Nat'l Labor Relations Bd. v. Ne. Land Serv.

• Decision Date: 22 June 2011
• Docket Number: No. 10–2156.,10–2156.
• Citation: 645 F.3d 475,190 L.R.R.M. (BNA) 3281
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner,v.NORTHEASTERN LAND SERVICES, LTD., d/b/a the NLS Group, Respondent.
• Court: U.S. Court of Appeals — First Circuit

645 F.3d 475

190 L.R.R.M. (BNA) 3281

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.NORTHEASTERN LAND SERVICES, LTD., d/b/a the NLS Group, Respondent.

No. 10–2156.

United States Court of Appeals, First Circuit.

Submitted June 6, 2011.Decided June 22, 2011.

Ruth E. Burdick, Supervising Attorney, Heather S. Beard, Attorney, Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, National Labor Relations Board, on brief for petitioner.Richard D. Wayne and Hinckley, Allen & Snyder LLP on brief for respondent.Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.LYNCH, Chief Judge.

On June 28, 2010, the Supreme Court vacated our prior decision in this case, Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36 (1st Cir.2009), which had enforced a 2008 order of the National Labor Relations Board (NLRB), Ne. Land Servs., Ltd., 352 N.L.R.B. 744 (2008). The Court's vacating of our decision was accompanied by an order granting a petition for writ of certiorari filed by Northeastern Land Services, Ltd. (NLS). Ne. Land Servs., Ltd. v. NLRB, –––U.S. ––––, 130 S.Ct. 3498, 177 L.Ed.2d 1085 (2010). The Court remanded for reconsideration in light of its decision in New Process Steel v. NLRB, –––U.S. ––––, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010), which held that a delegee group of the Board must maintain a membership of three in order to exercise the delegated authority of the Board. Id. at 2642.¹

Upon the vacating of our prior decision and the return of jurisdiction to this court, the NLRB filed a motion to remand the case to the Board. On July 30, 2010, the case was so remanded by order of this court. Ne. Land Servs., Ltd. v. NLRB, No. 08–1878, 2010 WL 4072835, at *1 (1st Cir. July 30, 2010).

On September 28, 2010, a three-member delegee group of the Board exercised the authority delegated to it and affirmed the ALJ's “rulings, findings, and conclusions” and adopted the recommended order, but “only to the extent and for the reasons stated in the decision reported at 352 N.L.R.B. 744 (2008), which is incorporated herein by reference.” Ne. Land Servs., Ltd., 355 N.L.R.B. No. 169 (Sept. 28, 2010). The three member panel in effect adopted the Board's 2008 decision and order, which this court had enforced, finding that NLS had violated section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), by maintaining an overbroad confidentiality provision and by discharging its employee Jamison Dupuy for violating that provision.

On September 30, the Board applied for enforcement of the order. NLS opposed the Board's application for enforcement.

The arguments by each side largely replicate the merits-based arguments presented in the first round of this case. The primary difference is that NLS no longer challenges the authority of the Board to issue the order and calls our attention to interim NLRB matters in another case, which are not on point. NLS also raises new arguments before us for the first time. As these arguments were not raised before the Board, we are without jurisdiction to consider them. See 29 U.S.C. § 160(e).

As there has been no intervening controlling authority or even persuasive authority provided to us, this panel reinstates as follows the merits portion of our prior decision, with the matters overruled by New Process Steel excerpted, and grants the Board's application for enforcement of its 2010 order.

I.

Because “the Board is primarily responsible for developing and applying a coherent national labor policy, we accord its decisions considerable deference.” NLRB v. Boston Dist. Council of Carpenters, 80 F.3d 662, 665 (1st Cir.1996) (citation omitted). The Board's judgment stands when the choice is “between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). A Board order must be enforced if the Board correctly applied the law and if its factual findings are supported by substantial evidence on the record. 29 U.S.C. § 160(e), (f); Yesterday's Children, Inc. v. NLRB, 115 F.3d 36, 44 (1st Cir.1997). Where, as here, “the board has reached a conclusion opposite of that of the ALJ, our review is slightly less deferential than it would be otherwise.” C.E.K. Indus. Mech. Contractors, Inc. v. NLRB, 921 F.2d 350, 355 (1st Cir.1990).

II.

The facts are not in dispute. NLS is a temporary employment agency located in East Providence, Rhode Island, that supplies workers to clients in the natural gas and telecommunications industries, but pays its workers directly. Dupuy was employed twice by NLS as a right-of-way agent for the acquisition of land rights by clients, from February to November 2000, and from July to October 2001. Dupuy obtained the 2001 placement by contacting Rick Lopez, a project manager for NLS client El Paso Energy, who had once worked with Dupuy at NLS. Lopez directed Dupuy to contact NLS, which soon placed him with El Paso at its Dracut Expansion Project in Massachusetts.

Before both of Dupuy's placements by NLS, NLS required Dupuy to sign a temporary employment contract which said, in relevant part:

Employee ... understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.

This confidentiality provision is at the heart of this case.

Dupuy complained to NLS about repeated delays in receiving his paycheck. He was particularly concerned because he had to pay for expenses such as his hotel bills up front and later seek reimbursement. After Dupuy tried to negotiate with NLS, and even threatened to quit, Jesse Green, Executive Vice President and Chief Operating Officer of NLS, agreed to call Lopez to see if El Paso would either pay for Dupuy's hotel bill or provide a larger per diem than NLS had offered to help with Dupuy's cash flow problems. Although NLS ultimately billed most of Dupuy's expenses to El Paso, NLS was responsible for reimbursing Dupuy. Green told Dupuy that Lopez would not agree to any alternative arrangements.

In early October 2001, Dupuy raised two additional concerns about his job. The first arose when Dupuy contacted Lopez to tell him that Dupuy's cell phone was not working. Dupuy asked Lopez whether he might be able to work for El Paso through a different employment agency because Dupuy had not been paid in a timely manner by NLS. Lopez refused Dupuy's request and gave Dupuy the contact information of Norm Winters, an agent of NLS, to resolve the pay issues.

The second concern was the reimbursement for Dupuy's work-related use of his personal computer. Dupuy had initially arranged to receive a $15–per–day reimbursement for computer usage. NLS treated this as a “pass-through” business expense for tax purposes, which did not count as income to the employee, and on which NLS did not pay Social Security taxes. On October 2, however, Dupuy received an email from NLS's coordinator of human resources, Susan Green, which referred to the computer usage reimbursement rate as $12 per day. Dupuy replied that El Paso had authorized, and he had been billing, $15 per day for computer usage; he questioned the $12–per–day rate. Green told Dupuy that NLS's accountants had determined that the computer usage cost should be considered taxable compensation, rather than a pass-through expense billed to El Paso. Green stated that the reclassification of the tax status of the computer usage fee had increased NLS's overhead costs, requiring an offsetting reduction of $3 per day.

Dupuy sent a reply email to Green, copying Lopez, stating, “By copy of this email to Rick Lopez, I am asking El Paso to offset your surcharge and additional tax burden.” He said that if he did not receive the offset, “I will no longer be using my computer for this job. El Paso will have to furnish me with a digital camera, and I will no longer be available by email.... After today and until the matter has been resolved, my equipment is offline.”

On the evening of October 3, he sent an email to everyone working with him on the El Paso project, including Rick Lopez, saying, “Until further notice, my computer is offline and I will not be accepting email. I can still be reached by the contact telephone numbers that you have.” Dupuy did not copy any NLS managers on the email. Jesse Green testified that although he tried to contact Dupuy numerous times by paging him, calling his cell phone and leaving messages at his hotel and with other employees, Dupuy did not call him back.

On October 11, 2001, Jesse Green spoke with Dupuy on the phone. Green told Dupuy that NLS had tried to accommodate his requests, but that it seemed that NLS could never make Dupuy happy and, as a result, NLS thought it was best to terminate his employment. Dupuy replied that he would sue NLS for retaliatory discharge, alleging that it fired him because he had threatened to file a complaint against the company with the Massachusetts Attorney General alleging violations of state wage laws.² When Dupuy pressed Jesse Green for the reason for his termination, Green replied that NLS had cause to terminate Dupuy's employment, as Dupuy had “not lived up to [his] end of the bargain with [NLS].”

Jesse Green later testified that his statement regarding Dupuy's “failure to live up to his end of the bargain” was a reference to Dupuy's failure to comply with the confidentiality provision in the temporary employment agreement that required him not to disclose the terms of his employment to outside parties. Green, who had drafted the confidentiality provision, further testified that in making the determination that Dupuy had violated the confidentiality provision by contacting El Paso directly, Green thought it was...