NLRB Ignored Context of Warning About Frivolous Information Requests: DC Circuit | Practical Law

NLRB Ignored Context of Warning About Frivolous Information Requests: DC Circuit | Practical Law

In Dover Energy, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board (NLRB) ignored the context in which the employer warned a union steward for requesting information nominally for collective bargaining while holding the warning violated the National Labor Relations Act (NLRA). The employer's effort to stop frivolous information requests did not reasonably tend to interfere with the steward's Section 7 rights.

NLRB Ignored Context of Warning About Frivolous Information Requests: DC Circuit

Practical Law Legal Update w-001-7722 (Approx. 6 pages)

NLRB Ignored Context of Warning About Frivolous Information Requests: DC Circuit

by Practical Law Labor & Employment
Published on 28 Mar 2016 • USA (National/Federal)
In Dover Energy, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board (NLRB) ignored the context in which the employer warned a union steward for requesting information nominally for collective bargaining while holding the warning violated the National Labor Relations Act (NLRA). The employer's effort to stop frivolous information requests did not reasonably tend to interfere with the steward's Section 7 rights.
On March 22, 2016, in Dover Energy, Inc. v. NLRB, the US Court of Appeals for the District of Columbia Circuit granted a petition for review of a decision in which the NLRB ignored the context in which the employer warned a union steward for requesting information nominally for collective bargaining while holding the warning was unlawful. The NLRB disregarded evidence that:
  • The steward was not on the union's negotiating committee.
  • The requests were beyond the scope of the steward's authority.
  • The employer warned the steward for making frivolous requests about bargaining rather than information requests of any kind.
In the totality of circumstances, the employer's effort to stop frivolous information requests did not reasonably tend to interfere with the steward's Section 7 rights under the NLRA. The court also held that the NLRB misapplied inapposite precedent in which the DC Circuit enforced an NLRB order holding a company had unlawfully warned a steward not to request information of any kind for any purpose, infringing on his authority to administer a collective bargaining agreement (CBA) and engage in concerted protected activity, generally ( (D.C. Cir. Mar. 22, 2016).)

Background

Dover Energy, Inc., Blackmer Division (Blackmer), an industrial pump manufacturer had a CBA with United Auto Workers, Local 828. Certain Blackmer employees worked as union stewards to settle employee grievances, and as the two sides negotiated a new CBA, Blackmer's Human Resources Director, John Kaminski, served as lead negotiator and a bargaining committee represented the union.
Tom Kaanta, a steward who was not part of the bargaining committee, submitted an information request to Kaminski, seeking financial information about all financial relationships between the parties outside of the CBA. Kaminski learned that the union had not authorized Kaanta's inquiry and denied the request, noting that Kaanta was not part of the bargaining committee and was out of his scope. Kaanta submitted a second unauthorized request. Kaminski said he would not negotiate individually with Kaanta and issued him a warning:
"This is to serve as a verbal warning for continued frivolous requests for information (photo copies of all employee paychecks for a period ending December 1, 2007 and pay period August 5, 2012, and spreadsheets for total hours and pay for each pay period starting with August 12, 2012, and every pay period thereafter, until the contract is ratified) and interfering with the operation of the business. You are not on the Bargaining Committee and fail to work within the parameters of such to bring matters to the Bargaining Committee. We are not individually bargaining with you or any other individual. Similar requests such as this will result in further discipline up to and including discharge."
Kaanta filed an unfair labor practice (ULP) charge with the NLRB's Office of General Counsel (OGC), alleging that the warning violated the NLRA by interfering with his right to engage in concerted protected activity. An administrative law judge (ALJ) concluded at a hearing that Blackmer had not committed an ULP by issuing the warning, since Kaanta's requests were not protected concerted activity.
The majority of the panel (Board) heading the NLRB's judicial functions held that Blackmer unlawfully threatened Kaanta with discipline for any future activity (Dover Energy, Inc., Blackmer Div., 361 N.L.R.B. No. 48, at*3 (Sept. 17, 2014)). Member Miscimarra, in dissent, believed that a reasonable employee would have understood that the warning did not threaten discipline for legitimate requests. Blackmer petitioned for review of the decision.

Outcome

The DC Circuit granted Blackmer's petition for review and denied the Board's cross-application for enforcement. The court noted that:
The DC Circuit held that:
  • The Board failed to consider the totality of circumstances.
  • The Board's decision:
    • was not supported by substantial evidence in the record; and
    • cherry-picked the warning's language concerning Kaanta's request for wage-and-hour information and the statement that similar requests will result in discipline.
  • The warning targeted specific unprotected conduct, specifically "continued frivolous requests for information," not authorized by the union.
  • A reasonable person in Kaanta's position would:
    • understand that the warning discouraged him only from making requests similar to the two requests that he had recently made (the only two he had ever made); and
    • not read into the warning a prohibition against any requests, including NLRA-protected requests.
  • The record shows that the warning was not prohibiting the type of information sought, but the type of request made, an information request made outside of the scope of Kaanta's role as union steward. Blackmer's warning, as well as its response to Kaanta's initial request, made this clear. Kaanta's union confirmed that his requests were not authorized.
  • The Board had not found Kaanta's conduct to be protected and the ALJ had expressly found it to be unprotected.
  • The Board erred by misapplying DaimlerChrysler. DaimlerChrysler involved warning a steward against making any information requests. Since information requests are part of bargaining and CBA administration, each activity is concerted protected activity, thus a warning to stop making the requests infringed on Section 7 activities of the union steward. DaimlerChrysler was inapposite because this case concerned an employer warning a steward about making frivolous requests beyond the scope of the authority the union granted him. (288 F.3d at 444.)

Practical Implications

Dover Energy was an information request case. The DC Circuit Court limited its analysis to facts, particularly:
  • How a reasonable employee would interpret the warning in the totality of the circumstances.
  • Finding inapposite the DaimlerChrysler case on which the Board relied.
If employers want to read more into the holding, they will find that at least this panel of the DC Circuit may have different views from the Board majority on:
  • What it means to consider the totality of circumstances including the context of communications and actions precipitating them.
  • How likely it is that a reasonable employee will read into employer communications as tending to coerce or infringe on employees' exercise of Section 7 rights.