NLRB Increases Employers’ Burdens In Responding To Frivolous Information Requests

If you have unionized workers, you know that a union gets to request information that may be relevant to it its functions. This includes information potentially relevant in deciding to grieve a matter or to assisting with bargaining. Employers must respond to these requests in a timely fashion, even if they think the request is irrelevant or overly burdensome. At times, unions harass employers with burdensome and unnecessary requests to try to achieve some other end. This week, the Board took it one step further and empowered union stewards to make these requests independently.

In a September 17, 2014 decision (Dover Energy, Inc., Blackmer Division and Thomas Kaanta), the Board concluded that an employer violated the National Labor Relations Act by verbally warning a union steward to stop making frivolous requests (in this case, asking for information without the union's knowledge that was unconnected with collective bargaining or any possible grievance). The warning said that further discipline up to and including discharge could result if the steward continued to make frivolous and unauthorized information requests. An administrative law judge concluded that the employer did not violate the Act because: (1) the steward's actions were not authorized by the union and (2) evidence was lacking that the steward requested information on behalf of other employees or discussed with other employees the concerns underlying the requests. 

The Board reversed the judge, ignoring the unprotected nature of the request, finding that future requests for information could be protected and consequently the steward "would reasonably conclude from the language of the warning that even protected requests could trigger the warning's threat of discipline." The Board ignored the warning's clear direction that the steward refrain from unauthorized and frivolous requests and concluding that the employee would not be intelligent enough to discern the difference between a protected and unprotected request.

This decision serves to emphasize that employers should consult experienced labor counsel in deciding how to treat information requests (even if they appear unauthorized or frivolous) and in taking disciplinary action against union stewards.

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