NLRB Sets Aside Union's Lopsided Election Loss in Part Because Supervisors Leafletting at Plant Gate Later Saw Employees Leafletting

Practical Law Legal Update 1-569-6145 (Approx. 6 pages)

NLRB Sets Aside Union's Lopsided Election Loss in Part Because Supervisors Leafletting at Plant Gate Later Saw Employees Leafletting

by Practical Law Labor & Employment

Background

The union filed a a petition to represent Intertape Polymer Corp's (IPC) employees at its facility in Columbia, South Carolina. The election results showed 97 employees voted in favor of and 142 employees voted against the union.

After the election, the union filed ULP charges with the NLRB alleging that IPC engaged in unlawful activity during the critical period before the election in violation of Section 8(a)(1) of the Act. The ALJ agreed, finding that IPC's actions prevented employees from exercising free choice during the election when it:

Interrogated employees about their union or other protected concerted activities.
Threatened employees that if they selected the union as their collective-bargaining representative:
- IPC would not negotiate with the union;
- it would cause a lockout; and
- bargaining would be futile.
Confiscated union literature from break areas.
Engaged in surveillance of employees' union or other protected concerted activities.

The ALJ recommended setting aside the election. Both parties filed exceptions.

Outcome

The Board panel had 2-1 split decisions by different majorities for all issues but one.

The Board panel (Miscimarra, Hirozawa and Schiffer) unanimously held that IPC unlawfully confiscated union literature from the break room. IPC had a policy prohibiting distributions during working time and in working areas. However, it was only after the union filed its representation petition that it began to monitor the break room and remove all literature, including union-related literature. This change in policy, as a reaction and as a countermeasure against the union's organizing efforts, was unlawful.

Members Hirozawa and Schiffer held that:

IPC unlawfully engaged in surveillance of employees when its supervisors simultaneously distributed pamphlets where union supporters handed out pamphlets to employees. The majority held that this was unlawful, out-of-the-ordinary conduct that placed employees' union activities under surveillance because:
- it was unusual for supervisors to be present at the plant gate;
- there was no evidence that IPC ever leafleted its employees before the union campaign began; and
- IPC's leafletting allowed supervisors to observe which employees accepted or rejected the pamphlets, as well as any interactions between them.
IPC unlawfully interrogated an employee when a supervisor coercively questioned him about his view of the union, finding that:
- the supervisor approached the employee at his workstation;
- the supervisor was the employee's direct supervisor, which made the questioning much more threatening;
- the supervisor offered no explanation for questioning the employee and provided no assurances against reprisals;
- the supervisor and the employee had a preexisting hostile relationship;
- the employee responded to the supervisor's questions by refusing to answer and walking away; and
- the supervisor's comment that "if you don't think it's good then,. . . [the union] can hurt you" exacerbated the already coercive nature of the interrogation.
The majority noted that, although IPC had no previous history of hostility toward union activity and the interrogation was so informal that it may not have been coercive, the remaining factors favored finding a violation.
The election should be set aside because IPC's ULPs:
- were not isolated or de minimis; and
- fell squarely within the NLRB's policy to direct a new election when ULPs are committed during the critical period before the election and interfere with employees' free choice.

Members Miscimarra and Schiffer reversed the ALJ's finding that IPC violated Section 8(a)(1) by threatening employees that it would be futile to select the union as their representative, noting that:

The complaint failed to allege an unlawful threat of futility and only alleged an implied threat of discharge.
Counsel for the General Counsel made it clear that he was not alleging an unlawful threat of futility.
Counsel for the General Counsel never sought to amend the complaint to add an allegation for an unlawful threat of futility.
Therefore, IPC did not have fair notice that the ALJ would make findings based on the unalleged unlawful threat of futility claim.

Member Miscimarra dissented from the majority's decision on setting aside the election, as well as the interrogation and surveillance claims. Specifically, he found that:

The General Counsel did not prove that there was unlawful interrogation under the interrogation test set in Board precedent (see Rossmore House, 269 N.L.R.B. 1176 (1984) and Practice Note, Investigative Interviews in a Unionized Workplace: Unlawful Interrogations under the NLRA). In particular most of the factors considered in the Board's totality of circumstances test indicated that the questioning was not unlawfully coercive, because:
- the place and method of questioning was an informal conversation at the employee's workstation;
- there was no evidence that the supervisor questioned the employee with the intent to elicit information to use as retaliation;
- the nature of the information the supervisor sought, the employee's personal thoughts on the union, was not so sensitive as to outweigh these other factors (Cont'l Indus., 279 N.L.R.B. 920 (1986));
- the supervisor's comment that "if you don't think it's good then,. . . [the union] can hurt you," in the absence of other coercion, is merely a lawful opinion; and
- IPC had no history of hostility toward union activity.
IPC's observation of the leafletting activity at the company gate was not out of the ordinary or unlawful under Board precedent (Arrow-Hart, Inc., 203 N.L.R.B. 403 (1973)), because:
- IPC was allowed to campaign against the union on its own property and otherwise exercise its rights under Section 8(c) of the Act (29 U.S.C. § 158(c));
- the supervisors were at the gate well before the employee leafletters were there and at different times of day;
- there was no evidence that the supervisors knew or suspected that the employee leafletters planned to engage in concerted activity at the gates on those dates;
- there was no evidence that the supervisors were at the gate to spy on employees' open union activities; and
- the supervisors' observation of the employees' leafletting activities was incidental to their lawful activities.
The election should be certified, even if the surveillance claim has merit. The ULPs were so minimal and isolated that they could not have affected the election results because:
- employees had other opportunities to campaign and read union literature, and therefore confiscating the literature from the break room had only a minimal effect;
- the vote margin was wide;
- there was no evidence that more than one employee was aware of IPC's ULPs; and
- it was unlikely that employees changed their votes in a secret-ballot election as a result of being observed by their supervisors during leafletting activities.
(See Long Drug Stores Cal., 347 N.L.R.B. 500 (2006).)

Member Hirozawa dissented from the majority's reversal of the ALJ's findings that the employer threatened employees with comments suggesting unionization would be futile, holding that:

Although an unlawful threat of futility claim was not specifically alleged in the complaint, it was closely connected to other allegations that were fully and fairly litigated.
Counsel for the General Counsel was not clear that he disavowed the theory that IPC made an unlawful threat of futility.

Practical Implications

Employers should note that the majority's holding was largely focused on IPC's changes in practice, and not the impact of its actions. The majority held that IPC's new enforcement of its policy to remove literature from break rooms and the supervisors' leafletting activities were a reaction to the union petition for an election.

Additionally, the majority applied a lower standard when evaluating the lawfulness of the interrogation claim, focusing heavily on the relationship between the supervisor and the employee to find that its coerciveness slightly outweighed the informality of the questioning and other factors that would ordinarily make it permissible.

The majority opinion does not acknowledge employer's Section 8(c) rights to distribute leaflets expressing opinions about unions. The majority also finds it irrelevant that the employer's supervisors leafletted at the plant gate before the employees openly did the same and that there was no evidence showing that the employer engaged in leafletting to engage in surveillance.

Moreover, the majority reached an odd conclusion that an employer cannot engage in campaign activity, such as leafletting, if it did not engage in that before a union petitioned for an election and that activity causes it to incidentally observe employees' open pro-union activity. Taken to its illogical conclusion, this opinion suggests that employers must engage in leafletting and other 8(c) speech activity against unionization before any union petitions for an election. Otherwise, the Board majority may set aside even a union's lopsided election loss because employer campaigning activity in response to a pending union election would be out of the ordinary.

NLRB Sets Aside Union's Lopsided Election Loss in Part Because Supervisors Leafletting at Plant Gate Later Saw Employees Leafletting | Practical Law