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.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.