with Jarvis as an “oral reprimand,” the Board

found no evidence that Jarvis actually suffered an

“adverse consequence” as a result of the conversations.

Where a lower level employee performs inadequately,

and the purported supervisor is in fact not held account-

able, it highly supports a finding that the purported

supervisor is not actually at risk of suffering adverse

consequences.

Rochelle Waste points to Jarvis’s Illinois Class A Solid

Waste Site Operator’s Certificate as evidence that he

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 19

would be held accountable for the inadequate per-

formance of others. The Illinois statute relevant to

that certificate requires that “the landfill has on its opera-

tional staff at least one natural person certified,” and

further states that, “[f]or landfill sites which accept non-

hazardous solid waste other than clean construction

or demolition debris, the landfill shall have a Class A

Solid Waste Site Operator certified by the Agency who

is responsible for directing landfill operations or supervising

other operational staff in performing landfill operations.”

225 ILCS 230/1004(a) (emphasis added). This Illinois

statute, however, does not answer the question of

whether Jarvis is a supervisor under the NLRA. Gelderloos

admitted that he also held the license, and all that is

required under the Illinois Statute by its plain terms is

that the landfill have “a” certificate holder on staff who

is responsible for directing operations, not two holders,

and not someone “on-site” at all times, as Rochelle

Waste claims. Gelderloos’s license and clear managerial

role therefore satisfies 225 ILCS 230/1004. Regardless,

the Board has specifically held that “paper accountabil-

ity,” (accountability in name or job description only), is

by itself insufficient to establish supervisory authority.

Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006)

(citing Training School at Vineland, 332 NLRB 1412, 1416

(2000)). Here, though Gelderloos testified that he

hired Jarvis because of his license and would have fired

him if he lost it, the Board found that this was never

communicated to Jarvis and found no evidence that

holding the license actually correlated to accountability

under the NLRA. Rochelle Waste does not point to any-

thing in the record that shows that simply holding the

20 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

license actually put Jarvis “at risk” of an adverse conse-

quence for the poor performance of other employees,

and we therefore do not disturb the Board’s findings.

In sum, we do not find that the Board committed legal

error in addressing “corrective action” or Jarvis’s account-

ability under the NLRA, and find that the Board’s

factual determinations are supported by substantial

evidence.4

B. The Board’s Conclusion that Jarvis’s Termination

Was Retaliatory Is Supported by Substantial Evi-

dence

Rochelle Waste also challenges the Board’s decision

affirming an ALJ’s finding that it violated § 8(a)(3) and (4)

of the NLRA, 29 U.S.C. § 158(a)(3), (4), by discharging

Jarvis in retaliation for his union activities and his testi-

mony before the Board.5 Here, the Board must make an

4

Because we find that the Board’s conclusion that Jarvis

lacked authority “responsibly to direct” contained no error of

law and was supported by substantial evidence, we do not

reach Rochelle Waste’s argument that the Board erred in its

alternative finding that if Jarvis did direct other employees,

he did not exercise “independent judgment” in doing so.

5

29 U.S.C. § 158(a) states in relevant part:

It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed . . .

(continued...)

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 21

initial showing that “antiunion animus was a substantial

or motivating factor in the employer’s decision.” NLRB v.

Joy Recovery Tech. Corp., 134 F.3d 1307, 1314 (7th Cir.

1998); see also Wright Line, a Div. of Wright Line, Inc., 251

NLRB 1083 (1980). Once the Board does so, the burden

shifts to the employer to prove that it had a legitimate

business reason for making its decision. Joy Recovery

Tech. Corp., 134 F.3d at 1314. Discerning an employer’s

motivation is a question of fact, and, as such, the

Board’s “determination is conclusive if supported by

substantial evidence, either direct or circumstantial.” SCA

Tissue North America LLC v. NLRB, 371 F.3d 983, 988-89

(7th Cir. 2004) (citing NLRB v. So-White Freight Lines,

Inc., 969 F.2d 401, 408 (7th Cir. 1992)).

Here, substantial evidence supported the Board’s

conclusion that Rochelle Waste violated § 8(a)(3) and (4)

by terminating Jarvis. No one disputes that Jarvis began

engaging in protected activity five months before his

termination and that Rochelle Waste was aware of his

5

(...continued)

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment

to encourage or discourage membership in any labor

organization . . .

(4) to discharge or otherwise discriminate against an

employee because he has filed charges or given testi-

mony under this subchapter . . . .

A violation of subsection (a)(3) has been held to be a “derivative

violation of” subsection (a)(1). Metropolitan Edison Co. v.

NLRB, 460 U.S. 693, 698 n.4 (1983).

22 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

activity (since Gelderloos attended the hearings

regarding Jarvis’s supervisory status). The ALJ noted

that Gelderloos (bitterly) claimed to have been forced

to hire a “supervisor” once Jarvis “decided he wasn’t”

one, but that the record showed that no one in fact was

hired; rather, the parent company’s compliance

manager, Evan Buskohl, came to the landfill but did not

appear on any payroll documents. Additionally, the

ALJ found that had another pro-union employee, Matt

Cater, chosen to take a position at the separate hauling

company, Jarvis would not have been terminated (since,

apparently, the 3-2 vote in favor of forming the bar-

gaining unit would then have been a tie). The ALJ also

noted the timing of Jarvis’s firing: Gelerloos admitted

that he had never fired an employee in thirty-seven

years, but terminated Jarvis eight days before the repre-

sentation election. And evidence showed that once

Jarvis left, Gelderloos had to be on site more often, and

temporary workers were brought in, calling into ques-

tion the articulated rationale of a workforce reduction.

Rochelle Waste makes much of the January 13, 2007

cover violation and suggests that it was Jarvis’s role in

this violation that led to his termination. Rochelle

Waste argues that the ALJ ignored evidence that Jarvis

was warned about the lack of adequate cover. But the

evidence to that effect did not conclusively show that a

“warning” actually took place. Although engineering

manager Tom Hilbert testified to speaking with Jarvis

about the importance of the cover, Jarvis only admitted

that Hilbert spoke to him about “issues related to con-

struction and demolition debris,” and not about any

Nos. 10-3213, 10-3701, 10-3872 & 11-1011 23

EPA daily cover violations. We rely on the ALJ’s

firsthand consideration of this evidence. See Slusher v.

NLRB, 432 F.3d 715, 727 (7th Cir. 2005) (“ ‘[O]n matters

which the [ALJ], having heard the evidence and seen

the witnesses, is best qualified to decide, the agency

should be reluctant to disturb his findings unless error

is clearly shown.’ ”) (quoting Universal Camera v. NLRB,

340 U.S. 474, 494 (1951)).

What is more relevant to Rochelle Waste’s proffered

legitimate business reason for Jarvis’s firing is that the

company did not investigate to determine responsibility

for the January 13 violation, as found by the ALJ.

And, m ore importantly, Rochelle Waste never

articulated to Jarvis at the time of his firing that this

termination had anything to do with the violation that

occurred less than ten days prior. The company only

told Jarvis that it was overstaffed and needed a re-

duction in force. Such a change in rationale can be

inferred against the employer. See, e.g., NLRB v. Hotel

Employees and Restaurant Employees Int’l Union Local 26,

446 F.3d 200, 208 (1st Cir. 2006) (“The ALJ was free to

eye with a good deal of suspicion any reasons later gen-

erated during litigation.”) (citing NLRB v. Waco

Insulation, Inc., 567 F.2d 596, 601 (4th Cir. 1977) (“We

believe that it is extremely unlikely that the reason for

[an employee’s] discharge was due to [the proffered

reason] since it was not articulated as a reason for his

discharge at the time he was fired.”)). The Board’s

findings regarding Jarvis’s discharge are supported by

substantial evidence, and we do not disturb them.

24 Nos. 10-3213, 10-3701, 10-3872 & 11-1011

III. CONCLUSION

For the reasons discussed above, we D ENY Rochelle

Waste’s petition for review and G RANT the General Coun-

sel’s application for enforcement of the Board’s orders.

3-8-12