An employer’s verbal warning for “continued frivolous requests for information…and interfering with the operation of the business,” directed to a shop steward who made two  requests to the employer for information including payroll information, violated the National Labor Relations Act, according to the National Labor Relations Board. Dover Energy, Inc.,Blackmer Division, 361 NLRB No. 48 (Sept. 17, 2014).  The Board did not find it significant that the steward was not a union negotiator, his requests were not authorized by the union, and there was no indication he acted on anyone else’s behalf.

The shop steward’s role was to investigate grievances, but he had no role in ongoing collective bargaining negotiations and was not authorized by the union to take action regarding the negotiations. Despite this, the steward twice made voluminous information requests of the employer allegedly related only to the negotiations (financial and payroll information).  The company did not provide the information.  After the second request, the company gave the steward a verbal warning.  The company explained it was not bargaining with him individually, and warned, “Similar requests such as this will result in further discipline up to and including discharge.”

A Board panel majority, reversing its Administrative Law Judge, found a violation in the warning.  Although it did not find the steward’s information requests were “protected, concerted activity” — they were not authorized by the union in connection with the negotiations and the steward was not acting together with or on behalf of any other employee — the warning, the Board said, “would reasonably be understood [by the employee] to proscribe future protected activity.”  In other words, according to the NLRB, because of the warning, the steward might be unlawfully inhibited from making similar information requests in the future in properly investigating grievances.

One Board Member dissented.  He wrote that a reasonable employee would recognize that only “frivolous” future information requests (“such as this”) would be subject to discipline, not those made legitimately in the performance of his duties as shop steward.

This is another example of the NLRB extending the reach of the concept of protected activity.  Most of the examples of this occur in the context of the Board’s decisions about the lawfulness of handbook rules, but this case demonstrates that warnings (and, presumably, other employer documents, e.g., performance evaluations) are fair game for the Board’s protected activity scrutiny.