Employer conduct during a union organizing drive is intensely scrutinized by the National Labor Relations Board (NLRB). Decisions issued by the current NLRB make clear that even minor violations occurring during the post-petition period may result in the nullification of an employer election victory. A recent case, Intertape Polymer Corp., 360 NLRB 114 (May 23, 2014), demonstrates that seemingly innocuous campaign conduct can have huge implications, even when employees vote overwhelmingly against union representation.

Intertape Polymer operates a duct and masking tape manufacturing facility in Columbia, South Carolina with about 320 workers. In 2012, the United Steelworkers (USW) filed a representation petition. After losing the election 97 to 142, the union sought to overturn the results by filing objections to the election as well as unfair labor practice charges. The charges alleged that Intertape Polymer violated Section 8(a)(1) of the National Labor Relations Act (NLRA).

The union alleged Intertape Polymer violated the Act by, among other things, (1) interrogating an employee regarding his union sentiments; (2) confiscating union literature from the employees’ break room; (3) engaging in surveillance of employees’ union activities by leafleting at the plant gate while union supporters were simultaneously handing out leaflets there; (4) threatening employees that it would be futile to select the union as their collective-bargaining representative; and (5) discharging a union supporter. A panel of the National Labor Relations Board (with Member Miscimarra dissenting) agreed with the first three of the union’s assertions. As a result, the Board ordered a new election.

Employee Interrogation

At Intertape Polymer’s facility, during the pre-election period, a low-level supervisor had approached an employee at his workstation and purportedly asked him what he thought about the union. According to the employee, the supervisor also said that “if you don’t think it’s good then, that it can hurt you.” To determine whether this questioning was unlawful, the Board applied a five-factor test assessing: (1) “whether there [was] a history of employer hostility to or discrimination against protected activity; (2) the nature of the information sought; (3) the identity of the questioner; (4) the place and method of interrogation; [and] (5) the truthfulness of the employee’s reply.”

Although Intertape Polymer did not have a prior history of unfair labor practices, the Board held that because the employee was the low level supervisor’s direct report it tended “to make the questioning that much more threatening.” The lack of justification for inquiring into the employee’s personal opinion about unions, coupled with a preexisting tension between the employee and the supervisor, and the supervisor’s statement that “it can hurt you,” convinced the NLRB that the questioning was coercive.

Member Miscimarra’s dissent focused on the informal nature of the conversation and its location (a workstation) and the absence of evidence to support a finding that the supervisor was looking to retaliate against the employee. Member Miscimarra concluded that “I do not believe the nature of the information sought—[the employee’s] general thinking about the Union—involved a matter so sensitive as to outweigh these other factors.” Companies typically train their supervisors to avoid attempting to influence the outcome of a union election by threatening, interrogating, promising, or spying on employees. The devil is in the details, however, as to what constitutes improper “interrogation.” Employers should remember that unsolicited questioning of employees during union campaigns is always fraught with peril. Communicating facts, opinions, and experiences to employees is an excellent way to provide both sides of the picture in a union campaign, but asking employees questions, no matter how innocuous, will likely be seen as coercive interrogation—or, at least, improper polling of employee votes.

Surveillance of Leafleting

In the spring of 2012, employees distributed union leaflets at the plant gate. During two of these days, several of Intertape Polymer’s supervisors handed out leaflets at the plant gate concurrently with the union’s supporters. The supervisors could see both sets of employees distributing leaflets, and the reactions that the pamphlets elicited from employees who were entering or exiting the plant. The administrative law judge (ALJ) found, and the Board agreed, that “[t]his scenario was unusual, inasmuch as management typically communicated in meetings and there was no evidence of any pre-campaign leafleting.” The Board concluded that this arrangement, which the Board deemed “out of the ordinary,” constituted unlawful surveillance of employee activity.

In dissent, Member Miscimarra noted that Intertape Polymer had a right under Section 8(c) of the NLRA to campaign against the union on its own property. Member Miscimarra also observed that on the day in question the Intertape Polymer supervisors had positioned themselves at the gate “well before” the employee-leafleters and without any knowledge of the union’s plan to leaflet that day. Without evidence of an actual intent to spy on employee protected activity, Member Miscimarra asserted that the supervisors’ conduct was “incidental to their lawful activities” and did not constitute unlawful surveillance.

Even though employers have a right under the NLRA to provide information to employees during a campaign, the Intertape decision is a reminder that the current Board evaluates both the content and the manner in which information is presented to employees. Presumably, the Board would not have found a violation if the company had routinely passed out literature at the gate prior to the campaign.

Confiscation of Union Literature

Lastly, the Board found that a supervisor had entered Intertape Polymer’s break room and disposed of union flyers during the day that they were distributed. According to the Board, reading material was typically left in the break room at least until the end of the workday. The Board found that the company’s “change in policy as a reaction to and countermeasure against the union campaign” was unlawful. While Member Miscimarra agreed with this finding, he concluded that the union’s election defeat should not have been overturned. Member Miscimarra stated, “it is not possible to conclude that the Respondent affected the lopsided outcome of this election (97 for and 142 against the Union) by expediting the cleanup of a break room that, at most, involved the removal of certain material for several hours on 2 days approximately 1 month before the election.”

Key Takeaways

The Intertape decision illustrates that employer policies on distribution and solicitation must be followed evenly and pursuant to past practice during any union campaign. The employer conduct at issue in this case illustrates that the risks of straying from these policies outweighs the reward. Although the company was extremely successful in delivering its message and highlighting to employees the pitfalls of unionization, a few stray actions resulted in the union getting another bite at the apple in a rerun election. In union campaigns, proper supervisory training is imperative and discretion is often the better part of valor in any effective communication strategy. A well-trained supervisor will exercise the employer’s free speech rights without running afoul of the restrictions of the NLRA.


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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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