Employers are likely to put this
recent decision in the ever growing category of unthinkable rulings coming from
the National Labor Relations Board (NLRB) these days. An employee of Quicken Loans commented to a
co-worker during a conversation that took place in a restroom, that a customer
needed to “call a client care specialist and stop wasting my [f-ing] time.” When
a manager later learned of this, the employee believed to have made the comment was summarily discharged. Management declared
that the offending employee was terminated to uphold a company culture where all
employees are expected at all times to display the utmost degree of professionalism
and integrity. However, as is becoming
more and more common these days, even for those who are not represented by a
union, the employee went to the NLRB to file an “unfair labor practice,” or ULP
charge. Following an investigation the
NLRB’s General Counsel issued a complaint against Quicken Loans and the matter
went to a full evidentiary hearing. Following the hearing, Administrative Law
Judge (ALJ) Dickie Montemayor ruled in the employee’s favor. Notwithstanding
the employee’s use of a vulgarity in reference to a customer, the ALJ determined
the profane comment nevertheless amounted to “concerted activity” worthy of
protection under Section 7 of the National Labor Relations Act. The ALJ therefore ruled that Quicken Loans
violated federal labor law and ordered the firm to: (1) rehire the employee;
(2) pay him for all lost earnings and otherwise make him “whole”; and (3) eliminate
any work rules that “unlawfully restrain … employees’ rights to discuss working
conditions.” In other words, Quicken
Loans’ expectations for employees to at all times display professionalism,
integrity, etc. interfered with this employee’s “protected right” to refer to
its customer using profanity and, therefore, was deemed an unlawful policy that
could not be maintained!
Section 7 of the NLRA prohibits
employers from unlawfully interfering with or restraining employees’ rights to
engage in “concerted activity” for the purpose of “mutual aid and protection”
in regards to terms and conditions of employment. For decades in the past, in
order for conduct to be protected as “concerted” the NLRB has required that an
employee must have acted on behalf of more employees than just
himself or herself. However, in the Quicken Loans case the employee’s
comment clearly was directed to a co-worker, complaining about a customer. How, you ask, can this have been found to
involve mutual aid and protection for others?
The ALJ somehow concluded that the employee’s profanity was a “preliminary
action” necessary to “lay the groundwork for group activity.” Really? The ALJ
appears to have used pure speculation to
conclude that the employee’s f-bomb was used to cause the other employee to
voice support for his complaints. Again, really?
The ALJ’s decision in Quicken
Loans, if it stands, drastically broadens the scope of protected concerted
activity to include individual actions or comments that do not involve other
employees, and have little or nothing to do with mutual aid or protection. Many employers will no doubt be deeply
troubled that this decision found that disciplining an employee for derogatory
and vulgar comments aimed at his employer’s customers, was against federal
labor law. However, the Quicken Loans
decision could be opening a much larger “Pandora’s Box” of problems for
employers. By defining concerted/group activities to include individual
comments based on an NLRB judge’s unproven assumptions that an employee
appearing to be acting alone, may have been “laying the groundwork” for concerted
activities at some future point in time, concerted employee activities
protected by federal labor law effectively would be without limitation.
Quite understandably, a
spokesperson for Quicken Loans called the decision “ridiculous.”
Questions? Contact Attorney
James Sherman in our Minneapolis office at (952) 746-1700 or jasherman@wesselssherman.com.
