In Dover Energy, Inc., Blackmer Division v. National Labor Relations Board, the Board held that Blackmer violated section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it threatened Tom Kaanta, a Blackmer employee and United Auto Workers Union shop steward, with disciplinary action if he continued to make “frivolous” information requests to the company’s lead negotiator during collective bargaining agreement (“CBA”) negotiations. On March 22, 2016, the U.S. Court of Appeals for the D.C. Circuit reversed and held that the NLRB’s factual findings were not supported by substantial evidence.

In 2012, Blackmer and the UAW began negotiating a new CBA. Kaanta—though not a member of the UAW’s bargaining committee nor a participant in the CBA negotiations—suspected that members of the committee had conflicts of interest, and therefore, could not represent the Union. On two occasions, Kaanta requested information from John Kaminski, Blackmer’s director of human resources and lead CBA negotiator. Kaanta claimed he needed the information “for future bargaining,” and a “labor board investigation.” Kaminski rejected both requests on the basis that Kaanta was “not a member of the bargaining committee,” and that the requests were “outside the scope” of Kaanta’s role as shop steward.

In response to Kaanta’s second request, Kaminski issued the following warning to Kaanta:

This is to serve as a verbal warning for continued frivolous requests for information [detailing Kaanta’s two requests] 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 practices charge claiming that the warning violated sections 8(a)(1) and 8(a)(3) of the NLRA by interfering with his right to engage in protected activity. The ALJ found for the company on the grounds that Kaanta’s request did not constitute protected activity. In a 2-1 ruling, an NLRB panel reversed, finding that it would have been reasonable for Kaanta to conclude that future information requests, though protected, could result in discipline or discharge. According to the Court, “the Board concluded that a reasonable employee in Kaanta’s position would read . . . ‘[s]imilar requests such as this’ to mean all requests for wage-and-hour information, including authorized requests.” (Emphasis original.) The Board described the warning as an “overly broad . . . blanket threat.”

The D.C. Circuit disagreed and refused to “rubber stamp” the NLRB’s decision. The Court took issue with the NLRB’s “selective reading of the warning’s language,” and held that the Board’s conclusion was not supported by substantial evidence.

The test for determining whether an employer has engaged in unlawful conduct under the NLRA is “whether the employer’s statements may reasonably be said to have tended to interfere with employees’ exercise of their Section 7 rights.” In this case, the “warning targeted specific, unprotected conduct,”—i.e., “continued frivolous requests for information.” (Emphasis original.) The warning also stated that Kaanta was not a member of the bargaining committee and that the committee was not bargaining for him. This language, the Court explained, “makes the admonition against ‘[s]imilar requests such as this’ unambiguous: the earlier requests were problematic because they were outside the scope of Kaanta’s responsibilities as a steward.” “Reading the warning to cover future protected activity requires an inferential leap the record does not support . . . .”

The Court held that, “viewed in its entirety, . . . the record supports only one reasonable interpretation of the . . . warning: Kaanta would be disciplined if in the future he continued to do what he had done twice before—namely, make an unauthorized information request unrelated to his duties as a Union steward.” (Emphasis original.) The Court did note, however, “that an employer’s genuine ‘blanket’ threat to discipline for future protected activity would violate the [NLRA], even if, . . . the warning responded to unprotected activity.” (Emphasis original.)

Employers should use precise language when issuing warnings. Blanket warnings, even in response to unprotected activity, may led to liability under the NLRA if an employee could reasonably conclude that the warning amounted to a prohibition against all future complaints. And it goes without saying that any warning, blanket or specific, that relates to protected activity will likely violate the NLRA.