National Labor Relations Board v. Northeastern Land Services, Ltd.
2011 U.S. App. LEXIS 12678
| 1st Cir. | 2011Background
- NLS is a Rhode Island temporary employment agency placing workers with clients; Dupuy worked for NLS in 2000 and 2001 under confidential temporary employment agreements.
- NLS required confidentiality about employment terms, stating that disclosure to other parties may grounds for dismissal.
- Dupuy complained about late pay and out-of-pocket expenses; NLS attempted to resolve via El Paso Energy but ultimately paid through to Dupuy.
- A dispute over a $3 per day surcharge reclassification of computer-use reimbursement occurred; Dupuy threatened actions and communications were restricted.
- Dupuy was terminated for allegedly violating the confidentiality provision; NLS linked the termination to the rule rather than any union activity.
- The NLRB, initially enforcing a 2008 Board decision, later, in 2010, issued an enforcement order based on a three-member delegee panel upholding the 2008 finding that the rule was unlawful and that termination for its enforcement violated the NLRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the confidentiality provision is overbroad under 8(a)(1). | NLS argues no violation since the rule did not explicitly ban internal discussions. | NLS contends Board should balance business needs against rights. | Yes; provision is unlawful as overbroad and would chill 7 rights. |
| Whether termination under an unlawful rule violates the NLRA. | Discipline could be lawful if independent of the unlawful rule. | Discharge was for violating a valid, lawful rule. | Discharge pursuant to an unlawful rule is itself unlawful. |
| Whether Board could rely on mere maintenance without showing actual chilling. | Maintenance alone cannot prove impairment of rights. | Board may uphold mere maintenance under Lafayette Park and Lutheran Heritage. | Board correctly applied Lutheran Heritage to find likelihood of chilling. |
| Standard of review for enforcement post-New Process Steel. | Board’s delegee authority and merits judgment should be scrutinized. | Delegee panel properly applied current law post-New Process Steel. | Enforcement granted; no intervening controlling authority undermines the result. |
Key Cases Cited
- Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978) (right to discuss terms of employment and organize is protected under §7)
- Central Hardware Co. v. NLRB, 407 U.S. 539 (1972) (organization rights depend on ability to discuss terms with others)
- Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) (balancing in section 7 analysis not mandatory; protect legitimate business interests)
- Tex. Instruments, Inc. v. NLRB, 637 F.2d 822 (1st Cir. 1981) (supports consideration of business justification in some NLRA analyses)