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