NLRB Judge Rules that Employer Violated Federal Labor Law by Firing Employee for Profanity-Laced Derogatory Comment about a Customer

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.

Pro-Union NLRB Agenda: Stay Up to Date!!

July, 2015
By Richard H. Wessels, Esq.

Employers need to stay up-to-date on the NLRB’s pro-union agenda. Keep in mind –even though you are non-union and an unlikely union target, there still is a need to stay alert. A large percentage of NLRB cases these days involve “protected concerted activity”. In other words, there is no union involved at all. The NLRB is aggressive in asserting itself in non-union situations and stretching the law to create coverage for non-union employees! 
 
Here is a laundry list of areas where the NLRB is making it easier for unions who want to organize and for non-union employees who wish to challenge their employer: 

• Quickie elections – much shorter time frames.
• Specialty Healthcare types of cases – micro units which give a union almost any voting unit they want.
• E-mail policies – permits use of company e-mail for discussion of union activity.
• Social media policies – vulgar comments are protected activity!
• Employee handbooks – 30 page NLRB General Counsel memo perhaps more confusing than enlightening. The memorandum is, however, useful and must reading, if for no more than the modified rules in the Wendy’s settlement which the NLRB has ok’d.
• Rats, banners and street theater in the construction industry – tougher to get 8(b)(4) violations.
• Post-contract expiration obligations of the employer – reversal of long standing rule that check off does not survive contract expiration.
• Tougher independent contractor rules – easier for union to get independent contractors eligible to vote in union elections.
• Confidentiality agreements – can have a chilling effect on organizing and thus a ULP.
• Non-union arbitration agreements – NLRB says unlawful because it restricts collective action.
• Insubordinate conduct – previously unprotected activity such as profanity, disparagement and vulgarity is now protected.
• Joint employers – franchiser-franchisee relationship becomes joint-employer.
• Confidentiality of witness statements – casts doubt on ability to keep statements confidential in employment-related investigations.
• Wearing of buttons and stickers – employer attempts to control this are regularly struck down by the NLRB.
• Staffing company and host company employees in the same appropriate unit –NLRB has issued a notice to the public inviting briefs on a pending case. This is a clear signal that the NLRB is about to reverse existing case law that forbids inclusion in the same unit without the consent of both employers.

These are all complicated and fact-sensitive areas. As but one example, you might want to consider a disclaimer in your employee handbook to undercut a strained interpretation that it violates Section 7 rights. If you want to talk about any of this, contact me at (630) 377-1554 or by email at riwessels@wesselssherman.com.