PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1517

INTERTAPE POLYMER CORP.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

No. 14-1553

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

INTERTAPE POLYMER CORP.,

Respondent.

On Petition for Review and Cross-application for Enforcement of 

an Order of the National Labor Relations Board. (11-CA-077869; 

11-CA-078827; 10-CA-080133; 11-RC-076776)

Argued: May 13, 2015 Decided: September 8, 2015

Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit 

Judges.
2

Petition for review granted in part and denied in part; crossapplication 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. 

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.
3

TRAXLER, Chief Judge:

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.

I.

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.
4

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

 1 Because the single incident of unlawful interrogation of 

Thames occurred before the Union filed its representation 

petition, it was not objectionable conduct occurring within the 

critical period or a basis for setting aside the election.
5

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.

II.

On review of orders issued by the NLRB, “we must affirm the 

Board’s factual findings if they are supported by substantial 

 2 Board member Miscimarra dissented in part. He would have 

dismissed the interrogation and surveillance allegations. He 

would also have certified the election result because 

Intertape’s alleged misconduct, even if it included the 

purported surveillance, was “‘so minimal or isolated that it 

[was] virtually impossible to conclude that the misconduct could 

have affected the election results.’” J.A. 682 (quoting Long 

Drug Stores Cal., 347 N.L.R.B. 500, 502 (2006)).
6

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 & 
7

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). 

III.

A. The Employee Interrogation Violation

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 
8

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 
9

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 Williams’ questioning of Thames about his 

union sentiments, as described by Thames, was sufficiently 

coercive or intimidating to render it an unfair labor practice 

under the Act. Accordingly, we deny Intertape’s petition for 

review and grant enforcement of this portion of the Board’s 

order.
10

B. The Confiscation Violation

We next consider the Board’s conclusion that Intertape 

violated Section 8(a)(1) by confiscating union flyers that a 

union supporter had placed in the employee break room.

“Soliciting support for a union and distributing union 

materials are among the core activities safeguarded by § 7.” 

Consolidated Diesel Co. v. NLRB, 263 F.3d 345, 352 (4th Cir. 

2001); see also Beth Isr. Hosp. v. NLRB, 437 U.S. 483, 491-92 

(1978) (“[T]he right of employees to self-organize and bargain 

collectively [under Section 7] necessarily encompasses the right 

effectively to communicate with one another regarding selforganization at the jobsite.”). “The workplace is uniquely 

appropriate for such activities, so long as the activities are

conducted in nonwork areas during nonwork time, and in a nonabusive manner.” Consolidated Diesel, 263 F.3d at 352 (internal 

quotation marks and citations omitted).

Ordinarily, therefore, “an employer may not confiscate 

union literature left for distribution to employees in nonwork 

areas during nonwork time.” Id. at 354. On the other hand, an 

employer’s enforcement of a valid housekeeping policy that 

results in the incidental disposal of union literature will not 

rise to the level of interference with the employee’s protected 

Section 7 activities. Cf. Standard-Coosa-Thacker, 691 F.2d at 

1141. In other words, an employer “has every right to keep its 
11

workplace clean,” but that right will not prevail where 

“substantial evidence supports the Board’s view that cleanliness 

was not [the] issue.” Consolidated Diesel, 263 F.3d at 354.

Prior to and during the union campaign, Intertape 

maintained a solicitation and distribution rule that prohibited 

such activities during working time and in working areas. 

Working time was defined as “the time employees are expected to 

be working and does not include breaks, meals, before the shift 

starts, and after the shift ends.” J.A. 33. Consequently, the 

distribution of union flyers in the employee break room was not 

prohibited.

The Complaint alleged that in March 2012, “including on 

March 23 and 29,” Supervisor Bill Williams enforced Intertape’s 

distribution rule “selectively and disparately, by prohibiting 

union distributions in non-work areas, while permitting nonunion 

distributions in non-work areas.” J.A. 33. At the hearing, 

employee Faith Epps testified that she placed union flyers on 

the counter in the employee break room, where such distributions 

were permitted. Epps testified that on three occasions in 

March, she observed Williams go into the break room immediately 

after the employee shift break and remove the flyers. Epps also 

testified that, prior to the union campaign, literature left in 

the break room, such as newspapers and magazines, was left 

untouched until at least the end of the work day. Epps also 
12

testified that she could not recall seeing Intertape supervisors 

cleaning up or removing literature from the break room until 

after the union campaign began. Williams admitted discarding 

the union literature along with the other “[n]ewspapers, 

magazines, menus,” and trash that had been left in the break 

room, but he testified that he only did so as a part of his 

normal housekeeping duties. J.A. 528.

The ALJ found that Intertape, through Williams, had 

unlawfully confiscated union literature from the break room. 

The Board agreed, and additionally found that Intertape had 

changed its policy regarding distributions in the break room “as 

a reaction to and countermeasure against the union campaign.” 

J.A. 679.

1.

As an initial premise, Intertape argues that the Board 

erred in finding that it had violated Section 8(a)(1) by 

confiscating union literature from the break room because the 

violation was not closely related to the allegation set forth in 

the Complaint, nor fully and fairly litigated at the hearing. 

We disagree.

“It is well settled that the Board may find and remedy a 

violation even in the absence of a specified allegation in the 

complaint if the issue is closely connected to the subject 

matter of the complaint and has been fully litigated.” 
13

Pergament United Sales, Inc., 296 N.L.R.B. 333, 334 (1989); see

Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1361 (4th 

Cir. 1969) (“All that is requisite in a valid complaint before 

the Board is that there be a plain statement of the things 

claimed to constitute an unfair labor practice that respondent 

may be put on his defense. Such a complaint need state only the 

manner by which the unfair labor practice has been or is being 

committed, the absence of specifics being tolerated where there 

has been no special showing of detriment.”) (internal quotation 

marks and citation omitted); see also Pergament United Sales, 

Inc. v. NLRB, 920 F.2d 130, 134 (2d Cir. 1990) (“In the context 

of the Act, due process is satisfied when a complaint gives a 

respondent fair notice of the acts alleged to constitute the 

unfair labor practice and when the conduct implicated in the 

alleged violation has been fully and fairly litigated.”).

Intertape complains because, prior to the hearing, it had 

only been accused of disparately enforcing its distribution 

policy, and not of changing its housekeeping policy. With 

regard to the Pergament test, the Board held that:

Even if [Intertape] is correct that this is not the 

precise theory of the complaint, which alleged that 

the Respondent ‘enforced the rule . . . selectively 

and disparately, by prohibiting union distributions in 

non-work areas, while permitting nonunion 

distributions in non-work areas,” the issue of a 

change in the [Intertape’s] practice is closely 

related to the subject matter of the complaint and has 

been fully litigated.
14

J.A. 679 n.8. The Board additionally found it significant that 

Intertape “does not argue that lack of notice prevented it from 

introducing exculpatory evidence or that it would have altered 

its litigation strategy had the allegation been pleaded in this 

manner.” J.A. 679 n.8.

We find no error in the Board’s decision. The allegation 

in the Complaint and the violation found by the Board both 

present the core issue of whether Williams’ handling of the 

union material left by Epps in the employee break room 

interfered with the employees’ Section 7 rights. From the 

inception of the Complaint, Intertape knew that the General 

Counsel would take issue with the manner in which Williams 

handled the union literature within the narrow time frame 

specified, and Intertape had ample opportunity to prepare for 

and rebut the claim that Williams was discarding union 

literature in a manner that differed from Intertape’s precampaign practices. Moreover, Intertape did not claim lack of 

notice at the hearing as the testimony evolved, nor did it ask 

for a continuance in order to present new or different testimony 

regarding its housekeeping or distribution policies.

Accordingly, we hold that the Section 8(a)(1) confiscation 

violation was closely related to the allegation set forth in the 

complaint, and it was fully and fairly litigated at the hearing.
15

2.

Turning to the merits of Intertape’s challenge to the 

confiscation violation, we hold that substantial evidence 

supports the Board’s determination that Williams’ removal of the 

union literature from the break room was an unfair trade 

practice under the Act.

Although Intertape admits that Williams removed union 

literature from the break room, it asserts that the General 

Counsel failed to prove that Intertape changed its distribution 

or housekeeping policies during the critical period or that it 

did so in response to union activity. We are unpersuaded. 

As noted above, Epps testified that literature left by 

employees in the break room prior to the union campaign was 

routinely left undisturbed until the end of the day, and that 

the supervisors were not known to engage in prompt housekeeping 

activities after each employee break. Her testimony was also 

corroborated by that of a second employee, John Jordan, who 

testified that he was told by another supervisor that he could 

not distribute union literature in the break room.

Because substantial evidence supports the Board’s 

conclusion that Intertape unlawfully confiscated union 

literature in violation of the Act, we deny Intertape’s petition 

for review and grant enforcement of this portion of the Board’s 

order as well.
16

C. The Surveillance Violation

Finally, we turn to the Board’s conclusion that Intertape 

engaged in excessive or coercive surveillance when it handed out 

leaflets at the plant gate to arriving employees at the same 

time that union supporters were handing out leaflets. For the 

reasons set forth below, we hold that the Board’s decision is 

not supported by substantial evidence and is contrary to law.

1.

The facts pertaining to this violation are largely 

undisputed. On April 24, two days before the secret-ballot 

election began, Intertape supervisors stood near the turnstiles 

at the plant entrance and distributed a “Thank You” flyer to 

arriving employees from approximately 6:30 a.m. to 7:00 a.m.3 No 

union supporters were leafleting at the time.

 3 The flyer was signed by plant supervisors and contained 

the following message:

Soon, you will be able to vote on whether you want to 

be represented by a union or not. Although we do not 

have a vote, we have tried to give you the information 

you need to make a good decision. We hope you will 

base your decision on the facts and what you truly 

believe will put this plant in the best position to 

move forward.

While we certainly hope you believe a union is 

unnecessary and you will vote no, we need this matter 

behind us on Friday. We have all learned a lot about 

ourselves and our plant through this union campaign. 

Regardless of your position on this matter, we all 

(Continued)
17

That afternoon, Intertape supervisors returned to the plant 

gate and distributed the flyers from approximately 6:30 p.m. to 

7:00 p.m. After the supervisors arrived and began distributing 

the flyers, union supporters joined them at the gate and began 

simultaneously distributing union literature. The union 

supporters positioned themselves approximately five feet on the 

other side of the turnstiles from the supervisors.

On the morning of April 25, the supervisors returned to the 

turnstiles and again distributed the flyers from approximately 

6:30 a.m. to 7:00 a.m., unaccompanied by the union supporters. 

That evening, both the supervisors and the employees distributed 

their respective flyers from opposite sides of the turnstiles, 

but on this occasion the union supporters arrived first.

There is no evidence that the supervisors knew that the 

union supporters intended to hand out leaflets at the gate on 

the two afternoons in question, or that they were otherwise 

present at the gate for the purpose of spying on employees. 

Although union supporters had briefly leafleted at the gate on 

March 22 and 23, shortly after the representation petition was 

filed, they had not done so during the intervening month-long 

 

need to put as much effort into working together on 

our plant as we have in addressing the union election.

J.A. 640. The content of the flyer is not alleged to be

coercive or otherwise violative of the Act. 
18

campaign. Nor was there evidence that the union supporters had 

planned ahead of time to leaflet on the afternoons of April 24 

and 25. During the periods of simultaneous leafleting, the 

supervisors did not say anything, beyond pleasantries, to the 

union supporters or to the arriving employees. They did not 

take pictures or notes of the employees as they arrived, nor did 

they otherwise engage in threatening or intimidating behavior 

towards the union supporters or the arriving employees.

The Board, however, held that Intertape engaged in 

“unlawful surveillance” of the union activities because the 

supervisors’ leafleting at the gate was “‘out of the ordinary,’”

insofar as there was no evidence that Intertape had communicated 

with its employees in this manner “prior to the campaign,” and 

because the supervisors could “see” the employees during the 

periods of simultaneous leafleting. J.A. 679 (emphasis added).4 

 4 Specifically, the Board found that the supervisors’ 

leafleting became coercive surveillance merely because:

The presence of supervisors at the plant gate where 

employees arrived and left was itself unusual. 

Further, management officials typically communicated 

with employees in meetings, and there was no evidence 

that, prior to the campaign, it had leafleted its own 

employees. As the [ALJ] found, the Respondent’s 

supervisors could see not only the employees

distributing leaflets, but also which employees 

accepted or rejected the leaflets, and any 

interactions between them.

J.A. 679 (citations omitted). 
19

The Board “attribute[d] no relevance to which group of 

leafleters arrived first,” because “the employer’s [leafleting] 

activity [was] out of the ordinary.” J.A. 679 n.9. As to 

Intertape’s argument that “it was simply exercising its Section 

8(c) right to communicate with its employees,” the Board 

summarily rejected it as well, explaining that “such 

communication is [nonetheless] unlawful if it includes out-ofthe-ordinary conduct that places employees’ union activities 

under surveillance.” J.A. 679-80.

2.

It has long been established that an employer’s act of 

observing its employees on company property during union 

activities, even when done in close proximity to its employees, 

is not a per se violation of the Act. On the contrary, “union 

representatives and employees who choose to engage in their 

union activities at the employer’s premises should have no cause 

to complain that management observes them.” Belcher Towing Co. 

v. NLRB, 726 F.2d 705, 709 (11th Cir. 1984) (per curiam) 

(internal quotation marks omitted); Emenee Accessories, Inc., 

267 N.L.R.B. 1344, 1344, 1349 (1983) (finding no violation where 

supervisor “stationed himself at the entrance to the building 

for the purpose of observing the Union’s efforts” and “observed 

the union organizers conversing with employees who were 

reporting for work”); Milco, Inc., 159 N.L.R.B. 812, 814 (1966) 
20

(finding no violation where management representatives watched 

union organizers who were handing out leaflets and talking to 

employees as they were leaving the plant; the employer had a 

legitimate reason for being there and there was “no evidence 

that any management representatives made notes or otherwise 

recorded what they saw,” notwithstanding that they could see the 

interactions between the employees and the union organizers).

The exception to this general rule arises when the 

employer’s observation of union activities can be reasonably 

construed as excessive or coercive surveillance, such that it 

“unreasonably chill[s] the exercise of the[] employees’ Section 

7 rights.” NLRB v. Southern Md. Hosp. Ctr., 916 F.3d 932, 938 

(4th Cir. 1990) (per curiam) (noting that “the Board has on 

several occasions found that employers unreasonably chilled the 

exercise of their employees’ Section 7 rights through excessive

surveillance”) (emphasis added); cf. NLRB v. Arrow-Hart, Inc., 

203 N.L.R.B. 403, 403 (1973) (noting that an employer’s act of 

“coercively surveilling – that is, spying upon – its employees’

activities” would be a violation of the Act). As stated 

previously, the employer’s observation must have a “reasonable 

tendency in the totality of the circumstances to intimidate” the 

employees. Nueva Eng’g., 761 F.2d at 965.

This is because, “[w]hen an employer watches . . . 

employees because he believes they are engaged in union 
21

activities, the employees may reasonably fear that participation 

in union activities will result in their identification by the 

employer as union supporters.” Id. at 967. The “employee, 

possibly anticipating retaliation against identified supporters, 

may thereafter feel reluctant to participate in union 

activities.” Id.; see also NLRB v. Grand Canyon Mining Co., 116 

F.3d 1039, 1045 (4th Cir. 1997) (“[A]n employer violates section 

8(a)(1) of the Act if it gives employees the impression that it 

is conducting surveillance of their union activities.”); J.P. 

Stevens & Co., 638 F.2d at 683 (“It is an unfair labor practice 

for an employer to create in the minds of employees an 

impression that he is closely observing union organizational 

activity.”). Such excessive or coercive “surveillance becomes 

illegal because it indicates an employer’s opposition to 

unionization, and the furtive nature of the snooping tends to 

demonstrate spectacularly the state of the employer’s anxiety.” 

Belcher Towing, 726 F.2d at 708 n.2. “From this the law reasons 

that when the employer either engages in surveillance or takes 

steps leading his employees to think it is going on, they are 

under the threat of economic coercion.” Id.

Ultimately, “[t]he test for determining whether an employer 

engages in unlawful surveillance, or unlawfully creates the 

impression of surveillance, is an objective one and involves the 

determination of whether the employer’s conduct, under the 
22

[totality of the] circumstances, was such as would tend to 

interfere with, restrain, or coerce employees in the exercise of 

their rights guaranteed under Section 7 of the Act.” Southern 

Md., 916 F.2d at 938 (internal quotation marks omitted); cf.

Nueva Eng’g., 761 F.2d at 965 (The employer’s conduct must have 

a “reasonable tendency in the totality of the circumstances to 

intimidate” the employees.).

For example, we consider “the duration of the observation, 

the employer’s distance from its employees while observing them, 

and whether the employer engaged in other coercive behavior 

during its observation.” Aladdin Gaming, LLC, 345 N.L.R.B. 585, 

586 (2005). But we must also consider whether the employer had 

a legitimate reason for observing the activities or for 

otherwise being present at the place where the alleged 

surveillance has occurred. See, e.g., Nueva Eng’g., 761 F.2d at 

967 (upholding violation where two supervisors went to an offsite location “for the purpose of surveilling a scheduled union 

meeting” and, “when no meeting occurred, the supervisors 

followed three employees to an employee’s home”); Sprain Brook 

Manor Nursing Home, LLC, 351 N.L.R.B. 1190, 1191 (2007) (finding 

unlawful surveillance where nursing home administrator went to 

facility on her day off “solely for the purpose of observing 

union activity” and stood in the doorway closest to where the 

union organizer was meeting with the employees so as to be able 
23

to see the employees and be seen by them); PartyLite Worldwide, 

Inc., 344 N.L.R.B. 1342, 1342 (2005) (finding unlawful 

surveillance of union handbilling activities because, “on three 

separate occasions shortly before the election, no less than 

eight high-ranking managers and supervisors stood at entrances 

to the employee parking lot watching the [union] give literature 

to employees as they entered and exited the parking lot during 

shift changes,” “the presence of managers and supervisors at the 

entrances to the parking lot was surprising and an unusual 

occurrence,” and “[t]he employer established no legitimate 

explanation for why any of its managers and supervisors were 

stationed in the parking lot during the [Union’s] handbilling 

activities”); S.J.P.R., Inc., 306 N.L.R.B. 172, 172 (1992) 

(finding that the employer “engaged in unlawful surveillance by 

posting one or two security guards near the employee entrance 

and another security guard with binoculars in an upstairs hotel 

room in order to observe employees and union agents soliciting 

union authorization card signatures across the street from the 

hotel,” because it “constituted more than ordinary or casual 

observation of public union activity” and “[t]here [was] no 

evidence that the [employer’s] conduct was based on safety or 

property concerns”); Eddyleon Chocolate Co., 301 N.L.R.B. 887, 

888 (1991) (finding violation where supervisor “drove his car to 

within 15 feet of” the union representative, “watched employees 
24

as [the union representative] handed them literature . . . near 

the entrance to the [employer’s] parking lot,” and “spoke into 

his car telephone” until the union representative left); Arrow 

Auto. Indus., 258 N.L.R.B. 860, 860-61 (1981) (finding unlawful 

surveillance of union handbilling activities where “[s]oon after 

the handbilling began on 2 of the 3 days . . . in question, 11 

of the [employer’s] supervisors lined up in varying numbers near 

each of the three gates, observing the employees as they drove 

past the union handbillers,” “the presence of the supervisors 

was highly unusual,” “the supervisors’ presence was deliberately 

calculated to show and demonstrate observation in numbers and 

force,” and the employer failed to demonstrate a legitimate 

reason for being there) (internal quotation marks, alterations, 

and footnotes omitted).

3.

This case presents an additional and somewhat unusual 

circumstance for consideration as well because, unlike in the 

more typical unlawful-surveillance situation, Intertape’s 

legitimate explanation for being at the gate was to exercise its 

First Amendment and Section 8(c) right to leaflet its employees 

during a union campaign in a nonthreatening manner. There was 

no union activity to observe when they began this protected 

speech. And when the union supporters joined them in this 
25

protected activity, the supervisors and the union supporters 

engaged in simultaneous but noncoercive speech.

As noted earlier, Section 8(c) of the Act limits the 

prohibition set forth in § 8(a)(1). See J.P. Stevens, 638 F.2d 

at 684. “Counterbalancing the [Section 8(a)] prohibition 

against” an employer interfering with, restraining, or coercing 

employees who are engaged in protected Section 7 activities “is 

[the] employer’s strong interest in preserving its right to free 

speech,” which “Congress expressly recognized . . . by enacting”

Section 8(c) of the Act. American Pine Lodge Nursing & Rehab. 

Ctr. v. NLRB, 164 F.3d 867, 875 (4th Cir. 1999). 

Specifically, Section 8(c) “protects speech by both unions 

and employers,” Chamber of Commerce v. Brown, 554 U.S. 60, 67 

(2008), by providing that such speech “shall not constitute or 

be evidence of an unfair labor practice under any of the 

provisions of the Act,” so long as “such expression contains no 

threat of reprisal or force or promise of benefit,” 29 U.S.C. § 

158(c) (emphasis added). Section 8(c) “manifest[s] a 

‘congressional intent to encourage free debate on issues 

dividing labor and management.’” Chamber of Commerce, 554 U.S. 

at 67; see also NLRB v. Gissel Packing Co., 395 U.S. 575, 617 

(1969). “[P]ermitting the fullest freedom of expression by each 

party nurtures a healthy and stable bargaining process.” 
26

American Pine, 164 F.3d at 875 (internal quotation marks 

omitted). 

Given the competing but protected interests at play, 

therefore, a “balance [must] be struck between an employer’s 

free speech rights as protected by subsection 8(c) and 

employees’ rights to associate freely as embodied in section 7, 

subsection 8(a)(1), and the proviso to subsection 8(c).” 

Procter & Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 983 (4th Cir. 

1981); see also Gissel Packing, 395 U.S. at 617. The protection 

is not “a cloak to hide obviously intimidating conduct,” NLRB v. 

Williams, 195 F.2d 669, 672 (4th Cir. 1952), but the fact that 

the employer is engaged in such protected speech is a relevant 

factor to be considered. 

In Arrow-Hart, the Board addressed this interplay between 

Section 8(a)(1)’s prohibition against coercive or excessive 

surveillance and Section 8(c)’s protection of an employer’s 

speech. There, the supervisors’ leafleting activity inside the 

glass door of the plant likewise placed them in a position where 

they could see union supporters who were engaged in the very 

same protected activity outside the glass door. They were also 

acting in a manner “out of the ordinary,” insofar as they were 

leafleting their employees near the entrance as part of their 

campaign against unionization. Nevertheless, the Board found no 

unfair labor practice because there was no evidence that the 
27

supervisors were engaged in coercive surveillance during this 

counter-leafleting activity. As the Board correctly recognized,

An employer has the right to distribute election 

campaign material of its own. It has a right to 

express its opinion of union literature, even calling 

it trash – in writing as well as orally. And, it has 

a right to do these things at the very moment the 

union is trying to persuade the employees to a 

contrary view – certainly anywhere on its premises, in 

the inner reaches of the plant or at the front door, 

even if the door is made of looking-through glass. 

What the General Counsel’s argument really amounts to 

here is that the Respondent may not do what it legally 

is permitted to do.

203 N.L.R.B. at 406; see also Aladdin Gaming, 345 N.L.R.B. at 

585-86 (finding no violation where supervisors interrupted union 

supporters who were soliciting employees in the employer’s 

cafeteria to give “management’s perspective on unionization” as 

it had a right to do under Section 8(c)).

4.

Here, in contrast, the Board found unlawful surveillance by 

the Intertape supervisors merely because the supervisors’

leafleting was “out-of-the-ordinary” -- insofar as they had 

never done it prior to the union campaign -- and because the 

supervisors could “see” the employees when the union supporters 

were simultaneously leafleting. J.A. 679. Moreover, the Board 

declined to give any countervailing consideration to the fact 

that Intertape was engaged in protected Section 8(c) activity at 

the time, or to the fact that Intertape was engaged in this 
28

activity well before the union supporters arrived to counterleaflet. This was error.

Plainly, to transform Intertape’s protected Section 8(c) 

activity into the unlawfully coercive surveillance prohibited by 

Section 8(a)(1), the Act requires more than mere “out-of-theordinary” conduct in an area where employees can be seen; the 

Act requires conduct that could have reasonably been construed

in the totality of the circumstances as coercive, intimidating, 

or threatening in nature. As our sister circuit has observed, 

“[i]n recent cases involving employer surveillance of union 

activities, the Board has seemed to ignore this critical 

coercion element.” Greater Omaha Packing Co. v. NLRB, 790 F.3d

816, 823 (8th Cir. 2015). The same holds true here.

First, the supervisors’ ability to observe employees as 

they interacted with union supporters on company property during 

the brief periods of simultaneous leafleting is insufficient to 

render the supervisors’ leafleting coercive, intimidating, or 

threatening in nature. See Southern Md., 916 F.2d at 938; 

Belcher Towing, 726 F.2d at 709. There is no evidence that 

Intertape’s supervisors engaged in “excessive surveillance” of 

the union supporters’ leafleting activity during the periods of 

simultaneous leafleting or, for that matter, that they were 

“watching” them at all. Nor is there any indication that they 
29

continued to leaflet on the two afternoons in question in order 

to spy on or snoop into the employees’ union activities.

Second, the Board placed too much significance upon the 

fact that Intertape had never leafleted its employees at the 

plant gate prior to the union campaign. Although an employer’s 

act of observing employees in a way that is “out of the 

ordinary” can provide evidence that incidental observation, in 

the totality of the circumstances, should instead be construed 

as coercive or intimidating surveillance or spying, not every 

“out of the ordinary” activity by an employer can be deemed, a

fortiori, coercive or threatening in nature. See, e.g., 

Southern Md., 916 F.2d at 939 (“It is firmly established that 

management officials may observe public union activity, 

particularly where such activity occurs on company premises, 

without violating § 8(a)(1) of the Act, unless such officials do 

something ‘out of the ordinary.’”); Aladdin Gaming, 345 N.L.R.B.

at 585-86 (while a “supervisor’s routine observation of 

employees engaged in open Section 7 activity on company property 

does not constitute unlawful surveillance,” the exception arises 

when “an employer . . . surveils employees engaged in Section 7 

activity by observing them in a way that is ‘out of the 

ordinary’ and thereby coercive”). On the contrary, the cases 

have always considered the employer’s reason for being in a 

particular place at a particular time, even if it is unusual or 
30

out of the ordinary, and the Act’s requirement that there be 

indicia of coercion or intimidation requires no less. See

Arrow-Hart, 203 N.L.R.B. at 406 (“If, as they approached the 

front door to reach some of the employees, the supervisors also 

. . . saw their counterparts giving out their election material, 

it was something that could hardly be avoided in any event. It 

would be childish to call this spying, for if there is one thing 

everybody knew all the time it is that the [union] was 

distributing outside and the Company inside.”).

Here, Intertape was arguably not engaged in “out-of-theordinary” behavior at all, because by the time the union 

supporters arrived to counter-leaflet alongside them, the 

supervisors had already leafleted at the gate on one occasion 

and were into their second session. The fact that they had 

never leafleted employees prior to the union campaign also adds 

nothing to the coerciveness inquiry. The union campaign itself 

was “out of the ordinary,” in that the Union was attempting to 

unionize Intertape’s workforce. That Intertape responded to 

this out-of-the-ordinary event by engaging in leafleting for the 

first time does not make its actions suspect. Rather, in light 

of the union campaign, the employer’s decision to present its 

views through its own gate-side leafleting seems entirely 

ordinary. 
31

Nevertheless, even if we were to consider the supervisors’ 

presence at the gate to be “out of the ordinary,” it is not the 

type of “out-of-the-ordinary” observation or conduct that the 

Board or the courts have reasonably viewed as being coercive or 

intimidating in nature. Nor would the language of the Act allow 

for such an over-inclusive definition.

As in Arrow-Hart, “[w]hat the General Counsel’s argument 

really amounts to here is that the [employer] may not do what it 

legally is permitted to do” under Section 8(c). Id. Indeed, by 

accepting this argument, the Board is effectively requiring 

employers to cease engaging in protected conduct whenever union 

supporters choose to engage in identical, protected conduct 

alongside them. The Act, however, explicitly protects the 

employer’s right to express its viewpoint in this manner, and 

that right cannot be extinguished absent a “threat of reprisal 

or force or promise of benefit,” 29 U.S.C. § 158(c), which is 

nonexistent here. Similarly, Intertape’s mere act of 

simultaneous leafleting, even if such leafleting is construed as 

“out of the ordinary,” is plainly insufficient to establish the 

intimidation or coercion required under Section 8(a)(1).

Here, the Intertape supervisors did not go to a place where 

union supporters or other employees were engaged in union 

activities for the purpose of “spying upon” them, either from 

afar or up close. They went to a gate on company property, 
32

where there were no union supporters and no employees engaged in 

union activity, in order to exercise their First Amendment and 

statutorily protected right to communicate their views about the 

upcoming election to their employees. During the two short 

periods of simultaneous leafleting, the Intertape supervisors 

did not speak to the employees or the union leafleters, beyond 

exchanging pleasantries. There is no evidence that they stared

or glared at the employees or the leafleters. There is no 

evidence that they attempted to force their leaflets upon the 

employees, or that they attempted to persuade employees or 

signal to them that they should not accept the union leaflet in 

addition to or in lieu of the employer’s leaflet. They did not 

take photographs or otherwise record what was transpiring during 

the brief periods of simultaneous leafleting. And there is no 

evidence that they otherwise engaged in behavior that could 

reasonably have been construed as coercive, intimidating, or 

threatening.

Under the totality of the circumstances -- which includes 

the absence of any threatening expression that could have 

extinguished Intertape’s Section 8(c) right to leaflet at the 

gate -- Intertape’s legitimate reason to be there did not vanish 

when the union supporters arrived to counter-leaflet, nor were 

the Intertape supervisors required to retreat when the union 

supporters did arrive. The Intertape supervisors were required 
33

to conduct their leafleting activity in a noncoercive and 

nonthreatening manner, and there is no indication that they did 

not do so.

For the foregoing reasons, we hold that substantial 

evidence does not support the Board’s conclusion that Intertape

engaged in unlawful surveillance when it leafleted at the gate 

on the afternoon of April 24, when the Union supporters chose to 

leaflet alongside them, or on the afternoon of April 25, when 

Intertape chose to continue its leafleting activities in advance 

of the election. Accordingly, we decline to enforce this 

portion of the Board’s order.

IV.

To conclude, we grant Intertape’s petition for review in 

part and deny it in part, and we grant the Board’s crosspetition for enforcement in part and deny it in part. 

Specifically, we enforce that portion of the Board’s order 

concluding that Intertape engaged in unlawful interrogation of 

an employee in February of 2012, as well as that portion of the 

Board’s order concluding that Intertape unlawfully confiscated 

union flyers in March of 2012. However, we deny enforcement of 

the Board’s order concluding that Intertape engaged in unlawful 

surveillance of union activity in April of 2012, and remand to 

the Board so that it can modify its Order in accordance with our 

decision. Because our decision eliminates one of the two bases 
34

upon which the Board set aside the election, see supra at 5 & 

n.2, the Board will also find it necessary to reconsider its 

decision to direct a second election.

PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART;

ENFORCEMENT GRANTED IN PART AND DENIED IN PART; REMANDED
35

WILKINSON, Circuit Judge, concurring: 

I concur fully in Chief Judge Traxler’s fine opinion. I 

agree with him that substantial evidence did support the Board’s 

interrogation and confiscation findings, but that the part of 

the Board’s order concluding that Intertape engaged in unlawful 

surveillance of union activity improperly compromised 

Intertape’s right to tell employees its side of the story. 

Left to my own devices, I would hold that, even if the 

unfair labor practices alleged by the General Counsel had 

occurred, the Board would have exceeded its remedial discretion 

by ordering a new election. This is all the more so where the 

Board’s most critical finding supporting its direction of a new 

election has been overturned. Whatever remedial measures may be 

warranted, a new election is not among them. Intertape’s margins 

in the first election were huge, and its infractions were 

comparatively minor. The Board’s decision to order a new 

election in these circumstances failed to respect the choice 

Intertape’s employees made. 

I acknowledge, however, that circuit precedent does not 

leave me to my own devices. See, e.g., NLRB v. Low Kit Min. Co., 

3 F.3d 720, 729-30 (4th Cir. 1993); Daniel Const. Co. v. NLRB, 

341 F.2d 805, 809-10 (4th Cir. 1965). As a result, I join the 

court’s opinion, including the terms of the remand order, which 

provides simply that the Board will “find it necessary to 
36

reconsider its decision to direct a second election.” Maj. Op. 

at 33. I suggest, however, that the authority of circuit courts 

to review a Board’s do-over election order at this stage of the 

proceedings warrants additional reflection and reexamination, 

bearing foremost in mind the need to restore a sense of balance 

between agencies and courts. 

I.

Agencies do many good and necessary things. Through their 

efforts, our environment is cleaner, our food safer, our economy 

steadier, and our labor-management relations smoother. Behind 

these blessings, however, is a growing bureaucracy, a “vast 

power [that] touches almost every aspect of daily life.” City of 

Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878 (2013) (Roberts, 

C.J., dissenting). This power draws its strength from its 

frequent combination of the legislative, executive, and judicial 

functions -- a combination that “heighten[s] the potential for 

abuses that the traditional system was designed to check.” Cass 

R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. 

Rev. 421, 447 (1987); see also The Federalist No. 47 (James 

Madison) (“The accumulation of all powers . . . in the same 

hands . . . may justly be pronounced the very definition of 

tyranny.”). 

Unfortunately, this potential for abuse meets little 

resistance from ordinary democratic processes. The difficulty of 
37

passing a bill in both houses and surviving a potential 

presidential veto “limits [] Congress’s ability to impose” its 

will on the administrative state. Elena Kagan, Presidential 

Administration, 114 Harv. L. Rev. 2245, 2259 (2001). 

Presidential control offers no sure hope either, because “no 

President (or his executive office staff) could . . . supervise 

so broad a swath of regulatory activity.” Id. at 2250; cf. City 

of Arlington, Tex., 133 S. Ct. at 1878 (Roberts, C.J., 

dissenting) (“President Truman colorfully described his power 

over the administrative state by complaining, ’I thought I was 

the President, but when it comes to these bureaucrats, I can’t 

do a damn thing.’”). Even if the President could fully supervise 

the executive branch, he would face little pressure from voters 

to do so, for “the general public is often unaware of political 

decisions being made at the agency level.” Donald S. Dobkin, The 

Rise of the Administrative State: A Prescription for 

Lawlessness, 17 Kan. J. L. & Pub. Pol’y 362, 367 (2008). 

In the early days of administrative law, organic statutes 

giving agencies capacious power to effectuate broad policies 

often complicated judicial review. The National Labor Relations 

Act (NLRA), for example, frames the Board’s remedial authority 

in broad terms. Section 10(a) “empower[s]” the Board “to prevent 

any person from engaging in any unfair labor practice.” 29 

U.S.C. § 160(a). Section 10(c) further “authorizes the Board to 
38

require persons found engaged or engaging in unfair labor 

practices ‘to take such affirmative action . . . as will

effectuate the policies of this [subchapter].’” Va. Elec. & 

Power Co. v. NLRB, 319 U.S. 533, 539 (1943) (quoting 29 U.S.C. §

160(c)). 

Fortunately, however, the American people eventually added 

an important condition to the administrative bargain: the 

Administrative Procedure Act (APA). “[F]ramed against a 

background of rapid expansion of the administrative process,” 

the APA was meant to act as “a check upon administrators whose 

zeal might otherwise have carried them to excesses not 

contemplated in legislation creating their offices.” Perez v. 

Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1211 (2015) (Scalia, J., 

concurring) (quoting United States v. Morton Salt Co., 338 U.S. 

632, 644 (1950)); see also 92 Cong. Rec. 2149 (1946) (statement 

of Sen. McCarran) (describing the APA as a “bill of rights for 

the hundreds of thousands of Americans whose affairs are 

controlled or regulated . . . by agencies of the Federal 

Government”). The APA thus proscribes administrative action that 

is “arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706. 

II.

Before examining the Board’s decision to direct a second 

election in this case, however, I consider the court’s power to 
39

review that decision. A few years after the passage of the NLRA, 

the Supreme Court held that the Act “indicates a purpose to 

limit the review afforded [under the NLRA’s judicial-review 

provisions in Sections 10(e) and 10(f)] to orders of the Board 

prohibiting unfair labor practices.” Am. Fed’n of Labor v. NLRB, 

308 U.S. 401, 409 (1940). The Court concluded that, because the 

Board’s decision to direct an election is “but a part of the 

representation proceeding,” that decision is not subject to 

judicial review under Section 10(f). NLRB v. Int’l Brotherhood 

of Elec. Workers, 308 U.S. 413, 414 (1940). By withholding 

jurisdiction from the courts of appeals “until the Board issues 

an order and requires the employer to do something predicated 

upon the result of an election,” NLRB v. Falk Corp., 308 U.S. 

453, 459 (1940), the Court followed legislators’ perceived 

intent: to allow employees to vote on union membership before 

facing possible judicial interference. Am. Fed’n of Labor, 308 

U.S. at 409-11 & n. 2. It subsequently reiterated that Congress 

intended to avoid “dragging [the case] on through the courts” 

before giving employee democracy its chance. Boire v. Greyhound 

Corp., 376 U.S. 473, 477-79 (1964).

Decisions of the courts of appeals, including some in the 

Fourth Circuit, have expanded this Supreme Court precedent to 

mean that, even when a first election has already been held, 

“the Board’s direction of a new election is not a final order 
40

reviewable under either section 10(e) or section 10(f) of the 

NLRA.” See, e.g., Adtranz ABB Daimler-Benz Transp., N.A., Inc. 

v. NLRB, 253 F.3d 19, 22, 24-25 (D.C. Cir. 2001) (refusing to 

consider petitioner’s challenge to the Board’s second-election 

order even though the Board’s unfair labor practice 

determinations were “utterly without merit”); Low Kit Min. Co., 

3 F.3d at 729-30 (holding a second-election order “not final 

under the Act and . . . not ripe for judicial review”).

According to this view, then, a company may obtain judicial 

review of a Board’s second-election order only by navigating an 

unusually circuitous course. First, the company must submit to a 

second election. Next, assuming the union wins that election, 

the company must refuse to bargain with the union. This refusal 

will then give the Board the opportunity to find that the 

company has engaged in an unfair labor practice. And this 

determination, at long last, will provide the predicate for 

judicial review of the Board’s order. On appeal, the company may 

defend its refusal to bargain by claiming that the second 

election was unnecessary. See Heartland Human Servs. v. NLRB, 

746 F.3d 802, 805-06 (7th Cir. 2014). 

The courts of appeals, however, should have jurisdiction to 

review a Board’s direction of a second election when that 

direction is but the remedial portion of the Board’s final 

order. I say this for two reasons. The first involves the 
41

earlier Supreme Court decisions. The second involves the text of 

the NLRA itself. 

First, none of the earlier Supreme Court cases dealt with 

the particular question of an election already conducted and a 

Board order addressing the conduct of that election and any 

associated remedies. See Am. Fed’n of Labor, 308 U.S. at 402-03; 

Int’l Brotherhood of Elec. Workers, 308 U.S. at 414; Falk, 308 

U.S. at 459. The legislative concern motivating the Court in 

these cases –- that jurisdiction over election-related orders 

would allow courts to interfere with the Board’s certification 

proceedings before employees even have a shot at voting –-

applies with significantly less force after a first election has 

already been held. 

Indeed, a recent Fifth Circuit case declined to extend 

those decisions to the decertification election context. NLRB v. 

Arkema, 710 F.3d 308, 319 (5th Cir. 2013) (denying “enforcement 

of the order setting aside the election and requiring a new 

one”); see also Graham Architectural Prod. Corp. v. NLRB, 697 

F.2d 534, 545-46 (3d Cir. 1983) (Garth, J., dissenting) (arguing 

for judicial review of second-election orders in the 

certification context). And even in decisions declining to 

review the Board’s second-election order, courts have noted, 

almost apologetically, that their decision not to do so flies in 

the face of judicial efficiency. See, e.g., Graham Architectural 
42

Prod. Corp., 697 F.2d at 543 (“[C]onsiderations of efficiency 

and judicial economy seem to suggest that we review the election 

order as well.”).

Secondly, the text of the NLRA itself plainly does not bar 

judicial review in these cases. The text provides simply that 

review lies where a “final order” of the Board has issued in 

regard to any unfair labor practice. 29 U.S.C. § 160(f). The 

statute also speaks remedially. We are empowered to rule on any 

final order granting in whole or in part “the relief sought.” 

Id. Here, a final order of the Board has indeed issued. The 

Board found that Intertape’s pre-election activity involved

unfair labor practices under Section 8(a), and based on this 

determination, the Board ordered a new election. But the 

remedial components of the Board’s order are not something 

separate and apart from its findings as to liability. Here, the 

Board’s Order notes that “the election held on April 26 and 27, 

2012 . . . is set aside,” and then proceeds on the very same 

page recounting the alleged unfair labor practices to direct a 

second election and set forth the conditions for holding it. 

J.A. 681; Intertape Polymer Corp., 360 NLRB No. 114, 2014 WL 

2192498, at *4 (May 23, 2014). The date of the order and the 

signatures of those Board members ascribing to it follow right 

on the heels of the above. J.A. 681. The Board ostensibly 

“sever[s]” its direction of a new election from the rest of its 
43

disposition. J.A. 681. But this boilerplate severance sentence 

is hollow formalism, and the Board’s own Statement of 

Jurisdiction commendably recognizes as much. It refers to its 

“Decision, Order, and Direction of Second Election issued May 

23, 2014” as a “final order with respect to all parties.” Resp. 

Br. 1-2. 

This is one, single final order. Why artificially segment 

it? Nothing in the text of the NLRA permits us to salami-slice 

the Board’s order, and the most basic factors of efficiency and 

economy suggest that we review the underlying order -- both the 

unfair labor practices and the remedial prescriptions -- in its 

entirety. 

This is especially the case where, as here, we have 

reviewed and found wanting the most critical finding underlying 

the Board’s direction of a new election. With the underpinning 

of the Board’s order thus removed, it is appropriate to deal 

with the matter in its entirety. I do not think the sparse 

language of the NLRA forbids judicial review; quite the 

contrary. By simply referring to a final order as a unitary 

whole it suggests that review would be permitted. Indeed, the 

statute plainly empowers courts of appeals to “enter a decree 

enforcing, modifying and enforcing as so modified, or setting 

aside in whole or in part the order of the Board.” 29 U.S.C. § 

160 (e), (f).
44

One overarching point remains. Surrendering judicial review 

of a Board’s do-over election order severs the historically 

interwoven concepts of violation and remedy. It likewise severs 

labor law from a foundational principle of administrative law: 

arbitrary and capricious review under the APA. The arbitrary and 

capricious standard defines as much as anything the relationship 

between courts and agencies in our country, and to relinquish or 

dilute that standard tilts the balance too emphatically in favor 

of the administrative state and against the check and balance of 

judicial review. The Board’s new election order was a remedial 

step intended to cure Intertape’s violations of the NLRA. But a 

remedial order constitutes an agency action that is no less (and 

often more) susceptible to agency caprice than is an agency 

finding of liability. 

”The Supreme Court has always assumed that Congress 

intended the judicial review provisions of both [the APA and the 

NLRA] to be equivalent,” and it “has read the NLRA as if it 

included an arbitrary and capricious test.” Diamond Walnut 

Growers, Inc. v. NLRB, 113 F.3d 1259, 1266 (D.C. Cir. 1997) (en 

banc) (citing Universal Camera v. NLRB, 340 U.S. 474, 487 

(1951); Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 

309–10 (1974)). One need not ascribe independent jurisdictional 

force to the APA in order to note that the guiding principles of 

administrative law –- arbitrary and capricious review under the 
45

APA –- should provide the overall perspective from which courts 

assess their authority. “[I]t is, of course, the most 

rudimentary rule of statutory construction . . . that courts do 

not interpret statutes in isolation, but in the context of the 

corpus juris of which they are a part, including later-enacted 

statutes.” Branch v. Smith, 538 U.S. 254, 281 (2003). The 

Supreme Court’s 1940 cases, which some later courts wrongly 

extended, were decided without the benefit of the APA. Given 

that those 1940 decisions are likewise distinguishable from 

cases involving re-run (not initial) elections, it needlessly 

eviscerates the purpose of administrative procedure under the 

APA to extend them further. 

Courts must remain mindful of the real jurisdictional

limitations on our reviewing role under the NLRA. See, e.g., Low 

Kit Min. Co., 3 F.3d at 729-30. We have been careful to respect 

the Board’s management of representation proceedings where 

warranted. See e.g., Perdue Farms, Inc. v. NLRB, 108 F.3d 519, 

521 (4th Cir. 1997). Here, however, we consider the impact of 

the APA on the NLRA jurisdictional provisions in a case where an 

election has been held and the Board’s finding underpinning a 

second-election order has been overturned. Our duty is to deny 

enforcement to those remedial directives that are “arbitrary, 

capricious,” or contrary to law, 5 U.S.C. § 706, and that are 

indistinguishably part of Board final orders concededly ripe for 
46

review, 29 U.S.C. § 160(f). I therefore turn to the question of 

whether the Board’s second-election order here was arbitrary and 

capricious. 

III.

Ordering a new election after the first contest’s landslide 

results, and on account of comparatively minor company 

violations, overstepped the Board’s remedial discretion. First, 

more carefully tailored remedies could adequately address any 

illegitimate conduct without forcing a second election unlikely 

to yield a different result. Second, the Board’s order both 

departs from Board precedent focusing on whether a given error 

actually affected an election’s outcome and relies on a harmless 

error rule that, when applied as it was here, is far out of 

proportion to the harm it protects against. 

A.

Intertape’s employees voted 142-97 against the union, a 

margin of 45 votes, or almost 19%. By way of comparison, no 

presidential candidate has won a more lopsided share of the 

popular vote since Nixon defeated McGovern in 1972. See Leip, 

David, United States Presidential Election Results, David Leip’s 

Atlas of U.S. Presidential Elections, 

www.uselectionatlas.org/RESULTS/ (last visited Aug. 24, 2015). 

Surely marginal company infractions should not undermine this 

election result. 
47

Here, we hear only three minor complaints. First, an 

Intertape supervisor allegedly approached a single employee and 

asked about his union sentiments. But this “interrogation” 

occurred before the critical period, and the Board rightly did 

not rely on it when ordering a new election. J.A. 680. Next, 

Intertape expedited “the cleanup of a break room that, at most, 

involved the removal of certain material for several hours on 2 

days approximately 1 month before the election.” J.A. 682; 

Intertape Polymer Corp., 360 NLRB No. 114, at *3 (Member 

Miscimarra, dissenting). Finally, Intertape conducted a 

leafletting campaign simultaneous with a similar union campaign. 

The Board found that this parallel leafletting constituted 

unlawful surveillance of union activity. J.A. 679-80.

This last charge –- that Intertape unlawfully surveilled 

its employees while leafletting -– is particularly problematic

because, as the court notes, it gives short shrift to

Intertape’s own free speech rights. Intertape’s right to express 

its views on union membership to its employees is protected by 

the First Amendment. Chamber of Commerce v. Brown, 554 U.S. 60, 

67 (2008); see also Allentown Mack Sales & Serv., Inc. v. NLRB, 

522 U.S. 359, 386 (1998) (Rehnquist, C.J., concurring and 

dissenting) (”An employer’s free speech right to communicate 

[its] views to [its] employees is firmly established and cannot 

be infringed by a union or the Board.”). The Board found 
48

unlawful surveillance because Intertape supervisors do not 

typically communicate with employees by leafletting at the plant 

gate; that they did so was “out of the ordinary.” J.A. 679. But 

elections are themselves “out of the ordinary” –- that Intertape 

does not resort to leafletting for day-to-day personnel 

communications cannot be used as a reason to muzzle the exercise 

of free speech when campaign season arrives.

To hold broadly that simultaneous leafletting involves 

unfair supervisory surveillance of employees overlooks the fact 

that elections of all sorts involve simultaneous communication 

of competing points of view. It also confers upon a union a veto 

power over employer speech at prime times and on critical days. 

Chief Judge Traxler has put the point well: “by accepting [the 

General Counsel’s] argument, the Board is effectively requiring 

employers to cease engaging in protected conduct whenever union 

supporters choose to engage in identical, protected conduct 

alongside them.” Maj. Op. at 31. 

In any event, these alleged infractions could not have 

forced the hands of 45 adult employees, the large margin by 

which the union lost. I agree fully with the Board that the 

employer had no right here to expedite its so-called “clean up” 

and remove the union materials from the breakroom. But dozens of 

thinking employees did not vote differently because of a 

premature cleanup of a breakroom weeks before the election. Nor 
49

did the risk of accepting a leaflet within view of a supervisor 

plausibly scare so many workers from expressing their true 

beliefs via secret ballot. The NLRA “does not require the Board 

to treat employees as if they were bacteria on a petri dish that 

must be kept free of contamination.” NLRB v. Lovejoy Indus., 

Inc., 904 F.2d 397, 402 (7th Cir. 1990). The Board’s ultrasanitized approach gives too little weight to the jockeying 

inherent in any election and too little credit to employees’ 

capacity for independent thought.

Requiring a new election, moreover, may impose real costs 

on employer and employee alike. A second election distracts both 

from their work, may risk damage to joint morale, and absorbs 

considerable time and resources. And the results of any do-over 

election would quite possibly be contested and litigated as 

well. Where does it all end? There are of course instances where 

the employer will abuse its very position as employer and render 

elections something other than the product of free choice. There 

will of course be situations where the result of an election 

will be fatally compromised by unfair labor practices, but this 

was not one of those, and the Board’s remedial order revealed an 

insensitivity to the burdens that agency actions can impose upon 

those companies who possess but limited recourse to check 

official overreach. 
50

None of this is to say that properly proven infractions 

should be left uncorrected. But the power to remedy comes with 

the responsibility to issue an appropriate remedy. The Supreme 

Court has instructed federal courts, for example, that a “grant 

of jurisdiction to issue compliance orders hardly suggests an 

absolute duty to do so under any and all circumstances.” Tenn. 

Valley Auth. v. Hill, 437 U.S. 153, 193 (1978) (quoting Hecht 

Co. v. Bowles, 321 U.S. 321, 329 (1944)). Accordingly, it has 

rejected mechanical rules mandating injunctive relief. See, 

e.g., eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 393-94 

(2006) (rejecting the Federal Circuit’s general rule requiring a 

permanent injunction against a patent infringer upon a finding 

of infringement absent exceptional circumstances). It has 

instead espoused the commonsense notion that “the nature of the 

violation determines the scope of the remedy.” Swann v. 

Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971). When it 

has recognized possible liability, the Court has been careful to 

instruct that “[r]emedial orders . . . should concentrate on the 

elimination of the offending practice.” Tex. Dept. of Hous. & 

Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 

2507, 2524 (2015). 

If federal courts can leaven their remedial powers with a 

dose of proportionality, administrative agencies can too. It 

does not take agency expertise to determine that landslide 
51

election results are not altered by insubstantial infractions. 

Here, the Board could have pursued a more proportionally 

tailored remedy by, for example, finding the employer at fault 

and requiring it both to cease and desist from its unfair labor 

practices and to post the Board’s cease and desist order in 

“conspicuous places.” See, e.g., Flamingo Las Vegas Operating 

Co., 360 NLRB No. 41, 2014 WL 559058, at *6-7 (Feb. 12, 2014) 

(finding a cease and desist order to be an adequate remedy and 

declining to order a new election). Here, such an order would 

draw attention to the misconduct without the unnecessary 

dislocations of another election.

B.

The Board’s direction of a new election was also 

inconsistent with its own past practice. Previous Board 

decisions have inquired more thoroughly into whether any 

misconduct actually affected the election’s outcome. Some do 

follow the stringent harmless error rule of Super Thrift 

Markets, Inc., which requires a new election unless it is 

“virtually impossible to conclude that [misconduct] could have 

affected the results.” 233 NLRB 409, 409 (1977). See, e.g., Long 

Drug Stores Cal., Inc., 347 NLRB No. 45, 2006 WL 1810612, at *5

(Jan. 28, 2006) (holding it “virtually impossible” for isolated 

misconduct to have affected a “wide margin” of votes). 
52

Other cases, however, apply a more searching multi-factor 

inquiry, considering among other things the “proximity of the 

misconduct to the election” and the “closeness of the final 

vote.” Fjc Sec. Servs., Inc., 360 NLRB No. 6, 2013 WL 5703601, 

at *9 (Oct. 18, 2013) (citing Taylor Wharton Div., 336 NLRB 157, 

158 (2001)). No matter which standard it invokes, however, in 

many of its past cases the Board has determined that it will not 

order a new election where misconduct does not materially affect 

election results. In Clark Equipment Co., for example, the Board 

found that an employer’s misconduct could not have “affected the 

results of the election,” because with a tally of 391 for, and 

489 against the union (a result less lopsided in percentage 

terms than that in this case) the election “[could not] be 

characterized as close.” 278 NLRB 498, 505 (1986). 

The Board did not invoke any particular standard when it 

ordered a new election here, asserting only that the infractions 

at issue “cannot be trivialized as isolated or de minimis.” J.A. 

680. This terse analysis, however, resembles a strict 

application of the “virtually impossible” standard –- one that 

departs from past cases’ more realistic examination of whether 

any misconduct had a likely effect on election results. 

A stringent “virtually impossible” standard could well be 

the most exacting harmless error rule in all of American law. 

Compare the Board’s rule with some other well-known rules. A 
53

person may go to prison for life, for example, after a violation 

of his federal rights so long as a court can say “with fair 

assurance” that “the judgment was not substantially swayed by 

the error.” Kotteakos v. United States, 328 U.S. 750, 765

(1946). An individual may receive that same sentence even after 

a violation of his constitutional rights so long as a court is 

“able to declare a belief that [the violation] was harmless 

beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 

24 (1967). That the Board’s intolerance of marginal NLRA 

infractions is greater than that of courts for error in criminal 

trials is unsettling. 

Ordering a new election is likely to be arbitrary and 

capricious whenever the underlying infraction did not materially 

affect the first election’s results. What could be more 

capricious, after all, than an order to redo a costly process 

without good reason to believe that the result will be any 

different the second time around? This commonsense notion may 

explain why many courts, including this one, have often referred 

to a standard of materiality when overruling objections to 

Board-certified elections. See, e.g., NLRB v. Herbert Halperin 

Distrib. Corp., 826 F.2d 287, 290 (4th Cir. 1987) (holding that 

an employer seeking to set aside an election bears the “heavy 

burden” of showing that infractions “materially affected the 

election results”); Bridgeport Fittings, Inc. v. NLRB, 877 F.2d 
54

180, 188 (2d Cir. 1989) (holding that “the Board did not abuse 

its discretion in failing to set aside [the union’s victory in 

an] election” because “the failure . . . did not affect the 

outcome of the election”). It is unclear why the Board should 

not also use a standard of materiality and certify an election 

which was fundamentally fair, even if not impeccably perfect.

This is a neutral standard; neither an employer’s nor a union’s 

marginal infractions under the NLRA should be grounds for 

overturning an election if the election proceedings in their 

totality were fair.

IV.

The Board is “vested with a wide degree of discretion in 

establishing the procedure and safeguards necessary to insure 

the fair and free choice of bargaining representatives by 

employees.” NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 441 (4th 

Cir. 2002). But courts must not “rubber stamp” Board decisions –

- they can and must step in when the Board goes “beyond what 

good sense permits.” Comcast Cablevision-Taylor v. NLRB, 232 

F.3d 490, 495 (6th Cir. 2000). In this case, the Board’s action 

ran counter to a prime objective of our labor law -- that of 

supporting employee democracy. The Board’s decision to order a 

new election on the basis of minor violations at worst, and 

under a shifting and unreasonably stringent harmless error rule, 

failed to honor the fact that the employees in this company made 
55

a clear choice as to union representation. One would have 

thought the verdict of these workers might have been respected.

I end where I began. I join the court’s opinion. The 

precedent of our circuit does not allow a Board re-run election 

order to be judicially reviewed at this juncture. It is, of 

course, much to be hoped that the Chief Judge’s conscientious 

review of the Board’s underlying unfair-labor-practice findings 

will cause the Board to withdraw its election re-run order on 

its own, but, in the absence of a court direction, that is by no 

means assured. Still, the workers’ vote should matter; the 

employer should not have to undergo an election do-over; the 

court should not have to await some speculative alleged refusal 

to bargain under Section 8(a)(5), having in the interim engaged 

in but piecemeal review and performed what in essence would be a 

pointless exercise. 

What we have before us is a snapshot of an area in which 

the balance between courts and agencies is simply out of whack. 

None of this means the Board’s role in labor relations is to be 

devalued or its findings paid less deference, for indeed, its 

interrogation and confiscation findings in this very appeal were 

and should have been upheld. But administrative overreach was 

also on display here. If not in this case, then in some other, 

Supreme Court evaluation of the timing and extent of court of 

appeals review of Board second-election orders might be a 
56

helpful thing. Helpful, I think, if the benefits and burdens of 

the administrative state are finally to be reconciled.