373 NLRB No. 82
Intertape Polymer Group
373 NLRB No. 82
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Intertape Polymer Corp. and Matthew Rose. Case
07–CA–291784
August 23, 2024
DECISION, ORDER, AND ORDER REMANDING IN
PART
BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND
WILCOX
On February 17, 2023, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions, sup-
porting briefs, and answering briefs, and the General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision, Order, and
Order Remanding in Part.1
The Respondent manufactures adhesive tapes at multi-
ple facilities, including in Maryville, Michigan. Local
1149 of the United Autoworkers (the Union) represents a
unit of employees at this facility including shipping clerk
Matthew Rose, who is the union president. At issue in
this proceeding are complaint allegations that, since at
least September 7, 2021, the Respondent has maintained,
as part of its “Company Work Rules” document, nine
work rules that violate Section 8(a)(1) of the National
Labor Relations Act because they interfere with, restrain,
and coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act. The complaint fur-
ther alleges that the Respondent violated Section 8(a)(3)
and (1) in several respects by its conduct related to Rose.
With regard to most of the work rules (Rules 5, 12, 13,
19, and 21), the judge applied the framework set forth in
Boeing Co., 365 NLRB No. 154 (2017), finding some of
the rules lawful and others unlawful. Recently, in Steri-
cycle, Inc., 372 NLRB No. 113 (2023), the Board over-
ruled Boeing and adopted a modified version of the
framework set forth in Lutheran Heritage Village–
Livonia, 343 NLRB 646 (2004). In light of our decision
in Stericycle, which implicates the complaint allegations
in this case related to Rules 5, 12, 13, 19, and 21, we
shall sever those allegations and remand them to the
1 We shall amend the judge’s conclusions of law consistent with our
findings herein, and we shall modify the judge’s recommended Order
to conform to our findings, the Board’s standard remedial language,
and in accordance with our decision in Excel Container, Inc., 325
NLRB 17 (1997). We shall substitute a new notice to conform to the
Order as modified.
judge for further consideration consistent with the
framework adopted in Stericycle.
With regard to the remaining challenged rules, includ-
ing rules concerning distribution/posting and loiter-
ing/off-duty access (Rules 7, 9, and 20), the judge found
that the Respondent’s maintenance of these rules violated
Section 8(a)(1) by relying on older precedent that was
not disturbed by Boeing or Stericycle. We adopt the
judge’s findings regarding Rules 9 and 20 in light of the
Respondent’s failure to provide any argument in support
of its exceptions to the judge’s conclusion that these rule
were unlawfully maintained.2 In addition, for the reasons
discussed below, we adopt the judge’s conclusion that
Rule 7 is unlawfully overbroad and we find, contrary to
the judge, that the Respondent’s rule prohibiting unau-
thorized use of the company telephone (Rule 11) is law-
ful based on precedent predating and unaffected by Boe-
ing. We thus dismiss the complaint allegation related to
Rule 11.
Regarding the allegations related to Rose, the com-
plaint alleges that the Respondent unlawfully disciplined
and discharged him in violation of Section 8(a)(3) and
(1) of the Act for his postings on a company-provided
bulletin board and that the Respondent unlawfully re-
moved one of Rose’s postings in violation of Section
8(a)(1). At the hearing, over the General Counsel’s ob-
jection, the judge granted the Respondent’s motion to
defer these allegations. However, in his decision, the
judge provided a remedy for the Section 8(a)(1) posting
removal allegation, albeit without any analysis of the
issue. For the reasons set forth below, we find that these
allegations are not appropriate for deferral to arbitration.
Having done so, we remand these allegations to the judge
for further consideration consistent with this decision.
I. COMPANY WORK RULES 7 AND 11
Since 2008, the Respondent has maintained Company
Work Rules including Rule 7, which prohibits employees
from “distributing literature or printed matter of any kind
on Company premises, or the posting or removal of no-
tices, signs or writing of any form anywhere on Compa-
ny premises unless specifically authorized to do so by the
Company.” The judge found that Rule 7 was unlawfully
overbroad in prohibiting both distribution and posting
anywhere on company premises without authorization.
In so finding, the judge explained that both the distribu-
tion and posting aspects of the rule essentially require
employees to seek supervisory approval in order to en-
gage in Section 7 activity. See Brunswick Corp., 282
NLRB 794, 795, 797–798 (1987) (rule prohibiting
2
See Sec. 102.46(a)(1)(ii) of the Board’s Rules and Regulations;
see also Community Counseling & Mentoring Services, Inc., 371 NLRB
No. 39, slip op. at 1 fn. 1 (2021) (disregarding exception in the absence
of supporting argument); Holsum de Puerto Rico, Inc., 344 NLRB 694,
694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). We note that even
assuming the Respondent had properly excepted, we would affirm the
judge’s findings for the reasons stated in his decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
“[d]istribution of literature” and “post[ing] on any Com-
pany property without the express written consent of the
Company” unlawful on the grounds that “any rule that
requires employees to secure permission from their em-
ployer as a precondition to engaging in protected con-
certed activity on an employee’s free time and in non-
work areas is unlawful”).
The Respondent does not deny that the rule is facially
overbroad as to distribution,3 but contends that the judge
improperly conflated distribution with posting and erred
by extending his rationale regarding the rule’s distribu-
tion prohibitions to the posting aspect of the rule. We
disagree. The Board has long recognized both posting
and distribution as fundamental elements of employees’
ability to communicate in the workplace for the purposes
of self-organization. See, e.g., Norris/O’Bannon, 307
NLRB 1236, 1236 & 1245 (1992) (relying on Brunswick
in finding facially unlawful a rule prohibiting, inter alia,
“distribution of literature . . . anywhere on the Company
premises” and “posting . . . anywhere on the Company
premises unless specifically authorized”); see also Frost-
burg Village of Allegany County Nursing Home, 263
NLRB 651, 651 & 664 (1982) (ordering employer to
cease giving effect to and rescind rule “prohibiting solici-
tation, distribution, or posting of material or notices
without prior written authorization” in nonpatient care
areas because “it is clear that Respondent may not condi-
tion the exercise of Section 7 rights upon its own author-
ization”). Because Rule 7 clearly prohibits postings “of
any form anywhere on Company premises[,]” we find, in
agreement with the judge and consistent with precedent,
that Rule 7 is unlawfully overbroad as to both distribu-
tion and posting in violation of Section 8(a)(1).4
3 For this reason, we find it unnecessary to independently address
the distribution prohibition aspect of the rule in this decision. We note,
however, that the holdings in Boeing and Stericycle did not disturb
longstanding Board precedent governing employer restrictions on dis-
tribution. Stericycle, 372 NLRB No. 113, slip op. at 3 (“Our decision
today does not disturb the Board’s long-established doctrines covering
work rules that address union (or other protected) solicitation, distribu-
tion, or insignia.”); UPMC, UPMC Presbyterian Shadyside, d/b/a
UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital,
366 NLRB No. 142, slip op. at 1 fn. 5 (2018) (“[W]e note that the
Board in Boeing did not disturb longstanding precedent governing
employer restrictions on solicitation and distribution . . . . ”); see also
Stoddard-Quirk Mfg. Co., 138 NLRB 615, 616–617 (1962) (no-
distribution rule that extends to nonworking areas of company premis-
es, such as a parking lot, facially unlawful).
4
We further find that General Motors Corp., 212 NLRB 133
(1974), enfd. as modified 512 F.2d 447 (6th Cir. 1975), cited by the
Respondent, is not to the contrary. The rule found lawful by the Board
there prohibited “posting . . . on bulletin boards or Company property .
. . without specific authority of Management.” Id. at 134 (emphasis
added). By contrast, Rule 7 prohibits posting “anywhere on Company
premises.” As the Board found in Norris/O’Bannon, such a rule is
unlawful because “from its face, it appears to encompass notices or
signs—such as stickers—affixed to an employee’s own personal prop-
erty—such as a lunch pail—that is located ‘on the Company premis-
es.’” 307 NLRB at 1245 (emphasis added).
Turning to the Respondent’s Rule 11, that rule prohib-
its employees from “[u]sing company telephones for
personal calls without the permission of supervision[.]”
The judge found the rule unlawful because, as with Rule
7, he viewed Rule 11’s requirement of supervisory per-
mission for personal use of the Respondent’s phones to
be overbroad. Based on longstanding precedent predat-
ing Boeing, we disagree. The Board has explained that
“an employer ha[s] every right to restrict the use of com-
pany telephones to business-related conversations . . . . ”
Churchill’s
Supermarkets, 285
NLRB
138,
155
(1987), enfd. 857 F.2d 1474 (6th Cir. 1988); see also
Union
Carbide
Corp.,
259
NLRB
974,
980
(1981) (employer “could unquestionably bar its tele-
phones to any personal use by employees”), enfd. in rel-
evant part 714 F.2d 657 (6th Cir. 1983); Caesars Enter-
tainment d/b/a Rio All-Suites Hotel and Casino, 368
NLRB No. 143, slip op. at 6 fn. 39 (2019) (citing
Churchill’s Supermarket and other equipment cases in
support of the pronouncement that there is no Section 7
right to use employer communication systems).5 Here,
the complaint alleges only a facial challenge to Rule 11
and, as Board precedent permits the use restrictions stat-
ed on the face of the rule, we find, contrary to the judge,
that Rule 11 is not unlawful.
II. ALLEGATIONS RELATED TO MATTHEW ROSE
In November 2021, the Respondent hired a Director of
Labor Relations, Richard Harter.
On December 16,
2021, Rose filed a grievance against Harter asserting that
he had implemented a midnight shift schedule without
providing proper notice under the collective-bargaining
agreement. Rose posted the grievance on a union bulle-
tin board. On January 11, 2022, the Respondent issued
Rose a verbal warning in part for violating Rule 7 by
posting the grievance without authorization. (GC Exh.
7.)
Rose continued to post letters to union members updat-
ing them on an on-going disagreement between the Un-
ion and the Respondent regarding employees’ entitle-
ment to holiday pay. On February 11, 2022, at the end of
Rose’s work shift, Director of Labor Relations Harter
gave him a memo quoting Section 18.46 of the collective-
In addition, in adopting the judge’s findings that Rule 7 is unlawful
as to both distribution and posting, we do not rely on Flamingo Hilton-
Laughlin, 330 NLRB 287 (1999), cited by the judge. We note that, in
finding a no-posting rule similar to the one at issue here lawful, that
case did not reference or address our earlier contrary precedent.
5 Then-Member McFerran dissented in Caesars. Id., slip op. at 14–
23. Members Wilcox and Prouty did not participate in Caesars and
express no opinion about whether it was correctly decided. We decline
the General Counsel’s invitation to revisit the decision here but would
be open to reconsidering it in a future appropriate case. We further
decline the General Counsel’s request that we overturn the discrimina-
tion standard set forth in Register Guard, 351 NLRB 1110 (2007), in
the absence of any evidence or allegation that Rule 11 was unlawfully
enforced.
6 Sec. 18.4 states as follows:
INTERTAPE POLYMER CORP.
3
bargaining agreement regarding use of bulletin boards
and stating that “[a]ppropriate use of the Company sup-
plied bulletin board would be for administrative purposes
only as described in the CBA” and that “[g]rievance or
opinion letters would not be authorized and be [sic] sub-
ject to IPG Company Work Rules or relevant policies.”7
(R. Exh. 7.)
On February 25, 2022, Rose posted a letter to employ-
ees regarding Harter’s behavior during a Labor Manage-
ment meeting. The Respondent removed the letter, and
Rose reposted it. On March 1, 2022, the Respondent
issued Rose a written warning for his continued postings
without authorization, in violation of Rule 7. (GC Exh.
14.) On March 3, 2022, Rose was terminated for his
repeated violations of Rule 7, direct insubordination
(based on his refusal to remove a posting and reposting it
after Respondent had removed it), and dishonesty (spe-
cifically, lying when the Respondent questioned him
about whether he had reposted the letter). (GC Exh. 15.)
Neither the termination notice nor the disciplinary warn-
ings reference Section 18.4 of the collective-bargaining
agreement.
Having found Rule 7 unlawful, we reverse the judge’s
deferral of the Respondent’s alleged unlawful disciplines
and the alleged unlawful discharge of Rose for repeated
violations of the rule.8 In this regard, we note that the
Board has found discipline of an employee pursuant to
an unlawfully overbroad rule for conduct short of pro-
tected concerted activity but that “touches the concerns
animating Section 7” is unlawful absent a showing that
The Company will provide a bulletin board at a convenient place
within the plant for the exclusive use of the Union. The Union may use
such bulletin board for notices relating to Union business meetings,
elections and similar activities, but shall not be used [sic] for political
purposes.
7 There is no allegation that the memo constituted unlawful disci-
pline.
8 In so doing, we note, contrary to the judge, that it is not clear that
the parties’ collective-bargaining agreement, in particular Sec. 18.4, is
implicated given that neither the alleged unlawful disciplines nor the
alleged unlawful discharge relied upon it. We reject the Respondent’s
contention that the Union’s right to use the company bulletin boards
derives solely from Sec. 18.4. See Eaton Technologies, 322 NLRB
848, 853 (1997) (quoting Container Corp. of America, 244 NLRB 318
fn. 2 (1979), enfd. 649 F.2d 1213 (6th Cir. 1981)), for the proposition
that “[w]hen an employer permits, by formal rule or otherwise, em-
ployees and a union to post personal and official union notices on its
bulletin boards, the employees’ and union’s right to use the bulle-
tin boards receives the protection of the Act to the extent that the em-
ployer may not remove notices which the employer finds distasteful.”
In any case, the Board has authority to construe provisions of collec-
tive-bargaining agreements where necessary to address unfair labor
practice allegations before it. See NLRB v. C & C Plywood Corp., 385
U.S. 421, 430 (1967). Here, whatever the language of Sec. 18.4 may
mean, there is uncontroverted evidence that the Union has routinely—
and without seeking authorization—posted on its bulletin boards notic-
es related to a range of issues, including pending grievances, shared
concerns regarding working conditions, and various philanthropic
collections (e.g., supporting the troops, animal cruelty, etc.). (GC Exh.
3; Tr. 34:20–-24 & 38:11–39:3 (Rose); 150:13–24 & 151:8–14
(Grieg).)
the employee’s conduct actually interfered with the em-
ployer’s operations and that such interference was the
basis for the discipline. Continental Group, Inc., 357
NLRB 409, 412 (2011). We agree with the General
Counsel that deferral is improper because Rose’s alleged
unlawful disciplines and discharge are inextricably inter-
twined with the alleged unlawful rule. See, e.g., Burndy,
LLC, 364 NLRB 946, 973 (2016) (finding unlawfully
promulgated rule allegation “inextricably related” to al-
leged unlawful discipline issued pursuant to the rule,
precluding remand of one allegation without the other).9
We further find that the alleged unlawful removal of a
posting is not suitable for deferral, as the Respondent
contends. This allegation is inextricably intertwined with
the alleged unlawful disciplines and discharge pursuant
to the Respondent’s Rule 7 prohibiting unauthorized
posting and thus should not be deferred to arbitration.
See, e.g., Pioneer Press, 297 NLRB 972, 972 fn. 2 & 987
(1990) (alleged unlawful reprimand of unit employees
pursuant to no-distribution rule and alleged unlawful
removal of postings pursuant to the rule involved the
“same factual and legal issues,” such that deferral of the
former was improper where latter allegation was not de-
ferrable).
Having found that deferral of the allegations related to
Rose is not appropriate, we shall remand the allegations
that the Respondent disciplined and discharged Rose in
violation of Section 8(a)(3) and (1) to the judge for con-
sideration under applicable law, including reopening the
record, if appropriate, and, at a minimum in order to al-
low the Respondent to make out its rebuttal case under
Continental Group, Inc., 357 NLRB at 412. We shall
also remand the posting removal allegation to the judge
to allow him to address it in the first instance.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusions of
Law:
“Respondent is violating Section 8(a)(1) by maintain-
ing its Company Work Rules 7, 9 and 20.”
9 Having found deferral inappropriate on this basis, we decline the
General Counsel’s request to overrule United Parcel Service, 369
NLRB No. 1 (2019), and return to the deferral standards set forth in
Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), rev.
denied sub nom. Beneli v. NLRB, 873 F.3d 1094 (9th Cir. 2017), at this
time. In so doing, we express no opinion on whether United Parcel
Service was correctly decided.
We also decline the General Counsel’s request to overrule AT&T
Mobility, LLC, 370 NLRB No. 121 (2021), at this time. Under AT&T
Mobility, the remedy for unlawfully applying a facially neutral rule to
restrict Sec. 7 activity is an order to cease and desist. Here, we have
found Rule 7 facially unlawful based on longstanding precedent.
Chairman McFerran dissented in AT&T Mobility and adheres to the
views stated there. Members Prouty and Wilcox did not participate in
AT&T Mobility and express no view as to whether it was correctly
decided.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
ORDER
The
Respondent,
Intertape
Polymer
Corp.,
Marysville, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Maintaining an overly broad work rule prohibiting
distribution or posting of literature or printed matter of
any kind on Company premises unless specifically au-
thorized by the Company.
(b) Maintaining overly broad work rules prohibiting
loitering and unauthorized presence of employees on
company property or in the plant on shifts other than
their shift.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rules indicated in 1(a) and (b) above.
(b) Furnish employees with an insert for the current
Company Work Rules document that (1) advises that the
unlawful provisions have been rescinded, or (2) provide
lawfully worded provisions on adhesive backing that will
cover the unlawful provisions; or publish and distribute
to employees revised Company Work Rules documents
that (1) do not contain the unlawful provisions, or (2)
provide lawfully worded provisions.
(c) Post at its Marysville, Michigan facility copies of
the attached notice marked “Appendix.”10
Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
10 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notice must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed or not staffed by a substantial complement
of employees due to the Coronavirus Disease 2019 (COVID–19) pan-
demic, the notice must be posted within 14 days after the facility reo-
pens and a substantial complement of employees have returned to
work. If, while closed or not staffed by a substantial complement of
employees due to the pandemic, the Respondent is communicating with
its employees by electronic means, the notice must also be posted by
such electronic means within 14 days after service by the Region. If
the notice to be physically posted was posted electronically more than
60 days before physical posting of the notice, the notice shall state at
the bottom that “This notice is the same notice previously [sent or
posted] electronically on [date].” If this Order is enforced by a judg-
ment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.”
customarily communicates with its employees by such
means.
Respondent shall take reasonable steps to en-
sure that the notices are not altered, defaced, or covered
by any other material.
If the Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since December 15, 2022.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
It is FURTHER ORDERED that the allegations that the
Respondent violated Section 8(a)(1) by maintaining its
Company Work Rules 5, 12, 13, 19, and 21 and by re-
moving a Union posting from a company-provided union
bulletin board, and violated 8(a)(3) and (1) by disciplin-
ing and discharging Union President Matthew Rose for
his postings on the union bulletin boards, are remanded
to Administrative Law Judge Arthur J. Amchan for fur-
ther appropriate action as discussed above.
The judge shall afford the parties an opportunity to
present evidence on the remanded issues and shall pre-
pare a supplemental decision setting forth credibility res-
olutions, findings of fact, conclusions of law, and a rec-
ommended Order.
Copies of the supplemental decision
shall be served on all parties, after which the provisions
of Section 102.46 of the Board’s Rules and Regulations
shall be applicable.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found or remanded.
Dated, Washington, D.C. August 23, 2024
______________________________________
Lauren McFerran, Chairman
________________________________________
David M. Prouty, Member
________________________________________
Gwynne A. Wilcox, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
INTERTAPE POLYMER CORP.
5
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain an overly broad work rule pro-
hibiting distributing or posting of literature or printed
matter of any kind on Company premises unless specifi-
cally authorized by the Company.
WE WILL NOT maintain overly broad work rules pro-
hibiting loitering and unauthorized presence of employ-
ees on company property or in the plant on shifts other
than their shift.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the overly broad rules in the Compa-
ny Work Rules document that prohibit distribution or
posting of literature or printed matter of any kind on
Company premises unless specifically authorized by the
Company and that prohibit loitering and unauthorized
presence of employees on company property or in the
plant on shifts other than their shift.
WE WILL furnish you with an insert for the current
Company Work Rules document that (1) advises that the
unlawful provisions have been rescinded, or (2) provide
lawfully worded provisions on adhesive backing that will
cover the unlawful provisions; or WE WILL publish and
distribute revised Company Work Rules documents that
(1) do not contain the unlawful provisions, or (2) provide
lawfully worded provisions
INTERTAPE POLYMER CORP.
The
Board’s
decision
can
be
found
at
www.nlrb.gov/case/07-CA-291784 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940
Dynn Nick, Esq., for the General Counsel.
Alan I. Model, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Detroit, Michigan on December 6–7, 2022.
Jurisdiction
Respondent manufactures adhesive tapes at its Maryville,
Michigan facility, as well as at other facilities. It purchases and
receives goods at this facility which are valued in excess of
$50,000 annually directly from points outside of Michigan.
Respondent admits and I find that it is an employer within the
meaning of the Act and that Local 1149 of the United Auto-
workers, the Union which represents about 150 employees at
Respondent’s Marysville facility, including the Charging Party,
is a labor organization within the meaning of the Act.
Matthew Rose, a shipping clerk at Respondent’s Maryville,
Michigan facility, filed the initial charge giving rise to this
matter on March 8, 2022. Respondent terminated Rose, who at
the time was president of Local 1149, on March 3, 2022
The basis of the charge as amended on June 15, 2022, was
Respondent’s alleged retaliation against Mr. Rose by issuing
him a disciplinary warning on January 12, 2022, and discharg-
ing him on March 3, 2022. The amended charge also alleges
that Respondent is maintaining overly broad work rules
The General Counsel issued a complaint on September 14,
2022. The complaint alleges that Respondent violated Section
8(a)(3) and (1) in disciplining and terminating Matthew Rose
and Section 8(a)(1) in maintaining overly broad work rules. It
also alleges that Respondent violated Section 8(a)(1) by order-
ing employees to remove information from a union bulletin
board and by a supervisor removing information posted on a
union bulletin board.
On the second day of trial in this matter, I granted Respond-
ent’s motion to defer the allegations relating to Mr. Rose’s
discipline and discharge to arbitration. The General Counsel
has filed a special appeal challenging that ruling. In order to
hopefully obviate the need for a remand if the Board overrules
my ruling on deferral, I herein set out the facts relevant to Mr.
Rose’s discipline and discharge. The facts may also be relevant
in assessing the legality of company rules 7 and 13 which were
cited in the discipline and discharge of Mr. Rose.
Respondent’s 37 work rules are contained in (GC Exh. 8).
They have been in effect since 2008. The rules which the
General Counsel alleges are overbroad and thus illegal as to the
conduct they prohibit are the following1:
Work Rule 5: Unauthorized visiting in the plant, leaving the
job or work station during working hours without securing
permission from your supervisor, or leaving the plant during
working hours without first obtaining permission from your
supervisor.
Work Rule 7: Distributing literature or printed matter of any
kind on Company premises, or the posting or removal of no-
tices, signs or writing of any form anywhere on Company
premises unless specifically authorized to do so by the Com-
pany.”
1 All of Respondent’s work rules appear in G.C. Exh. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
Work Rule 9: Loitering on Company property.
Work Rule 11: Using company telephones for personal calls
without the permission of supervision.
Work Rule 12: Engaging in inappropriate behavior while on
company premises
Work Rule 13: While on the premises engaging in or encour-
aging the following: “horseplay,” scuffling, wrestling.
Throwing things, practical jokes, distracting or startling others
causing confusion, unnecessary noise, demonstrations of any
kind or acting in a disorderly manner.
Work Rule 19: Bringing cameras or photographic equipment
(including cell phones) without the company’s authorization.
Work Rule 20: Employees will not be allowed on company
property or in the plant on shifts other than their shift unless
authorized.
Work Rule 21: Indirect Insubordination: challenge and abuse
of directions given by supervision or management.
Discipline and Discharge of Matthew Rose
Matthew Rose worked for Respondent for 26 years prior to
his termination. He was president of UAW Local 1149 in
2014–15 and then became president of the Local again in mid-
2021. In the fall of 2021, Respondent hired Richard Harter to
be its Director of Labor Relations. Harter is responsible for
labor relations at Marysville and other company facilities.
In December 2021, Rose had a disagreement with Harter
about the schedule for the midnight shift and holiday pay. Rose
challenged Harter’s authority to countermand a prior statement
from a Marysville production manager. Rose filed a grievance
about this and taped the grievance form to 1 of 5 union bulletin
boards at the plant. On January 11, 2022, Respondent issued
Rose a disciplinary warning for violating company work rules 7
and 13 in this regard.
Work Rule 7, which has been in effect for years, prohibits
“Distributing literature or printed matter of any kind on Com-
pany premises, or the posting or removal of notices, signs or
writing of any form anywhere on Company premises unless
specifically authorized to do so by the Company.”
Work Rule 13 prohibits “While on the premises engaging in
or encouraging the following: “horseplay,” scuffling, wrestling,
throwing things, practical jokes, distracting or startling others,
causing confusion, unnecessary noise, demonstrations of any
kind or acting in a disorderly manner.
Violations of these rules are subject to progressive discipline.
On February 11, 2022, Respondent informed Rose that his
posting of grievances on the union bulletin boards violated
Section 18.4 of the collective bargaining agreement between
Respondent and Local 1149. That sections states:
18.4. The Company will provide a bulletin board at a conven-
ient place within the plant for the exclusive use of the Union.
The Union may use such bulletin board for notices relating to
Union business meetings, elections and similar activities, but
shall not be used for political purposes.
On February 15 , 2022, Rose posted a letter taking issue with
the company on the union bulletin board. Then on February 25,
he posted additional material on the outside glass of a union
bulletin board, objecting to Respondent’s refusal to conduct a
labor-management meeting. Respondent refused to conduct the
meeting with a union official present that it believed was not
entitled to be present. Respondent removed the posted material
from the outside glass of the bulletin board. Rose than posted
the material inside the glass under lock and key.
When management asked Rose if he had put the material be-
hind the glass, Rose denied doing so. When asked for the key
to the interior bulletin board, Rose initially stated he did not
have access to such a key, which was also not true.
On March 1, 2022, Respondent issued Rose a written warn-
ing for violating company work rule 7, specifically posting
notices without Respondent’s authorization on February 15 .
On March 3, 2022 Respondent terminated Rose for posting and
reposting materials in violation of work rule 7 on February 25,
after being told not to do so. The termination notice also stated
the Rose was insubordinate and that he lied about posting mate-
rial inside the union display cabinet on February 25, and about
having a key to that cabinet.
On the second day of hearing, I granted Respondent’s mo-
tion to defer consideration of the allegations relating to Rose’s
discharge and discipline to arbitration. I severed those allega-
tions from complaint paragraph 7 which concerns only the faci-
al legality of some of Respondent’s work rules.
I granted this motion, over the objection of the General
Counsel because I believe a determination as to whether Re-
spondent violated the Act in disciplining and discharging Rose
necessarily involves an interpretation of Section 18.4 of the
collective bargaining agreement. Respondent represented that
an arbitration hearing was scheduled for February 1, 2023. At a
minimum, I believe if the arbitrator determines that Rose did
not violate Section 18.4, the General Counsel will most likely
prevail regarding its allegations regarding his discipline and
discharge.
The legality of the work rules at issue
The General Counsel contends that Respondent’s work rules
are invalid under current Board law but also contends that the
Board should overturn a number of cases decided since 2017. I
am bound by current Board law and will only address the legal-
ity of Respondent’s rules under current Board precedent, Boe-
ing Co., 365 NLRB 154 (2017); LA Specialty Produce Co., 368
NLRB No. 93 (2019),
The Board held that when evaluating a facially neutral poli-
cy, rule or handbook provision that when reasonably interpreted
would potentially interfere with the exercise of NLRA rights,
the Board will evaluate the nature and extent of the potential
impact on NLRA rights, and legitimate justifications associated
with the rule. The Board will balance the potential interference
with Section 7 rights and legitimate justifications associated
with the rule.
The Board in Boeing distinguished three categories of work
rules:
Category 1 rules that are lawful because when reasonably in-
terpreted, they do not prohibit or interfere with the exercise of
NLRA rights or the potential adverse impact is outweighed by
justifications associated with the rule.2
Category 2: rules that warrant individualized scrutiny as to
whether the rule would prohibit or interfere with NLRA rights,
2 The Board has further classified these cases as Category 1(a) those
that when reasonably interpreted do not impact Sec. 7 activity and
Category 1(b), those that do so but are legal because the impact on
protected rights is outweighed by the justifications associated with the
rule.
INTERTAPE POLYMER CORP.
7
and if so , whether any adverse impact on NLRA protected
conduct is outweighed by legitimate justifications.
Category 3: rules that prohibit or limit NLRA protected con-
duct and the adverse impact on NLRA rights is not outweighed
by justifications associated with the rule.
In LA Specialty Produce Co., 368 NLRB No. 93 (2019), the
Board placed upon the General Counsel the initial burden of
proving that a facially neutral rule would in context be inter-
preted by a reasonable employee to potentially interfere with
the exercise of Section 7 rights.
There is no evidence in this record on which to determine
what a reasonable employee would glean about the rules in
question from the facial terms. The General Counsel argues
that all potentially interfere with Section 7 and that Respondent
did not provide a business justification for any of them. Thus,
the General Counsel argues, I must find that all these rules
violate the Act.
With the exception of rule 7 and 13 I have not been provided
any context in which to make this determination, apart from the
fact these rules have been in place for 15 years in a unionized
facility
Analysis
Work Rule 5: Unauthorized visiting in the plant, leaving
the job or work station during working hours without securing
permission from your supervisor, or leaving the plant during
working hours without first obtaining permission from your
supervisor.
In Our Way, Inc., 268 NLRB 394 (1983), relied upon by the
General Counsel, the Board drew a distinction between rules
that prohibited employees from distributing literature and solic-
iting during “working time” which are presumptively valid and
those prohibiting such activity during “working hours” which
are presumptively invalid because that would include periods
when employees are not on the clock, such as during breaks.
I conclude that Rule 5 does not violate the Act. A reasonable
employee would not construe this rule as prohibiting him or her
from leaving their work station at the end of their shift. Neither
would a reasonable employee construe the rule as prohibiting
the employee from going on a break, including restroom
breaks, which assumedly have been previously approved by a
supervisor. I do not conclude that an employee in a unionized
workplace would reasonably interpret this rule as meaning
Respondent could or would fire them if they participated in a
legal strike.3
Work Rule 7: Distributing literature or printed matter of any
kind on Company premises, or the posting or removal of notic-
es, signs or writing of any form anywhere on Company premis-
es unless specifically authorized to do so by the Company.
I find this rule invalid in that it is discriminatory in that it al-
lows the distribution or posting of material of which Respond-
ent approves and prohibits the distribution or posting of mate-
rial for which Respondent disapproves, regardless of whether
3 Labor Ready, Inc., 331 NLRB 1656 (2000), relied upon by the
General Counsel is distinguishable in that there 2 unsophisticated em-
ployees of a temporary employment agency were terminated pursuant
to that employer’s rule for protected activity which was essentially a
strike. The instant case involves a unionized workplace with a collec-
tive bargaining agreement in place that contains a no-strike, no lockout
provision and other provisions protecting the rights of employees and
the employer. The record establishes that the Union at Marysville is
not passive.
that material impacts employees’ Section 7 rights, Chromalloy
Gas Turbine Corp., 331 NLRB 858 (2000); Brunswick Corp.,
287 NLRB 794 (1987) [any rule that requires employees to
secure permission from their employer as a precondition to
engaging in protected concerted activity on an employee’s free
time and in non-work areas is unlawful]. Respondent could
prohibit the posting of materials anywhere on its property,
Flamingo Hilton-Laughlin, 330 NLRB 287, 293 (1992).4 It
could also allow distribution or posting of some materials and
not others if it made a distinction based on legitimate reasons,
e.g., those not relating to wages, hours and working conditions.
An example might be political campaign materials. It could
also limit the areas which either distribution or posting occurs
but cannot retain the unfettered discretion to determine what
can be distributed or posted and where such activity can take
place.
In accommodating the respective right of employers and em-
ployees, the Board must act with as little destruction to one as
is consistent with the other, NLRB v. Babcock & Wilcox, 351
U.S. 105, 112 (1956). Rules inhibiting Section 7 rights must be
narrowly tailored to address the employer’s concerns.
Although Matthew Rose’s discharge and discipline was de-
ferred to arbitration, a finding that Rule 7 was illegal may man-
date a finding that his discharge and discipline was also illegal,
EYM King of Michigan, 366 NLRB No. 156, slip op. at 2
(2018).
Work Rule 9: (loitering on company property): This rule is
illegal in that inhibits the right of employees to remain in non-
work areas on non-work time, EYM King of Michigan, 366
NLRB No. 156 (2018); Tri County Medical Center, 222 NLRB
1089 (1976).
Work Rule 11: Using company telephones for personal
calls without the permission of supervision. I find this rule
illegal for the same reason that I find Rule 7 illegal, the unfet-
tered discretion it gives to management. Under current Board
law, Respondent has the right to prohibit the use of company
telephones completely. Caesars Entertainment d/b/a Rio All-
Suites Hotel and Casino, 368 NLRB No. 143 (2019). An em-
ployee would reasonably conclude that this rule applies to per-
sonal calls relating to protected activity, e.g., a call to his busi-
ness agent about a potential grievance relating only to that em-
ployee (i.e., a shift assignment).
Work Rule 12: Engaging in inappropriate behavior while
on company premises
I find this rule to be valid. The General Counsel has not es-
tablished the criteria for finding it unlawful: 1) employees
would reasonably construe the language to prohibit Section 7
activity, or 2) it was promulgated in response to union activity
or 3) the rule has been applied to restrict Section 7 rights, Hita-
chi Capital America Corp., 361 NLRB 123, 124 (2014).
Work Rule 13: While on the premises engaging in or en-
couraging the following: “horseplay,” scuffling, wrestling.
Throwing things, practical jokes, distracting or startling others
causing confusion, unnecessary noise, demonstrations of any
kind or acting in a disorderly manner. I find this rule to be
valid for the reasons I have found Rule 12 valid.
Work Rule 19: Bringing cameras or photographic equip-
4 This decision rests at least in part on the absence of any evidence
of discriminatory enforcement. In the instant case, some of the material
posted by Rose was at least arguably protected. Thus, since Respond-
ent allows posting of materials of which it approves, there is at least
arguable evidence of discriminatory enforcement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
ment (including cell phones) without the company’s authoriza-
tion.
I find this rule invalid for the same reason I find rule 7 ille-
gal: the unfettered discretion it gives to Respondent to decide
the conditions under which an employee may bring his cell
phone, etc. to work. Unlike the situation in the cases cited by
Respondent, Argos USA, d/b/a. Argos Ready Mix, LLC, 369
NLRB No. 26 (2019), and Cott Beverages, Inc., 369 NLRB No.
82 (2019), there is no limiting language to Respondent’s rule.
It applies to all areas of Respondent’s facility at all times.
Thus, an employee would reasonably conclude that he or she
cannot use a cell phone to engage in protected activity, such as
calling his or her business representative, from any place or any
time while on Respondent’s property. Also, unlike the cases
cited by Respondent, it has not offered any legitimate justifica-
tion for the breath of the rule.
Work Rule 20: Employees will not be allowed on company
property or in the plant on shifts other than their shift unless
authorized.
Respondent’s brief concedes that this rule is “problematic”
pursuant to Board law, including Tri-County Medical Center,
222 NLRB 1089 (1976). It argues, however, that since it is
entitled to prevent off-duty employees from coming into the
facility, the entire rule is valid. On the contrary, I find the rule
as written is illegal in that it prohibits off duty employees from
being anywhere on company property when not on the clock,
including parking lots, which would be the most opportune
time for employees to engage in protected concerted activity
with employees who work a different shift. The solution to the
rule’s illegality as written is to rewrite it..
Work Rule 21: Indirect Insubordination: challenge and
abuse of directions given by supervision or management.
The General Counsel relies on the Board’s decision in Lytton
Rancheria of California, 361 NLRB 1350, 1352–1353 (2014),
for the proposition that any rule that prohibits conduct less than
actual insubordination would be reasonably construed as pro-
hibiting activities protected by Section 7. I agree. The Board in
that case opined that a prohibition limited to insubordination
would have been valid. The patent ambiguity of the rule
would reasonably lead employees to believe the rule to prohibit
protected conduct. Moreover, balancing the interests of em-
ployees and management overwhelmingly supports a finding
that this rule is illegal. Respondent’s Rule 29, “Direct insubor-
dination: includes direct refusal of work and willful failure to
perform duties,” is not deemed invalid by the General Counsel.
Given the ambiguity of Rule 21 and the adequacy of Rule 29 to
protect Respondent’s legitimate interests, I find Rule 21 to be
invalid.
Conclusions of Law
Respondent is violating Section 8(a)(1) by maintaining its
work rules 7, 9, 11, 19, 20, and 21.
Remedy
Having found Respondent Intertape Polymer Corp. has been
engaging in certain unfair labor practices, I shall order it to
cease and desist and to take affirmative action designed to ef-
fectuate the policies of the Act.
Having found that Respondent has violated Section 8(a)(1)
in maintaining unlawful work rules, I shall order Respondent to
either rescind or revise these rules.
Respondent shall distribute the revised rules or a statement
that they have been rescinded electronically if it customarily
communicates with its employees in this manner.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER5
Intertape Polymer Corp., Marysville, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
a. Maintaining overly broad work rules
b. Removing material posted in non-work areas by employ-
ees pursuant to these rules that pertain to wages, hours, and
other terms and conditions of employment.
c. In any like or related manner, interfering with, restraining
or coercing its employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
a. Rescind or modify the overbroad language in its work
rules 7, 9, 11, 19, 20 and 21.
b. Within 14 days after service by the Region, post at its fa-
cility in Marysville, Michigan, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 15, 2022.
c. Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. February 17, 2023
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
INTERTAPE POLYMER CORP.
9
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain overly broad work rules that could
reasonably be construed to interfere with employees’ rights
protected by Section 7 of the National Labor Relations Act..
WE WILL NOT remove any material posted by employees in
non-work areas of our facility pursuant to any such rules.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind or modify the following of our work rules:
Work rule 7: Distributing literature or printed matter of any
kind on Company premises, or the posting or removal of no-
tices, signs or writing of any form anywhere on Company
premises unless specifically authorized to do so by the Com-
pany.
Work Rule 9: Loitering on Company property.
Work Rule 11: Using company telephones for personal calls
without the permission of supervision.
Work rule 19: Bringing cameras or photographic equipment
(including cell phones) without the company’s authorization.
Work rule 20: Employees will not be allowed on company
property or in the plant on shifts other than their shift unless
authorized.
Work rule 21: Indirect Insubordination: challenge and abuse
of directions given by supervision or management.
INTERTAPE POLYMER CORP.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-291784
or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.