We previously reported on a National Labor Relations Board decision where Intertape Polymer Corporation won a union election 142-97, but the Board ordered a new election based on unfair labor practices. [See, “Minor Employer Misconduct During Organizing Campaign Nullifies Company’s Victory”] The Board, as expected, found that the company engaged in unlawful surveillance when its supervisors handed out anti-union leaflets at the plant gate alongside union supporters who were handing out pro-union leaflets.

Upon appeal, the Fourth Circuit held that there was no evidence that the company expected the union supporters to be at the gate when it sent its supervisors out to distribute the leaflets. The court concluded that the company had a legitimate explanation for being at the gate to exercise its First Amendment and NLRA Section 8(c) rights to leaflet its employees during a union campaign. Furthermore, the court said that the “brief periods of simultaneous leafletting” were insufficient to establish that the company acted aggressively or coercively.

The court directed the Board to reconsider its decision to set aside the election. While it is ultimately up to the Board to decide whether a new election is warranted, concurring Judge J. Harvie Wilkinson made it clear that the company’s infractions were minor compared to the large margin by which it won the first election such that a new election would not be a proper remedy. This is yet another example of the Board forcing companies to appeal egregious decisions before having a fair shot of winning based on the current state of the law.