Flex Frac Logistics, L.L.C., et al. v. NLRB, No. 12-60752 (5th Cir. 2014)
Annotate this CaseFlex Frac petitioned for review of an order by the NLRB holding that Flex Frac's employee confidentiality policy is an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158. The NLRB cross-petitioned for enforcement. The ALJ found that although there was no reference to wages or other specific terms and conditions of employment in the confidentiality clause, the clause nonetheless violated Section 8(a)(1) because it was overly broad and contained language employees could reasonably interpret as restricting the exercise of their Section 7 rights. The NLRB affirmed. As an initial matter, the court declined to address the merits of Flex Frac's constitutional argument regarding the NLRB's authority to render the decision currently before the court and instead held that Flex Frac waived its constitutional challenge by failing to raise it in its initial brief. The court concluded that Flex Frac's contention that the NLRB's interpretation of the confidentiality clause was unreasonable was without merit and rejected Flex Frac's remaining arguments. Accordingly, the court rejected Flex Frac's petition for review and enforced the NLRB's order.
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