Intertape Polymer Corp. v. NLRB

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion granting Motion for enforcement of agency order (FRAP 15) in part and denying in part; enforcement granted in part and denied in part [999373143-2] in 14-1553 Originating case number: 11-CA-077869,11-CA-078827,10-CA-080133,11-RC-076776. [999655290]. [14-1517, 14-1553]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1517

INTERTAPE POLYMER CORP.,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.

No. 14-1553

NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
INTERTAPE POLYMER CORP.,
Respondent.

On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (11-CA-077869;
11-CA-078827; 10-CA-080133; 11-RC-076776)

Argued:

May 13, 2015

Decided:

September 8, 2015

Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.

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Petition for review granted in part and denied in part; crossapplication for enforcement granted in part, denied in part and
remanded by published opinion.
Chief Judge Traxler wrote the
opinion, in which Judge Wilkinson and Judge Floyd concurred.
Judge Wilkinson wrote a separate concurring opinion.

ARGUED: Reyburn Williams Lominack, III, FISHER & PHILLIPS LLP,
Columbia,
South
Carolina,
for
Petitioner/Cross-Respondent.
Nicole Lancia, NATIONAL LABOR RELATIONS BOARD, Washington, D.C.,
for Respondent/Cross-Petitioner. ON BRIEF: Michael D. Carrouth,
FISHER
&
PHILLIPS
LLP,
Columbia,
South
Carolina,
for
Petitioner/Cross-Respondent.
Richard F. Griffin, Jr., General
Counsel, Jennifer Abruzzo, Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, Elizabeth A. Heaney, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent/Cross-Petitioner.

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TRAXLER, Chief Judge:
Intertape Polymer Corporation (“Intertape”) petitions for
review of a National Labor Relations Board (“NLRB” or “Board”)
order

concluding

that

Intertape

committed

three

unfair

labor

practices prior to and during the course of a union campaign, in
violation of Section 8(a)(1) of the National Labor Relations Act
(the “NLRA” or “Act”), 29 U.S.C. § 158(a)(1), and directing that
a

second

election

violations.
order

in

be

held

based

upon

two

of

the

three

The Board cross-petitions for enforcement of its

full.

For

the

reasons

set

forth

below,

we

grant

Intertape’s petition for review in part and deny it in part,
grant the Board’s cross-petition for enforcement in part and
deny it in part, and remand for further proceedings.
I.
Intertape operates an adhesive tape manufacturing facility
in Columbia, South Carolina.
Paper

&

Forestry,

In January 2012, the United Steel,

Rubber,

Manufacturing,

Energy,

Allied

Industrial and Service Workers International Union, AFL-CIO-CLC
(“the Union”), launched a campaign to organize the facility’s
production

and

maintenance

employees.

The

Union

filed

its

representation petition with the Board on March 16, 2012.

On

April 26 and 27, a secret-ballot election was held.

The Union

lost the election by a vote of 142 votes against and 97 votes
for the Union.
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Both prior to and after the election, the Union filed with
the

Board

numerous

Intertape.

unfair

labor

practice

charges

against

The Union also filed objections to the completed

election, seeking to set it aside based upon unlawful conduct
allegedly occurring during the “critical period” from March 16,
the filing date of the petition, to April 27, the last day of
the election.
General

J.A. 26.

Counsel

On July 26, 2012, the Board’s Acting

issued

a

complaint

against

Intertape

(the

“Complaint”).
Following a hearing, an administrative law judge (“ALJ”)
found that Intertape had violated Section 8(a)(1) of the Act by:
(1) interrogating employee Johnnie Thames regarding his views
about

the

union;

employees’

break

(2)

confiscating

room;

(3)

union

literature

surveilling

from

employees’

an

union

activities by leafleting at the plant gate at the same time that
union supporters were leafleting; and (4) threatening employees
that

selecting

the

union

as

representative would be futile.
violations,

the

ALJ

also

its

collective-bargaining

Based upon the latter three

recommended

that

the

election

be

invalidated and that a second election be held. 1

1

Because the single incident of unlawful interrogation of
Thames occurred before the Union filed its representation
petition, it was not objectionable conduct occurring within the
critical period or a basis for setting aside the election.
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On review, the Board agreed that Intertape had violated
Section 8(a)(1) by unlawfully interrogating Thames in February
2012; unlawfully confiscating union literature from the employee
break

room

in

March

2012;

and

unlawfully

surveilling

union

activities in April 2012 by leafleting at the plant gate during
the periods of time that union supporters were leafleting.

The

Board rejected the ALJ’s finding that Intertape had threatened
employees

with

futility.

However,

the

Board

set

aside

the

election results and ordered a new election, based solely upon
the confiscation and surveillance violations. 2
For

the

correctly

following

determined

reasons,

that

we

Intertape

conclude

that

unlawfully

the

Board

interrogated

employee Thames and unlawfully confiscated union materials from
the employee break room, but that the Board erred in holding
that

Intertape

engaged

in

unlawful

surveillance

of

union

activities.
II.
On review of orders issued by the NLRB, “we must affirm the
Board’s factual findings if they are supported by substantial
2

Board member Miscimarra dissented in part. He would have
dismissed the interrogation and surveillance allegations.
He
would
also
have
certified
the
election
result
because
Intertape’s alleged misconduct, even if it included the
purported surveillance, was “‘so minimal or isolated that it
[was] virtually impossible to conclude that the misconduct could
have affected the election results.’”
J.A. 682 (quoting Long
Drug Stores Cal., 347 N.L.R.B. 500, 502 (2006)).
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evidence on the record considered as a whole.”

Medeco Sec.

Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998) (internal
quotations

marks

omitted).

“Substantial

evidence

is

such

relevant evidence as a reasonable mind might accept as adequate
to

support

omitted).

a

conclusion.”

Id.

(internal

quotation

marks

“We must affirm the Board’s interpretations of the

NLRA if they are rational and consistent with the Act.”

Id.

(internal quotation marks omitted).
Under Section 7 of the NLRA, employees are guaranteed “the
right

to

self-organization,

to

form,

join,

or

assist

labor

organizations, to bargain collectively through representatives
of

their

own

choosing,

and

to

engage

in

other

concerted

activities for the purpose of collective bargaining or other
mutual aid or protection.”

29 U.S.C. § 157.

Pursuant to Section 8(a)(1) of the Act, it is “an unfair
labor

practice

restrain,

or

for

coerce

an

employer

employees

in

.

.

the

guaranteed in section 7” of the Act.

.

to

interfere

exercise

of

the

with,
rights

29 U.S.C. § 158(a)(1).

An

employer’s actions violate Section 8(a)(1) if “the conduct in
question

had

a

reasonable

tendency

circumstances to intimidate.”

in

the

totality

of

the

NLRB v. Nueva Eng’g, Inc., 761

F.2d 961, 965 (4th Cir. 1985).
However,

“[t]he

prohibition

set

forth

in

limited by [the protection granted by] § 8(c).”
6

§

8(a)(1)

is

J.P. Stevens &

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Co. v. NLRB, 638 F.2d 676, 684 (4th Cir. 1980).

Section 8(c)

provides that:
[t]he expressing of any views, argument, or opinion,
or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute
or be evidence of an unfair labor practice under any
of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of
benefit.
29 U.S.C. § 158(c).
III.
A.
We

begin

The Employee Interrogation Violation
with

the

Board’s

conclusion

that

Intertape

violated § 8(a)(1) by interrogating employee Johnnie Thames in
February 2012 about his union sentiments.
Although an employer’s “[q]uestioning or interrogation of
employees about their union sentiments is not per se unlawful”
under the Act, such questioning will rise to the level of a
Section 8(a)(1) violation if it is coercive in nature.
Eng’g,

761

F.2d

at

965.

“In

making

a

Nueva

determination

of

coerciveness, [we] must consider a variety of factors including
the history of employer hostility to the union, the nature of
information

sought,

the

identity

of

the

questioner,

place and method of questioning.”

Id. at 966.

considered
[the]

whether

question”

the

questioner

“explained

or

provided

“any

and

the

We have also

the

purpose

assurances

of

against

retaliation,” id., and whether the employee was reluctant to
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unionization,

see

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Standard-Coosa-Thatcher

Carpet

Yarn

Div., Inc. v. NLRB, 691 F.2d 1133, 1137, 1139 (4th Cir. 1982).
In

December

of

2011,

Thames

was

disciplined

by

his

immediate supervisor, Bill Williams, for arguing with Williams.
On February 10, 2012, Thames signed a union authorization card.
According to Thames, Williams approached him at his work station
approximately two or three weeks later and asked him what he
thought of the union.

Williams also told Thames that “if you

don’t think it’s good then, that it can hurt you.”
Thames walked away without responding.

J.A. 234.

Williams denied asking

Thames about the union.
The

ALJ

conversation

credited
with

Thames’

Williams

and

“detailed
his

“strong

account”
recall

of
of

the
th[e]

discussion,” J.A. 685, over Williams’ “general denial” that any
such exchange occurred.
Williams’

questioning

circumstances,

was

J.A. 685-86.
of

Thames,

sufficiently

The ALJ also found that

under

coercive

the
to

totality
have

of

made

the

Thames

feel restrained from exercising his rights under Section 7.
The Board balanced the relevant factors and agreed.
noted by the Board:
Williams directly asked Thames to reveal his view of
the Union.
Although a low-level supervisor, Williams
was Thames’ direct supervisor, reasonably tending to
make the questioning that much more threatening.
Williams, moreover, offered no justification for his
questioning or assurances against reprisals.
The
preexisting hostility between Williams and Thames and
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Thames’ unwillingness to answer Williams further weigh
in favor of finding a violation.
Last, we find that
Williams’ comment that “it can hurt you” would have
exacerbated the already coercive nature of his inquiry
into Thames’ opinion of the Union.
J.A. 679 (internal citations and footnotes omitted).
On
based

appeal,
on

must

credibility

circumstances.”
2001)

we

Board’s

determinations

quotation

marks

circumstances

credibility

the

factual

“absent

findings

extraordinary

WXGI, Inc. v. NLRB, 243 F.3d 833, 842 (4th Cir.

(internal

“Exceptional

accept

determination

include
is

and

alteration

those

omitted).

instances

unreasonable,

when

contradicts

a

other

findings of fact, or is based on an inadequate reason or no
reason at all.”

Id. (internal quotation marks omitted).

such circumstances exist here.

No

The ALJ observed the testimony

of Thames and Williams and explained why he credited Thames’
account

of

the

conversation

over

Williams’

denial

that

it

occurred.
We

hold

that

substantial

determination

that

Williams’

union

sentiments,

as

evidence

questioning

described

by

supports
of

Thames,

the

Thames
was

Board’s

about

his

sufficiently

coercive or intimidating to render it an unfair labor practice
under the Act.
review

and

grant

Accordingly, we deny Intertape’s petition for
enforcement

of

order.

9

this

portion

of

the

Board’s

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B.
We

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The Confiscation Violation

consider

the

Board’s

conclusion

that

Intertape

violated Section 8(a)(1) by confiscating union flyers that a
union supporter had placed in the employee break room.
“Soliciting

support

for

a

union

and

distributing

union

materials are among the core activities safeguarded by § 7.”
Consolidated Diesel Co. v. NLRB, 263 F.3d 345, 352 (4th Cir.
2001); see also Beth Isr. Hosp. v. NLRB, 437 U.S. 483, 491-92
(1978) (“[T]he right of employees to self-organize and bargain
collectively [under Section 7] necessarily encompasses the right
effectively
organization

to
at

communicate
the

with

jobsite.”).

one

another

“The

regarding

workplace

is

self-

uniquely

appropriate for such activities, so long as the activities are
conducted in nonwork areas during nonwork time, and in a nonabusive manner.”

Consolidated Diesel, 263 F.3d at 352 (internal

quotation marks and citations omitted).
Ordinarily,

therefore,

“an

employer

may

not

confiscate

union literature left for distribution to employees in nonwork
areas during nonwork time.”
employer’s

enforcement

of

Id. at 354.
a

valid

On the other hand, an

housekeeping

policy

that

results in the incidental disposal of union literature will not
rise to the level of interference with the employee’s protected
Section 7 activities.
1141.

Cf. Standard-Coosa-Thacker, 691 F.2d at

In other words, an employer “has every right to keep its
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clean,”

but

that

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right

will

not

prevail

where

“substantial evidence supports the Board’s view that cleanliness
was not [the] issue.”
Prior

to

and

Consolidated Diesel, 263 F.3d at 354.
during

the

union

campaign,

Intertape

maintained a solicitation and distribution rule that prohibited
such

activities

during

working

time

and

in

working

areas.

Working time was defined as “the time employees are expected to
be working and does not include breaks, meals, before the shift
starts, and after the shift ends.”

J.A. 33.

Consequently, the

distribution of union flyers in the employee break room was not
prohibited.
The Complaint alleged that in March 2012, “including on
March 23 and 29,” Supervisor Bill Williams enforced Intertape’s
distribution rule “selectively and disparately, by prohibiting
union distributions in non-work areas, while permitting nonunion
distributions in non-work areas.”

J.A. 33.

At the hearing,

employee Faith Epps testified that she placed union flyers on
the counter in the employee break room, where such distributions
were

permitted.

Epps

testified

that

on

three

occasions

in

March, she observed Williams go into the break room immediately
after the employee shift break and remove the flyers.

Epps also

testified that, prior to the union campaign, literature left in
the

break

room,

such

as

newspapers

and

magazines,

untouched until at least the end of the work day.
11

was

left

Epps also

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testified that she could not recall seeing Intertape supervisors
cleaning up or removing literature from the break room until
after the union campaign began.
the

union

literature

along

Williams admitted discarding

with

the

other

“[n]ewspapers,

magazines, menus,” and trash that had been left in the break
room, but he testified that he only did so as a part of his
normal housekeeping duties.
The

ALJ

found

that

unlawfully

confiscated

The

agreed,

Board

and

J.A. 528.
Intertape,

union

through

literature

additionally

from

found

Williams,
the

that

break

had
room.

Intertape

had

changed its policy regarding distributions in the break room “as
a reaction to and countermeasure against the union campaign.”
J.A. 679.
1.
As
erred

an
in

initial
finding

premise,
that

it

Intertape
had

argues

violated

that

Section

the

Board

8(a)(1)

by

confiscating union literature from the break room because the
violation was not closely related to the allegation set forth in
the Complaint, nor fully and fairly litigated at the hearing.
We disagree.
“It is well settled that the Board may find and remedy a
violation even in the absence of a specified allegation in the
complaint
matter

of

if

the

the

issue

is

complaint

closely
and
12

has

connected
been

to

fully

the

subject

litigated.”

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Pergament United Sales, Inc., 296 N.L.R.B. 333, 334 (1989); see
Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1361 (4th
Cir. 1969) (“All that is requisite in a valid complaint before
the Board is that there be a plain statement of the things
claimed to constitute an unfair labor practice that respondent
may be put on his defense.

Such a complaint need state only the

manner by which the unfair labor practice has been or is being
committed, the absence of specifics being tolerated where there
has been no special showing of detriment.”) (internal quotation
marks and citation omitted); see also Pergament United Sales,
Inc. v. NLRB, 920 F.2d 130, 134 (2d Cir. 1990) (“In the context
of the Act, due process is satisfied when a complaint gives a
respondent fair notice of the acts alleged to constitute the
unfair labor practice and when the conduct implicated in the
alleged violation has been fully and fairly litigated.”).
Intertape complains because, prior to the hearing, it had
only

been

policy,

accused

and

not

of

of

disparately

changing

its

enforcing

its

housekeeping

distribution

policy.

regard to the Pergament test, the Board held that:
Even if [Intertape] is correct that this is not the
precise theory of the complaint, which alleged that
the Respondent ‘enforced the rule . . . selectively
and disparately, by prohibiting union distributions in
non-work
areas,
while
permitting
nonunion
distributions in non-work areas,” the issue of a
change in the [Intertape’s] practice is closely
related to the subject matter of the complaint and has
been fully litigated.
13

With

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J.A. 679 n.8.

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The Board additionally found it significant that

Intertape “does not argue that lack of notice prevented it from
introducing exculpatory evidence or that it would have altered
its litigation strategy had the allegation been pleaded in this
manner.”

J.A. 679 n.8.

We find no error in the Board’s decision.
in

the

present
union

Complaint

and

the

issue

core

material

interfered
inception

left

with
of

Counsel

would

handled

the

the

the

the

violation

of

by

whether
Epps

employees’

Complaint,

take
union

in

issue

found

the

Intertape

literature

the

by

the

Williams’

Section

with

The allegation

knew

that

the

in

of

the

the
room

From

which

narrow

both

break

rights.

manner

within

handling

employee
7

Board

the

General
Williams

time

frame

specified, and Intertape had ample opportunity to prepare for
and

rebut

literature

the
in

claim
a

manner

campaign practices.

that
that

Williams
differed

was
from

discarding
Intertape’s

union
pre-

Moreover, Intertape did not claim lack of

notice at the hearing as the testimony evolved, nor did it ask
for a continuance in order to present new or different testimony
regarding its housekeeping or distribution policies.
Accordingly, we hold that the Section 8(a)(1) confiscation
violation was closely related to the allegation set forth in the
complaint, and it was fully and fairly litigated at the hearing.

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2.
Turning

to

confiscation

the

merits

violation,

of

we

Intertape’s

hold

that

challenge

substantial

to

the

evidence

supports the Board’s determination that Williams’ removal of the
union

literature

from

the

break

room

was

an

unfair

trade

removed

union

practice under the Act.
Although
literature

Intertape

from

the

admits

break

that

room,

it

Williams
asserts

that

the

General

Counsel failed to prove that Intertape changed its distribution
or housekeeping policies during the critical period or that it
did so in response to union activity.
As

noted

above,

Epps

We are unpersuaded.

testified

that

literature

left

by

employees in the break room prior to the union campaign was
routinely left undisturbed until the end of the day, and that
the supervisors were not known to engage in prompt housekeeping
activities after each employee break.
corroborated

by

that

of

a

second

Her testimony was also

employee,

John

Jordan,

who

testified that he was told by another supervisor that he could
not distribute union literature in the break room.
Because
conclusion

substantial
that

Intertape

evidence

supports

unlawfully

the

confiscated

Board’s
union

literature in violation of the Act, we deny Intertape’s petition
for review and grant enforcement of this portion of the Board’s
order as well.
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C.

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The Surveillance Violation

Finally, we turn to the Board’s conclusion that Intertape
engaged in excessive or coercive surveillance when it handed out
leaflets at the plant gate to arriving employees at the same
time that union supporters were handing out leaflets.

For the

reasons set forth below, we hold that the Board’s decision is
not supported by substantial evidence and is contrary to law.
1.
The

facts

undisputed.

On

pertaining
April

24,

to
two

this
days

violation
before

the

are

largely

secret-ballot

election began, Intertape supervisors stood near the turnstiles
at the plant entrance and distributed a “Thank You” flyer to
arriving employees from approximately 6:30 a.m. to 7:00 a.m. 3

No

union supporters were leafleting at the time.

3

The flyer was signed by plant supervisors and contained
the following message:
Soon, you will be able to vote on whether you want to
be represented by a union or not. Although we do not
have a vote, we have tried to give you the information
you need to make a good decision.
We hope you will
base your decision on the facts and what you truly
believe will put this plant in the best position to
move forward.
While we certainly hope you believe a union is
unnecessary and you will vote no, we need this matter
behind us on Friday. We have all learned a lot about
ourselves and our plant through this union campaign.
Regardless of your position on this matter, we all
(Continued)
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That afternoon, Intertape supervisors returned to the plant
gate and distributed the flyers from approximately 6:30 p.m. to
7:00 p.m.

After the supervisors arrived and began distributing

the flyers, union supporters joined them at the gate and began
simultaneously

distributing

union

literature.

The

union

supporters positioned themselves approximately five feet on the
other side of the turnstiles from the supervisors.
On the morning of April 25, the supervisors returned to the
turnstiles and again distributed the flyers from approximately
6:30 a.m. to 7:00 a.m., unaccompanied by the union supporters.
That evening, both the supervisors and the employees distributed
their respective flyers from opposite sides of the turnstiles,
but on this occasion the union supporters arrived first.
There is no evidence that the supervisors knew that the
union supporters intended to hand out leaflets at the gate on
the

two

afternoons

in

question,

or

that

they

were

otherwise

present at the gate for the purpose of spying on employees.
Although union supporters had briefly leafleted at the gate on
March 22 and 23, shortly after the representation petition was
filed, they had not done so during the intervening month-long

need to put as much effort into working together on
our plant as we have in addressing the union election.
J.A. 640.
The content of the flyer is
coercive or otherwise violative of the Act.
17

not

alleged

to

be

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campaign.

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Pg: 18 of 56

Nor was there evidence that the union supporters had

planned ahead of time to leaflet on the afternoons of April 24
and

25.

During

the

periods

of

simultaneous

leafleting,

the

supervisors did not say anything, beyond pleasantries, to the
union supporters or to the arriving employees.

They did not

take pictures or notes of the employees as they arrived, nor did
they otherwise engage in threatening or intimidating behavior
towards the union supporters or the arriving employees.
The
“unlawful

Board,

however,

surveillance”

of

held
the

that

Intertape

engaged

in

union

activities

because

the

supervisors’ leafleting at the gate was “‘out of the ordinary,’”
insofar as there was no evidence that Intertape had communicated
with its employees in this manner “prior to the campaign,” and
because the supervisors could “see” the employees during the
periods of simultaneous leafleting.

J.A. 679 (emphasis added). 4

4

Specifically, the Board found that the supervisors’
leafleting became coercive surveillance merely because:
The presence of supervisors at the plant gate where
employees
arrived and
left
was
itself
unusual.
Further, management officials typically communicated
with employees in meetings, and there was no evidence
that, prior to the campaign, it had leafleted its own
employees.
As the [ALJ] found, the Respondent’s
supervisors
could
see
not
only
the
employees
distributing
leaflets,
but
also
which
employees
accepted
or
rejected
the
leaflets,
and
any
interactions between them.
J.A. 679 (citations omitted).
18

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Board

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“attribute[d]

no

Pg: 19 of 56

relevance

to

which

group

of

leafleters arrived first,” because “the employer’s [leafleting]
activity [was] out of the ordinary.”

J.A. 679 n.9.

As to

Intertape’s argument that “it was simply exercising its Section
8(c)

right

to

summarily

communicate

rejected

it

with

as

its

well,

employees,”
explaining

the

Board

that

“such

communication is [nonetheless] unlawful if it includes out-ofthe-ordinary

conduct

under surveillance.”

that

places

employees’

union

activities

J.A. 679-80.
2.

It

has

observing

long

its

been

established

employees

on

that

company

an

employer’s

property

act

during

of

union

activities, even when done in close proximity to its employees,
is not a per se violation of the Act.
representatives

and

employees

who

On the contrary, “union

choose

to

engage

in

their

union activities at the employer’s premises should have no cause
to complain that management observes them.”
v.

NLRB,

(internal

726

F.2d

quotation

705,

709

(11th

marks

omitted);

Belcher Towing Co.

Cir.

1984)

Emenee

(per

curiam)

Accessories,

Inc.,

267 N.L.R.B. 1344, 1344, 1349 (1983) (finding no violation where
supervisor “stationed himself at the entrance to the building
for the purpose of observing the Union’s efforts” and “observed
the

union

organizers

conversing

with

employees

who

were

reporting for work”); Milco, Inc., 159 N.L.R.B. 812, 814 (1966)
19

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(finding no violation where management representatives watched
union organizers who were handing out leaflets and talking to
employees as they were leaving the plant; the employer had a
legitimate reason for being there and there was “no evidence
that

any

management

representatives

made

notes

or

otherwise

recorded what they saw,” notwithstanding that they could see the
interactions between the employees and the union organizers).
The

exception

employer’s

to

observation

this
of

general

union

rule

arises

activities

can

be

when

the

reasonably

construed as excessive or coercive surveillance, such that it
“unreasonably chill[s] the exercise of the[] employees’ Section
7 rights.”

NLRB v. Southern Md. Hosp. Ctr., 916 F.3d 932, 938

(4th Cir. 1990) (per curiam) (noting that “the Board has on
several occasions found that employers unreasonably chilled the
exercise of their employees’ Section 7 rights through excessive
surveillance”) (emphasis added); cf. NLRB v. Arrow-Hart, Inc.,
203 N.L.R.B. 403, 403 (1973) (noting that an employer’s act of
“coercively surveilling – that is, spying upon – its employees’
activities”

would

be

a

violation

of

the

Act).

As

stated

previously, the employer’s observation must have a “reasonable
tendency in the totality of the circumstances to intimidate” the
employees.
This
employees

Nueva Eng’g., 761 F.2d at 965.
is

because,

because

he

“[w]hen
believes
20

an

employer

they

are

watches

engaged

.
in

.

.

union

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activities, the employees may reasonably fear that participation
in union activities will result in their identification by the
employer as union supporters.”

Id. at 967.

The “employee,

possibly anticipating retaliation against identified supporters,
may

thereafter

activities.”

feel

reluctant

to

participate

in

union

Id.; see also NLRB v. Grand Canyon Mining Co., 116

F.3d 1039, 1045 (4th Cir. 1997) (“[A]n employer violates section
8(a)(1) of the Act if it gives employees the impression that it
is conducting surveillance of their union activities.”); J.P.
Stevens & Co., 638 F.2d at 683 (“It is an unfair labor practice
for

an

employer

impression

that

activity.”).
illegal

to
he

create

is

in

closely

the

minds

observing

of

union

employees

an

organizational

Such excessive or coercive “surveillance becomes

because

it

indicates

an

employer’s

opposition

to

unionization, and the furtive nature of the snooping tends to
demonstrate spectacularly the state of the employer’s anxiety.”
Belcher Towing, 726 F.2d at 708 n.2.

“From this the law reasons

that when the employer either engages in surveillance or takes
steps leading his employees to think it is going on, they are
under the threat of economic coercion.”

Id.

Ultimately, “[t]he test for determining whether an employer
engages

in

unlawful

surveillance,

or

unlawfully

creates

the

impression of surveillance, is an objective one and involves the
determination

of

whether

the

employer’s
21

conduct,

under

the

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[totality

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of

the]

Pg: 22 of 56

circumstances,

was

such

as

would

tend

to

interfere with, restrain, or coerce employees in the exercise of
their rights guaranteed under Section 7 of the Act.”

Southern

Md., 916 F.2d at 938 (internal quotation marks omitted); cf.
Nueva Eng’g., 761 F.2d at 965 (The employer’s conduct must have
a “reasonable tendency in the totality of the circumstances to
intimidate” the employees.).
For example, we consider “the duration of the observation,
the employer’s distance from its employees while observing them,
and

whether

the

employer

during its observation.”
586 (2005).
a

in

other

coercive

behavior

Aladdin Gaming, LLC, 345 N.L.R.B. 585,

But we must also consider whether the employer had

legitimate

otherwise

engaged

reason

being

for

present

surveillance has occurred.

observing
at

the

the

place

activities

or

where

alleged

the

for

See, e.g., Nueva Eng’g., 761 F.2d at

967 (upholding violation where two supervisors went to an offsite location “for the purpose of surveilling a scheduled union
meeting”

and,

“when

no

meeting

occurred,

the

supervisors

followed three employees to an employee’s home”); Sprain Brook
Manor Nursing Home, LLC, 351 N.L.R.B. 1190, 1191 (2007) (finding
unlawful surveillance where nursing home administrator went to
facility on her day off “solely for the purpose of observing
union activity” and stood in the doorway closest to where the
union organizer was meeting with the employees so as to be able
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to see the employees and be seen by them); PartyLite Worldwide,
Inc.,

344

N.L.R.B.

1342,

1342

(2005)

(finding

unlawful

surveillance of union handbilling activities because, “on three
separate occasions shortly before the election, no less than
eight high-ranking managers and supervisors stood at entrances
to the employee parking lot watching the [union] give literature
to employees as they entered and exited the parking lot during
shift changes,” “the presence of managers and supervisors at the
entrances

to

parking

and

occurrence,”

the

“[t]he

lot

was

employer

surprising

and

established

an

no

unusual

legitimate

explanation for why any of its managers and supervisors were
stationed in the parking lot during the [Union’s] handbilling
activities”);

S.J.P.R.,

Inc.,

306

N.L.R.B.

172,

172

(1992)

(finding that the employer “engaged in unlawful surveillance by
posting one or two security guards near the employee entrance
and another security guard with binoculars in an upstairs hotel
room in order to observe employees and union agents soliciting
union authorization card signatures across the street from the
hotel,” because it “constituted more than ordinary or casual
observation

of

public

union

activity”

and

“[t]here

[was]

no

evidence that the [employer’s] conduct was based on safety or
property concerns”); Eddyleon Chocolate Co., 301 N.L.R.B. 887,
888 (1991) (finding violation where supervisor “drove his car to
within 15 feet of” the union representative, “watched employees
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as [the union representative] handed them literature . . . near
the entrance to the [employer’s] parking lot,” and “spoke into
his car telephone” until the union representative left); Arrow
Auto. Indus., 258 N.L.R.B. 860, 860-61 (1981) (finding unlawful
surveillance of union handbilling activities where “[s]oon after
the handbilling began on 2 of the 3 days . . . in question, 11
of the [employer’s] supervisors lined up in varying numbers near
each of the three gates, observing the employees as they drove
past the union handbillers,” “the presence of the supervisors
was highly unusual,” “the supervisors’ presence was deliberately
calculated to show and demonstrate observation in numbers and
force,”

and

the

employer

failed

to

demonstrate

a

legitimate

reason for being there) (internal quotation marks, alterations,
and footnotes omitted).
3.
This

case

presents

an

additional

and

somewhat

unusual

circumstance for consideration as well because, unlike in the
more

typical

unlawful-surveillance

situation,

Intertape’s

legitimate explanation for being at the gate was to exercise its
First Amendment and Section 8(c) right to leaflet its employees
during a union campaign in a nonthreatening manner.

There was

no

protected

union

speech.

activity
And

when

to

observe

the

union

when

they

supporters

24

began
joined

this
them

in

this

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protected

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activity,

the

Pg: 25 of 56

supervisors

and

the

union

supporters

engaged in simultaneous but noncoercive speech.
As

noted

earlier,

Section

8(c)

prohibition set forth in § 8(a)(1).
at

684.

“Counterbalancing

the

of

the

Act

limits

the

See J.P. Stevens, 638 F.2d
[Section

8(a)]

prohibition

against” an employer interfering with, restraining, or coercing
employees who are engaged in protected Section 7 activities “is
[the] employer’s strong interest in preserving its right to free
speech,” which “Congress expressly recognized . . . by enacting”
Section 8(c) of the Act.

American Pine Lodge Nursing & Rehab.

Ctr. v. NLRB, 164 F.3d 867, 875 (4th Cir. 1999).
Specifically, Section 8(c) “protects speech by both unions
and employers,” Chamber of Commerce v. Brown, 554 U.S. 60, 67
(2008), by providing that such speech “shall not constitute or
be

evidence

of

an

unfair

labor

practice

under

any

of

the

provisions of the Act,” so long as “such expression contains no
threat of reprisal or force or promise of benefit,” 29 U.S.C. §
158(c)

(emphasis

‘congressional

added).

intent

to

Section
encourage

dividing labor and management.’”

8(c)
free

party

debate

on

a

issues

Chamber of Commerce, 554 U.S.

at 67; see also NLRB v. Gissel Packing Co.,
(1969).

“manifest[s]

395 U.S. 575, 617

“[P]ermitting the fullest freedom of expression by each
nurtures

a

healthy

and

25

stable

bargaining

process.”

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American

Filed: 09/08/2015

Pine,

164

F.3d

at

Pg: 26 of 56

875

(internal

quotation

marks

omitted).
Given

the

competing

but

protected

interests

at

play,

therefore, a “balance [must] be struck between an employer’s
free

speech

rights

as

protected

by

subsection

8(c)

and

employees’ rights to associate freely as embodied in section 7,
subsection

8(a)(1),

and

the

proviso

to

subsection

8(c).”

Procter & Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 983 (4th Cir.
1981); see also Gissel Packing, 395 U.S. at 617.

The protection

is not “a cloak to hide obviously intimidating conduct,” NLRB v.
Williams, 195 F.2d 669, 672 (4th Cir. 1952), but the fact that
the employer is engaged in such protected speech is a relevant
factor to be considered.
In Arrow-Hart, the Board addressed this interplay between
Section

8(a)(1)’s

surveillance
speech.

and

prohibition
Section

against

8(c)’s

coercive

protection

of

or
an

excessive
employer’s

There, the supervisors’ leafleting activity inside the

glass door of the plant likewise placed them in a position where
they could see union supporters who were engaged in the very
same protected activity outside the glass door.

They were also

acting in a manner “out of the ordinary,” insofar as they were
leafleting their employees near the entrance as part of their
campaign against unionization.

Nevertheless, the Board found no

unfair labor practice because there was no evidence that the
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supervisors were engaged in coercive surveillance during this
counter-leafleting activity.

As the Board correctly recognized,

An employer has the right to distribute election
campaign material of its own.
It has a right to
express its opinion of union literature, even calling
it trash – in writing as well as orally. And, it has
a right to do these things at the very moment the
union is trying to persuade the employees to a
contrary view – certainly anywhere on its premises, in
the inner reaches of the plant or at the front door,
even if the door is made of looking-through glass.
What the General Counsel’s argument really amounts to
here is that the Respondent may not do what it legally
is permitted to do.
203 N.L.R.B. at 406; see also Aladdin Gaming, 345 N.L.R.B. at
585-86 (finding no violation where supervisors interrupted union
supporters

who

were

soliciting

employees

in

the

employer’s

cafeteria to give “management’s perspective on unionization” as
it had a right to do under Section 8(c)).
4.
Here, in contrast, the Board found unlawful surveillance by
the

Intertape

leafleting

was

supervisors

merely

“out-of-the-ordinary”

because
--

the

insofar

supervisors’
as

they

had

never done it prior to the union campaign -- and because the
supervisors could “see” the employees when the union supporters
were simultaneously leafleting.

J.A. 679.

Moreover, the Board

declined to give any countervailing consideration to the fact
that Intertape was engaged in protected Section 8(c) activity at
the time, or to the fact that Intertape was engaged in this

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activity well before the union supporters arrived to counterleaflet.

This was error.

Plainly,

to

transform

Intertape’s

protected

Section

8(c)

activity into the unlawfully coercive surveillance prohibited by
Section 8(a)(1), the Act requires more than mere “out-of-theordinary” conduct in an area where employees can be seen; the
Act requires conduct that could have reasonably been construed
in the totality of the circumstances as coercive, intimidating,
or threatening in nature.
“[i]n

recent

activities,

cases
the

involving

Board

coercion element.”

the

has

employer

seemed

surveillance

to

ignore

this

of

union

critical

Greater Omaha Packing Co. v. NLRB, 790 F.3d

816, 823 (8th Cir. 2015).
First,

As our sister circuit has observed,

The same holds true here.

supervisors’

ability

to

observe

employees

as

they interacted with union supporters on company property during
the brief periods of simultaneous leafleting is insufficient to
render

the

supervisors’

threatening in nature.

leafleting

coercive,

intimidating,

or

See Southern Md., 916 F.2d at 938;

Belcher Towing, 726 F.2d at 709.

There is no evidence that

Intertape’s supervisors engaged in “excessive surveillance” of
the union supporters’ leafleting activity during the periods of
simultaneous

leafleting

“watching” them at all.

or,

for

that

matter,

that

they

were

Nor is there any indication that they

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continued to leaflet on the two afternoons in question in order
to spy on or snoop into the employees’ union activities.
Second, the Board placed too much significance upon the
fact that Intertape had never leafleted its employees at the
plant gate prior to the union campaign.

Although an employer’s

act

that

of

observing

employees

in

a

way

is

“out

of

the

ordinary” can provide evidence that incidental observation, in
the totality of the circumstances, should instead be construed
as coercive or intimidating surveillance or spying, not every
“out of the ordinary” activity by an employer can be deemed, a
fortiori,

coercive

or

threatening

in

nature.

See,

e.g.,

Southern Md., 916 F.2d at 939 (“It is firmly established that
management
particularly

officials
where

may

such

observe

activity

public

occurs

on

union

activity,

company

premises,

without violating § 8(a)(1) of the Act, unless such officials do
something ‘out of the ordinary.’”); Aladdin Gaming, 345 N.L.R.B.
at

585-86

(while

a

“supervisor’s

routine

observation

of

employees engaged in open Section 7 activity on company property
does not constitute unlawful surveillance,” the exception arises
when “an employer . . . surveils employees engaged in Section 7
activity

by

observing

them

in

ordinary’ and thereby coercive”).
have

always

considered

the

a

way

that

is

‘out

of

the

On the contrary, the cases

employer’s

reason

for

being

in

a

particular place at a particular time, even if it is unusual or
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out of the ordinary, and the Act’s requirement that there be
indicia

of

coercion

or

intimidation

requires

no

less.

See

Arrow-Hart, 203 N.L.R.B. at 406 (“If, as they approached the
front door to reach some of the employees, the supervisors also
. . . saw their counterparts giving out their election material,
it was something that could hardly be avoided in any event.

It

would be childish to call this spying, for if there is one thing
everybody

knew

all

the

time

it

is

that

the

[union]

was

distributing outside and the Company inside.”).
Here, Intertape was arguably not engaged in “out-of-theordinary”

behavior

supporters

arrived

at
to

all,

because

by

counter-leaflet

the

time

alongside

the

union

them,

the

supervisors had already leafleted at the gate on one occasion
and were into their second session.

The fact that they had

never leafleted employees prior to the union campaign also adds
nothing to the coerciveness inquiry.

The union campaign itself

was “out of the ordinary,” in that the Union was attempting to
unionize

Intertape’s

workforce.

That

Intertape

responded

to

this out-of-the-ordinary event by engaging in leafleting for the
first time does not make its actions suspect.

Rather, in light

of the union campaign, the employer’s decision to present its
views

through

its

own

gate-side

ordinary.

30

leafleting

seems

entirely

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Nevertheless, even if we were to consider the supervisors’
presence at the gate to be “out of the ordinary,” it is not the
type of “out-of-the-ordinary” observation or conduct that the
Board or the courts have reasonably viewed as being coercive or
intimidating in nature.

Nor would the language of the Act allow

for such an over-inclusive definition.
As in Arrow-Hart, “[w]hat the General Counsel’s argument
really amounts to here is that the [employer] may not do what it
legally is permitted to do” under Section 8(c).
accepting

this

argument,

the

Board

is

Id.

Indeed, by

effectively

requiring

employers to cease engaging in protected conduct whenever union
supporters
alongside

choose
them.

to

engage

The

Act,

in

identical,

however,

protected

explicitly

conduct

protects

the

employer’s right to express its viewpoint in this manner, and
that right cannot be extinguished absent a “threat of reprisal
or force or promise of benefit,” 29 U.S.C. § 158(c), which is
nonexistent

here.

Similarly,

Intertape’s

mere

act

of

simultaneous leafleting, even if such leafleting is construed as
“out of the ordinary,” is plainly insufficient to establish the
intimidation or coercion required under Section 8(a)(1).
Here, the Intertape supervisors did not go to a place where
union

supporters

or

other

employees

were

engaged

in

union

activities for the purpose of “spying upon” them, either from
afar or up close.

They went to a gate on company property,
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where there were no union supporters and no employees engaged in
union activity, in order to exercise their First Amendment and
statutorily protected right to communicate their views about the
upcoming
periods

election
of

to

their

simultaneous

employees.

leafleting,

During

the

the

Intertape

two

short

supervisors

did not speak to the employees or the union leafleters, beyond
exchanging pleasantries.

There is no evidence that they stared

or glared at the employees or the leafleters.

There is no

evidence that they attempted to force their leaflets upon the
employees,

or

that

they

attempted

to

persuade

employees

or

signal to them that they should not accept the union leaflet in
addition to or in lieu of the employer’s leaflet.

They did not

take photographs or otherwise record what was transpiring during
the brief periods of simultaneous leafleting.
evidence

that

reasonably

they

have

otherwise

been

engaged

construed

as

in

And there is no

behavior

coercive,

that

could

intimidating,

or

threatening.
Under the totality of the circumstances -- which includes
the

absence

of

any

threatening

expression

that

could

have

extinguished Intertape’s Section 8(c) right to leaflet at the
gate -- Intertape’s legitimate reason to be there did not vanish
when the union supporters arrived to counter-leaflet, nor were
the Intertape supervisors required to retreat when the union
supporters did arrive.

The Intertape supervisors were required
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their

leafleting

Pg: 33 of 56

activity

in

a

noncoercive

and

nonthreatening manner, and there is no indication that they did
not do so.
For

the

foregoing

reasons,

we

hold

that

substantial

evidence does not support the Board’s conclusion that Intertape
engaged in unlawful surveillance when it leafleted at the gate
on the afternoon of April 24, when the Union supporters chose to
leaflet alongside them, or on the afternoon of April 25, when
Intertape chose to continue its leafleting activities in advance
of

the

election.

Accordingly,

we

decline

to

enforce

this

portion of the Board’s order.
IV.
To conclude, we grant Intertape’s petition for review in
part

and

petition

deny
for

Specifically,

it

in

part,

enforcement
we

enforce

and
in

we

part

that

grant

the

and

deny

portion

of

the

Board’s
it

cross-

in

part.

Board’s

order

concluding that Intertape engaged in unlawful interrogation of
an employee in February of 2012, as well as that portion of the
Board’s order concluding that Intertape unlawfully confiscated
union flyers in March of 2012.

However, we deny enforcement of

the Board’s order concluding that Intertape engaged in unlawful
surveillance of union activity in April of 2012, and remand to
the Board so that it can modify its Order in accordance with our
decision.

Because our decision eliminates one of the two bases
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upon which the Board set aside the election, see supra at 5 &
n.2, the Board will also find it necessary to reconsider its
decision to direct a second election.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART;
ENFORCEMENT GRANTED IN PART AND DENIED IN PART; REMANDED

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WILKINSON, Circuit Judge, concurring:
I concur fully in Chief Judge Traxler’s fine opinion. I
agree with him that substantial evidence did support the Board’s
interrogation and confiscation findings, but that the part of
the Board’s order concluding that Intertape engaged in unlawful
surveillance

of

union

activity

improperly

compromised

Intertape’s right to tell employees its side of the story.
Left to my own devices, I would hold that, even if the
unfair

labor

practices

alleged

by

the

General

Counsel

had

occurred, the Board would have exceeded its remedial discretion
by ordering a new election. This is all the more so where the
Board’s most critical finding supporting its direction of a new
election has been overturned. Whatever remedial measures may be
warranted, a new election is not among them. Intertape’s margins
in

the

first

comparatively

election
minor.

were

The

huge,

Board’s

and

its

decision

infractions
to

order

were

a

new

election in these circumstances failed to respect the choice
Intertape’s employees made.
I

acknowledge,

however,

that

circuit

precedent

does

not

leave me to my own devices. See, e.g., NLRB v. Low Kit Min. Co.,
3 F.3d 720, 729-30 (4th Cir. 1993); Daniel Const. Co. v. NLRB,
341 F.2d 805, 809-10 (4th Cir. 1965). As a result, I join the
court’s opinion, including the terms of the remand order, which
provides

simply

that

the

Board

35

will

“find

it

necessary

to

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reconsider its decision to direct a second election.” Maj. Op.
at 33. I suggest, however, that the authority of circuit courts
to review a Board’s do-over election order at this stage of the
proceedings

warrants

additional

reflection

and

reexamination,

bearing foremost in mind the need to restore a sense of balance
between agencies and courts.
I.
Agencies do many good and necessary things. Through their
efforts, our environment is cleaner, our food safer, our economy
steadier,
these

and

our

blessings,

labor-management
however,

is

a

relations

growing

smoother.

bureaucracy,

Behind

a

“vast

power [that] touches almost every aspect of daily life.” City of
Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878 (2013) (Roberts,
C.J.,

dissenting).

This

power

draws

its

strength

from

its

frequent combination of the legislative, executive, and judicial
functions -- a combination that “heighten[s] the potential for
abuses that the traditional system was designed to check.” Cass
R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L.
Rev. 421, 447 (1987); see also The Federalist No. 47 (James
Madison) (“The accumulation of all powers . . . in the same
hands . . . may justly be pronounced the very definition of
tyranny.”).
Unfortunately,

this

potential

for

abuse

meets

little

resistance from ordinary democratic processes. The difficulty of

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passing

a

Filed: 09/08/2015

bill

in

both

Pg: 37 of 56

houses

and

surviving

a

potential

presidential veto “limits [] Congress’s ability to impose” its
will

on

the

administrative

Administration,

114

state.

Harv.

L.

Elena

Rev.

Kagan,

2245,

Presidential

2259

(2001).

Presidential control offers no sure hope either, because “no
President (or his executive office staff) could . . . supervise
so broad a swath of regulatory activity.” Id. at 2250; cf. City
of

Arlington,

dissenting)

Tex.,

(“President

133

S.

Ct.

Truman

at

1878

colorfully

(Roberts,

described

his

C.J.,
power

over the administrative state by complaining, ’I thought I was
the President, but when it comes to these bureaucrats, I can’t
do a damn thing.’”). Even if the President could fully supervise
the executive branch, he would face little pressure from voters
to do so, for “the general public is often unaware of political
decisions being made at the agency level.” Donald S. Dobkin, The
Rise

of

the

Administrative

State:

A

Prescription

for

Lawlessness, 17 Kan. J. L. & Pub. Pol’y 362, 367 (2008).
In the early days of administrative law, organic statutes
giving

agencies

capacious

power

to

effectuate

broad

policies

often complicated judicial review. The National Labor Relations
Act (NLRA), for example, frames the Board’s remedial authority
in broad terms. Section 10(a) “empower[s]” the Board “to prevent
any

person

from

engaging

in

any

unfair

labor

practice.”

29

U.S.C. § 160(a). Section 10(c) further “authorizes the Board to

37

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require

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persons

practices

‘to

effectuate

the

found

take

Pg: 38 of 56

engaged

such

policies

or

engaging

affirmative
of

this

in

action

.

unfair
.

[subchapter].’”

.
Va.

labor

as

will

Elec.

&

Power Co. v. NLRB, 319 U.S. 533, 539 (1943) (quoting 29 U.S.C. §
160(c)).
Fortunately, however, the American people eventually added
an

important

condition

Administrative

to

Procedure

the

Act

administrative
(APA).

bargain:

“[F]ramed

against

the
a

background of rapid expansion of the administrative process,”
the APA was meant to act as “a check upon administrators whose
zeal

might

otherwise

have

carried

them

to

excesses

not

contemplated in legislation creating their offices.” Perez v.
Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1211 (2015) (Scalia, J.,
concurring) (quoting United States v. Morton Salt Co., 338 U.S.
632, 644 (1950)); see also 92 Cong. Rec. 2149 (1946) (statement
of Sen. McCarran) (describing the APA as a “bill of rights for
the

hundreds

controlled

or

of

thousands

regulated

.

of
.

Americans
.

by

whose

agencies

of

affairs
the

are

Federal

Government”). The APA thus proscribes administrative action that
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706.
II.
Before examining the Board’s decision to direct a second
election in this case, however, I consider the court’s power to

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review that decision. A few years after the passage of the NLRA,
the Supreme Court held that the Act “indicates a purpose to
limit

the

review

afforded

[under

the

NLRA’s

judicial-review

provisions in Sections 10(e) and 10(f)] to orders of the Board
prohibiting unfair labor practices.” Am. Fed’n of Labor v. NLRB,
308 U.S. 401, 409 (1940). The Court concluded that, because the
Board’s decision to direct an election is “but a part of the
representation

proceeding,”

that

decision

is

not

subject

to

judicial review under Section 10(f). NLRB v. Int’l Brotherhood
of

Elec.

Workers,

308

U.S.

413,

414

(1940).

By

withholding

jurisdiction from the courts of appeals “until the Board issues
an order and requires the employer to do something predicated
upon the result of an election,” NLRB v. Falk Corp., 308 U.S.
453,

459

(1940),

the

Court

followed

legislators’

perceived

intent: to allow employees to vote on union membership before
facing possible judicial interference. Am. Fed’n of Labor, 308
U.S. at 409-11 & n. 2. It subsequently reiterated that Congress
intended to avoid “dragging [the case] on through the courts”
before giving employee democracy its chance. Boire v. Greyhound
Corp., 376 U.S. 473, 477-79 (1964).
Decisions of the courts of appeals, including some in the
Fourth Circuit, have expanded this Supreme Court precedent to
mean that, even when a first election has already been held,
“the Board’s direction of a new election is not a final order

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reviewable under either section 10(e) or section 10(f) of the
NLRA.” See, e.g., Adtranz ABB Daimler-Benz Transp., N.A., Inc.
v. NLRB, 253 F.3d 19, 22, 24-25 (D.C. Cir. 2001) (refusing to
consider petitioner’s challenge to the Board’s second-election
order

even

though

the

Board’s

unfair

labor

practice

determinations were “utterly without merit”); Low Kit Min. Co.,
3 F.3d at 729-30 (holding a second-election order “not final
under the Act and . . . not ripe for judicial review”).
According to this view, then, a company may obtain judicial
review of a Board’s second-election order only by navigating an
unusually circuitous course. First, the company must submit to a
second election. Next, assuming the union wins that election,
the company must refuse to bargain with the union. This refusal
will

then

company

give

has

the

Board

engaged

determination,

at

in

long

the

an
last,

opportunity

unfair
will

labor

to

find

practice.

provide

the

that
And

the
this

predicate

for

judicial review of the Board’s order. On appeal, the company may
defend

its

refusal

to

bargain

by

claiming

that

the

second

election was unnecessary. See Heartland Human Servs. v. NLRB,
746 F.3d 802, 805-06 (7th Cir. 2014).
The courts of appeals, however, should have jurisdiction to
review

a

Board’s

direction

direction

is

the

order.

say

I

but

this

of

remedial

for

two

a

second

portion

reasons.

40

of

The

election
the
first

when

Board’s

that
final

involves

the

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earlier Supreme Court decisions. The second involves the text of
the NLRA itself.
First, none of the earlier Supreme Court cases dealt with
the particular question of an election already conducted and a
Board

order

addressing

the

conduct

of

that

election

and

any

associated remedies. See Am. Fed’n of Labor, 308 U.S. at 402-03;
Int’l Brotherhood of Elec. Workers, 308 U.S. at 414; Falk, 308
U.S. at 459. The legislative concern motivating the Court in
these cases –- that jurisdiction over election-related orders
would allow courts to interfere with the Board’s certification
proceedings

before

employees

even

have

a

shot

at

voting

–-

applies with significantly less force after a first election has
already been held.
Indeed,

a

recent

Fifth

Circuit

case

declined

to

extend

those decisions to the decertification election context. NLRB v.
Arkema, 710 F.3d 308, 319 (5th Cir. 2013) (denying “enforcement
of the order setting aside the election and requiring a new
one”); see also Graham Architectural Prod. Corp. v. NLRB, 697
F.2d 534, 545-46 (3d Cir. 1983) (Garth, J., dissenting) (arguing
for

judicial

certification
review

the

review
context).

Board’s

of
And

second-election
even

second-election

in

orders

decisions

order,

courts

in

declining
have

the
to

noted,

almost apologetically, that their decision not to do so flies in
the face of judicial efficiency. See, e.g., Graham Architectural

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Prod. Corp., 697 F.2d at 543 (“[C]onsiderations of efficiency
and judicial economy seem to suggest that we review the election
order as well.”).
Secondly, the text of the NLRA itself plainly does not bar
judicial review in these cases. The text provides simply that
review lies where a “final order” of the Board has issued in
regard to any unfair labor practice. 29 U.S.C. § 160(f). The
statute also speaks remedially. We are empowered to rule on any
final order granting in whole or in part “the relief sought.”
Id. Here, a final order of the Board has indeed issued. The
Board

found

that

Intertape’s

pre-election

activity

involved

unfair labor practices under Section 8(a), and based on this
determination,
remedial

the

Board

components

of

ordered

the

a

Board’s

new
order

election.
are

not

But

the

something

separate and apart from its findings as to liability. Here, the
Board’s Order notes that “the election held on April 26 and 27,
2012 . . . is set aside,” and then proceeds on the very same
page recounting the alleged unfair labor practices to direct a
second election and set forth the conditions for holding it.
J.A. 681; Intertape Polymer Corp., 360 NLRB No. 114, 2014 WL
2192498, at *4 (May 23, 2014). The date of the order and the
signatures of those Board members ascribing to it follow right
on

the

heels

of

the

above.

J.A.

681.

The

Board

ostensibly

“sever[s]” its direction of a new election from the rest of its

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disposition. J.A. 681. But this boilerplate severance sentence
is

hollow

formalism,

and

the

Board’s

own

Statement

of

Jurisdiction commendably recognizes as much. It refers to its
“Decision, Order, and Direction of Second Election issued May
23, 2014” as a “final order with respect to all parties.” Resp.
Br. 1-2.
This is one, single final order. Why artificially segment
it? Nothing in the text of the NLRA permits us to salami-slice
the Board’s order, and the most basic factors of efficiency and
economy suggest that we review the underlying order -- both the
unfair labor practices and the remedial prescriptions -- in its
entirety.
This

is

especially

the

case

where,

as

here,

we

have

reviewed and found wanting the most critical finding underlying
the Board’s direction of a new election. With the underpinning
of the Board’s order thus removed, it is appropriate to deal
with the matter in its entirety. I do not think the sparse
language

of

the

NLRA

forbids

judicial

review;

quite

the

contrary. By simply referring to a final order as a unitary
whole it suggests that review would be permitted. Indeed, the
statute plainly empowers courts of appeals to “enter a decree
enforcing, modifying and enforcing as so modified, or setting
aside in whole or in part the order of the Board.” 29 U.S.C. §
160 (e), (f).

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One overarching point remains. Surrendering judicial review
of

a

Board’s

do-over

election

order

severs

the

historically

interwoven concepts of violation and remedy. It likewise severs
labor law from a foundational principle of administrative law:
arbitrary and capricious review under the APA. The arbitrary and
capricious standard defines as much as anything the relationship
between courts and agencies in our country, and to relinquish or
dilute that standard tilts the balance too emphatically in favor
of the administrative state and against the check and balance of
judicial review. The Board’s new election order was a remedial
step intended to cure Intertape’s violations of the NLRA. But a
remedial order constitutes an agency action that is no less (and
often

more)

susceptible

to

agency

caprice

than

is

an

agency

finding of liability.
”The

Supreme

Court

has

always

assumed

that

Congress

intended the judicial review provisions of both [the APA and the
NLRA] to be equivalent,” and it “has read the NLRA as if it
included

an

arbitrary

and

capricious

test.”

Diamond

Walnut

Growers, Inc. v. NLRB, 113 F.3d 1259, 1266 (D.C. Cir. 1997) (en
banc)

(citing

Universal

Camera

v.

NLRB,

340

U.S.

474,

487

(1951); Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301,
309–10 (1974)). One need not ascribe independent jurisdictional
force to the APA in order to note that the guiding principles of
administrative law –- arbitrary and capricious review under the

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APA –- should provide the overall perspective from which courts
assess

their

authority.

“[I]t

is,

of

course,

the

most

rudimentary rule of statutory construction . . . that courts do
not interpret statutes in isolation, but in the context of the
corpus juris of which they are a part, including later-enacted
statutes.”
Supreme

Branch

Court’s

v.

Smith,

538

U.S.

1940

cases,

which

254,

some

281

later

(2003).

courts

The

wrongly

extended, were decided without the benefit of the APA. Given
that

those

1940

decisions

are

likewise

distinguishable

from

cases involving re-run (not initial) elections, it needlessly
eviscerates the purpose of administrative procedure under the
APA to extend them further.
Courts

must

remain

mindful

of

the

real

jurisdictional

limitations on our reviewing role under the NLRA. See, e.g., Low
Kit Min. Co., 3 F.3d at 729-30. We have been careful to respect
the

Board’s

management

of

representation

proceedings

where

warranted. See e.g., Perdue Farms, Inc. v. NLRB, 108 F.3d 519,
521 (4th Cir. 1997). Here, however, we consider the impact of
the APA on the NLRA jurisdictional provisions in a case where an
election has been held and the Board’s finding underpinning a
second-election order has been overturned. Our duty is to deny
enforcement to those remedial directives that are “arbitrary,
capricious,” or contrary to law, 5 U.S.C. § 706, and that are
indistinguishably part of Board final orders concededly ripe for

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review, 29 U.S.C. § 160(f). I therefore turn to the question of
whether the Board’s second-election order here was arbitrary and
capricious.
III.
Ordering a new election after the first contest’s landslide
results,

and

on

account

of

comparatively

minor

company

violations, overstepped the Board’s remedial discretion. First,
more carefully tailored remedies could adequately address any
illegitimate conduct without forcing a second election unlikely
to

yield

a

different

result.

Second,

the

Board’s

order

both

departs from Board precedent focusing on whether a given error
actually affected an election’s outcome and relies on a harmless
error rule that, when applied as it was here, is far out of
proportion to the harm it protects against.
A.
Intertape’s

employees

voted

142-97

against

the

union,

a

margin of 45 votes, or almost 19%. By way of comparison, no
presidential

candidate

has

won

a

more

lopsided

share

of

the

popular vote since Nixon defeated McGovern in 1972. See Leip,
David, United States Presidential Election Results, David Leip’s
Atlas

of

U.S.

Presidential

Elections,

www.uselectionatlas.org/RESULTS/ (last visited Aug. 24, 2015).
Surely marginal company infractions should not undermine this
election result.

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Here,

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we

hear

only

Pg: 47 of 56

three

minor

complaints.

First,

an

Intertape supervisor allegedly approached a single employee and
asked

about

his

union

sentiments.

But

this

“interrogation”

occurred before the critical period, and the Board rightly did
not rely on it when ordering a new election. J.A. 680. Next,
Intertape expedited “the cleanup of a break room that, at most,
involved the removal of certain material for several hours on 2
days

approximately

Intertape

1

Polymer

Miscimarra,

month

Corp.,

before

360

dissenting).

the

NLRB

No.

Finally,

election.”
114,

at

Intertape

J.A.
*3

682;

(Member

conducted

a

leafletting campaign simultaneous with a similar union campaign.
The

Board

found

that

this

parallel

leafletting

constituted

unlawful surveillance of union activity. J.A. 679-80.
This last charge –- that Intertape unlawfully surveilled
its employees while leafletting -– is particularly problematic
because,

as

the

court

notes,

it

gives

short

shrift

to

Intertape’s own free speech rights. Intertape’s right to express
its views on union membership to its employees is protected by
the First Amendment. Chamber of Commerce v. Brown, 554 U.S. 60,
67 (2008); see also Allentown Mack Sales & Serv., Inc. v. NLRB,
522

U.S.

dissenting)

359,
(”An

386

(1998)

employer’s

(Rehnquist,
free

speech

C.J.,

concurring

right

to

and

communicate

[its] views to [its] employees is firmly established and cannot
be

infringed

by

a

union

or

the

47

Board.”).

The

Board

found

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unlawful

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surveillance

because

Pg: 48 of 56

Intertape

supervisors

do

not

typically communicate with employees by leafletting at the plant
gate; that they did so was “out of the ordinary.” J.A. 679. But
elections are themselves “out of the ordinary” –- that Intertape
does

not

resort

to

leafletting

for

day-to-day

personnel

communications cannot be used as a reason to muzzle the exercise
of free speech when campaign season arrives.
To

hold

broadly

that

simultaneous

leafletting

involves

unfair supervisory surveillance of employees overlooks the fact
that elections of all sorts involve simultaneous communication
of competing points of view. It also confers upon a union a veto
power over employer speech at prime times and on critical days.
Chief Judge Traxler has put the point well: “by accepting [the
General Counsel’s] argument, the Board is effectively requiring
employers to cease engaging in protected conduct whenever union
supporters

choose

to

engage

in

identical,

protected

conduct

alongside them.” Maj. Op. at 31.
In

any

event,

these

alleged

infractions

could

not

have

forced the hands of 45 adult employees, the large margin by
which the union lost. I agree fully with the Board that the
employer had no right here to expedite its so-called “clean up”
and remove the union materials from the breakroom. But dozens of
thinking

employees

did

not

vote

differently

because

of

a

premature cleanup of a breakroom weeks before the election. Nor

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did the risk of accepting a leaflet within view of a supervisor
plausibly

scare

so

many

workers

from

expressing

their

true

beliefs via secret ballot. The NLRA “does not require the Board
to treat employees as if they were bacteria on a petri dish that
must be kept free of contamination.” NLRB v. Lovejoy Indus.,
Inc., 904 F.2d 397, 402 (7th Cir. 1990). The Board’s ultrasanitized

approach

gives

too

little

weight

to

the

jockeying

inherent in any election and too little credit to employees’
capacity for independent thought.
Requiring a new election, moreover, may impose real costs
on employer and employee alike. A second election distracts both
from their work, may risk damage to joint morale, and absorbs
considerable time and resources. And the results of any do-over
election

would

quite

possibly

be

contested

and

litigated

as

well. Where does it all end? There are of course instances where
the employer will abuse its very position as employer and render
elections something other than the product of free choice. There
will of course be situations where the result of an election
will be fatally compromised by unfair labor practices, but this
was not one of those, and the Board’s remedial order revealed an
insensitivity to the burdens that agency actions can impose upon
those

companies

who

possess

but

official overreach.

49

limited

recourse

to

check

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None of this is to say that properly proven infractions
should be left uncorrected. But the power to remedy comes with
the responsibility to issue an appropriate remedy. The Supreme
Court has instructed federal courts, for example, that a “grant
of jurisdiction to issue compliance orders hardly suggests an
absolute duty to do so under any and all circumstances.” Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 193 (1978) (quoting Hecht
Co. v. Bowles, 321 U.S. 321, 329 (1944)). Accordingly, it has
rejected
e.g.,

mechanical

eBay

Inc.

v.

rules

mandating

MercExchange,

injunctive

LLC,

547

relief.

U.S.

388,

See,

393-94

(2006) (rejecting the Federal Circuit’s general rule requiring a
permanent injunction against a patent infringer upon a finding
of

infringement

absent

exceptional

circumstances).

It

has

instead espoused the commonsense notion that “the nature of the
violation

determines

the

scope

of

the

remedy.”

Swann

v.

Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971). When it
has recognized possible liability, the Court has been careful to
instruct that “[r]emedial orders . . . should concentrate on the
elimination of the offending practice.” Tex. Dept. of Hous. &
Cmty.

Affairs

v.

Inclusive

Cmtys.

Project,

Inc.,

135

S.

Ct.

2507, 2524 (2015).
If federal courts can leaven their remedial powers with a
dose

of

does

not

proportionality,
take

agency

administrative

expertise

50

to

agencies

determine

can

that

too.

It

landslide

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election results are not altered by insubstantial infractions.
Here,

the

Board

could

have

pursued

a

more

proportionally

tailored remedy by, for example, finding the employer at fault
and requiring it both to cease and desist from its unfair labor
practices and to post the Board’s cease and desist order in
“conspicuous places.” See, e.g., Flamingo Las Vegas Operating
Co., 360 NLRB No. 41, 2014 WL 559058, at *6-7 (Feb. 12, 2014)
(finding a cease and desist order to be an adequate remedy and
declining to order a new election). Here, such an order would
draw

attention

to

the

misconduct

without

the

unnecessary

dislocations of another election.
B.
The

Board’s

inconsistent

direction

with

decisions

have

misconduct

actually

follow
Markets,

the

its

Inc.,

own

inquired

which

a

past

more

affected

stringent

of

requires

election

practice.

thoroughly

the

harmless

new

election’s
error

a

new

rule

was

also

Previous

into

Board

whether

outcome.
of

Super

election

unless

Some

any
do

Thrift
it

is

“virtually impossible to conclude that [misconduct] could have
affected the results.” 233 NLRB 409, 409 (1977). See, e.g., Long
Drug Stores Cal., Inc., 347 NLRB No. 45, 2006 WL 1810612, at *5
(Jan. 28, 2006) (holding it “virtually impossible” for isolated
misconduct to have affected a “wide margin” of votes).

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Other cases, however, apply a more searching multi-factor
inquiry, considering among other things the “proximity of the
misconduct

to

the

election”

and

the

“closeness

of

the

final

vote.” Fjc Sec. Servs., Inc., 360 NLRB No. 6, 2013 WL 5703601,
at *9 (Oct. 18, 2013) (citing Taylor Wharton Div., 336 NLRB 157,
158 (2001)). No matter which standard it invokes, however, in
many of its past cases the Board has determined that it will not
order a new election where misconduct does not materially affect
election results. In Clark Equipment Co., for example, the Board
found that an employer’s misconduct could not have “affected the
results of the election,” because with a tally of 391 for, and
489

against

terms

than

the
that

union
in

(a

this

result
case)

less

the

lopsided

election

in

percentage

“[could

not]

be

characterized as close.” 278 NLRB 498, 505 (1986).
The Board did not invoke any particular standard when it
ordered a new election here, asserting only that the infractions
at issue “cannot be trivialized as isolated or de minimis.” J.A.
680.

This

terse

analysis,

however,

resembles

a

strict

application of the “virtually impossible” standard –- one that
departs from past cases’ more realistic examination of whether
any misconduct had a likely effect on election results.
A stringent “virtually impossible” standard could well be
the most exacting harmless error rule in all of American law.
Compare the Board’s rule with some other well-known rules. A

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person may go to prison for life, for example, after a violation
of his federal rights so long as a court can say “with fair
assurance” that “the judgment was not substantially swayed by
the

error.”

Kotteakos

v.

United

States,

328

U.S.

750,

765

(1946). An individual may receive that same sentence even after
a violation of his constitutional rights so long as a court is
“able

to

declare

a

belief

that

[the

violation]

was

harmless

beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18,
24

(1967).

That

the

Board’s

intolerance

of

marginal

NLRA

infractions is greater than that of courts for error in criminal
trials is unsettling.
Ordering

a

new

election

is

likely

to

be

arbitrary

and

capricious whenever the underlying infraction did not materially
affect

the

first

election’s

results.

What

could

be

more

capricious, after all, than an order to redo a costly process
without

good

reason

to

believe

that

the

result

will

be

any

different the second time around? This commonsense notion may
explain why many courts, including this one, have often referred
to

a

standard

of

materiality

when

overruling

objections

to

Board-certified elections. See, e.g., NLRB v. Herbert Halperin
Distrib. Corp., 826 F.2d 287, 290 (4th Cir. 1987) (holding that
an employer seeking to set aside an election bears the “heavy
burden”

of

showing

that

infractions

“materially

affected

the

election results”); Bridgeport Fittings, Inc. v. NLRB, 877 F.2d

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180, 188 (2d Cir. 1989) (holding that “the Board did not abuse
its discretion in failing to set aside [the union’s victory in
an] election” because “the failure . . . did not affect the
outcome of the election”). It is unclear why the Board should
not also use a standard of materiality and certify an election
which was fundamentally fair, even if not impeccably perfect.
This is a neutral standard; neither an employer’s nor a union’s
marginal

infractions

under

the

NLRA

should

be

grounds

for

overturning an election if the election proceedings in their
totality were fair.
IV.
The Board is “vested with a wide degree of discretion in
establishing the procedure and safeguards necessary to insure
the

fair

and

free

choice

of

bargaining

representatives

by

employees.” NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 441 (4th
Cir. 2002). But courts must not “rubber stamp” Board decisions –
- they can and must step in when the Board goes “beyond what
good

sense

permits.”

Comcast

Cablevision-Taylor

v.

NLRB,

232

F.3d 490, 495 (6th Cir. 2000). In this case, the Board’s action
ran counter to a prime objective of our labor law -- that of
supporting employee democracy. The Board’s decision to order a
new election on the basis of minor violations at worst, and
under a shifting and unreasonably stringent harmless error rule,
failed to honor the fact that the employees in this company made

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choice

as

to

union

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representation.

One

would

have

thought the verdict of these workers might have been respected.
I

end

where

I

began.

I

join

the

court’s

opinion.

The

precedent of our circuit does not allow a Board re-run election
order to be judicially reviewed at this juncture. It is, of
course, much to be hoped that the Chief Judge’s conscientious
review of the Board’s underlying unfair-labor-practice findings
will cause the Board to withdraw its election re-run order on
its own, but, in the absence of a court direction, that is by no
means

assured.

Still,

the

workers’

vote

should

matter;

the

employer should not have to undergo an election do-over; the
court should not have to await some speculative alleged refusal
to bargain under Section 8(a)(5), having in the interim engaged
in but piecemeal review and performed what in essence would be a
pointless exercise.
What we have before us is a snapshot of an area in which
the balance between courts and agencies is simply out of whack.
None of this means the Board’s role in labor relations is to be
devalued or its findings paid less deference, for indeed, its
interrogation and confiscation findings in this very appeal were
and should have been upheld. But administrative overreach was
also on display here. If not in this case, then in some other,
Supreme Court evaluation of the timing and extent of court of
appeals

review

of

Board

second-election

55

orders

might

be

a

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helpful thing. Helpful, I think, if the benefits and burdens of
the administrative state are finally to be reconciled.

56