By Nelson Cary and Ashley Manfull

Recent scrutiny of employee handbook policies by the NLRB (highlighted in prior posts on this blog) have left labor professionals grappling with what employee misconduct may be grounds for disciplinary action without running afoul of the NLRA.  Labor professionals are appropriately concerned that discharges may be overturned if employment policies are not carefully worded. 

However, in a bit of good news, the NLRB recently decided that an employee’s discharge was lawful under an employer’s confidentiality policy, even though portions of the confidentiality policy violated the NLRA.  In particular, the NLRB ruled that an employee could construe the confidentiality policy as prohibiting the discussion of wages.  But, because the employee’s discharge in this case was not based on her discussion of wages, the discharge was lawful. 

The facts of the case in question, Flex Frac Logistics, LLC, 360 N.L.R.B. No. 120 (May 30, 2014), involved an employee – Lopez – who worked in the employer’s accounting department and had access to prices charged to client companies for deliveries. Despite knowing that her employer closely guarded its client rates and that she was not permitted to discuss those rates, Lopez repeatedly told a dispatch employee that she thought the employer was “screwing [drivers] over” by charging client companies more for deliveries than it paid its drivers. 

Several days after the dispatch employee reported Lopez’s comments to management, three of the trucking companies the employer used complained about their rate and demanded more money to continue providing their services. When the employer refused, the companies stopped performing work for the employer. While those companies did not reveal their source, the employer reasonably believed it was Lopez. Therefore, the employer discharged Lopez for disclosing confidential client prices, in violation of the confidentiality policy.

Based on these facts, the NLRB concluded that the employer had a legitimate business interest in keeping its client rates confidential and that the employee’s disclosure of its confidential rates damaged the employer’s interest. Therefore, the employer’s confidentiality policy, as applied to the client rates, was lawful. To the extent other employees were aware of the discharge, the NLRB believed it would be evident that the Lopez’ discharge resulted from her gross misconduct, not because the employer applied the overly broad provisions of its policy. Therefore, any “chilling impact” on other employees’ exercise of their Section 7 rights would be minimal.

While the NLRB’s latest opinion confirms that employees are not immune from discharge policies which may contain some language deemed overly broad by the NLRB, labor professionals should nonetheless continue to closely review the language used in employee policies as the NLRB continually issues new guidance.