Employees of Flex Frac Logistics, L.L.C., a nonunion trucking company that delivers sand, must sign a confidential information document, which defines confidential information as follows:
Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; . . . our financial information, including costs, prices; . . . personnel information and documents . . . . No employee is permitted to share this Confidential Information outside the organization . . . . Disclosure of Confidential Information could lead to termination, as well as other possible legal action.
After an employee was terminated, she filed a complaint with the NLRB alleging that Flex Frac had promulgated and maintained a rule prohibiting employees from discussing employee wages in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). An administrative law judge found that the clause did violate section 8(a)(1) of the NLRA, and the NLRB affirmed.
Flex Frac then appealed to the U.S. Court of Appeals for the Fifth Circuit. What standard should the court use when determining whether an employer has committed an unfair labor practice? What facts are relevant? Should the fact that the clause does not specifically mention employee wages make a difference? Would it matter if the policy specifically prohibited talking about wage information with persons outside the company, in contrast to talking about wage information among employees of the company?