INTERTAPE POLYMER GROUP

National Labor Relations Board - Board Decisions

May 10, 2016

363 NLRB No. 187 (N.L.R.B. 2016)

363 NLRB No. 187
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Intertape Polymer Corp. and United Steel, Paper &
Forestry, Rubber, Manufacturing, Energy, Al-
lied Industrial and Service Workers Interna-
tional Union, AFL–CIO–CLC. Cases 10–CA–
080133, 11–CA–077869, 11–CA–078827, and 11–
RC–076776
May 10, 2016
SUPPLEMENTAL DECISION AND ORDER ON
REMAND
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 23, 2014, the National Labor Relations Board
issued its Decision, Order, and Direction of Second Elec-
tion in this proceeding. 360 NLRB No. 114. The Board
found that, during the critical period leading up to the
election,1 the Respondent violated Section 8(a)(1) of the
Act by confiscating union literature from employees’
break room and by engaging in surveillance of employ-
ees’ union activities. The Board found that these unfair
labor practices interfered with employees’ free choice
and that a second election was necessary.2
The Respondent thereafter filed a petition for review
of the Board’s Order with the United States Court of Ap-
peals for the Fourth Circuit and the Board filed a cross-
application for enforcement. On September 8, 2015, the
court issued its opinion granting in part and denying in
part enforcement of the Board’s Order and remanding the
case to the Board for further proceedings consistent with
the court’s opinion. 801 F.3d 224. The court enforced

1 The Union filed a petition seeking to represent the Respondent’s
production and maintenance employees on March 16, 2012, and the
Board conducted a secret-ballot election on April 26 and 27, 2012. The
tally of ballots showed that 97 employees voted for, and 142 against,
representation by United Steel, Paper & Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers International Union,
AFL–CIO–CLC.
2 The Board also found that the Respondent unlawfully interrogated
an employee regarding his union sentiments, but this violation predated
the critical period and did not serve as a basis for setting aside the elec-
tion. Member Miscimarra dissented from the majority’s findings that
the Respondent engaged in unlawful surveillance and that the Respond-
ent unlawfully interrogated an employee. Member Miscimarra also
dissented from the majority’s decision to order a new election because,
in his view, it was not possible to conclude that the Respondent’s con-
duct affected the outcome of the election.
The Board subsequently unanimously denied the Respondent’s mo-
tion for reconsideration. See 2014 WL 4659490. A second election
was held in May 2015, and there were 74 votes for unionization and 84
against, with 14 challenged ballots. Objections and challenges in this
second election are pending in the Region.
the Board’s findings of violations concerning the Re-
spondent’s interrogation of an employee and confiscation
of union flyers. The court stated that, “[b]ecause our
decision eliminates one of the two bases upon which the
Board set aside the election . . . the Board will also find it
necessary to reconsider its decision to direct a second
election.” Id. at 241. On November 30, 2015, the court
issued mandate, returning the case to the Board.
On January 26, 2016, the Board advised the parties
that it had accepted the remand and invited the parties to
submit statements of position with respect to the issue
raised by the remand. Thereafter, the Respondent filed a
statement of position.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reconsidered this case in light of the
court’s opinion, which is the law of the case, and the
statement of position, and, for the reasons discussed be-
low, has decided that a new election is warranted on the
basis of the Respondent’s confiscation of union flyers,
conduct that violated Section 8(a)(1).
In the unfair labor practice proceeding, the Board
found that the Respondent has a policy prohibiting distri-
butions during working time and in working areas. Be-
fore the union campaign began, literature (e.g., newspa-
pers, magazines, etc.) left in the break room remained
untouched until at least the end of the workday. After
the Union filed its representation petition, supervisors
removed union literature shortly after employees finished
their breaks on at least three separate occasions.3 The
Board found that the Respondent’s change in policy was
an unlawful “reaction to and countermeasure against” the
union campaign. 360 NLRB No. 114, slip op. at 2.
A violation of Section 8(a)(1) during the critical elec-
tion period is, a fortiori, conduct that interferes with the
results of the election unless it is so de minimis that it is
“virtually impossible to conclude that [the violation]
could have affected the results of the election.” Super
Thrift Markets, Inc., 233 NLRB 409, 409 (1977). See
also Baton Rouge General Hospital, 283 NLRB 192, 192
fn. 5 (1987); Dal-Tex Optical Co., 137 NLRB 1782,
1786 (1962). In determining whether the unlawful con-
duct is de minimis, the Board considers the number of
incidents, their severity, the extent of dissemination, the

3 The credited testimony of employee Faith Epps, who observed the
Respondent removing union literature, shows that the confiscation
occurred on March 22, 23, and 29, 2012. In addition, although not
independently found unlawful, the judge credited employee John Jor-
dan, who testified that a supervisor told him that he could no longer
leave union materials in the break room. 360 NLRB No. 114, slip op.
at 9–10.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
size of the unit, and other relevant factors. See Super
Thrift Markets, 233 NLRB at 409.
Here, the Respondent unlawfully removed union litera-
ture from employees’ break room on at least three sepa-
rate occasions, beginning within a week of the Union
filing a representation petition. By removing union liter-
ature, the Respondent inhibited employees’ ability to
share and receive information about union issues and
hindered communication between the voters themselves
during the critical period. Although there is no evidence
that word of the unlawful confiscation was widely dis-
seminated, the Respondent’s unfair labor practice affect-
ed not only employees who knew of the unlawful confis-
cation, but all employees who entered the break room
and would have seen the materials had they not been
unlawfully removed. In these circumstances, we find
that the Respondent’s conduct interfered with employ-
ees’ free choice. See Allied Mechanical, 343 NLRB 631,
632 (2004) (finding that removing union literature during
the critical period “denied employees access to an im-
portant medium of communication during the union
campaign” and warranted setting aside the election); Bon
Marche, 308 NLRB 184, 185 (1992) (finding change in
bulletin board policy to prohibit non-work literature
“clearly affected the entire bargaining unit that the Union
sought to represent”). The fact that the Union’s message
may have been distributed via other means does not di-
minish the infringement on employees’ right to receive
information. See id. at 185 fn. 7.
Removing union literature during the critical period
denied employees access to an important medium of
communication during the campaign. Contrary to our
dissenting colleague, we find that this clearly constitutes
more than de minimis unlawful conduct and warrants
setting aside the election. Because a second election has
already been held, we shall remand this case to the Re-
gional Director for further processing consistent with this
decision.
ORDER
IT IS ORDERED that the election held on April 26 and
27, 2012, in Case 11–RC–076776 is set aside and Case
11–RC–076776 is remanded to the Regional Director for
Region 11 for further appropriate action.
Dated, Washington, D.C. May 10, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
In this case, before the Board’s earlier decision was
partially reversed and remanded by the Court of Appeals
for the Fourth Circuit, the Board majority found that the
Respondent committed two unfair labor practices during
the critical pre-election period: (i) confiscation of union
literature, and (ii) surveillance of employees’ pro-union
leafleting. The Board majority concluded that these two
violations of the Act warranted setting aside a Board-
conducted election and directing a second election. 360
NLRB No. 114 (2014).1 In a separate opinion, I agreed
that the Respondent had unlawfully confiscated union
literature, but I respectfully dissented from my col-
leagues’ finding that the Respondent engaged in unlaw-
ful surveillance of employees’ leafleting. Moreover, I
concluded that “even if the surveillance allegation had
merit” so that the Respondent had committed both criti-
cal-period violations, “the record would still warrant cer-
tifying the election results here, without setting the elec-
tion aside.” Id., slip op. at 5 (Member Miscimarra, dis-
senting in part).
After the Board issued its decision, the Respondent
filed a petition for review, which the Fourth Circuit
granted in part and denied in part. See Intertape Polymer
Corp. v. NLRB, 801 F.3d 224 (4th Cir. 2015). In its deci-
sion, the Fourth Circuit overturned the majority’s finding
of unlawful surveillance. However, the court upheld the
Board’s finding that the Respondent violated the Act by
confiscating union literature, and the court remanded the
case to the Board to determine whether that violation
alone is sufficient to warrant a second election. My col-
leagues find that the literature confiscation violation,
standing alone, requires a second election. I disagree.
As stated in my partial dissent from the underlying de-
cision, I would have upheld the election results even if
the Respondent had committed both critical-period viola-
tions. Accordingly, I believe it is even more unreasona-
ble for the Board to overturn the election where the only
critical-period violation involved confiscation of union
literature. As stated in my partial dissent: “In my view,
it is not possible to conclude that the Respondent affect-
ed the lopsided outcome of this election (97 for and 142
against the Union) by expediting the cleanup of a break

1
The majority also found that the Respondent unlawfully interro-
gated an employee about his views concerning the Union. However,
this incident occurred before the Union filed the representation petition,
so the majority did not rely on it in deciding to set aside the election.
See 360 NLRB No. 114, slip op. at 3 fn. 12.
INTERTAPE POLYMER CORP. 3
room that, at most, involved the removal of certain mate-
rial for several hours” on a few days “approximately 1
month before the election.” I concluded that the “record
demonstrates . . . employees had many other opportuni-
ties to campaign and read union literature, the vote mar-
gin was wide, and there is no evidence that more than a
single employee knew of the Respondent’s action.” 360
NLRB No. 114, slip op. at 5.
Accordingly, I respectfully dissent from the majority’s
finding that the literature confiscation violation, by itself,
warrants a new election.
Dated, Washington, D.C. May 10, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD