johnson in grand rapids michigan on behalf of dover energy blackmore division may i please reserve one minute for a bottle in your honour's this issue the issue in this labor case is not complicated and the facts are really spirited of the board here found that blackmore violated section eighty one of the act by issuing of her warning to a union steward mr thomas canta after mr cantor twice during collective bargaining was part of the complaint it was tried the ministry of law judge rejected that and even with sound reasoning based on evidence in the record and that issue was not that factual finding was not disturbed by the board even the so so so general counsel so section that they did not take specific exception to that finding your i know there's a there's general language if you look at the exceptions in the record that's you  know just a general exception to the failure to find the allegations of violations as alleged in the complaint that the there's lots of authority that says that's not enough in fact i've been on the other end of that case before they they found this request was completely totally whatever unauthorized he didn't have to go any further than that he didn't have to say now if it had been authorized this was protected information  the board of the general counsel said well he stopped too soon he should have said and the responded but the respondent  independently should not have issued this warning because of the way it could be interpreted now and are we really arguing about whether such unprotected as a matter of law those facts are disturbed and i would agree with you that the issue really is and i would submit this what i would suggest of you sure is is there substantial evidence in the record right and did the board actually have to worry about the evidence supporting whether was unauthorized or not it would have the board's finding your honor is that by referencing the unauthorised unprotected requests that mr kantor or better said a reasonable person actual requests for information that is authorized by the u a w and that is within the scope of of the authority but mr you and part of the context here is mr cantor saying you mean if i ask for information i could be fired and instead of the company responding no no only you know of course you can ask for information relating to your duties as a union steward and support of grievances but here it this is you know collective bargaining stuff and you're you know you have been for better or for worse you are represented by the people who are bargaining away and that you know just really doesn't come across that when it seems like our decision in the dam or chrysler case pretty strong y supportive of what the board did here and you know so it's a blanket threat that's going to make someone think maybe i shouldn't and he said this guy's not a lawyer the steward he's a relatively new in this position and you know he's trying to get clarification and the and the context was the clarification that he thought was pretty broadly answered you honor five h two points first as to the evidentiary point that you raised the actual evidence is the testimony of the h r director mr kaminski who said when he handed that information request in person correct your honor right and the other point i wanted to to i respond to the prior question from a cord i was the reference to the diamond chrysler decision we had that the i think in our initial brief anticipating that that would be a question for the circuit that case show was exactly why this circuit me and he should consider context and that case it was undisputed that there were question related to grievance processing there was some of them a little bit of a judge's edwards decision talks about how the last chance agreements that might have been maybe not relevant but it was least relevant enough that the union could request it and that she distinction there your honour's is all of those requests were authorized by the union all of them were authorized by the all that is describing what kind of information cantor had requested and instead had tracked the language of the first denial saying you ask for this financial relationships and all that sort of stuff that's what the board seems to hang its hat on that because the description of the information sought which was protected information but wording in effect this court's decision and trains it in discussing whether solicitation policy do the same thing the criticize the board for not looking at the whole language of matter in that case it was a policy but that's exactly what the board not allowed to do it's no other parse something that ignore all the other record evidence of context which shows that any person in mr kansas any reasonable person in mr cancer shoes would know because he was told that she was only being caution unauthorized request because they would interfere with the barring relationship with the union i see that my time is up and i want to ask you a question about it you go to the board order yes the paragraph right before the ame future requests for such information could well be protected nobody disputes that but if you changed it you're saying but such future requests for information could well be protected that is absolutely false and that's what the warrant i mean the warning said that is similar requests such as this will lead to discipline i mean it's the change from focus on authorized requests to what it was he was asking for yes he can ask for that information in a different role but in this role he has no right to no right to it at all and this was a second time here as a o j said burden the employer right at the time when the bargaining was at its most intense i think you said in the august  yes your honor response to that i think that's the question persists leave why there is no evidence to meet the similar request has to refer to the actual evidence the only actual evidence is unprotected on authorized request call talks about a certain kind of information that's the request to the first sentence is a characterization but the actual request is a request for employee pay information which is at the core of is what the what the board is concerned with with all due respect your honor i would submit that there is no ambiguity when the board does its job and that is consider context as the dissent properly noted the the the reference to continue for most request the parent circle just refers to the actual one the actual informational cost requested by the board cannot do is ignore those next two sentences in that paragraph that says you were not on the bar in committee and failed to work within the parameters of the committee and i will read it to you because you investigate bad authorized that request actually but that's a critical point in this case is this employer has a great relationship with the u a w when they got the request both requests the second one included they went in ask the union hey is this authorized if it's authorized then it would have been responded to right and that's part of qantas concern here right is that the union in them players seem to have a great relationship and he's concerned ted that the employees he is representing is to usurp the power of the union the right of the u a w and that's exactly the the rationale it's a majority here in principle that the supreme court discusses an important call well which is referenced by the algerians decision that's why you can't have it think about think about what we would have if we had any large union employer four hundred five hundred employees if the union can't control its right to request information what's to stop mr cantor or two hundred other people from following the information request every single day of bargain or if you took the pure identical out of that would help your honor but there are other issues with this warning such as the subjective invade language of frivolous requests interfering with the operation of the business continued frivolous requests which refers back to the first one which asked for the relationship between immediate children wives spouses well spouses pensioners that was severely rejected as well that i want to make clear about something are you saying that the board is not taking a position on whether this request was unauthorized yes you're not authorized whether it's protected so authorize it protected a few different things well it's asking for protected information but  request was on authorized by the union in this case but all that means is that the company does not have a duty to provide that information that does not mean the request itself was not protected employees who work together for the mutual aid protection may ask the company's disciplined this court struck that down the request was authorized and thing are you sure that's no what this court relied on when determining that the future threat of discipline was the issue there it did not say because this request was authorize all future would way that threatens the employees future ability to engage in protective activity you're saying boy he said this is about asking for information and employee rank and file employees can do union members can do union stewards can do  company's duty varies depending on whether the request is authorized you're asking for information and typically it is not something that employees are prohibited from doing and that you're saying given the nature of the freedom to organize in the workplace when an employer disciplines something that is about the exchange of information has to be especially clear yes sure the way that it was done it's not the fact of this conduct being disapproved by the employer yes your honor exactly in the board tried to explain that footnote that there does not need to be protected activity before the warning to make this a lawful towards what's your best authority for that has our court ever held that you can have no section eight a want to violation but nonetheless find that that there was interference with future productive activity w talk to wait about wages with her fellow employees when the when the company found that out and you didn't but i'm fired her and she had had the chance to need to protect an active again but the board found that was a violation for the same policy reasons as if their work project actually had a time and ellis immediate goal for example when two employees were complaining about their employers sexually inappropriate comments the board didn't decide whether the specific complaints were protected but did say if you over issues overly broad morning news has stopped causing cell complaining that can it's unnecessary for us to decide whether the requests themselves were protected activity then cite allison ellis and you've got the parent of a culture climbing to pass on whether that e mail was itself discussing the i'm the supervisors sexually inappropriate comments about in the specific email itself the content i didn't decide whether the word seated in the email protected it just did what led to it those discussions would be protected well or the iran or any what similar such as this refers to such as this refers to photocopies in plain paychecks no actually it's modifies requests just to me not apply the information that modifies ask you this if he makes an unauthorized request in the future yes you're not authorized one you're stronger is he going to can he be disciplined possibly your honor what have we had to look at the context of their quest but the point is he analysis so we did not rely on that argument at all all we relied on whether or not a reasonable employee would see information about for a little quest that included our in pay and said you will be discharged if you include it to do similar things in the individual employees could file information requests they can't do that and that's not protected activity the only way that that could be protected activity is if there was some evidence of concerted protected activity for mutual aid and protection the a l j found there was not in the board decision acknowledged so there is no such evidence in that regard oh i have to go through the union steward to file a grievance i mean if i'm the people it depends on the collective bargaining agreement in this in this i believe in this instance that it does need to beef i think i'd have to check the language but i think that stewart has to file it but certainly once it's filed by the employer gets processed by the union and the union definitely owns the grievance through procedure but it's not considered activity if a union steward in his union position does something that he thinks is for the good of his department if he's as a representative he has to actually go back and get them on board or didn't can he do things saying i'm doing this for the group and that's concerted back to back that i thought that's what the labor law protected you know there's really two types of protected activity under the statute right section seven is the right there's union activity which is all the things that we're talking about here with informational question and then there's something which is not a union which is concerted protected activity for mutually protection it's like when i get together with a colleague and complain about overtime policies even though we don't have a union we're acting together for mutual aid and protection there is no evidence of human activity because it's not authorized and there's also no evidence of concerted protected activity in the nonunion setting is the point so that getting together has to come before any requests like if i were wanting to show that my work workplace paid the men more than the women for the same work and i wanted to get a little evidence of that before i got my colleagues riled up about it that would not be concerted in that second sentence inserted protected activity even though i haven't had cause i haven't talked to them yet but i'm wanting to get people organized to make sure that there's equal pay right the board law would suggest that there is there are some circumstances where doing things and correct aeration for group action can be protected there are case law cases that say that i think i was referring to although can't this information requests hardly be could be viewed as dissident intra union activity warning the acts protection the record does not status that responded to any intention of interfering as an internal union likewise the evidence is no any intent to retaliate i think in that discussion there and then i think it's also referenced in the board decision when they characterize it needed i don't know exactly where in the board decision but i know what's in there  here it is it's on the second page of different appendix fourteen second called the last paragraph on the right the judge found that the judge also found that the general counsel failed to show that the information requests were otherwise protected activity and yeah i just wanted to point from a policy perspective that i'd raise it if employers cannot discipline individuals for engaging in misconduct and warn them against similar misconduct as a major problem and that's what this order essentially stands for think of it this way an example if i were to use profanity and yell at my supervisor i think we all agree if you get more disappointing for that ok and so i get a warning that says mystery slim you were your supervisor you do it again you do anything sit you do that similar conduct again you're going to get fire under this theory that's unfair labor practice so unfairly we're practice here's why because somebody from the board can say well wait a second what if next time mr eastman's talking to his supervisor he's talking about union activity and it's in the heated exchange and therefore he's allowed to use some of the of profanity on the under the boards decisions in atlantic steel and he doesn't lose protection of the act it's always theoretically possible and so i think you would have a significant impact and that's why the board has to point t