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

March 2016
By James B. Sherman, Esq.

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.

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.

Court of Appeals Upholds NLRB Decision Backing Employee Posters Aimed at Damaging their Employer’s Business During Union Organizing

The Eighth Circuit Court of Appeals has upheld a determination by the National Labor Relations Board which held that a Minnesota Jimmy John’s franchise violated federal labor law during a union attempt to organize its employees.  What did the employer do to get in such trouble with the NLRB, you ask?  MikLin Enterprises Inc., the franchisee, was found guilty of removing posters placed near its restaurant entrances by certain pro-union employees and terminating the employees responsible for the postings.  Why would an employer get so upset about a poster, you ask?  The posters in this case complained that employees were not paid sick leave and, therefore, implied that Jimmy John’s sandwiches were being prepared by sick employees who might get customers sick.  Specifically, the posters stated to potential customers approaching the restaurant: “We Hope Your Immune System Is Ready Because You’re About To Take the Sandwich Test ...” Clearly, the posters were deliberately designed to drive customers away and harm the Jimmy John’s franchise’s reputation and business.  The case raises the question: Just how far can employees go in the name of promoting a union?  The answer from the NLRB and, on appeal, the 8^th Circuit?  Pretty far!  At least one appellate judge dissented, arguing that such “damaging disparagement” crossed the line of what federal labor law ought to protect as “concerted activity” in support of a union.  Many employers and people in general, probably agree with the dissenting judge!

Questions? Contact Attorney James Sherman at (952) 746-1700 or jasherman@wesselssherman.com.