Rochelle Waste Disposal, LLC

National Labor Relations Board - Board Decisions

Apr 30, 2009

354 N.L.R.B. 18 (N.L.R.B. 2009)

354 NLRB No. 18
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rochelle Waste Disposal, LLC and International Un-
ion of Operating Engineers, Local 150, AFL–
CIO. Case 33–CA–15765
April 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
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. Pursuant to a charge filed on February 9, 2009, the
General Counsel issued the complaint on February 19,
2009, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case 33-
RC-5002. (Official notice is taken of the “record” in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.1
On March 13, 2009, the General Counsel filed a Mo-
tion for Summary Judgment. On March 18, 2009, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.

1 The Respondent’s answer denies knowledge or information suffi-
cient to form a belief concerning the filing of the charge in this pro-
ceeding. The Respondent admits, however, that it was served with a
copy of the charge. Further, a copy of the charge is included in the
documents supporting the General Counsel’s motion, showing the date
of this document as alleged, and the Respondent does not refute the
authenticity of this document.
The Respondent’s answer also asserts that the Board lacks jurisdic-
tion over this matter to the extent that the Charging Party failed to file a
timely charge. However, the record shows that the charge was filed on
February 9, 2009, which is within 6 months of the Respondent’s De-
cember 10, 2008 refusal to bargain. Thus, the charge is timely under
Sec. 10(b) of the Act.
Ruling on Motion for Summary Judgment2
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis that the
Union was improperly certified in the representation pro-
ceeding.3
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation
with an office and principal place of business in Ro-
chelle, Illinois (the Respondent’s facility), has been en-
gaged in the business of providing waste disposal ser-
vices.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, purchased and received at its
facility goods valued in excess of $50,000 directly from
points outside the State of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union, International Union of
Operating Engineers, Local 150, AFL–CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.

2 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 Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Respondent’s answer denies par. 5(a) of the complaint which
sets forth the appropriate unit. The Respondent also denies the appro-
priateness of the unit in its response. The unit issue, however, was
litigated and resolved in the underlying representation proceeding. See
353 NLRB No. 38 (2008). Accordingly, the Respondent’s denial of the
appropriateness of the unit does not raise any litigable issue in this
proceeding.
4 Thus, we deny the Respondent’s request that the complaint be
dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on February
1, 2007, the Union was certified on November 6, 2008,
as the exclusive collective-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
Municipal #2 landfill in Rochelle, Illinois,
EXCLUDING temporary employees employed
through a temporary agency, office clerical and profes-
sional employees, guards and supervisors as defined in
the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
About November 18, 2008, the Union, by letter, re-
quested that the Respondent bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. Since about December 10, 2008, the Respon-
dent has failed and refused to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit. We find that this failure and refusal
constitutes an unlawful failure and refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since about December 10,
2008, to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit
employees, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Rochelle Waste Disposal, LLC, Rochelle,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Operating Engineers, Local 150,
AFL–CIO, as the exclusive collective-bargaining repre-
sentative of the employees bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time heavy equipment
operators including the scale operator and the landfill
supervisor employed by the Employer at the Rochelle
Municipal #2 landfill in Rochelle, Illinois,
EXCLUDING temporary employees employed
through a temporary agency, office clerical and profes-
sional employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post at
its facility in Rochelle, Illinois, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 33,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 10, 2008.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ROCHELLE WASTE DISPOSAL, LLC 3
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Union of Operating Engineers, Local
150, AFL–CIO, as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and regular part-time heavy equipment
operators including the scale operator and the landfill
supervisor employed by us at our Rochelle Municipal
#2 landfill in Rochelle, Illinois, EXCLUDING tempo-
rary employees employed through a temporary agency,
office clerical and professional employees, guards and
supervisors as defined in the Act.
ROCHELLE WASTE DISPOSAL, LLC