Dover Energy, Inc., Blackmer Division

National Labor Relations Board - Board Decisions

Sep 17, 2014

361 N.L.R.B. 568 (N.L.R.B. 2014)

568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dover Energy, Inc., Blackmer Division and Thomas
Kaanta. Case 07–CA–094695
September 17, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On December 24, 2013, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The General Counsel filed exceptions and a supporting
brief. The Respondent filed an answering brief, and the
General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
Specifically, for the reasons discussed below, we reverse
the judge’s finding that the Respondent did not violate
Section 8(a)(1) of the Act by threatening employee
Thomas Kaanta with discipline for engaging in union and
protected concerted activities.
I.
The Respondent manufactures liquid-transfer pumps at
its facility in Grand Rapids, Michigan. For years, Auto
Workers Local Union No. 828 has represented a unit of
the Respondent’s production and maintenance workers.
During the summer of 2012,1 the Respondent and the
Union were engaged in negotiations for their most recent
successor collective-bargaining agreement.
Kaanta, a shop steward, was responsible for investigat-
ing and handling contractual grievances on behalf of the
Union. On June 12, Kaanta presented to Director of
Human Resources John Kaminski a written request for
information about financial relationships between the
Respondent and members of the Union, including its
bargaining committee. The request stated that Kaanta
needed the information “for the purpose of future bar-
gaining.” Kaminski asked Dennis Raymond, the Union’s
president and a member of its bargaining committee,
whether the Union had authorized Kaanta’s request.
Raymond replied that the Union had not, and that the
Respondent should not provide the information. By let-
ter dated June 19, the Respondent denied the request,
stating that information requests must be made through
the bargaining committee, that Kaanta was not on the
bargaining committee, and that his request was “outside
[his] scope.”
1 Dates are in 2012 unless otherwise specified.
On August 10, Kaanta requested information about the
hours and pay of all employees, for payroll periods be-
ginning August 12 and continuing until the new con-
tract’s ratification, as well as photocopies of employee
paychecks from two specified earlier pay periods. This
request stated that the information was being sought “for
labor board investigation.” Again the Respondent asked
the Union whether it had authorized the request, and
again the Union replied that it had not, and that the Re-
spondent should not provide the information.
On August 23, the Respondent issued Kaanta a letter,
which stated:

This is to serve as a verbal warning for continued frivo-
lous requests for information (photo copies of all em-
ployee 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 opera-
tion 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 disci-
pline up to and including discharge.

Pursuant to an unfair labor practice charge filed by
Kaanta, the General Counsel issued a complaint alleging,
inter alia, that the Respondent violated Section 8(a)(1) by
threatening employees with discipline for engaging in
union and protected concerted activities.2
The judge found that because the Union had not au-
thorized Kaanta’s information requests, the requests did
not constitute union activity. The judge also found that
the General Counsel failed to show that the information
requests were otherwise protected activity, because the
record did not establish that Kaanta had requested infor-
mation on behalf of other employees or discussed with
other employees the concerns underlying the requests.
Therefore, the judge concluded that the Respondent had
not violated the Act.
II.
“The Board’s well-established test for interference, re-
straint, and coercion under Section 8(a)(1) is an objective
one and depends on ‘whether the employer engaged in
conduct which, it may reasonably be said, tends to inter-
2 The complaint also alleged that the warning itself violated Sec.
8(a)(3) and (1). There are no exceptions to the judge’s dismissal of that
allegation.
361 NLRB No. 48

DOVER ENERGY, INC. 569
fere with the free exercise of employee rights under the
Act.’” ITT Federal Services Corp., 335 NLRB 998,
1002 (2001) (quoting American Freightways Co., 124
NLRB 146, 147 (1959)). The question of whether the
Respondent’s warning to Kaanta violated Section 8(a)(1)
accordingly turns on whether the warning would reason-
ably be understood to proscribe future protected activity.
See id. at 1002–1003. We find that it would.3
Section 7 protects a union steward’s activity in seeking
information for the purpose of investigating potential
grievances under the terms of a collective-bargaining
agreement. See, e.g., Allied Aviation Fueling of Dallas,
LP, 347 NLRB 248, 253 (2006) (“It is well established
that ‘union stewards filing and processing grievances on
behalf of other employees enjoy the protection of the
Act’”) (quoting Roadmaster Corp., 288 NLRB 1195,
1197 (1988)), enfd. 490 F.3d 374 (5th Cir. 2007); Con-
sumers Power Co., 245 NLRB 183, 187 (1979) (stew-
ard’s informal investigation of a disagreement that had
not yet become a formal grievance was protected by the
Act). Moreover, Section 7 protects concerted activity by
any employee who seeks “to initiate or to induce or to
prepare for group action.” Meyers Industries, 281 NLRB
882, 887 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d
1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988).
Here, the August 23 warning referred to Kaanta’s Au-
gust 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 dis-
cipline up to and including discharge.” But future re-
quests for such information could well be protected. For
example, Kaanta could seek information about the hours
and pay of unit employees for the purpose of investigat-
ing a potential grievance. Contrary to our dissenting
colleague, we therefore find that Kaanta would reasona-
bly conclude from the language of the warning that such
a request, though protected, could trigger the warning’s
threat of discipline or discharge. Accordingly, we find
that the Respondent’s threat of discipline for “similar
requests” violated Section 8(a)(1).4
3 We find no merit in the Respondent’s assertion that the General
Counsel failed to allege or litigate this theory of the case before the
judge. Pars. 8 and 10 of the complaint alleged that the Respondent
violated Sec. 8(a)(1) by threatening employees with discipline for en-
gaging in union and protected concerted activities. Furthermore, the
General Counsel argued in opening and closing statements at the hear-
ing that the Respondent, by threatening Kaanta with discipline up to
and including discharge if he made additional information requests, had
violated Sec. 8(a)(1) by restraining Kaanta’s future protected conduct.
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, because Kaanta could reasonably under-
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2 in
the judge’s decision.
“2. By threatening employee Thomas Kaanta with
discipline if he engaged in union and protected concerted
activities, the Respondent has interfered with, restrained,
and coerced him in the exercise of rights guaranteed in
Section 7 of the Act and has violated Section 8(a)(1) of
the Act.”
REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act by threatening employee Thomas
Kaanta with discipline for engaging in union and protect-
ed concerted activities, we shall order that it cease and
desist from that activity.
ORDER
The National Labor Relations Board orders that the
Respondent, Dover Energy, Inc., Blackmer Division,
Grand Rapids, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with discipline if they en-
gage in activities on behalf of the Union or otherwise
engage in protected concerted activities.
(b) 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) Within 14 days after service by the Region, post at
its Grand Rapids, Michigan facility copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
stand the warning to prohibit future protected activity. See, e.g., El-
lison Media Co., 344 NLRB 1112, 1113–1114 (2005) (declining to pass
on whether email that elicited employer’s statement “this needs to stop
now” was itself protected, while finding statement violated Sec. 8(a)(1)
because employees would reasonably understand statement to prohibit
other protected activity); cf. Yale University, 330 NLRB 246, 250
(1999) (permitting General Counsel to amend complaint to allege that
threats occasioned by unprotected strike violated Sec. 8(a)(1) “because
they could reasonably be understood to be directed against participation
in protected concerted activity in general”).
Furthermore, we need not pass on the General Counsel’s exceptions
to the judge’s findings about the motives underlying Kaanta’s and the
Respondent’s actions, because neither party’s motives are relevant to
the 8(a)(1) allegation. See, e.g., ITT Federal Services Corp., supra, at
1002–1003 and fn. 14; Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972, 975
(D.C. Cir. 1998).
5 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.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es 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
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure 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 proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 23, 2012.
(b) 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.

MEMBER MISCIMARRA, dissenting.
I agree with my colleagues that the question this case
presents is whether employee and union steward Thomas
Kaanta would have reasonably understood that Respond-
ent’s lawful discipline (for submitting an information
request outside the scope of Kaanta’s steward duties)
also threatened discipline for future information requests
that were within the scope of his duties. I disagree with
my colleagues’ affirmative answer to that question. In
my view, a reasonable employee in Kaanta’s situation
would have understood perfectly well that the warning
did not threaten future discipline over legitimate infor-
mation requests. As explained below, I would affirm the
judge’s dismissal of the complaint.
Kaanta’s responsibilities as union steward included in-
vestigating potential grievances, and his authorization
from the Union to request information was limited ac-
cordingly. During the summer of 2012, the Respondent
and the Union were negotiating a successor collective-
bargaining agreement. In June and August 2012, while
bargaining was ongoing, Kaanta submitted requests for
information that had nothing to do with investigating any
potential grievance.
Kaanta’s June request was for information about fi-
nancial relationships between the Respondent and mem-
bers of the Union, which Kaanta said he needed “for the
purpose of future bargaining.” The Respondent asked
Union President Dennis Raymond if the Union had au-
thorized the request. Raymond said it had not and told
Respondent not to furnish the information. The Re-
spondent informed Kaanta that his request was “outside
[his] scope,” as he was not on the bargaining committee.
Kaanta’s August request was for certain wage and
hour information, which Kaanta said he needed “for la-
bor board investigation,” but which appeared to be relat-
ed to the ongoing contract negotiations.1 Again, the Re-
spondent asked Raymond if the request was authorized
by the Union, and again Raymond said it was not and to
disregard it. This time, the Respondent issued Kaanta
the discipline at issue here. “This is to serve as a verbal
warning for continued frivolous requests for infor-
mation,” the warning began. After detailing the specifics
of the August request, the warning continued: “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.” Immediately following those
sentences, the warning concluded: “Similar requests
such as this will result in further discipline up to and in-
cluding discharge.”
Contrary to my colleagues, a reasonable employee in
Kaanta’s position would not understand “[s]imilar re-
quests such as this” as referring to future legitimate re-
quests for wage and hour information for the purpose of
investigating potential grievances. Such a future request
would clearly be within the scope of Kaanta’s steward
duties, and the record is devoid of evidence that the Re-
spondent has ever warned Kaanta that requesting infor-
mation to investigate a potential grievance could result in
discipline or discharge. Rather, the Respondent disci-
plined Kaanta for his “continued frivolous requests for
information” (emphasis added)—i.e., his requests for
bargaining-related information—reiterating the point it
made after his June request: “You are not on the Bar-
gaining Committee . . . . We are not individually bargain-
ing with you or any other individual.” In this context,
Kaanta would have reasonably understood that “[s]imilar
requests such as this” meant “continued frivolous re-
quests” for bargaining-related information outside the
scope of Kaanta’s duties and responsibilities as a union
steward. In my view, 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, including pro-
tected requests related to investigating grievances. Ac-
cordingly, I respectfully dissent.
1 Kaanta asked for information about hours and pay of all employ-
ees for payroll periods beginning August 12 and continuing until the
contract under negotiation was ratified.

DOVER ENERGY, INC. 571
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 threaten you with discipline if you en-
gage in activities on behalf of the Union or otherwise
engage in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
DOVER ENERGY, INC., BLACKMER DIVISION

The Board’s decision can be found at
www.nlrb.gov/case/07–CA–094695 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington
D.C. 20570, or by calling (202) 273-1940.

Steven E. Carlson, Esq., for the General Counsel.
William H. Fallon, Esq. & Patrick M. Edsenga, Esq. (Miller
Johnson), of Grand Rapids, Michigan, for the Respondent.
Thomas Kaanta, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on December 2, 2013, in Grand Rapids, Michigan. After
the parties rested, I heard oral argument, and on December 5,
2013, issued a bench decision pursuant to Section
102.35(a)(10) of the Board’s Rules and Regulations, setting
forth findings of fact and conclusions of law. In accordance
with Section 102.45 of the Rules and Regulations, I certify the
accuracy of, and attach hereto as “Appendix A,” the portion of
the transcript this decision.1 The Conclusions of Law and
Order provisions are set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Dover Energy, Inc., Blackmer Division,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent did not violate the Act in any manner
alleged in the complaint.
[Recommended Order omitted from publication.]
APPENDIX A
BENCH DECISION
KELTNER W. LOCKE, Administrative Law Judge. Without
authorization from higher union officials, a shop steward twice
requested that the Respondent furnish information unrelated to
the performance of his duties as steward. These requests
burdened 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. I find that Respondent did not
violate the Act by warning the steward that similar requests in
the future would result in discipline, up to and including
discharge.
Procedural History
This case began on December 11, 2012, when the Charging
Party, Thomas Kaanta, an individual, filed an unfair labor
practice charge against the Respondent, Dover Energy, Inc.,
Blackmer Division. Region 7 of the National Labor Relations
Board docketed this charge as Case 07–CA–094695. The
Charging Party amended this charge on September 11, 2013.
On September 13, 2013, the Regional Director for Region 7,
acting for the Board’s General Counsel, issued a complaint and
notice of hearing. Respondent filed a timely answer.
On December 2, 2013, a hearing opened before me in Grand
Rapids, Michigan. Both the General Counsel and the
Respondent presented evidence and then rested. On December
3, 2013, counsel for the parties presented oral argument.
Today, December 5, 2013, I am issuing this bench decision
pursuant to Sections 102.35(10) and 102.45 of the Board’s
Rules and Regulations.
Admitted Allegations
Based on the admissions in Respondent’s answer, I make the
following findings: The charge and amended charge were filed
1 The bench decision appears in uncorrected form at page 168
through 181 of the transcript. The final version, after correction of oral
and transcriptional errors, is attached as Appendix A to this Certifica-
tion.
Further, a typographical error in par. 7(b) of the complaint and no-
tice of hearing is corrected by changing the date August 10, 2013, to
August 10, 2012.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
and served as alleged in complaint paragraphs 1(a) and 1(b).
At all times material to this case, Respondent has been a
corporation engaged in the manufacture and nonretail sale of
pumps, and has maintained an office and place of business in
Grand Rapids, Michigan. Respondent meets both the statutory
and discretionary standards for the exercise of the Board’s
jurisdiction, and at all material times it has been an employer
engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
At all material times, John Kaminski has held the position of
Respondent’s Director of Human Resources, and has been a
supervisor of Respondent within the meaning of Section 2(11)
of the Act, and an agent of Respondent within the meaning of
Section 2(13) of the Act.
At all material times the International Union, United
Automobile, Aerospace & Agricultural Implement Workers of
America (UAW), and its Local Union No. 828, have been labor
organizations within the meaning of Section 2(5) of the Act.
For brevity, I will refer to Local Union No. 828 as “the Union.”
Complaint paragraph 7(a) alleges that on June 12, 2012, the
Charging Party, in his capacity as steward for the Union,
requested information from Respondent. In its answer, the
Respondent admits that the Charging Party made an
information request on that date, but denies that he did so in his
capacity as union steward. Based on Respondent’s admission, I
find that on June 12, 2012, the Charging Party did request that
the Respondent furnish certain information. Whether or not the
Charging Party was acting in his capacity as steward will be
addressed later in this decision.
Allegations Not Admitted
To the extent that conflicts arise, I credit the cogent, succinct
testimony of Human Resources Director John Kaminski. Based
upon my observations of the witnesses as they testified, I
conclude that Kaminski’s account is accurate and I rely on it in
summarizing the facts. In general, though, the record is
remarkably free of credibility conflicts.
My decision to resolve conflicts by crediting Kaminski does
not imply that I considered any of the other witnesses to be less
than candid. To the contrary, I believe that all witnesses strived
to be accurate to the best of their recollections. However, at
times, Charging Party Kaanta’s answers did not seem entirely
responsive, and provided a somewhat sketchy impression of his
motivation and reasoning.
At all material times, Kaanta was a second shift shop
steward, but not on the Union’s bargaining committee.
Although documents such as the Union’s bylaws and the
collective-bargaining agreement did not include any limiting
definition of the steward’s responsibilities, in practice, Kaanta
represented fellow employees in grievance proceedings but did
not have any duties relating to the negotiations which were
underway, in the summer of 2012, for a new collective-
bargaining agreement. The Union president, Dennis Raymond,
and a bargaining committee, represented the bargaining unit in
those negotiations.
Kaanta believed that Union President Raymond also was
part-owner of a machine shop that performed work for
Respondent. However, Kaanta’s testimony does not include an
explanation for this belief. Kaanta also believed that the
asserted relationship between Respondent and Union President
Raymond compromised Raymond’s status as a negotiator for
the employees.
On June 12, 2012, Kaanta gave the Respondent’s human
resources director, John Kaminski, an information request
handwritten on a grievance form. It stated as follows:

Information Request

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
liaisons 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.

Human Resources Director Kaminski accepted the paper
from Kaanta and said he would take a look at it, but did not
otherwise discuss it. Kaminski then contacted the union
president, Dennis Raymond, to find out if the Union had
authorized the request, and learned that the Union had not.
According to Kaminski, whom I credit, Raymond told
Kaminski not to provide the information. Kaminski informed
the Charging Party by June 19, 2012 letter which stated, in its
entirety, as follows:

Per your request for information for various financial
information and financial relationships is denied. Any
requests must be processed through the normal bargaining
committee process for bargaining and may or may not be
disclosed as the company determines. You are not part of the
negotiation committee and your request is outside your scope.

Kaminski credibly testified that he and Kaanta did not
discuss this matter further. Kaanta did not file a grievance over
the denial of the information request. However, during the
summer, as the negotiations progressed, he became concerned
with another matter.
Kaanta believed that the Respondent was making changes
which increased the compensation of certain employees by
placing them in higher classifications, to influence their votes
on contract ratification. His testimony does not explain the
basis for this suspicion.
At the bargaining table, by August, the prospect of
concluding an agreement had increased the intensity of the
process. The negotiators were focused on the details of the
contractual language, matters which required their exquisite
attention. Then, on August 10, 2012, Kaanta sent Kaminski
another information request. It stated, in its entirety, as follows:

To: John Kaminski

Union officer requests photocopy of all employee
paychecks for the pay period ending Dec. 1, 2007 and pay
period ending August 5, 2012.

Also, I request a spreadsheet printout representing all
employee total hours and pay for each pay period, starting with
DOVER ENERGY, INC. 573
August 12, 2012, and every pay period thereafter, until the
contract is ratified.
I believe the company is manipulating wage rates for the
purpose of influencing the union vote! I request the
information for labor board investigation.
Kaminski contacted the union president. Crediting
Kaminski’s testimony, I find that Raymond said that Kaanta
was not authorized to see all of the employees’ paycheck
records and that Kaminski should not honor the request. On
August 23, 2012, Kaminski met with Kaanta and gave him a
document titled “Verbal Warning.” It stated as follows:

This is to serve as a verbal warning for continued frivolous
requests for information (photocopies 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.

The complaint alleges that Respondent violated Section
8(a)(1) of the Act by threatening an employee with discipline
for engaging in Union and protected, concerted activities, and
Section 8(a)(3) and 8(a)(1) by issuing the disciplinary warning.
Analysis
Section 7 of the National Labor Relations Act gives
employees the following rights: To form, join, or assist labor
organizations; to bargain collectively through representatives of
their own choosing; to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection; to refrain from any or all such activities. 29 U.S.C.
Section 157. In essence, Section 7 protects three kinds of
activity: union activity, other concerted activity for “mutual aid
or protection,” and refraining from such activity.
The latter right, to refrain, obviously may be exercised by
one person alone, but the other two arise when employees act in
concert, either in the context of a union or otherwise. To
establish a violation here, the General Counsel must, as part of
the government’s proof, establish that Kaanta’s activity in
question either was union activity or other protected concerted
activity.
The Charging Party is both an employee of Respondent and a
union steward. However, the title of “steward” does not make
Kaanta’s every action a union activity. Obviously, if a steward
should make a mistake in the performance of his duty as an
employee, his separate role as steward would not transform the
work-related task into union activity.
Actions which a steward took in the course of his union
duties would, of course, constitute union activity which, with
some exceptions, would enjoy the protection of the Act.
However, the present record does not establish that either of
Kaanta’s information requests constituted union activity, and
that is true even though Kaanta wrote the first of those requests
on a union grievance form.
The record clearly establishes that the Union never
authorized Kaanta to file information requests for any purpose
except in connection with grievance processing. Kaanta filed
the first information request for “the purposes of future
bargaining,” but the Union had not empowered him either to
engage in bargaining or to make information requests related to
bargaining.
Moreover, Kaanta did not have the apparent authority to act
on behalf of the Union for such purposes. Before Respondent’s
human resources director issued the “warning,” he had learned
from the Union’s president that Kaanta’s requests had not been
authorized.
Kaanta concluded the second request with the words, “I
request the information for labor board investigation.” In
passing, it may be noted that an employer has no duty to furnish
information which a union requests for this purpose. However,
the determinative factors are that the Union did not authorize
Kaanta to request information for this purpose and Kaminski,
who had checked with the union president before issuing the
warning, knew that Kaanta was acting without authorization.
The General Counsel cites Nationsway Transport Service,
327 NLRB 1033 (1999), for the proposition that an employee’s
activity within the union, opposing the union’s leadership, also
constitutes union activity protected by the Act. The present
record does not establish that either the Union or its president
prompted the Respondent to take disciplinary action against
Kaanta and, based on the credited evidence, I conclude that
they did not.
Although Kaanta’s information requests arguably could be
viewed as dissident intraunion activity, warranting the Act’s
protection, the record does not establish that Respondent had
any intention of intervening in an internal union squabble.
Likewise, the evidence does not establish any intent to retaliate
against or punish Kaanta because he opposed the Union’s
leadership.
Rather, management was simply reacting to the burden of an
information request which it regarded as “frivolous,” a waste of
time. Indeed, the August 23, 2012 “verbal warning” began with
the words “This is to serve as a verbal warning for continued
frivolous requests. . .” It ended with the caution that “similar
requests” would lead to disciplinary action.
The evidence clearly establishes, and I find, that Respondent
was not acting from any motivation either to encourage or
discourage union membership. Rather, complying with
Kaanta’s unauthorized information requests would have
required Respondent to expend considerable time and effort. It
simply did not want to be burdened by what it considered to be
nonsense.
In sum, I conclude both that Respondent’s decision to issue
the written warning was not motivated by any intent to
encourage or discourage union activities—such an intent was
not a motivating factor at all, let alone a substantial one—and
that filing the information requests did not constitute “union
activity.”
The evidence also fails to establish that it was concerted
activity. The record falls short of establishing that other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
employees had asked Kaanta to make the information requests
or that employees even had discussed with Kaanta any concerns
reflected in the information requests. Thus, I conclude that the
government has not met its burden of proving that Kaanta had
engaged in protected, concerted activities.
Board precedent, such as DaimlerChrysler Corp., 331 NLRB
1324 (2000), cited by the General Counsel, has long held that a
“broad, discovery-type standard applies in determining
relevance of information requests” and that an employer must
furnish requested information that is of even probable or
potential relevance to a union’s duties. However, as the
General Counsel notes, the present complaint does not allege a
refusal to provide information, or any other violation of Section
8(a)(5) of the Act. No issue here concerns the Respondent’s
duty to provide information.
Here, I have concluded that Kaanta was not engaged in union
activities because he made the information requests without
authorization. Regardless of whether the requested information
was relevant, either to Kaanta’s purposes or to the Union’
statutory functions, that factor would not change the
unauthorized nature of the request.
The General Counsel also cited Nu-Car Carriers, Inc., 88
NLRB 75, 76 (1950), in which the Board stated that
“interference with intraunion disputes, under certain
circumstances, may be violative of the Act to the same extent as
coercion exerted in employer-union or interunion conflicts.”
The Nu-Car holding must be viewed in light of the Supreme
Court’s decision, a quarter century later, in Emporium-Capwell
v. Western Addition Community Organization, 420 U.S. 50
(1975). Therein, the Court stated, “Central to the policy of
fostering collective bargaining, where the employees elect that
course, is the principle of majority rule.” 420 U.S. at 62, citing
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
For all these reasons, I conclude that the government has
failed to prove, by a preponderance of the evidence, that
Respondent violated the Act. Therefore, I will recommend that
the Board dismiss the complaint.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the
Findings of Fact, Conclusions of Law, and Order. When that
Certification is served upon the parties, the time period for
filing an appeal will begin to run.
Throughout the hearing, all counsel have acted with great
professionalism and civility, which I truly appreciate. The
hearing is closed.