Search form

Employer’s Careful Drafting of Warning Document Causes Court of Appeals to Overturn NLRB Violation Finding

By Matthew D. Freeman, Philip B. Rosen and Howard M. Bloom
  • March 25, 2016

The United States Court of Appeals for the District of Columbia Circuit has refused to enforce a National Labor Relations Board order that a company violated the National Labor Relations Act by warning a union steward not to make “frivolous” information requests in the future. Dover Energy, Inc. v. NLRB, No. 14-1197 (D.C. Cir. Mar. 22, 2016). The Court grounded its decision on the language of the disciplinary document, highlighting the importance of meticulous drafting of disciplinary documents where the NLRA may be in play.


Tom Kaanta was a long-time employee of the company and a union steward. The company and the union were involved in bargaining negotiations. Kaanta was not part of the union bargaining committee. Kaanta suspected that members of the union bargaining committee had conflicts of interest that could compromise their ability to represent the union members in contract negotiations. In order to investigate his suspicions, Kaanta began submitting (handwritten) information requests to the company’s Director of Human Resources, John Kaminski. Kaanta sought information regarding financial relationships, outside of employment, between the company and union members.

After receiving the first request, Kaminski contacted union president Dennis Raymond and inquired as to whether the union had authorized Kaanta’s information request. Raymond told Kaminski the request was not authorized and was outside the scope of Kaanta’s role as union steward. Kaminski denied the request.

Approximately two months later, Kaanta issued another (handwritten) request, this time seeking wage information for employees, stating that he believed the company was manipulating wage information to influence ratification votes. Kaminski again contacted Raymond and asked if Kaanta was authorized to make the request. Raymond again told Kaminski that the union had not authorized the request and told Kaminski he should not honor it.

In response to the second request, Kaminski issued Kaanta a “verbal warning” in written form. Kaminski wrote that Kaanta was failing to work within the bounds set by the bargaining committee, and that the information requests were “frivolous” and were “interfering with the operation of the business.” The warning also stated, “[s]imilar requests such as this will result in further discipline up to and including discharge.”

Kaanta filed an unfair labor practice charge based on the warning. The NLRB’s General Counsel issued a complaint alleging the warning violated the NLRA by interfering with Kaanta’s right to engage in protected concerted activity.

After a hearing, an NLRB Administrative Law Judge found that the company did not violate the NLRA. The ALJ found that Kaanta’s requests did not constitute union or protected concerted activity and, instead, burdened the company, potentially intruding upon the privacy of bargaining unit members and interfering with contract negotiations.

The General Counsel excepted to the ALJ’s ruling. The General Counsel argued to the Board that, even if the issuance of the warning did not violate the NLRA with regard to the requests Kaanta already had made, the company’s threat of discipline for similar requests in the future constituted an independent violation.

In a 2-to-1 decision, the NLRB agreed with the General Counsel. The Board held that the case turned on whether Kaanta would have reasonably understood the warning threatened discipline for future information requests that were within the scope of his duties, and thus, activity protected under Section 7 of the NLRA. The Board found that because the warning related to a request for information regarding employee hours and pay, it could reasonably be read to apply to future protected requests, such as if Kaanta were to seek information about hours and pay of an employee for the purpose of investigating a potential grievance. Thus, the Board concluded, the company violated the NLRA by threatening discipline if Kaanta made “similar requests.” (For more on the NLRB decision, see our blog post, Employer’s Warning Violates NLRA, Board Rules.)

Appeals Court Decision

The Court of Appeals disagreed. It concluded the Board’s decision was not supported by substantial evidence. The Court held the Board did not adequately consider the entirety of the language in the warning or the circumstances of its issuance. The Court noted that the warning’s reference to information requests could implicate only the two information requests Kaanta made in connection with contract negotiations and that, reading the entire warning, the term “frivolous” was “plain as shorthand” for requests not authorized by the union. Thus, the Court concluded, the only reasonable interpretation of the warning was that it proscribed similar unauthorized requests outside the scope of Kaanta’s duties as Union Steward.


Section 7 of the NLRA gives employees the right to engage in union activity or other “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Thus, employers should proceed with extreme caution whenever they seek to regulate workplace conduct that could arguably implicate Section 7. Often, as in this case, there is a fine line between protected and unprotected conduct and unprotected misconduct frequently is intertwined with protected activity.

Disciplinary documents must be carefully drafted and specific both as to the conduct resulting in discipline and the conduct that could subject the employee to further discipline in the future. With respect to either, broad statements that could reasonably be construed as proscribing protected activity could constitute independent violations of the NLRA.

©2016 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at

See AllRelated Articles You May Like

December 13, 2019

Restaurant Industry Workplace Law Update – Fall 2019

December 13, 2019

To assist restaurant owners and professionals in assessing emerging employment risks, we are pleased to provide the first issue of our newsletter. The Restaurant Industry Workplace Law Update highlights topical issues in claims, defenses, and liability risk management developments. Supreme Court’s Epic Systems Decision on Arbitration... Read More

December 10, 2019

End of Year Developments for New York Employers

December 10, 2019

As 2019 comes to a close, legislative and administrative actions in New York require consideration by employers in the state. First, Governor Andrew Cuomo signed legislation adding reproductive rights as a protected class under the state Human Rights Law. Such an enactment usually requires an employer: (1) to ensure that there is... Read More

November 26, 2019

Democratic Bill Seeks to Classify Graduate Student Workers as Employees under NLRA

November 26, 2019

The “Respect Graduate Student Workers Act,” introduced by Representative Mark Pocan (D-Wis.), aims to classify graduate student workers as employees and ensure them “full labor protections” under the National Labor Relations Act (NLRA). The bill also seeks to prohibit the National Labor Relations Board (NLRB) from finalizing its... Read More

Related Practices