FlexFrac Logistics/Silver Eagle Logistics

National Labor Relations Board - Board Decisions

May 30, 2014

360 N.L.R.B. 1004 (N.L.R.B. 2014)

1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 120
Flex Frac Logistics, LLC, and Silver Eagle Logistics,
LLC, Joint Employers and Kathy Lopez. Case
16–CA–027978
May 30, 2014
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On January 28, 2013, Administrative Law Judge Mar-
garet G. Brakebusch issued the attached supplemental
decision. In the underlying decision, 358 NLRB 1131
(2012),1 the National Labor Relations Board affirmed the
judge’s finding that the Respondent violated Section
8(a)(1) of the Act by maintaining an overly broad confi-
dentiality rule. The Board, however, remanded the case
to the judge for further analysis of her finding that the
Respondent’s discharge of employee Kathy Lopez pur-
suant to that confidentiality rule violated Section 8(a)(1).
Specifically, the Board instructed the judge to analyze,
under Continental Group, 357 NLRB 409 (2011),
whether the conduct for which the Respondent dis-
charged Lopez was protected or otherwise implicated the
concerns underlying Section 7, as Continental Group
holds that discharges pursuant to overly broad rules may
be found unlawful only under those circumstances. For
the reasons discussed below, we now affirm the judge’s
supplemental finding that the Respondent’s discharge of
Lopez was lawful.2
I.
The Respondent was in the business of delivering frac
sand to client energy companies for use in oil and gas
drilling. To make these deliveries, the Respondent used
drivers it employed directly, plus drivers employed by
trucking companies with which the Respondent contract-
ed. The Respondent was particularly concerned to main-

1 Enfd. 746 F.3d 205 (5th Cir. 2014).
2 The General Counsel filed exceptions to the judge’s supplemental
decision and a supporting brief, the Respondent filed an answering
brief, and the General Counsel filed a reply brief. The General Counsel
also filed a motion to strike the Respondent’s answering brief, which
the Board denied by an unpublished Order dated April 25, 2013.
The Board has delegated its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental decision and the record
in light of the exceptions and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions as modified below and to
adopt the recommended Order.
The General Counsel has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
tain the confidentiality of the rates it charges its clients.
The Respondent generally feared that, armed with the
client rates, competitors might underbid it. But in addi-
tion, the Respondent wanted to keep the client rates from
the trucking companies with which it contracted, lest
they discern the margin between the Respondent’s reve-
nues and delivery costs and demand more money.
Employee Lopez worked in the Respondent’s account-
ing department alongside about nine other employees.
Assigned to accounts payable, Lopez calculated the pay
of employee drivers and the amounts owed to the truck-
ing companies. To perform her duties, Lopez did not
need to know the price that the Respondent charged the
client companies for frac sand deliveries because the
amounts paid the employee drivers and trucking compa-
nies were not based on the client rates.3 Nonetheless, as
a member of the accounting department, she had access
to those rates.
Lopez knew that the Respondent closely guarded its
client rates. She had witnessed her accounting supervi-
sor, Trish Villarreal, explaining specifically to another
employee that the Respondent’s confidentiality rule was
implemented so “we wouldn’t talk about” client rates.
Lopez plainly understood that the admonition also ap-
plied to her. Nevertheless, in November 2010, Lopez
repeatedly told dispatch employee Frank Gay, a former
employee driver, that she thought the Respondent was
“screwing [drivers] over” in their pay because the Re-
spondent charged client companies much more for deliv-
eries than it paid drivers.4 On one occasion, Lopez tried
to show Gay a document that showed how much clients
paid for deliveries, but Gay refused to look at it.
Gay felt uncomfortable about his conversations with
Lopez, so he reported them to his supervisor, Jamie
Stingley. Stingley, in turn, informed William Funk, one
of the Respondent’s owners, and other high-level manag-
ers.
Within the next day or two, Funk received telephone
calls from three of the trucking companies that were
making deliveries for the Respondent. The companies
had heard how much the Respondent charged clients and
demanded more money to continue providing services to
the Respondent. The companies did not reveal their
source, but the Respondent believed, reasonably under

3 Instead, employee drivers and trucking companies received a per-
centage of a separate calculation based largely on uniform rates per
mile driven and the time that the truck waited to be offloaded. These
rates were set in the contracts with the trucking companies and were the
same for each contractor. The trucking companies received 80 to 90
percent of the total calculated from the uniform rates, and Respondent’s
employee drivers received 25 percent.
4 Lopez believed that it would have been fairer to the drivers to tie
their compensation to a percentage of the rate paid by the clients.
FLEX FRAC LOGISTICS, LLC 1005
the circumstances, that it was Lopez. The Respondent
refused to pay more, and all three companies ultimately
stopped performing work for it. About a month later, on
December 30, 2010, the Respondent discharged Lopez
for violating its confidentiality rule by disclosing the
Respondent’s client rates. We have previously found
that the rule was unlawfully overbroad, as it prohibited or
could be read to prohibit employees from discussing
wages, hours, and other terms and conditions of em-
ployment. See 358 NLRB 1131, 1133 (2012), enfd. 746
F.3d 205 (5th Cir. 2014).
II.
In her supplemental decision, the judge found the Re-
spondent’s discharge of Lopez did not violate the Act.
We agree. In Continental Group, 357 NLRB 409 (2011),
the Board clarified that discipline pursuant to an unlaw-
fully overbroad rule is unlawful only if the employee
“violated the rule by (1) engaging in protected conduct or
(2) engaging in conduct that otherwise implicates the
concerns underlying Section 7.” Id. at 412. In this case,
even though that second condition may have been met,
we sustain the discipline for the following reasons.
There is no dispute that the Respondent has a legiti-
mate business interest in keeping its client rates confi-
dential, as borne out by the particular facts of this case.
Indeed, the Respondent’s business did suffer as a result
of the disclosure of the client rates.5 The record estab-
lishes that Lopez was aware of this confidentiality inter-
est, that she nonetheless used her position to access the
client rates, and that she attempted to disclose them to
Gay. The Respondent reasonably believed that Lopez
also disclosed those rates to the trucking companies that
contracted with the Respondent.6

5 The judge found that the Respondent established, as an affirmative
defense under Continental Group, that Lopez’ conduct actually inter-
fered with the Respondent’s operations. We find it unnecessary to pass
on that finding because we agree, for the other reasons discussed in this
decision, that the Respondent lawfully discharged Lopez. Neverthe-
less, to avoid any confusion the judge’s decision may otherwise create
about the requirements of that affirmative defense, we note that Conti-
nental Group makes clear that where, as here, an employer provides the
employee with a reason for his or her discipline or discharge, “the
employer must demonstrate that it cited the employee’s interference
with production and not simply the violation of the overbroad rule.”
357 NLRB 409 at 412.
6 Lopez denied disclosing the client rates, and there is no proof that
she actually did so. Whether she did or not is irrelevant for purposes of
this decision, however, because the Respondent reasonably believed
that she did, and that belief is sufficient to support her discharge. Cf.
Chinese Daily News, 346 NLRB 906, 909, 945–946 (2006) (finding
that an employer proved that it would have discharged an employee
even in the absence of protected conduct where it proved that it dis-
charged him because it reasonably believed that he had stolen its prop-
erty), enfd. 224 Fed.Appx. 6 (D.C. Cir. 2007). For the sake of brevity,
we shall refer to Lopez’ disclosures as though they actually took place.
In these circumstances, applying Continental Group,
we find that the Respondent acted lawfully in discharg-
ing Lopez. Although Lopez’ conduct arguably implicat-
ed concerns underlying the Section 7 rights of others,
based on the credited testimony, her deliberate betrayal
of the Respondent’s strong, expressly articulated confi-
dentiality interest and the evident harm she caused were
plainly and overtly the reasons the Respondent dis-
charged her. We are satisfied that, to the extent other
employees were aware of the events at all, they would
understand that the Respondent had discharged Lopez on
account of her gross misconduct, not because of the Re-
spondent’s application of its overbroad rule, and that any
chilling impact on the exercise of their Section 7 rights
would be minimal. See Cook County College Teachers
Union, Local 1600, 331 NLRB 118, 120–122 (2000)
(finding unprotected the leaking of a private directory of
management’s home addresses to the union where the
employer had a clear need to keep addresses private, and
had consistently maintained and applied a policy of con-
fidentiality). In other words, Lopez was not discharged
for discussing wages or other terms and conditions of
employment, nor would her discharge have been per-
ceived as such. In these circumstances, the Respondent’s
reliance on the confidentiality rule in discharging Lopez
would not reasonably tend to chill other employees’ ex-
ercise of their Section 7 rights.
For all of those reasons, we affirm the judge’s finding
that her discharge was lawful. See Food Services of
America, Inc., 360 NLRB 1012 (2014) (despite the argu-
able connection between an employee’s conduct and
Section 7 rights, the employer’s reliance on an overbroad
confidentiality rule in discharging the employee for
egregious conduct would not chill employees in the exer-
cise of their Section 7 rights and thus did not run afoul of
Continental Group).7

We agree with the judge, for the reasons she stated, including her
implicit credibility findings, that Lopez’ discussing accounting-
department wages with employee Catherine Chambers was not a reason
for Lopez’ termination.
7 Member Miscimarra agrees with his colleagues that Lopez’ con-
duct was not protected under Sec. 7 of the Act, and that the Respondent
lawfully terminated her employment because of that conduct. He
would find the unprotected nature of Lopez’ conduct renders her em-
ployment termination lawful, without regard to the applicability of a
potentially unlawful overbroad policy or rule. In this regard, Member
Miscimarra would not apply or rely on Continental Group, 357 NLRB
409 (2011). Finally, because the Board finds that Lopez was lawfully
discharged regardless of the legality of Respondent’s confidentiality
rule, he expresses no opinion as to the merits of the Board’s prior deci-
sion finding the rule unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1006
ORDER
The recommended Order of the administrative law
judge is adopted and the remainder of the complaint sev-
ered by the Board’s Order in 358 NLRB 1131 (2012)8 is
dismissed.
Linda M. Reeder, Esq., for the Acting General Counsel.
Scott Hayes, Esq., of Dallas, Texas, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was originally tried in Fort Worth, Texas, on October
13, 2011, and I issued a decision in this matter on February 6,
2012. The underlying complaint in this matter alleged that Flex
Frac Logistics LLC and Silver Eagle Logistics, LLC (Respond-
ent) maintained a written rule prohibiting employees’ disclo-
sure of confidential information. The complaint further alleged
that on or about December 30, 2010, Respondent promulgated
and thereafter maintained a rule prohibiting employees from
discussing employee wages. Finally, the complaint alleged that
on December 30, 2010, Respondent unlawfully terminated
Kathy Lopez (Lopez) because she violated these rules.
In my initial decision, I found that Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) by
promulgating and maintaining an overly broad confidentiality
rule that employees could reasonably understand to prohibit
them from discussing their wages and other terms and condi-
tions of employment. Additionally, I found that Respondent
terminated Lopez pursuant to the unlawful confidentiality rule.
On September 11, 2012, the National Labor Relation Board
(the Board) issued its decision in this matter. The Board af-
firmed my decision in part, finding that the Respondent prom-
ulgated and maintained an overly broad and ambiguous confi-
dentiality rule that prohibits or may reasonably be read to pro-
hibit employees from discussing wages or other terms and con-
ditions of employment. The Board remanded the case to me
with respect to the issue of Lopez’ alleged unlawful termina-
tion. The Board directed me to issue a supplemental decision
setting forth credibility resolutions, findings of fact, conclu-
sions of law, and a recommended Order. Specifically, the
Board directed that I explain whether Lopez’ discussions con-
stituted protected activity and, if not, whether those discussions
otherwise implicated the concerns underlying Section 7.
Having concluded my consideration of this matter and after
considering the supplemental briefs filed by the Acting General
Counsel and Respondent, I make the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICE
A. Background
For purposes of this proceeding, Flex Frac Logistics and Sil-
ver Eagle Logistics function as a joint employer and William
Funk (Funk) oversees the entire operation. In its business oper-

8 Enfd. 746 F.3d 205 (5th Cir. 2014).
ation of delivering frac sand to oil and gas well sites, Respond-
ent employs approximately 100 company drivers. Respondent
also contracts with approximately 100 nonemployees who are
identified in the record as vendors, leased drivers, or independ-
ent contractors. For uniformity, these drivers are referenced
herein as contract drivers.
Respondent contracts with its customers to haul loads of
frac1 sand for a specific rate. Respondent asserts that in sub-
mitting a bid to the customer, it considers the costs for the
ground crew, the costs for the load-out crew, and the costs in-
curred in using the company driver or a contract driver. Re-
spondent asserts that the contract rates with its various custom-
ers are confidential and are not disclosed to the contract drivers.
Respondent’s individual contracts with the contract drivers
provide that the drivers will be paid a specific mileage rate for
the line haul to Respondent’s customer, as well as any addition-
al pay for their “waiting time” or for “deadhead” miles. The
total amount paid using this rate may also be reduced if the
contract driver generates additional charges such as the driver’s
use of Respondent’s U.S. Department of Transportation (DOT)
authority or if the contract driver uses Respondent’s insurance.
At the time of her December 2010 termination, Lopez
worked in accounts payable. The accounting department em-
ployees prepare the invoices for Respondent’s customers in
addition to processing the pay for the company drivers and the
contract drivers. Lopez’ job required that she obtain haul tick-
ets from the drivers, input the drivers’ data, and prepare the
drivers’ pay at the end of each week.
B. The Confidentiality Agreement
There is no dispute that Respondent promulgated a confiden-
tiality rule in May 2010 and that Lopez was terminated pursu-
ant to this rule. In its September 2012 decision, the Board not-
ed that the following rule is broadly written with sweeping,
nonexhaustive categories that encompass nearly any infor-
mation related to the Respondent.
Employees deal with and have access to information that must
stay within the Organization. Confidential information in-
cludes, but is not limited to, information that is related to: our
customers, suppliers, distributors; Silver Eagle Logistics, LLC
organization management and marketing processes, plans and
ideas, processes and plans; our financial information, includ-
ing costs, prices; current and future business plans, our com-
puter and software systems and processes; personnel infor-
mation and documents, and our logos, and art work. No em-
ployee is permitted to share this Confidential Information out-
side the organization, or to remove or make copies of any Sil-
ver Eagle Logistics LLC records, reports or documents in any
form, without prior management approval. Disclosure of
Confidential Information could lead to termination, as well as
other possible legal action.
The Board determined that Respondent’s rule as written is
overly broad and ambiguous and prohibits or may reasonably

1 Although the parties provided no specific definition of frac sand
for the record, it appears to be an additive or proponent used in the
drilling process for oil and gas wells.
FLEX FRAC LOGISTICS, LLC 1007
be read to prohibit employees from discussing wages or other
terms and conditions of employment and thus it is violative of
the National Labor Relations Act (the Act.)
C. Respondent’s Asserted Basis for Terminating Lopez
Funk testified that Lopez was terminated after he learned that
she disclosed to employee Frank Gay (Gay) and others the
differential between the amount that Respondent charged its
customers and the amount that Respondent paid to the contract
drivers. Funk explained that his concern had not been the fact
that she disclosed the rates paid to the contract drivers or the
amount of pay given to the company drivers. He clarified that
the amounts paid to company drivers are often made public as a
means of building morale and encouraging drivers. Funk as-
serted that the line haul rates that are paid to the company driv-
ers are public knowledge. He also explained that the contract
rates paid to the contract drivers are all the same. He confirmed
that his concern had been that Lopez had disclosed the contract
rates paid to Respondent by its customers or more specifically
that she had disclosed Respondent’s profit margin. Funk con-
tends that Lopez was not terminated because she discussed
wages.
Funk credibly testified that when he personally spoke with
Gay, he learned that Lopez had offered to show Gay documents
that would show the difference between the amounts that Re-
spondent was charging its customers versus the amount Re-
spondent contracted to pay the drivers. Chief Financial Officer
John Wilkinson also testified that when he spoke with Gay,
Gay told him that in a conversation with Lopez, she explained
to him how customers were billed.
Funk also recalled that in addition to his conversation with
Gay, he received phone calls from three contractors who gave
him information that was similar to what Gay told him. The
contractors told him that they knew what Respondent had
charged the customer for work they had done and they wanted
more money to make those hauls. Funk could recall the names
of two of the contractors but could not recall the name of the
third contractor. He confirmed, however, that all three of the
contractors stopped providing services to Respondent after
these conversations.
Funk explained that based on the investigation, he concluded
that information about Respondent’s contractual rates with its
customers was “out on the streets.” He further explained that
this kind of disclosure of information not only affects Respond-
ent’s dealings with its contractors, but it also gives his competi-
tors a “leg up.” If his competitors know what he is charging his
customers, they can adjust their bids accordingly. Based on
this investigation, Lopez was terminated.
D. Employee Testimony Corroborating Respondent’s Basis for
Terminating Lopez
Although Gay appeared at the hearing pursuant to the Acting
General Counsel’s subpoena, he did so without meeting or
speaking with the Board attorney to prepare for hearing. I find
his testimony credible. At the end of October 2010, or at the
beginning of November 2010, Gay changed from his job as a
truckdriver to a job in dispatch. Gay testified that shortly after
he took the job in dispatch, he had a conversation with Lopez.
Lopez began the conversation by asking Gay what he had made
during November as a truckdriver. He told Lopez that as a
company driver he was paid 25 percent of what Respondent
made for the truck’s delivery. Lopez told him that he was be-
ing “screwed over” by Respondent because Respondent was
not paying him the correct amount. She told him that he had
received 25 percent of $700 and he should have received 25
percent of $1100. Lopez further explained that because she
worked in accounting and billed Respondent’s customers, she
could show him where he was being cheated out of the percent-
age for the $1100. Gay testified that he had a “couple” more
conversations with Lopez in which she provided similar infor-
mation. Gay recalled that in one of the conversations with
Lopez, she had documents in her hand and wanted to show him
what a customer actually paid Respondent.
Gay recalled that after his first conversation with Lopez, he
did all that he could to avoid her because in his opinion “she
just spewed a lot of venom through the whole dispatch.” He
explained that because her comments seemed to have a nega-
tive effect on the people working in dispatch, he and a fellow
employee asked the dispatch supervisor to keep Lopez out of
the dispatch area. Gay also recalled telling Wilkinson that
Lopez came into dispatch “spewing a lot of venom and bad-
mouthing the company.” As an example of the badmouthing,
he told Wilkinson that Lopez had informed him that Respond-
ent was not paying the company drivers their percentage of the
total amount that Respondent made from the truck delivery.
Lopez recalled having only one conversation with Frank Gay
when she was in the dispatch office in early November. Alt-
hough she acknowledged that the conversation involved some
discussion about what Respondent paid the contract drivers, she
denied that she offered to show him what Respondent received
from its customers and she denied taking any document with
her to dispatch to show Gay what Respondent’s customers were
paying.
II. ANALYSIS AND CONCLUSIONS
A. Respondent’s Basis for Terminating Lopez
As I noted in my initial decision, Respondent acknowledges
that Lopez was terminated pursuant to the confidentiality
agreement that she signed in May 2010. Respondent contends,
however, that it terminated her because she disclosed Respond-
ent’s contract rates with its customers; information that Re-
spondent considered to be confidential. As I have previously
noted, I find that the total record evidence supports Respond-
ent’s assertion.
Funk credibly testified that based on information that he re-
ceived, it was his understanding that Lopez told employee
Frank Gay and others the amount that Respondent was charging
its customers versus the amount that Respondent paid its driv-
ers. Funk also testified that there was no prohibition in em-
ployees talking about what they were paid by Respondent. He
testified without contradiction that Respondent often made
drivers’ pay public in order to motivate the drivers in their
work. Gay also testified that although truckdrivers did not
know how much Respondent received from their customers, it
was not uncommon for them to discuss their own pay. In my
initial decision I found that Respondent promulgated and main-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1008
tained an overly broad confidentiality rule that employees could
reasonably understand to prohibit them from discussing their
wages and other terms and conditions of employment. The
record does not, however, reflect that Respondent has threat-
ened or disciplined employees for discussing their wages and
terms and conditions of employment. This finding is supported
by the testimony of both Frank Gay and employee Catherine
Chambers.
Furthermore, Lopez is the only employee who testified that
Respondent restricted employees in discussing wages. Lopez
testified that when she was terminated, Wilkinson told her that
she was terminated because she discussed wages and talked
about drivers’ pay. I don’t find Lopez’ testimony to be credible
in this regard. Aside from the fact that Lopez’ alleged account
of this conversation is self-serving, her account of this conver-
sation conflicts with her other testimony.
Lopez asserts that when she was first given the confidentiali-
ty agreement to sign in May 2010, former office manager, Pa-
tricia Villarreal, told her that the reason for the document was
to keep employees from talking about the costs and the price
that Respondent was receiving from its customers. Lopez then
appeared to bolster Villarreal’s alleged statement by including
“and wages and things like that.” Lopez contends that she
spoke with Gay about drivers’ pay and that she also spoke with
employee Catherine Chambers about the pay for accounting
employees. Had Villarreal actually warned Lopez that she was
prohibited from discussing wages under the confidentiality
agreement, it is unlikely that she would have freely engaged in
such conversations with either Gay or Chambers. Additionally,
Lopez testified that as early as August 2010, she was involved
in a discussion with Owner Virginia Moore, Supervisor Villar-
real, and three other employees. During the conversation,
Lopez and the other employees questioned why the contract
drivers were getting raises and the company drivers were not.
Lopez recalled that she and the other employees stated that they
thought that it was unfair for the company drivers to receive
one rate and the contract drivers another rate. Moore responded
to the employees’ comments by simply stating that Respondent
was not going to change the rates as suggested by Lopez and
the other employees. Lopez admitted that neither Moore nor
anyone else told her that the wage information that she was
discussing was confidential. There is no evidence that any
action was taken against Lopez or any of the other employees
who participated in the conversation for their having openly
discussed the wages of the truckdrivers. Thus, I do not credit
Lopez’ testimony that she was told that she was terminated for
discussing employees’ wages or that she was ever told that the
confidentiality agreement prohibited the discussion of wages.
Furthermore, I do not credit Lopez’ testimony concerning
her conversation with Gay. She denied that she offered to show
Gay records of what Respondent received from its customers.
Her version of the conversation was in total contrast with Gay’s
testimony. I found Gay’s testimony to be straightforward and
unembellished. There was nothing in the record to indicate that
he fabricated or exaggerated his testimony or that he would
have had a reason to do so. The total record evidence supports
a finding that during her conversations with Gay, Lopez dis-
closed information about Respondent’s contracts with its cus-
tomers and that Gay shared this disclosure with Funk and the
other managers.2
As I noted in my initial decision, the only other evidence that
would otherwise support a finding that Lopez was terminated
for discussing employee wages is the language that Office
Manager Susie Kellum included in Lopez’ termination notice.
When Kellum prepared the termination notice, she included the
following language:
Kathy told one of our dispatch employees that we paid our
drivers one rate and our customers another. She also dis-
cussed what people make in the accounting office to other
employees that are or were looking for raises.
Kellum testified that she had only been employed with Re-
spondent for 4 days when she first spoke with Funk about his
terminating Lopez. Funk told her that he wanted Lopez “gone
now.” She recalled that Funk’s concern was that Lopez was
discussing Respondent’s contracts with its customers. Alt-
hough he wanted to terminate Lopez, he was also leaving for a
business trip and he wanted management to get additional in-
formation before Lopez was terminated. Kellum recalled that in
a later conversation, Funk told her that he would wait to fire
Lopez after the holidays as he didn’t want to terminate her be-
fore Christmas.
Kellum testified that although she included the reference to
Lopez’ accounting department wage discussions in the termina-
tion notice, Funk had spoken with her only about terminating
Lopez for her discussions concerning the difference in what the
contractors were paid versus what Respondent’s customers pay
She testified that although she knew that it is important to write
the correct reason for an employee’s termination on the disci-
pline notice, she had only terminated one other employee in her
career prior to Lopez. She testified that in her previous jobs,
the confidentiality agreements had always prohibited discussing
internal company matters. She explained that “in her mind,”
this would also include wages. Because she knew that Lopez
had discussed wages in the accounting department and because
she personally didn’t think that wages should be discussed, she
added both reasons to the termination notice. She admitted,
however, that Funk made the decision to terminate Lopez and
he had never expressed any concern about Lopez discussing
wages with other employees.
The overall record reflects that Kellum did not make the de-
cision to terminate Lopez. It is obvious that in her zeal as a
new manager to prepare a comprehensive termination notice,
she drafted what she thought would be a proper basis for a ter-
mination. It is apparent, however, that she took such an action
on her own initiative. Based on the entire record, it is apparent

2 Because Gay had been a company driver before he transferred into
dispatch, it is apparent that in her discussions with Gay, Lopez primari-
ly focused on Respondent’s contracts with its customers as related to
what Respondent paid its company drivers. The fact that her discussion
included a reference to what Respondent paid its own employees does
not establish that Lopez was disciplined for protected activity. Gay’s
testimony that Lopez talked with him about the contract amounts that
Respondent received from its customers coupled with the telephone
calls from contractors mirroring Gay’s testimony provided the basis for
Lopez’ termination.
FLEX FRAC LOGISTICS, LLC 1009
that Respondent terminated Lopez because of her disclosure of
confidential information about the contract rates paid to Re-
spondent by its customers and not because of any discussions
that Lopez may have had about accounting employees’ wages
or for any other discussions about wages.
B. The Confidentiality Agreement and Whether Lopez Engaged
in Protected Activity
Referencing its previous decisions in Lutheran Heritage Vil-
lage-Livonia, 343 NLRB 646, 646 (2004), and Lafayette Park
Hotel, 326 NLRB 824, 825 (1998), the Board has found that
Respondent violated Section 8(a)(1) by its maintenance of an
overly broad confidentiality rule. Although Respondent con-
tends that it never intended its confidentiality rule to prohibit its
employees from discussing wages, the Board finds that the
context of the overall confidentiality rule does nothing to re-
move employees’ reasonable impression that they would face
termination if they were to discuss their wages with anyone
outside the Company.
As I stated in my initial decision, I have no doubt that Re-
spondent’s confidentiality agreement was likely written to pro-
hibit confidential disclosures of matters other than wages or
other terms and conditions of employment, even though Re-
spondent did not limit the prohibition to only those confidential
matters that did not involve wages and other terms and condi-
tions of employment. Respondent has never disputed the fact
that Lopez was terminated for violating a portion of its confi-
dentiality rule. Just as I noted in my initial decision, I find that
Respondent terminated Lopez because Respondent believed
that she had disclosed confidential customer information and
not because she discussed employee wages.
C. Prevailing Legal Authority
With respect to discipline imposed under an unlawful confi-
dentiality rule, the Board in previous decisions applied the
standard set forth in Double Eagle Hotel & Casino, 341 NLRB
112, 112 fn. 3 (2004), enfd. 414 F.3d 1249 (10th Cir. 2005),
cert. denied 546 U.S. 1170 (2006); finding that discipline im-
posed by an employer pursuant to an unlawfully overbroad
work rule is, in itself, also unlawful. In its more recent decision
in Continental Group, 357 NLRB 409, 410 (2011), the Board
limited the application of Double Eagle. Specifically, the Board
clarified that the Double Eagle rule provides that discipline
imposed pursuant to an unlawfully overbroad rule violates the
Act when the employee has engaged in protected conduct or
has engaged in conduct that otherwise implicates the concerns
underlying Section 7 of the Act. Furthermore, an employer will
avoid discipline imposed pursuant to an overly broad rule if it
can establish that the employee’s conduct actually interfered
with the employee’s own work or that of other employees or
otherwise actually interfered with the employer’s operation.
357 NLRB 409 at 413.
D. Whether Lopez Engaged in Protected Activity
As set forth above, I do not find that Respondent terminated
Lopez because she discussed wages with other employees, but
because Respondent believed that she disclosed confidential
information about its contracts with customers. The Board has
directed me to explain whether Lopez’ discussions constituted
protected activity and, if not, whether those discussions other-
wise implicated the concerns underlying Section 7.
Respondent argues that the record demonstrates that Lopez
was terminated for disclosing Respondent’s confidential infor-
mation related to the rates that Respondent charged its custom-
ers, thus harming Respondent’s competitiveness in its industry.
Respondent argues that pursuant to the limitations to the Dou-
ble Eagle rule, as set forth in Continental Group, supra, Re-
spondent’s termination of Lopez did not violate the Act.
In her brief, counsel for the Acting General Counsel3 asserts
that Lopez engaged in protected activity and thus her termina-
tion is violative of the Act. I have considered the General
Counsel’s arguments as addressed below. I do not, however,
find that Lopez was terminated for engaging in protected activi-
ty or for conduct that otherwise implicates the concerns under-
lying Section 7 of the Act.4
Counsel for the General Counsel asserts that during Lopez’
discussions with both Gay and Chambers, she discussed wages
and these discussions were known to Respondent. Specifically,
counsel for the General Counsel references Gay’s testimony
when he recalled that Lopez mentioned that her husband was an
employee driver when she talked about the disparity in what
Respondent received from its customers and what it paid to the
drivers. Counsel submits that even if Gay did not want to hear
what Lopez said about wages, her conduct was nonetheless
protected activity. I have no doubt that Lopez discussed wages
and pay with Gay and Chambers. The overall record, however,
does not reflect that it was these wage discussions that triggered
Respondent’s decision to terminate Lopez. Lopez’ own testi-
mony reflects that she and other employees participated in an
open and vigorous discussion about wages with one of Re-
spondent’s owners more than 4 months before her discharge
without any repercussions or adverse consequences. Admitted-
ly, Lopez and the other employees challenged the owner about
why Respondent gave raises to the contract drivers and not to
the company drivers and voiced their concerns that the contract
drivers and company drivers were paid different rates. No ac-
tion, however, was taken against either Lopez or the other em-
ployees. Furthermore, despite the language of the overly broad
confidentiality rule, there is no evidence that any employee has
been disciplined for discussing wages.
Counsel for the General Counsel also asserts that even if
Lopez disclosed information and discussed pay with the con-
tract drivers, she was still engaged in protected activity. Coun-
sel cites the Board’s decisions in Plumbers Local 412, 328
NLRB 1079, 1082 (1999), and Washington State Service Em-

3 For purposes of brevity, the Acting General Counsel is referenced
as the General Counsel.
4 Counsel for the General Counsel submits that Lopez engaged in
protected activity; Respondent knew that she was engaged in protected
concerted activity; Respondent had animus to the activity; and the
protected activity was a motivating factor in Respondent’s termination
decision. Counsel argues that Lopez’ termination was thus violative
under Wright Line, 251 NLRB 1093 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). Having
found that Lopez was not terminated for protected activity, I do not find
that Lopez’ termination is violative under Wright Line.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1010
ployees, 188 NLRB 957, 958 (1971), for the proposition that an
employee can engage in concerted protected activity with em-
ployees of other employers. Counsel thus argues that even if
the contract drivers were not Respondent’s employees, they
were nevertheless employees of other employers and her dis-
cussions with them constituted protected activity.
Although the Board has found that concerted activity need
not be among employees of the same employer to qualify for
protection under the Act, I don’t find these cases to support a
finding that Lopez engaged in protected concerted activity.
First of all, the circumstances in Washington State Service Em-
ployees, supra, are distinguishable from those in the instant
case. In Washington State Service Employees, an employee
was found to have engaged in protected concerted activity
when she participated in a demonstration with employees of
other employers and members of civil rights groups for the
purpose of furthering the employment opportunities of minority
groups by other employers. There was no evidence that any
other employees of her employer participated in the demonstra-
tion. Lopez’ conduct is totally dissimilar to that of the employ-
ee engaged in protected concerted activity in Washington State
Service Employees.
Plumbers Local 412, supra, involved the actions of a jour-
neyman pipefitter who became employed by the union as a
clerical employee. Because she was no longer covered by a
collective-bargaining agreement, she was not eligible for a
particular pension plan. She discovered, however, that the
clerical employees of the joint apprenticeship training commit-
tee (JATC) were covered by the particular pension plan that she
wanted. The employee complained to her fellow employees, as
well as to the clerical employees of JATC about the fact that
she could not participate in the pension plan. The General
Counsel alleged that the employee’s conversations with the
clerical employees of JATC about wages and pension constitut-
ed concerted activity, despite the fact that these employees
worked for a different employer. The Board, however, af-
firmed Administrative Law Judge Mary Miller Cracraft in dis-
missing the complaint. In finding no merit to the complaint
allegations, Judge Cracraft applied the standard used by the
Board and the courts in determining whether an employee has
engaged in “concerted” activity and looked to whether the em-
ployee acted with or on the authority of other employees and
not solely on her own behalf. The judge quoted the court’s
explanation in Mushroom Transportation Co. v. NLRB, 330
F.2d 683, 685 (3d Cir. 1964), that was adopted by the Board in
Meyers Industries (Meyers II), 281 NLRB 882, 887 (1986),
enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988):
It is not questioned that a conversation may constitute a con-
certed activity although it involves only a speaker and a lis-
tener, but to qualify as such, it must appear at the very least it
was engaged in with the object of initiating or inducing or
preparing for group action, or that it had some relation to
group action in the interest of the employees.
Judge Cracraft also noted that the Board further adopted
Mushroom Transportation Co. in Daily Park Nursing Home,
287 NLRB 710, 710–711 (1987), in finding that “activity that is
‘mere talk’ must be looking toward action. If its only purpose is
to advise an individual as to what he could or should do without
involving fellow workers or union representatives to protect or
improve his status or working position, it is an individual, not a
concerted activity, and, if it looks forward to no action at all, it
is more likely then to be mere griping.”
Lopez’ disclosure of Respondent’s customer contract infor-
mation can be easily analyzed by this same standard set forth
by the Board and the court in determining whether conduct
constitutes protect concerted activity. Applying such standard,
it is apparent that Lopez’ conduct does not rise to the level of
protected concerted activity. First of all, there is no record
evidence to substantiate that Lopez’ disclosure was made to an
“employee” or “employees” of other employers as counsel for
the General Counsel asserts. Although Respondent was con-
tacted by three contractors about Respondent’s customer con-
tracts, there is no record evidence to establish that these indi-
viduals were not independent contractors or employers. There
is no evidence to show that Lopez sought out “employees” of
other employers who contracted with Respondent to deliver
Respondent’s product.
Furthermore, using the Board and the court’s analysis dis-
cussed by Judge Cracraft and affirmed by the Board in Plumb-
ers Local 412, supra, there is no evidence that by disclosing
customer information to the contract drivers who were not em-
ployees of Respondent, Lopez sought to induce these nonem-
ployees to initiate or prepare for group action or that it had
some relation to group activity in the interest of employees.
Her disclosure was more akin to what was found to be “mere
griping” as discussed by the Board in Daily Park Nursing
Home, supra at 710–711.
Citing Continental Group, 357 NLRB 409, 412 (2011),
counsel for the General Counsel also contends that Respondent
has not sufficiently shown that Lopez’ conduct actually inter-
fered with its operations and that the interference, rather than
the violation of the rule, was the basis for the discipline. The
record, however, reflects that Respondent has not only shown
the interference with its operations, but the resulting damage as
well. Funk credibly testified that his decision to terminate
Lopez occurred after he received separate telephone calls from
three of the vendor contractors, confirming that they had infor-
mation that was similar to what Lopez told Gay. All three of
the contractors ceased providing services to Respondent after
these conversations.
Counsel for the General Counsel also urges that Lopez’ con-
duct implicates the concerns underlying Section 7 of the Act,
and accordingly, her conduct violates Section 8(a)(1) as envi-
sioned by the Board in its Continental Group decision. Id. As
discussed above, there is no dispute that during the course of
conversations with Gay, Chambers, and other employees,
Lopez discussed wages and employee pay. Furthermore, there
is no question that Respondent knew of some of these discus-
sions and comments. Lopez testified that more than 4 months
before her discharge, she engaged in such a discussion with one
of Respondent’s owners. She did so, however, without any
discipline or consequences. As discussed in my initial decision,
it was only when Respondent believed that she had disclosed
confidential information about its contracts with its customers
FLEX FRAC LOGISTICS, LLC 1011
that Respondent disciplined Lopez. Accordingly, her conduct
does not implicate the concerns underlying Section 7 rights and
Respondent did not violate Section 8(a)(1) of the Act in termi-
nating Lopez.
Inasmuch as the Board has found that Respondent violated
the Act by its promulgation and maintenance of an overly broad
confidentiality rule, my findings and conclusions are limited to
the issues delineated in the Board’s remand order.
CONCLUSIONS OF LAW
The record does not support a finding that Respondent ter-
minated Kathy Lopez in violation of Section 8(a)(1) of the Act.
Accordingly, on the basis of the foregoing findings and con-
clusions, and on the entire record, I recommend issuance of the
following5
RECOMMENDED ORDER
It is hereby recommended that the remainder of the com-
plaint covered by the Board’s remand Order in 358 NLRB 1131
(2012), be, and is dismissed.

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.