The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2015 Decided March 22, 2016
No. 14–1197
DOVER ENERGY, INC., BLACKMER DIVISION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 14–1221
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Keith E. Eastland argued the cause for the petitioner.
William H. Fallon was with him on brief.
Marni L. von Wilpert, Attorney, National Labor Relations
Board, argued the cause for the respondent. Richard F.
Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Kira Dellinger, Supervisory Attorney were with
her on brief.
2
Before: HENDERSON, PILLARD and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In a two-
to-one decision, the National Labor Relations Board (Board)
held that Dover Energy, Inc., Blackmer Division (Blackmer)
committed an unfair labor practice when it warned one of its
employees, Tom Kaanta, to stop submitting “frivolous”
information requests that his union, the United Auto Workers
Union, Local 828 (Union), had not authorized. Because the
record—viewed with the deference due the Board—lacks
substantial evidence in support of the Board’s decision, we
grant Blackmer’s petition and deny the Board’s cross-
application for enforcement.
I.
Blackmer is a Michigan industrial-pump manufacturer.
For decades, Blackmer had a collective bargaining agreement
(CBA) with the Union. To monitor adherence to the CBA on
a day-to-day basis, the Union elected certain Blackmer
employees to serve as stewards, who acted as liaisons
between the Union and Blackmer and were responsible for
investigating and settling employee grievances.
During the summer of 2012, Blackmer and the Union
began to negotiate a new contract to replace the then-current
CBA, which was set to expire in September 2012. John
Kaminski (Kaminski), Blackmer’s Director of Human
Resources, served as the company’s lead negotiator. A
bargaining committee consisting of Union president Dennis
Raymond (Raymond) and several other Union representatives
conducted negotiations on behalf of the Union.
3
Enter Tom Kaanta. Kaanta, a long-time Blackmer
employee with past service as a Union steward, was elected in
June 2012 to serve again as a steward, representing skilled-
services employees on the second shift—a group of four
employees. Notably, Kaanta was not a member of the Union
bargaining committee and did not participate in any CBA
negotiations.
As CBA negotiations progressed, Kaanta apparently grew
suspicious that members of the Union bargaining committee
had conflicts of interest that could compromise their ability to
effectively represent Union members at the negotiating table.
Thus, on June 12, 2012, Kaanta submitted a handwritten
“Information Request” to Kaminski. The request read:
I[,] Tom Kaanta, steward of Local 828 request
any and all financial information (names,
dates, amounts, etc.) pertaining to any and all
financial relationships outside the collective
bargaining agreement (employee/subcontractors,
employee liasions to subcontractors,
employee/company investigators, monies,
benefits, gifts, side deals, etc.) between
Blackmer PSG (Dover) and Local 828
members, reps, pensioners, spouses, and
immediate children. I request this information
for the purpose of future bargaining.
Deferred Appendix (D.A.) 91 (errors in original).
After receiving the request, Kaminski contacted
Raymond to determine if the Union had authorized Kaanta’s
inquiry. Raymond told Kaminski that the Union had not
authorized the request and that the request was not within the
scope of Kaanta’s role as Union steward. On June 19, 2012,
Kaminski sent Kaanta a letter denying his request. The letter
4
stated that “[a]ny requests must be processed through the
normal bargaining committee process . . . . You are not part
of the negotiation committee and your request is outside your
scope.” D.A. 92. After his response, Kaminski had no further
contact with Kaanta about the matter.
On August 10, 2012, however, Kaanta submitted a
second written “Information Request” to Kaminski. This
request stated:
Union officer requests photocopy of all
employee paychecks for the payperiod ending
Dec. 1 2007 and payperiod ending Aug. 5
2012. Also I request a spreadsheet printout
representing all employee total hours and pay
for each payperiod, starting with Aug. 12 2012,
and every payperiod thereafter, until the
contract is ratified.
I believe the company is manipulating wage
rates for the purpose of influencing the union
vote! I request this information for labor board
investigation.
D.A. 93 (errors in original). As he later confirmed in his
testimony before an Administrative Law Judge (ALJ), Kaanta
submitted this request because he believed Blackmer was
offering various wage increases to employees in order to
shore up employee support for the new CBA once it was
finalized and before the Union membership voted on it.
Kaminski again contacted Raymond, as well as the chair
of the Union bargaining committee, to determine if the Union
had authorized Kaanta’s request. The Union officials again
told Kaminski that the Union had not authorized the request
and that he should not honor it.
5
On August 23, 2012, Kaminski responded to Kaanta’s
second request by issuing a “verbal” warning, albeit in written
form. 1 See D.A. 94. Kaminski and three other members of
Blackmer management met with Kaanta to deliver the
warning and to explain that Blackmer did not intend to
bargain with him individually. See D.A. 188, ALJ Hr’g
Tr. 86:15–20 (Kaminski: “I basically stated to him that he was
again outside of his scope, that anything relating to the
collective bargaining process had to go through the bargaining
committee, that I would not individually bargain with him . . .
or supply any information that would be considered
individually bargaining for him . . . .”).
The warning stated in toto:
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
1
The Blackmer Code of Employee Conduct does not include
a “verbal” warning as recognized official discipline. Rather,
official discipline begins with a “[w]arning in writing.” See D.A.
161. Kaminski issued a verbal warning because he thought
Kaanta’s conduct did “not necessarily [warrant] a written warning”
and hoped that “a verbal warning[] would stop the activity.” D.A.
188, ALJ Hr’g Tr. 89:1–3. Kaminski put the verbal warning in
writing so there would be no question that Kaanta understood that
his requests had to stop.
6
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.
D.A. 94.
On December 11, 2012, Kaanta filed an unfair labor
practice charge with the Board’s Office of the General
Counsel (OGC). He amended the charge on September 11,
2013, 2 and the OGC issued a complaint on September 13,
2013, alleging that Blackmer’s “verbal” warning violated
sections 8(a)(1) and 8(a)(3) of the National Labor Relations
Act (NLRA or Act) by interfering with Kaanta’s right to
engage in protected concerted activity.
Subsequently, the ALJ conducted a hearing, at which
Kaanta, Kaminski and Raymond testified. The ALJ
concluded that Blackmer had not committed an unfair labor
practice in issuing the verbal warning. Specifically, the ALJ
found that Kaanta’s requests did not constitute “union activity
or other protected concerted activity”: instead, they “burdened
2
The nine-month delay resulted from the OGC Regional
Director’s decision to defer the case to the Union’s internal
grievance procedure. Kaanta appealed that decision to the Board
General Counsel but the General Counsel upheld the deferral. In
late February 2013, Kaanta filed a grievance with Blackmer, which
Blackmer denied on March 5, 2013. The Union membership then
voted on whether to refer the grievance to arbitration; the
membership voted not to do so, thereby ending the internal
grievance process. Thus, it was not until September 2013—after
the internal grievance process had run its course—that Kaanta filed
his amended charge.
7
respondent, potentially intruded upon the privacy of
bargaining unit members, and potentially interfered with
negotiations between management and the Union for a new
collective-bargaining agreement.” Dover Energy, Inc.,
Blackmer Div., 361 N.L.R.B. No. 48, 2014 WL 4659319, at
*6, *9 (Sept. 17, 2014).
The OGC filed exceptions to the ALJ’s rulings, focusing
on the ALJ’s “failure to make findings of facts and
conclusions of law as to whether [Blackmer] independently
violated . . . the Act by threatening . . . Kaanta with discipline,
up to and including discharge, if he makes ‘frivolous’
information requests in the future.” Gen. Counsel’s
Exceptions to ALJ’s Bench Decision ¶ 1, D.A. 11. The OGC
contended that, even if Blackmer’s warning responding to
Kaanta’s two requests did not violate the NLRA, its threat of
discipline for similar requests in the future constituted an
independent violation. See id. ¶¶ 1–3, D.A. 11.
The Board majority agreed with the OGC. See Dover
Energy, 361 N.L.R.B. No. 48, 2014 WL 4659319, at *1, *3
n.4. It held that Blackmer had violated section 8(a)(1) of the
NLRA by threatening Kaanta with discipline for future
activity. See id. at *3. Member Miscimarra dissented. See
id. at *4 (Member Miscimarra, dissenting). Although he
agreed that the case turned on whether Kaanta “would have
reasonably understood that [the verbal warning] threatened
discipline for future information requests that were within the
scope of his duties,” he believed “a reasonable employee in
Kaanta’s situation would have understood perfectly well that
the warning did not threaten future discipline over legitimate
information requests,” concluding that “the record is devoid
of evidence that [Blackmer] has ever warned Kaanta that
requesting information to investigate a potential grievance
could result in discipline or discharge.” Id. (emphasis in
8
original). Blackmer timely petitioned for review and the
Board cross-applied for enforcement of its order.
II.
We “will not disturb an order of the NLRB unless,
reviewing the record as a whole, it appears that the Board’s
factual findings are not supported by substantial evidence or
that the Board acted arbitrarily or otherwise erred in applying
established law to the facts at issue.” Synergy Gas Corp. v.
NLRB, 19 F.3d 649, 651 (D.C. Cir. 1994). And we will
uphold a Board decision supported by substantial evidence
“even if we would have reached a different result had we
considered the question de novo.” Id. That said, “our review
‘must take into account whatever in the record fairly detracts
from the weight’ of the evidence cited by the Board to support
its conclusions,” id. (alteration omitted) (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)), and we
do not “merely rubber-stamp NLRB decisions,” Tradesmen
Int’l, Inc. v. NLRB, 275 F.3d 1137, 1141 (D.C. Cir. 2002)
(quoting Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1062
(D.C. Cir. 2001)). As we have said repeatedly, “this court is a
reviewing court and does not function simply as the Board’s
enforcement arm. It is our responsibility to examine carefully
both the Board’s findings and its reasoning, to assure that the
Board has considered the factors which are relevant to its
choice of remedy . . . .” Id. (quoting Peoples Gas Sys., Inc. v.
NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980)).
The general principles governing this case are well-
settled. “Section 8(a)(1) of the NLRA prohibits an
employer’s interference with, or restraint or coercion of, the
rights of employees to organize and join unions, bargain
collectively, and engage in certain other ‘concerted
activities.’ ” Flagstaff Med. Ctr., Inc. v. NLRB, 715 F.3d 928,
9
930 (D.C. Cir. 2013) (quoting 29 U.S.C. §§ 157, 158(a)(1)).
The test for interference, restraint and coercion under section
8(a)(1) is an objective one; an employer violates section
8(a)(1) “if, considering the totality of the circumstances, [the
employer’s conduct] has a reasonable tendency to coerce or
interfere with [employee] rights.” Id. at 930–31 (emphases
added) (quoting Tasty Baking Co. v. NLRB, 254 F.3d 114, 124
(D.C. Cir. 2001)); accord DaimlerChrysler Corp. v. NLRB,
288 F.3d 434, 444 (D.C. Cir. 2002).
Accordingly, “coercive statements that threaten
retaliation against employees” for lawfully exercising their
rights violate the Act. Tasty Baking, 254 F.3d at 124. The
same is true if an employer threatens discipline for engaging
in protected activity in the future. See DaimlerChrysler, 288
F.3d at 444 (memo to employee that could be read as
threatening “discipline for any future request for information”
violates Act (emphasis added)); Parexel Int’l, LLC, 356
N.L.R.B. No. 82, 2011 WL 288784, at *5 (Jan. 28, 2011)
(“[T]he Board has often held that an employer violates the
Act when it acts to prevent future protected activity.”). Thus,
if an employer makes a statement that an employee
reasonably understands to threaten discipline for future
protected activity, the employer violates the Act. See
DaimlerChrysler, 288 F.3d at 444; see also Exxel/Atmos, Inc.
v. NLRB, 147 F.3d 972, 975 (D.C. Cir. 1998) (“The
employer’s motive and the actual effect of its statements are
irrelevant. Instead, the test is whether the employer’s
statements may reasonably be said to have tended to interfere
with employees’ exercise of their Section 7 rights.” (citation
and quotation marks omitted)).
Here, the Board accurately framed the issue in
accordance with these well-settled principles: “The question
of whether [Blackmer’s] warning to Kaanta violated Section
10
8(a)(1) . . . turns on whether the warning would reasonably be
understood to proscribe future protected activity.” Dover
Energy, 361 N.L.R.B. No. 48, 2014 WL 4659319, at *2. The
Board answered this question in the affirmative, concluding
that Kaanta “would reasonably conclude . . . that [future
information requests], though protected, could trigger the
warning’s threat of discipline or discharge.” Id. at *3. Its
rationale proceeded as follows: (1) the warning referred to
Kaanta’s August 10th request for employee wage-and-hour
information; (2) it cautioned that “[s]imilar requests such as
this” would result in discipline or discharge; (3) Kaanta qua
Union steward was authorized to make employee wage-and-
hour information requests, which requests constitute protected
activity; ergo (4) Kaanta “would reasonably conclude” that
the “[s]imilar requests” triggering discipline or discharge
included protected wage-and-hour information requests he
might later submit in his role as Union steward. See id. at *3.
The Board’s conclusion is not supported by substantial
evidence in the record. Although required to consider the
“totality of the circumstances,” see Flagstaff Med. Ctr., 715
F.3d at 930, the Board failed to do so. As the Board dissent
makes clear, “no employee in Kaanta’s position would have
reasonably believed that he or she risked discipline by
submitting legitimate future information requests for wage
and hour information.” See Dover Energy, 361 N.L.R.B. No.
48, 2014 WL 4659319, at *4 (Member Miscimarra,
dissenting) (emphasis added).
That the record belies the Board’s reading of the verbal
warning is plain from the warning’s language and the
circumstances surrounding its issuance, neither of which the
Board adequately considered. The Board gave a selective
reading to the warning’s language. Indeed, it considered only
two portions: the parenthetical reference to Kaanta’s August
11
10th request for employee wage-and-hour information and the
statement that “[s]imilar requests such as this will result in
further discipline up to and including discharge.” See id. at
*3. Interpreting the two statements in light of the undisputed
fact that Kaanta was authorized—and likely—to request
employee wage-and-hour information in the future as Union
steward, the Board concluded that a reasonable employee in
Kaanta’s position would read the redundant phrase “[s]imilar
requests such as this” to mean all requests for wage-and-hour
information, including authorized requests. Id. According to
the Board, Blackmer’s warning was that type of “overly broad
. . . blanket threat,” DaimlerChrysler, 288 F.3d at 444, the Act
prohibits. See Dover Energy, 361 N.L.R.B. No. 48, 2014 WL
4659319, at *3.
Even with all deference due the Board, we cannot find
substantial support for its decision in the evidence. First, the
warning targeted specific, unprotected conduct. The language
the Board did not discuss makes this plain. It was issued “for
continued frivolous requests for information.” D.A. 94
(emphasis added). A reasonable person in Kaanta’s position
would understand from this language that he was not to
“continue[]” making requests like the two he had just made—
a reference that could only include his June 12th and August
10th requests because he had never submitted any other
information requests, despite his off-and-on service in various
Union roles—including steward—for nearly twenty years.
The meaning of “frivolous” is equally plain as shorthand for
“not authorized by the Union.” Indeed, responding to
Kaanta’s June 12th request, Blackmer rejected it as “outside
[Kaanta’s] scope.” D.A. 92.
The Board makes hay of the warning’s parenthetical
reference to the wage-and-hour information Kaanta requested
on August 10th, see D.A. 94 (“photo copies of all employee
12
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”),
concluding that Kaanta would understand it to potentially
proscribe an authorized request for similar information in the
future. See Dover Energy, 361 N.L.R.B. No. 48, 2014 WL
4659319, at *3. But read in proper context, the reference is to
the precise—and frivolous—request Kaanta made. Indeed,
the parenthetical recites—almost verbatim—Kaanta’s August
10th request. In other words, the warning does not address
requests for a particular type of information; it addresses a
particular type of request—namely, continued requests
outside the scope of Kaanta’s role as Union steward. 3
The warning also again reminded Kaanta that he was “not
on the [Union] Bargaining Committee,” that he had “fail[ed]
to work within the parameters of such to bring matters to the
3
Perhaps the Board’s focus on the type of information
requested, rather than on the request itself, is what ultimately led it
astray. The Board noted that “the August 23 warning referred to
Kaanta’s August 10 request for information about unit employees’
hours and pay and specifically informed Kaanta that ‘[s]imilar
requests such as this will result in further discipline up to and
including discharge.’ ” Dover Energy, 361 N.L.R.B. No. 48, 2014
WL 4659319, at *3. It then noted that “future requests for such
information could well be protected” and that Kaanta could thus
reasonably read the warning to prohibit future protected activity.
Id. (emphasis added). No one disputes the Board’s conclusion that
future requests for employee wage-and-hour information “could
well be protected,” id., but this conclusion is beside the point. The
warning targeted the type of request—“continued[,] frivolous”
ones—not the type of information. D.A. 94. The Board’s analysis
might have been sound had the warning said—as the Board
apparently read it—“future requests for such information will result
in further discipline up to and including discharge.” But it does not.
13
Bargaining Committee” and that Blackmer was “not
individually bargaining with [him] or any other individual.”
D.A. 94. This language immediately precedes “[s]imilar
requests,” see id., and repeats the point Blackmer made to
Kaanta after he submitted his June 12th request (which
request had nothing to do with wage-and-hour information);
that is, Blackmer told him then, “You are not part of the
negotiation committee and your request is outside your
scope.” D.A. 92; see also Dover Energy, 361 N.L.R.B. No.
48, 2014 WL 4659319, at *4 (Member Miscimarra,
dissenting). This language 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. See D.A. 94
(emphasis added). The outside-the-scope conclusion was not
one Blackmer reached on its own—Blackmer twice contacted
the Union to determine if it had authorized the requests and
both times the Union stated it had not done so and suggested
the requests be denied.
Moreover, fear of Blackmer’s invoking the warning’s
disciplinary threat willy-nilly is particularly unreasonable
here. Nothing in the record suggests Blackmer prevented
Kaanta or anyone else from making legitimate information
requests; indeed, Blackmer did not take any disciplinary
action after Kaanta’s first frivolous request and it gave
Kaanta, in effect, a second warning as opposed to actual
discipline. See supra note 1. In sum, the company did not act
in a reckless or retaliatory fashion towards Kaanta. This is a
relevant consideration. See Aroostook Cnty. Reg’l
Ophthalmology Ctr. v. NLRB, 81 F.3d 209, 213–14 (D.C. Cir.
1996) (company’s enforcement history relevant consideration
in whether rule interfered with employee rights); Dover
Energy, 361 N.L.R.B. No. 48, 2014 WL 4659319, at *4
(Member Miscimarra, dissenting) (“[T]he record is devoid of
14
evidence that [Blackmer] has ever warned Kaanta that
requesting information to investigate a potential grievance
could result in discipline or discharge.”).
When viewed in its entirety, as we must view it, the
record supports only one reasonable interpretation of the
verbal 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 Union steward. In our view, the dissent (and,
earlier, the ALJ) got it right: under the objective test used to
determine a section 8(a)(1) violation vel non, no reasonable
employee in Kaanta’s position would have understood the
warning to threaten discipline for engaging in future protected
activity. See Dover Energy, 361 N.L.R.B. No. 48, 2014 WL
4659319, at *4.
Contrary to the Board’s suggestion, our DaimlerChrysler
decision is not at odds with this result. See 288 F.3d at 444.
There, we found that an employer violated the Act because its
warning “could be read to threaten discipline for any future
request for information,” including a protected request. Id.
And we found that the request to which the warning
responded itself constituted protected activity. See id. at 443–
44. Not so here. As discussed, the warning did not threaten
discipline for “any” future request for information, id. at 444
(emphasis added), only “[s]imilar” ones, D.A. 94. The other
cases the Board relies upon, see Dover Energy, 361 N.L.R.B.
No. 48, 2014 WL 4659319, at *2–3 & n.4, are likewise
distinguishable: all involved a threat made in response to
protected activity, see, e.g., Ellison Media Co., 344 N.L.R.B.
1112, 1113–14 (2005) (threat unlawful because it could be
construed to apply to “protected” conduct of employees’
discussion of their supervisor’s conduct); ITT Fed. Servs.
Corp., 335 N.L.R.B. 998, 1003 (2001) (threat in response to
15
“the protected activity of posting union signs”); Yale Univ.,
330 N.L.R.B. 246, 248–50 (1999) (unlawful threat made in
response to and directed toward “protected conduct”). In all
of these cases, protected conduct had occurred, to which
conduct the employee would reasonably connect the threat of
future discipline; he could have reasonably understood that he
was inviting discipline if he engaged in similar conduct in the
future notwithstanding that conduct was protected. Here,
neither the ALJ nor the Board found that Kaanta’s June 12th
and August 10th requests were protected. On the contrary,
the ALJ expressly found that they were not protected, see
Dover Energy, 361 N.L.R.B. No. 48, 2014 WL 4659319, at
*9–10, and the Board expressly declined to conclude
otherwise, id. at *3 n.4 (“We find it unnecessary to decide
whether Kaanta’s June 12 and August 10 information
requests, which occasioned the warning, were themselves
protected activity . . . .”). Reading the warning to cover future
protected activity requires an inferential leap the record does
not support and the precedent the Board offers in support of
its conclusion falls well short of the mark.
In this case, an employer gave a specific person a specific
warning after he engaged in specific inappropriate conduct.
There is no substantial evidence to support the Board’s
conclusion that a reasonable person would view the warning
as applying more broadly to appropriate, legally protected
conduct carried out in entirely different circumstances. We
recognize that an employer’s genuine “blanket” threat to
discipline for future protected activity would violate the Act,
even if, as here, the warning responded to unprotected
activity. See DaimlerChrysler, 288 F.3d at 444. But that is
not this case. Here, the warning made plain it sought one
thing—to stop Kaanta’s “continued,” “frivolous” information
requests that the Board does not dispute were outside the
scope of his steward duties and that his Union had expressly
16
disapproved. See D.A. 94. No reasonable employee in
Kaanta’s position could read it otherwise.
For the foregoing reasons, we grant the petition for
review and deny the cross-application for enforcement.
So ordered.