801 F.3d 224
4th Cir.2015Background
- Intertape Polymer operates a tape plant in Columbia, SC; the United Steelworkers filed a representation petition on March 16, 2012; an April 26–27 secret-ballot election produced a 142–97 vote against the union.
- The Union filed multiple unfair-labor-practice charges and election objections covering the critical period (petition filing through election); the NLRB General Counsel issued a complaint.
- An ALJ found several § 8(a)(1) violations: (1) supervisor interrogation of employee Johnnie Thames about union views; (2) confiscation of union flyers from the employee break room; (3) supervisory leafleting at the plant gate simultaneously with union leafleting (surveillance); and (4) threats of futility (ALJ recommended setting aside the election based on the last three findings).
- The Board affirmed the interrogation, confiscation, and surveillance findings, rejected the futility finding, and set aside the election ordering a new one based on the confiscation and surveillance violations.
- The Fourth Circuit: (a) enforced the Board’s findings as to interrogation and confiscation (substantial evidence); (b) declined to enforce the surveillance finding (insufficient evidence of coercive surveillance and protected employer speech under § 8(c)); and (c) remanded so the Board can revisit its decision to order a second election in light of elimination of the surveillance basis.
Issues
| Issue | Intertape (Petitioner) Argument | NLRB (Board) / General Counsel Argument | Held |
|---|---|---|---|
| 1) Interrogation of employee Thames | Questioning was benign or did not occur; not coercive | Supervisor’s direct question and comment (“it can hurt you”) was coercive given supervisor status and prior hostility | Enforced Board: interrogation violated § 8(a)(1) (substantial evidence) |
| 2) Confiscation of union flyers from break room | Removal was routine housekeeping, not discriminatory; not pleaded as policy-change theory | Williams selectively removed union literature during campaign and changed prior practice, unlawfully interfering with § 7 activity | Enforced Board: confiscation violated § 8(a)(1) (substantial evidence) |
| 3) Gate leafleting / Surveillance | Supervisors were exercising § 8(c) free-speech right to leaflet; no evidence of spying, threats, notes, photos, or coercive conduct | Supervisors’ leafleting was out-of-the-ordinary and put employees’ interactions with union under supervisory view, constituting coercive surveillance | Not enforced: Court held no substantial evidence of coercive surveillance; protected § 8(c) speech and absence of indicia of coercion control |
| 4) Remedy — setting aside election / second election order | Ordering a new election is disproportionate given the large margin and minor infractions; courts should review second-election remedial orders | Board has discretion to order remedial relief (including rerun elections) as part of its final order | Court remanded: rejected surveillance basis so Board must reconsider second-election directive; concurrence urged broader review of Board rerun orders and proportional remedies |
Key Cases Cited
- Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733 (4th Cir. 1998) (standard for reviewing Board factual findings and statutory interpretations)
- NLRB v. Nueva Eng’g, Inc., 761 F.2d 961 (4th Cir. 1985) (factors for assessing coercive interrogation and intimidation test)
- J.P. Stevens & Co. v. NLRB, 638 F.2d 676 (4th Cir. 1980) (scope of § 8(c) and employer speech limits)
- Consolidated Diesel Co. v. NLRB, 263 F.3d 345 (4th Cir. 2001) (employer may not confiscate union literature in nonwork areas during nonwork time absent valid housekeeping justification)
- NLRB v. Southern Md. Hosp. Ctr., 916 F.2d 932 (4th Cir. 1990) (test for unlawful surveillance: totality of circumstances and coercion element)
- Belcher Towing Co. v. NLRB, 726 F.2d 705 (11th Cir. 1984) (general rule that management observation of public union activity on company property is not per se unlawful)
- Gissel Packing Co. v. NLRB, 395 U.S. 575 (U.S. 1969) (§ 8(c) recognized as protecting employer and union speech during campaigns)
- Chamber of Commerce v. Brown, 554 U.S. 60 (U.S. 2008) (§ 8(c) protects both employer and union speech)