Court Finds That Employer’s Anti-Union Communication Was Lawful

By Nelson D. Cary and Liz Cramer

A federal appellate court, the Richmond, Virginia-based Fourth U.S. Circuit Court of Appeals, recently reigned-in the National Labor Relations Board’s attempt to limit an employer’s response to union activity.

The case, Intertape Polymer Corp., arose in the context of a union organizing drive.  As discussed in our prior post, the NLRB decided that the employer engaged in unlawful employee surveillance, confiscation of union literature, and interrogation.

Based on the surveillance and confiscation allegations, the NLRB ordered a new election.

The most important issue presented to the court, and the most problematic holding to come out of the NLRB’s decision in the case, was whether the employer engaged in unlawful surveillance. The employer distributed leaflets at its main gate. On some occasions, union supporters showed up to distribute leaflets at the main gate as well, in view of the supervisors distributing the company’s leaflets.

Was employer’s action “out of the ordinary?”

The NLRB held that the employer’s leafleting was “out of the ordinary” compared to its previous methods of communicating with employees, and because it placed union leafleting under surveillance, was unlawful. The court rejected this reasoning, holding that the employer had a right to express its viewpoint through leafleting.

Significantly, the employer did not take any coercive actions (e.g., photographing or recording the employees, attempting to pressure employees not to take the union leaflets, or recording which employees took the union’s leaflets). Moreover, the employer’s purported surveillance was brief and simultaneous with pro-union efforts.

The court also criticized the NLRB’s strong focus on the fact that the employer had not leafleted in such a manner prior to the union campaign.

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Although the court acknowledged that “out of the ordinary” acts may show evidence of unlawful behavior, such unordinary acts must be coercive. Therefore, the employer’s mere change in its method of communication with its employees did not make its actions unlawful.

While overturning the NLRB’s decision regarding alleged surveillance, the court agreed with the NLRB that substantial evidence existed showing that the employer unlawfully confiscated union literature and interrogated an employee. The court’s decision to uphold only a portion of the NLRB’s decision now requires the NLRB to reconsider whether the union should get a “do-over” after losing the initial election.

4 takeaways for employers

For employers and the labor professional, this case is important for at least four reasons:

  1. It reminds employers of the central importance of “coerciveness” in determining the legality of certain responses to union organizing.
  2. While it lessens the significance of how an employer “ordinarily” responds, it doesn’t eliminate it. Even the court noted that a response that is “out of the ordinary” may be coercive, but the ordinariness is just one factor to consider.
  3. It reaffirms the principle that employers have a right to communicate with their employees, even during union organizing efforts.
  4. Finally, remember that the NLRB has not in the past believed itself to be necessarily bound by decisions from an appellate court in other cases. Thus, don’t be surprised to see continued holdings like the one from the NLRB in this case.

This was originally published on the Vorys on Labor blog.

Nelson D. Cary is a partner in the Columbus office of the law firm Vorys, Sater, Seymour and Pease LLP (VORYS) and is a member of the labor and employment group. He represents management in a broad range of labor and employment matters, including compliance with and defending employers in litigation arising out of the Family and Medical Leave Act, Americans with Disabilities Act, Title VII, Age Discrimination in Employment Act, Fair Labor Standards Act, and similar state laws. He also advises employers on union elections and unfair labor practice proceedings before the National Labor Relations Board and the Ohio State Employment Relations Board, negotiates union contracts, and defends labor contract arbitration proceedings. Contact him at ndcary@vorys.com.

Liz Cramer is an associate in the Columbus office of the law firm Vorys (Vorys, Sater, Seymour and Pease) and a member of the labor and employment group.  She has experience with non-competition agreement disputes, consumer contracts, collective bargaining agreements, corporate bylaws, employment agreements and lease agreements. Contact her at eacramer@vorys.com

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