S. Amir Kohan

Employees’ Right to Cooperate with Management in an Investigation

NLRB Decision & Order:

Graphic Communications Conference/International Brotherhood of Teamsters Local Union No. 735‒S and Bemis Company, Inc. Case 04‒CB‒215127 (June 5, 2020), 369 NLRB No. 97


“We find that Stasko engaged in protected activity when he participated in the Employer’s investigation of Union President DeSpirito and provided a statement to the Employer regarding his alleged misconduct.”

The Board has held that employees have a protected right to participate in the machinery of the grievance and arbitration process. See Cement Workers D‒357 (Southern Portland Cement), 288 NLRB 1156, 1157‒1158 (1988); Oil Workers Local 7‒103 (DAP, Inc.), 269 NLRB 129, 130 (1984).

This includes the right to provide witness statements, including those against fellow members, that are foreseeably part of the grievance process. See Cement Workers D‒357, above at 1156‒1157; Oil Workers Local 7‒103, above at 130.

Sheet Metal Workers Local 550 (Dynamics Corp.), 312 NLRB 229, 234 (1993) (Employees have a protected right “to cooperate with management in the investigation of employee misconduct which might lead to discipline, at least where a grievance has been, or . . . is likely to be filed.”). Id. Footnote 6. 

“The Board has held that a union violates Sec. 8(b)(1)(A) when it disciplines an employee for reporting a work-rule infraction by
another employee if the disciplined employee is under a duty to make such reports.” Operating Engineers Local 513 (Ozark Constructors), 355 NLRB 145 (2010), enf. denied 635 F.3d 1233 (D.C. Cir. 2011), and cases cited therein. Here, the judge found that the Employer called Stasko to the human resources office to interview and provide a statement about DeSpirito’s conduct. See Teamsters Local 439 (University of the Pacific), 324 NLRB 1096, 1098 (1997) (finding that union’s discipline of a member for performing his “employer-assigned tasks” of reporting misconduct was unlawful), enfd. 175 F.3d 1173 (9th Cir. 1999). Id. Footnote 8.  Here, we have found that by participating in the Employer’s investigation, Stasko was exercising his right to participate in the contractual grievance procedure. Accordingly, he was engaged in protected concerted activity under City Disposal and Interboro. Cf. Operating Engineers Local 513, 635 F.3d at 1236 (noting that Board “explicitly decline[d] to rely on City Disposal”).

NLBR Case – Protected Activity

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