Employers’ Incidental Observance of Organizing Activity During Leafleting is Not Unlawful Surveillance – Fourth Circuit

NLRB v. Intertape Polymer Corp.

This is a labor case, an appeal from the National Labor Relations Board (NLRB). But, this is also a First Amendment case, and hence its inclusion here.

The NLRB concluded Intertape had violated the Naitonal Labor Relations Act (NLRA). There were three supposed violations: unlawful interrogation of an employee, unlawful removal of organizing materials and unlawful surveillance.

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.  Section 8(a)(1) of the Act declares it “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. 29 U.S.C. § 158(a)(1). An employer’s actions violate Section 8(a)(1) if they have a reasonable tendency in the totality of the circumstances to intimidate. NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 965 (4th Cir. 1985).

Questioning/interrogating is unlawful if it is coercive. Intertape questioned one of its employee’s about union rabble rousing. The Board considered significant testimony about interrogation, and on appeal the court must accept the factual findings absent extraordinary circumstances. The Fourth Circuit concluded that substantial evidence supported the board’s conclusion that the interrogation was sufficiently coercive as to be unlawful. It’s also unlawful for an employer to remove union literature from a workplace except as part of normal cleanup. Intertape had a distribution policy essentially prohibiting any solicitation. An Intertape supervisor enforced the distribution policy  “selectively and disparately, by prohibiting union distributions in non-work areas, while permitting nonunion distributions in non-work areas.” The ALJ and Board concluded that the supervisor’s confiscation of union materials from the break room was unlawful, appellate court agreed that substantial evidence supported the conclusion. Thus, the court affirmed the NLRB on the issues of unlawful interrogation and unlawful removal of organizing materials.

The court did not, however, affirm the Board’s conclusion about the surveillance violation, and this is where the First Amendment issues arise.

Two days before a ballot election at Intertape began, supervisors stood near the plant entrance in the morning and the evening and distributed flyers. In the evening, union supporters also distributed flyers. This happened again the next day. There was no evidence that the supervisors knew of the union supporters’ plan to leaflet, or that they were there intentionally to spy on the supported. The Board concluded that there was unlawful surveillance because it was “out of the ordinary” for the company to communicate with employees in this way, and because the supervisors could see the union leafleting.

Observing organizing activities is not per se a violation. Organizers on the employer’s premises “should have no cause to complain that management observes them.” The exception is when it is so coercive as to “unreasonably chill[s] the exercise of the[] employees’ Section 7 rights.” This case was somewhat unique in that Intertape’s legitimate explanation for its presence was its own First Amendment and Section 8(c) right to leaflet. Section 8(c) protects both unions AND employers. The court’s role is to balance the competing interests.

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 conduct, under the [totality of the] 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.” (Citations omitted).

In this case, the appellate court concluded that there was no union activity when Intertape began their leafleting. Looking at other NLRB decisions, the court saw that ancillary supervision or line-of-sight to union activity in the course of employer speech is not unlawful. First, ability to observe employees on company property for brief periods does not render the activity coercive, intimidating or threatening. Second, the Board put too much significance on the timing of the activity. The court concluded that, in part because the “out of the ordinary” employer leafleting actually preceded the union’s own counter-leafleting, the employer’s activity was actually ordinary.

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-the-ordinary” 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. As our sister circuit has observed, “[i]n recent cases involving employer surveillance of union activities, the Board has seemed to ignore this critical coercion element.” Greater Omaha Packing Co. v. NLRB, 790 F.3d 816, 823 (8th Cir. 2015).

. . .

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.

This case will prove an important tool for employers in the Fourth Circuit seeking to provide legitimate explanations for their activity. Savvy employers might even strategically exercise their own First Amendment rights in order to observe organizing activities.