By Cate Berenato

Issues and Holdings

On September 8, 2015, in the civil case Intertape Polymer Corp. v. N.L.R.B., the Fourth Circuit granted in part and denied in part Intertape Polymer Corporation’s (“Intertape”) petition for review of a National Labor Relations Board (“the Board”) order. The Board found that Intertape violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it (1) interrogated an employee about his views of a union; (2) confiscated union literature from an employee break room; and (3) surveilled employees’ activities when it handed out company leaflets while union members also handed out leaflets. The Fourth Circuit considered whether Intertape violated the NLRA for the above three reasons. It decided that Intertape did not violate the NLRA when it handed out the company leaflets, but agreed that Intertape violated the NLRA when it interrogated an employee and confiscated union literature.

Factual Background

Intertape is a tape manufacturing facility in South Carolina. In December 2011, Bill Williams, an Intertape employee and supervisor, asked employee Johnnie Thames what he thought of a union and said “[the union] can hurt you.” In 2012, a union launched a campaign to organize the facility’s employees. On three occasions after the union campaign began, Williams went into the employee break room and removed union flyers from the room. Intertape supervisors had not removed literature before the union campaign began. Finally, two days before the election, Intertape handed out leaflets to Intertape employees at the gate of the plant at the same time that union members handed out leaflets.

Intertape Violated the NLRA When it Interrogated Thames

Under the NLRA, an employer may question an employee about his or her union sentiments unless the questioning is coercive. The Fourth Circuit stated that Williams’ questioning of Thames was coercive and threatening because he was Thames’ direct supervisor. The Court also considered Williams’ remark to Thames, “[the union] can hurt you,” to be threatening and coercive. The Court accepted the Board’s determination that Thames was credible in his recounting of the conversation with Williams.

Intertape Violated the NLRA When it Removed Union Flyers from the Employee Break Room

Section 7 of the NLRA protects concerted employee activity, including soliciting support for a union and distributing union literature. An employer may not remove union materials from nonwork areas. It is not a violation of the NLRA if an employer’s housekeeping policy causes the incidental removal of union material from such areas. In this case, Williams removed union literature from the break room on three occasions after the campaign began, though he had not done so beforehand. The break room is not a work area. Additionally, the Court did not find that Williams was performing housekeeping duties when he removed the literature.

Intertape Did Not Violate the NLRA When It Distributed Its Own Flyers While the Union Distributed Its Flyers

An employer may, in close proximity, observe employees on company premises during union activities without violating the NLRA. An employer may not observe union activities if the observation chills the exercise of employees’ rights under the NLRA. The test for whether such observation chills employees’ right is whether or not it coerces employees or interferes with their rights. Additionally, the First Amendment and the NLRA protects an employer’s right to distribute literature to its employees during a campaign.

Here, the Board stated that Intertape’s behavior was unlawful because it was “out-of-the-ordinary” and because supervisors could see employees collecting literature from union members. However, the Fourth Circuit suggested that Intertape’s actions of handing out leaflets was not out-of-the-ordinary in light of the election. Additionally, while the supervisors could see employees interacting with union supporters, the supervisors observed this only briefly and there is no evidence of excessive surveillance or “watching” at all. The Court did not find that Intertape went to the gates of the facility to hand out leaflets with the purpose of spying on the Intertape employees.

The Fourth Circuit Granted In Part and Denied In Part the Board’s Order

The Fourth Circuit agreed with the Board that Intertape violated the NLRA when it questioned Mr. Thames and removed flyers from the break room. It did not agree that Intertape violated the NLRA when it handed out its own flyers while union supporters did the same. The Court remanded to the Board to alter its order to comply with this decision.