Intertape Polymer Corp. v. Nat'l Labor Relations Bd.
| Decision Date | 08 September 2015 |
| Docket Number | Nos. 14–1517,14–1553.,s. 14–1517 |
| Citation | 801 F.3d 224 |
| Parties | INTERTAPE POLYMER CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Intertape Polymer Corp., Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED:Reyburn Williams Lominack, III, Fisher & Phillips LLP, Columbia, South Carolina, for Petitioner/Cross–Respondent. Nicole Lancia, National Labor Relations Board, Washington, D.C., for Respondent/Cross–Petitioner. ON BRIEF:Michael D. Carrouth, FISHER & PHILLIPS LLP, Columbia, South Carolina, for Petitioner/Cross–Respondent. Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Elizabeth A. Heaney, Supervisory Attorney, National Labor Relations Board, Washington, D.C., for Respondent/Cross–Petitioner.
Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit Judges.
Petition for review granted in part and denied in part; cross-application for enforcement granted in part, denied in part and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge FLOYD concurred. Judge WILKINSON wrote a separate concurring opinion.
Intertape Polymer Corporation (“Intertape”) petitions for review of a National Labor Relations Board (“NLRB” or “Board”) order concluding that Intertape committed three unfair labor practices prior to and during the course of a union campaign, in violation of Section 8(a)(1) of the National Labor Relations Act (the “NLRA” or “Act”), 29 U.S.C. § 158(a)(1), and directing that a second election be held based upon two of the three violations. The Board cross-petitions for enforcement of its order in full. For the reasons set forth below, we grant Intertape's petition for review in part and deny it in part, grant the Board's cross-petition for enforcement in part and deny it in part, and remand for further proceedings.
Intertape operates an adhesive tape manufacturing facility in Columbia, South Carolina. In January 2012, the United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC (“the Union”), launched a campaign to organize the facility's production and maintenance employees. The Union filed its representation petition with the Board on March 16, 2012. On April 26 and 27, a secret-ballot election was held. The Union lost the election by a vote of 142 votes against and 97 votes for the Union.
Both prior to and after the election, the Union filed with the Board numerous unfair labor practice charges against Intertape. The Union also filed objections to the completed election, seeking to set it aside based upon unlawful conduct allegedly occurring during the “critical period” from March 16, the filing date of the petition, to April 27, the last day of the election. J.A. 26. On July 26, 2012, the Board's Acting General Counsel issued a complaint against Intertape (the “Complaint”).
Following a hearing, an administrative law judge (“ALJ”) found that Intertape had violated Section 8(a)(1) of the Act by: (1) interrogating employee Johnnie Thames regarding his views about the union; (2) confiscating union literature from an employees' 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. Based upon the latter three violations, the ALJ also recommended that the election be invalidated and that a second election be held.1
On review, the Board agreed that Intertape had violated Section 8(a)(1) by unlawfully interrogating Thames in February 2012; unlawfully confiscating union literature from the employee break room in March 2012; and unlawfully surveilling union activities in April 2012 by leafleting at the plant gate during the periods of time that union supporters were leafleting. The Board rejected the ALJ's finding that Intertape had threatened employees with futility. However, the Board set aside the election results and ordered a new election, based solely upon the confiscation and surveillance violations.2
For the following reasons, we conclude that the Board correctly determined that Intertape unlawfully interrogated employee Thames and unlawfully confiscated union materials from the employee break room, but that the Board erred in holding that Intertape engaged in unlawful surveillance of union activities.
On review of orders issued by the NLRB, “we must affirm the Board's factual findings if they are supported by substantial evidence on the record considered as a whole.” Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir.1998) (internal quotations marks omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). “We must affirm the Board's interpretations of the NLRA if they are rational and consistent with the Act.” Id. (internal quotation marks omitted).
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.
Pursuant to Section 8(a)(1) of the Act, 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. 29 U.S.C. § 158(a)(1). An employer's actions violate Section 8(a)(1) if “the conduct in question had 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).
However, “[t]he prohibition set forth in § 8(a)(1) is limited by [the protection granted by] § 8(c).” J.P. Stevens & Co. v. NLRB, 638 F.2d 676, 684 (4th Cir.1980). Section 8(c) provides that:
[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c).
We begin with the Board's conclusion that Intertape violated § 8(a)(1) by interrogating employee Johnnie Thames in February 2012 about his union sentiments.
Although an employer's “[q]uestioning or interrogation of employees about their union sentiments is not per se unlawful” under the Act, such questioning will rise to the level of a Section 8(a)(1) violation if it is coercive in nature. Nueva Eng'g, 761 F.2d at 965. “In making a determination of coerciveness, [we] 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.”Id. at 966. We have also considered whether the questioner “explained the purpose of [the] question” or provided “any assurances against retaliation,” id., and whether the employee was reluctant to discuss unionization, see Standard–Coosa–Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133, 1137, 1139 (4th Cir.1982).
In December of 2011, Thames was disciplined by his immediate supervisor, Bill Williams, for arguing with Williams. On February 10, 2012, Thames signed a union authorization card. According to Thames, Williams approached him at his work station approximately two or three weeks later and asked him what he thought of the union. Williams also told Thames that “if you don't think it's good then, that it can hurt you.” J.A. 234. Thames walked away without responding. Williams denied asking Thames about the union.
The ALJ credited Thames' “detailed account” of the conversation with Williams and his “strong recall of th[e] discussion,” J.A. 685, over Williams' “general denial” that any such exchange occurred. J.A. 685–86. The ALJ also found that Williams' questioning of Thames, under the totality of the circumstances, was sufficiently coercive to have made Thames feel restrained from exercising his rights under Section 7.
The Board balanced the relevant factors and agreed. As noted by the Board:
Williams directly asked Thames to reveal his view of the Union. Although a low-level supervisor, Williams was Thames' direct supervisor, reasonably tending to make the questioning that much more threatening. Williams, moreover, offered no justification for his questioning or assurances against reprisals. The preexisting hostility between Williams and Thames and Thames' unwillingness to answer Williams further weigh in favor of finding a violation. Last, we find that Williams' comment that “it can hurt you” would have exacerbated the already coercive nature of his inquiry into Thames' opinion of the Union.
J.A. 679 (internal citations and footnotes omitted).
On appeal, we must accept the Board's factual findings based on credibility determinations “absent extraordinary circumstances.” WXGI, Inc. v. NLRB, 243 F.3d 833, 842 (4th Cir.2001) (internal quotation marks and alteration omitted). “Exceptional circumstances include those instances when a credibility determination is unreasonable, contradicts other findings of fact, or is based on an inadequate reason or no reason at all.” Id. (internal quotation marks omitted). No such circumstances exist here. The ALJ observed the testimony of Thames and Williams and explained why he credited Thames' account of the conversation over Williams' denial that it occurred.
We hold that substantial evidence supports the Board's determination that...
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