Sandulli Grace attorney John M. Becker provided expert commentary in a recent front page article in the March 23, 2009 edition of Massachusetts Lawyers Weekly. MLW is the leading news publication in the state for the legal community. Attorney Becker commented on the recent decision of the U.S. Court of Appeals for the First Circuit, Northeastern Land Services, Ltd. v. National Labor Relations Board, — F.3d —-, 2009 WL 638248 (2009). In this case, the First Circuit upheld NLRB’s conclusion that the employer’s discharge of an employee over an alleged breach of confidentiality was improper. At the heart of the case was the employer’s rule that employees sign a confidentiality agreement that made employees promise not to discuss wages and terms of employment with others. In other words, the employer prohibited employees from talking with each other about their compensation, to compare how they were being paid to other employees, which essentially prevented employees from networking to improve their working conditions. Before he was fired, the employee became involved in a pay dispute with his employer which he then discussed with a third party. Ultimately, the employer fired the employee, charging him with violating the confidentiality rule.
The employee filed an unfair labor practice charge with the NLRB, alleging that the confidentiality rule had the effect of intimidating and coercing employees in the exercise of their right to engage in collective activity. Even though no union was involved in this case, the NLRB found (and the First Circuit agreed) that the confidentiality rule was so overbroad that it violated the National Labor Relations Act, which grants employees the right to organize and engage in collective action, no matter how the rule was applied. The NLRB concluded that the discharge of the employee for discussing his wages and benefits was improper. The decision serves to remind employees that they have a right to engage in concerted action about their wages and benefits, even if they elect not to do so under the aegis of a union.
In commenting on the case in “Massachusetts Lawyers Weekly”, Sandulli Grace’s Becker noted, “[The decision recognizes] that as employers become more sophisticated in ways to keep unions out of their shops, the board has to be able to recognize that and protect the rights of employees to organize, even if situations like this one where it’s not obvious that there’s a union issue.” Becker disagreed with the employer’s attorney’s prediction of dire consequences from the decision. On the contrary, he stated, “The court itself discusses the possibility of a more narrowly fashioned confidentiality agreement that reaches legitimate goals the employer might have without being overbroad.”