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Decided: September 8, 2015  

The Fourth Circuit held that the National Labor Relations Board correctly determined that Intertape unlawfully interrogated an employee and unlawfully confiscated union materials from an employee break room; however, the National Labor Relations Board erred in holding that Intertape engaged in unlawful surveillance of union activities. Because of the Fourth Circuit’s decision to eliminate one of the two bases used by the Board to set aside the election, the Fourth Circuit remanded the case for the Board to reconsider its decision to grant a second election.

Intertape runs an adhesive tape manufacturing facility in Columbia, SC. In January of 2012, the United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (“Union”), began a campaign to organize the employees of Intertape. The Union filed its representation petition with the National Labor Relations Board (“Board”) on March 16, 2012. Later, on April 26 and 27, a secret-ballot election was held. The Union lost by a vote of 142 votes against and 97 votes for the Union.

Before and after the election, the Union had filed complaints with the Board alleging unfair labor practices against Intertape. Additionally, the Union filed objections to the completed election, wanting to be declared invalid due to unlawful conduct during the “critical period” from March 16 to April 27. The Board’s General Counsel issued a complaint against Intertape on July 26, 2012.

After a hearing, the administrative law judge (“ALJ”) determined that Intertape had violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by: “(1) interrogating employee Johnnie Thames regarding his views about the union; (2) confiscating union literature from an employee break room; (3) surveilling employees’ 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 its collective-bargaining representative would be futile. Because of claims 2-4, the ALJ recommended a second election be held.

After review, the Board agreed that Intertape had violated Section 8(a)(1) by committing claims 1-3. However, the Board rejected the ALJ’s finding that Intertape threatened employees. Ultimately, the Board set aside the election results and ordered a new election due to the violations regarding confiscation and surveillance.

The Fourth Circuit must affirm the Board’s factual findings if they are supported by substantial evidence on the record. Substantial evidence means a reasonable mind would accept it to be adequate to support a conclusion. Section 8(a)(1) of the NLRA states that it is “an unfair labor practice for an employer…to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7” of the Act. Under Section 7, 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.” Employers violate Section 8(a)(1) when their conduct is considered to be intimidating. But, the expression of views and dissemination of materials is not considered evidence of an unfair labor practice as long as the expressions do not contain threats of reprisal or force or promise of benefit.

The interrogation of employees is a violation of Section 8(a)(1) if it is coercive in nature. The court 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, and the place and method of questioning.” The Fourth Circuit determined that there was substantial evidence to support the Board’s finding that Thames’ boss, Williams’, questioning of Thames about his Union sentiments was sufficiently coercive and intimidating to qualify as unfair labor practice under the Act.

Regarding the violation of Intertape’s confiscation of literature from the employee break room, an employee cannot confiscate union literature provided to employees in non-work areas during non-work times. However, an employer will not be in violation of the Act for incidental disposals under good housekeeping policies. The distribution of union flyers in Intertape’s break room was not prohibited. Intertape conceded that Williams removed union literature from the break room; however, it asserts that the General Counsel failed to prove that Intertape changed its distribution or housekeeping policies during the critical period or due to union activity. The Fourth Circuit disagreed and held that substantial evidence supports the Board’s determination that Williams’ removal of the union literature from the break room was an unfair trade practice.

Regarding the surveillance violation, a court will consider “the duration of the observation, the employer’s distance from its employees while observing them, and whether the employer engaged in any coercive behavior during its observation.” An employer observing its employees on company property during union activities, without being coercive, is not a violation of the Act. During the periods of simultaneous leafleting, the supervisors did not say anything to the union members, take notes or pictures, nor engage in any threatening or intimidating behavior. Section 8(c) of the Act protects the free speech by both unions and employers. The Fourth Circuit held that there was not substantial evidence to support the Board’s conclusion that Intertape engaged in unlawful surveillance.  

Concurring, Judge Wilkinson agreed with Judge Traxler’s “fine opinion.” However, Judge Wilkinson would have held 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.” The decision of the Board to order a new election failed to respect the choice made by Intertape’s employees.

Full Opinion

Austin T. Reed