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NLRB: Well F***, Cursing About Clients in Public Restroom Is Not Protected Concerted Activity


Quicken Loans, Inc. - NLRB


Facts:  Austin Laff ("Laff") and Michael Woods ("Woods") worked as mortgage bankers at Quicken Loans in Scottsdale, Arizona.  One day, Laff and Woods were in a restroom at work that was open to the general public and Quicken Loans customers.  While in the restroom, Woods complained to Laff about a client that had "been dropped into his [Woods'] pipeline" and that the client need to "quit wasting [Woods'] f***ing time."  (Needless to say, Woods used profanity to describe the client.)  Laff said he understood why Woods was upset.  Jorge Mendez ("Mendez"), a supervisor, overheard Woods and Laff and subsequently forwarded an e-mail to to all employees at the Scottsdale Quicken Loans office to remind them of proper employee conduct in public areas.  The e-mail admonished employees by stating "Never, EVER, should we be swearing in the bathroom especially about clients."  After Mendez sent the e-mail, the site vice president, Matt Stoffer ("Stoffer"), and regional vice president, Drew Glomski ("Glomski") met with Mendez to find out what prompted the e-mail.  Mendez told Stoffer and Glomski about the conversation he heard in the restroom.  Stoffer subsequently contacted a human resources team relations specialist and found out that Laff had previously been accused of "making rude comments about homosexuals" and in another incident made a derogatory comment toward a female coworker.  A plan was put in place to meet with Laff and go over the bathroom conversation.  If Laff was forthcoming, he was to receive a final warning.  If Laff denied the conversation and management "felt like he [Laff] was not being truthful," they "would move for separation."

Upon meeting with Laff, Laff stated he had "no clue" what prompted Mendez's e-mail.  Laff was subsequently given separation documents at which point he admitted he had been involved in the bathroom conversation but claimed he had not used profanities.  Nevertheless, the separation documents were signed and Laff was escorted from the building.  That evening, Laff e-mailed Glomski and stated he now remembered the conversation but claimed it was another person in the conversation who was swearing about clients.

An Administrative Law Judge found that Laff and Woods' bathroom conversation was protected concerted activity and that Laff had been unlawfully discharged for participation in that conversation.  A three member panel of the National Labor Relations Board ("NLRB") subsequently took up the matter.

Analysis:  As a refresher, Section 7 of the National Labor Relations Act ("NLRA") protects the rights of employees to "engage in...concerted activities for the purpose of collective bargaining or other mutual aid or protection."  For employees to receive this Section 7 protection, the activity engaged in must be "concerted" and that concerted activity must be engaged in for the purpose of "mutual aid or protection."  A 2014 NLRB decision in Fresh & Easy Neighborhood Market established that "[W]hether an employee's activity is 'concerted' depends on the manner in which the employee's actions may be linked to those of his coworkers...The concept of 'mutual aid or protection' focuses on the goal of concerted activity; chiefly, whether the employee or employees involved are seeking to 'improve the terms and conditions of employment or otherwise improve their lot as employees."  Concerted activity includes cases ""where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.""  Activity may still be concerted even it involves "only a speaker and a listener, 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 employees...[I]f it looks forward to no action at all, it is more than likely to be mere 'griping.'"

Although the Administrative Law Judge found that the conversation between Laff and Woods constituted concerted activity because "there is no question that Laff and Woods were discussing common concerns regarding terms and conditions of their employment specifically relating to how calls are forwarded and whose responsibility it was to field calls.", the three member panel of the NLRB disagreed.  As noted, there was no evidence that employees as a group at Quicken Loans had any preexisting concerns about the routing of customer calls.  As well, Laff's testimony did not establish that the conversation with Woods was seeking to initiate or induce group activity about the issue.  While Woods complained that the client call was a waste of his time, there was no evidence to establish that he sought to move Laff to join him in protest of the routing incident.  Further, Laff's response did not suggest contemplation of any group action (as Laff only responded that he understood why Woods was frustrated.)  Viewed objectively, Laff's response could not be construed as implying that Laff recognized Woods' complaint as referring to a group workplace problem.  Consequently, it was found that woods complaint and Laff's response "look[ed] forward to no action at all," and therefore the conversation amounted to "mere 'griping.'"

Decision:  The three member panel of the NLRB reversed the Administrative Law Judge's findings and found that when viewed objectively, the conversation between Laff and Woods focused only on a personal complaint by Woods and that neither Laff nor Woods contemplated taking any concerted action about the event that would be for improvement of their working conditions or those of fellow employees; consequently, cursing about a client in a public restroom did not amount to protected concerted activity.

The Takeaway:  Now bear in mind, the NLRB is not explicitly saying that cursing about clients in the workplace (or a public area) is automatically not protected by the NLRA as protected concerted activity.  When you unpack the facts and apply prior precedent here, it is easy to get from point A to point B and see how the NRLB reached the conclusion that Laff and Woods' conversation failed to qualify as protected concerted activity.  From the evidence in the record, it does appear that the conversation was simply nothing more than griping among employees.  With that being said, the NLRB set out a blueprint of sorts for how employees can engage in conversation (profanity laced or otherwise) that can qualify as protected concerted activity.  As noted above, the activity engaged in by employees must be concerted and that concerted activity must be engaged in for the purpose of mutual aid or protection.  To meet this threshold, it is important for the employee or employees involved to be clear that they are seeking to improve the terms and conditions of employment or otherwise improve their lot as employees.  Failure to establish this will likely lead to the conduct being found to have not qualified for protection under the NLRA.  Employees:  Tread carefully; whether or not your conversations complaining about work or customers are protected concerted activity will depend upon the facts, when viewed objectively.

Date:  April 10, 2019

NLRB Decision:  http://hr.cch.com/eld/QuickenLoans041019.pdf

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