Union, Company, and ALJ Agree Steward’s Document Requests were Frivolous, NLRB Disagrees Setting New Legal Standard for Section 7 Activity

Steward Kaanta, a member of UAW Local 828 but not a member of the union’s bargaining committee, requested the Company provide him information about financial relationships between it and members of the union “for the purpose of future bargaining.” He then requested various employee payroll records. After these requests, the Company consulted with the Union and both sides agreed that Kaanta’s requests were irrelevant and frivolous. The Company sent Kaanta a letter indicating that his requests were outside the scope of his authority and that any similar requests in the future would “result in further discipline up to and including discharge.”

Kaanta filed an unfair labor practice charge and the General Counsel issued a Complaint accusing the Company of improperly threatening employees with discipline for engaging in union and protected concerted activities. Administrative Law Judge Locke determined the Company’s letter did not violate the NLRA because the union had not authorized Kaanta’s information requests, the requests did not constitute union activity, and the requests were not made on behalf of other employees.

On appeal, the NLRB reversed Judge Locke. The Board said it was irrelevant whether Kaanta’s requests were protected activity since its ruling was based on Kaanta’s understanding of how the warning might relate to future activity. Specifically, the Board held “future requests for such information could well be protected [and] contrary to our dissenting colleague, we therefore find that Kaanta would reasonably conclude from the language of the warning that such a request, though protected, could trigger the warning’s threat of discipline or discharge.”

The dissenting colleague, former management-side lawyer Miscimarra noticed Kaanta was disciplined for his continued frivolous requests for information and that the record was devoid of evidence that the [Company] ever warned Kaanta that requesting information to investigate a potential grievance could result in discipline or discharge. Nonetheless, it appears the NLRB created a new standard that prohibits disciplining (or threatening to discipline) employees for current unprotected activity if it is possible that different activity in the future could be protected.

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