Court Determines that Employer’s “Out of the Ordinary” Communication was Lawful

A federal appellate court recently reigned-in the NLRB’s attempt to limit an employer’s response to union activity.  The case, Intertape Polymer Corp., previously covered on this blog, 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. Regular readers of this blog will recall that 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.

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. 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.

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

• It reminds employers of the central importance of “coerciveness” in determining the legality of certain responses to union organizing.
• 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.
• It reaffirms the principle that employers have a right to communicate with their employees, even during union organizing efforts.
• 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.