                               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.
Petition for review granted in part and denied in part; cross-
application for enforcement granted in part, denied in part and
remanded by published opinion.    Chief Judge Traxler wrote the
opinion, in which Judge Wilkinson and Judge Floyd concurred.
Judge Wilkinson wrote a separate concurring opinion.


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.




                                2
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.

                                         3
       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.


                                              4
       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)).


                                            5
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 &

                                               6
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

                                             7
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

                                         8
     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.




                                              9
                       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      self-

organization      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 non-

abusive 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

                                           10
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

                                           11
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.”

                                               12
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.

                                       13
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        pre-

campaign 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.



                                                    14
                                            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.

                                            15
                   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)
                                   16
      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.


                                    17
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).


                                     18
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-of-

the-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)

                                             19
(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

                                            20
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

                                             21
[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 off-

site 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

                                            22
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

                                           23
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



                                             24
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.”



                                           25
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

                                           26
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


                                  27
activity well before the union supporters arrived to counter-

leaflet.    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-the-

ordinary” 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



                                        28
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

                                          29
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-the-

ordinary”       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.



                                            30
        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,

                                        31
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

                                             32
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     cross-

petition      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

                                              33
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




                               34
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


                                         35
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


                                         36
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


                                               37
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


                                                 38
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


                                        39
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


                                                40
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


                                           41
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


                                             42
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).


                                         43
         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


                                           44
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


                                          45
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.


                                         46
       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


                                                   47
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


                                             48
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 ultra-

sanitized    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.




                                          49
       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


                                            50
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).




                                               51
       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


                                         52
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


                                                     53
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


                                       54
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


                                               55
helpful thing. Helpful, I think, if the benefits and burdens of

the administrative state are finally to be reconciled.




                               56
