In re List Indus., 13-CA-278248

CourtNational Labor Relations Board
Writing for the CourtSharon Levinson Steckler, Administrative Law Judge
PartiesLIST INDUSTRIES, INC. v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL UNION NO. 142
Docket Number13-CA-278746,13-CA-278985,13-CA-279284,13-CA-278248,13-CA-278670,13-CA-278745,13-RC-278226
Decision Date18 April 2022

LIST INDUSTRIES, INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL UNION NO. 142

Nos. 13-CA-278248, 13-CA-278670, 13-CA-278745, 13-CA-278746, 13-CA-278985, 13-CA-279284, 13-RC-278226

United States of America, National Labor Relations Board

April 18, 2022


Eric J. Holshouser, Esq. and Michael J. Lufkin, Esq. for Respondent/Employer

Christina B. Hill, Esq. and Emily O'Neill, Esq. for the General Counsel

Robert S. Cervone, Esq. for Charging Party/Petitioner Teamsters

DECISION [1]

Sharon Levinson Steckler, Administrative Law Judge

I heard this case via videoconference technology on October 28 through October 31, 2021.[2] The consolidated complaint alleges that the Employer, List Industries, Inc. (Respondent) violated Section 8(a)(1) through threats and coercion and Section 8(a)(3) by placing a union adherent in a position where he was more closely monitored. It also alleges that the Employer violated Section 8(a)(3) by terminating two union adherents on the same day. These events took place over a period of eight days. Teamsters Local No. 142 (the Union) also filed a petition for election on June 8. The election was held on July 15 and the Union did not prevail. The Union filed objections that generally tracked the alleged 8(a)(1) and (3) violations.

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Counsel for General Counsel (General Counsel) maintains that Respondent's conducted a “nip in the bud” campaign, which requires Respondent to recognize and bargain with the Union pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). If a Gissel order is not obtained, the Union requests a second election based upon the objections. Respondent denies violating the Act.

I find that the Employer violated Section 8(a)(1) and (3) of the Act. Regarding the objections to the Respondent's conduct during the critical period before the election, Procedural History

The Union filed Charge 13-CA-278248 and its first amended charge on June 8, 2021[3] on August 20 respectively and copies was served by regular mail upon Respondent on June 11 and August 20 respectively. (GC Exhs. 1(a)-(d).) The Union filed charge 13-CA-278670 and its first amended charge on June 14 and August 23 respectively, and copies were served upon Respondent on June 17 and August 24 respectively. (GC Exhs. 1(e)-(h).) On June 21 the Union filed charge 13-CA-278745 and its first amended charge on June 21 and August 20 respectively and copies were served upon Respondent on June 23 and August 20 respectively. (GC Exhs. 1(i)-(1).) The Union filed charge 13-CA-278746 and its first amended charge on June 21 and August 20, and Respondent was served with copies on June 23 and August 20 respectively. (GC Exh. 1(m)-(p).) The Union filed charge 13-CA-278985 and its first amended charge on June 23 and July 1 respectively and Respondent was served with a copy on June 24 and July 1 respectively. (GC Exh. 1(q)-(t).) The Union filed charge 13-CA-279284 and its first amended charge on June 30 on August 20 respectively and Respondent was served with copies on July 1 and August 23, respectively. (GC Exhs. 1(u)-(x).)

On September 1, General Counsel issued an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing and served a copy upon Respondent on the same date. Dates were subsequently adjusted for scheduling. Respondent timely filed its Answer on September 14. On October 8, General Counsel issued a First Amended Order Consolidating Cases and Consolidated Complaint (Complaint), which was served by E-issuance upon Respondent on the same date. Respondent filed a timely Answer to the First Amended Order on October 22. Respondent filed timely answers.

On June 8, the Union filed petition for an election in Case 13-RC-278226, which the Union served upon Respondent by email on the same date. On June 9, the Regional Director for Region 13 issued a Notice of Representation hearing, which was served by electronic mail and regular mail upon Respondent on the same date. The parties reached a stipulated election agreement in which the parties agreed to the following unit:

Included: All full-time and regular part-time assembly employees, warehouse employees, production employees, shipping clerks and order processors employed by [Respondent] at [Respondent]'s facility currently located at Warehouse Suite 2W, 10145th Street in Munster, Indiana.

Excluded: All other employees, office clerical employees, and guards and supervisors as defined by the Act.

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The stipulated stated that proposed unit employees could vote if employed during the payroll period ending June 19. (Jt. Exh. 15.) The representation election was held on July 15. The vote count for 15 voters was:

5 votes cast for Union

8 votes case against representation

2 challenged ballots

The Tally of Ballots reflects that the challenges were not determinative and a majority of valid ballots did not support the Union. (GC Exh. 1(kk).) On July 22 the Union filed Objections to Conduct Affecting the Result of the Election, which was served electronically upon the Board and Respondent. (GC Exhs. 1(ll)-(mm).) On September 16, the Regional Director for Region 13 issued a Report on Objections, Order Consolidating Cases and Notice of Hearing, which was served electronically and by regular mail upon the parties. (GC Exhs. 1(pp)-(qq).)

FACTS[4]

I. Jurisdiction and Labor Organization Status

Respondent List Industries, Inc. has been a corporation with an office and place of business in Munster, Indiana (Munster facility) and has been engaged in the manufacture and non-retail sale of lockers. In conducting its operations annually, respondent has sold and shipped from its Munster facility good valued in excess of $50, 000.00 directly to points outside the State of Indiana. Respondent stipulates and I find that Respondent is an employer engaged in commerce within the meaning Section 2(2), (6), and (7) of the National Labor Relation Act. (Jt. Exhs. 1, 15.)

The parties stipulated, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Harvey Jackson is the Union's president and business agent, which includes duties as an organizer. (Tr. 38.)

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II. Respondent's Organization

Respondent maintains corporate offices in Deerfield Beach, Florida and operates a number of facilities that manufacture and distribute lockers. Herbert List, Jr. is president. Reporting to President List, among others, are Director of Operations Christian DeTombeur and Chief Financial Officer Eric Bello. DeTombeur is responsible for six distribution centers, including the Munster facility. (Tr. 847.) CFO Bello, in addition to his financial and information systems duties, oversees the Human Resources function. (Tr. 687.)

HR Manager Michael Freedman reports to CFO Bello. Bello normally is not involved in terminations but Freedman was on leave during these events. Freedman has a direct report, HR Assistant Cheri Rodriguez, who works at Respondent's Apopka, Florida distribution center. Rodriguez handles all human resources functions for the distribution centers, including recruiting, onboarding, payroll, record keeping, investigations and terminations. She provides “best practices” and direction to managers, including DeTombeur. (Tr. 585.) Due to her role in terminations and making termination recommendations that were followed, as seen with two employees below, she has actual and apparent authority, which makes her an agent within the meaning of Section 2(13) of the Act. See, e.g., Bill's Electric, Inc., 350 NLRB 292 n. 3 (2007) (finding foremen exercised actual authority and apparent authority as the employer's spokespersons).

The Munster facility, which opened about June 2019, is a distribution center warehouse. (Jt. Exh. 1 ¶4.) Reporting to DeTombeur is the Munster facility's operations manager, Amanda Lieberman, who has been in this position since mid-March. Lieberman normally is the highest ranking official in the Munster facility. Before Lieberman became the manager, Tony Robertson held that position. Training, hiring, daily assignments and supervision handled locally by the operations manager. Lieberman began working at the Munster facility as an office assistant when it opened and approximately a year later was promoted to assistant operations manager. Respondent stipulated, and I find, that these management members are supervisors within the meaning of Section 2(11) and/or agents within the meaning of Section 2(13) of the Act.[5]

The Munster facility has three department areas: assembly; knockdown or packaging (sometimes referred to as KD); and the dock, also known as shipping and receiving. (Jt. Exh. 1 ¶6.) The facility has four security cameras, which are located at: the front entrance of the warehouse, pointed toward the front door; the dock area, viewing staging area and the dock doors; racking/staging area showing the staging area and the knock down/packaging/storage racks; and, outside the break room near the assembly, viewing the assembly line and some of the storage racks. (Jt. Exh. 1 ¶14; Tr. 160.) The warehouse is not air conditioned and temperatures can easily rise to the mid-90s. The Munster facility also had a separate office. (Tr. 322.)

Employees at all Respondent facilities receive and sign for a handbook and policies upon hire.[6] The handbook includes a progressive disciplinary policy but states it has the right not to follow these steps. (Jt. Exh. 3 at 22-24.) A violation of its rules is classified as misconduct. The handbook states Respondent approaches discipline with the goal of

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problem resolution and behavior changes instead of punishment, and dismissal is the “last resort after other disciplinary actions have failed.” (Jt. Exh. 3 at 21.)

Respondent's handbook lays out a sexual harassment policy, which provides for a serious investigation and could result in disciplinary action, up to and including discharge. (Jt. Exh. 3 at 28.) According...

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