Monday, April 15, 2019

NLRB Finds Swearing About Client is not Protected Activity

For a while under the Obama Administration, it seemed as if the NLRB characterized every gripe between co-workers as “concerted activity” and therefore protected by the National Labor Relations Act the NLRB. The pendulum may be swinging the other way.

Two mortgage bankers for Quicken Loans, Laff and Woods, met as they were entering a restroom that was open to the public and customers. While they were both in the restroom, one employee, Woods, began complaining to Laff about a client (who was calling him instead of a more appropriate person at the company), while using the “F” word. The second employee, Laff, responded that he understood why Woods was frustrated.

A supervisor overheard this conversation and saw Laff after he exited his stall. In response to what he overheard, the supervisor forwarded an email to all employees reminding them of proper employee conduct in public areas, specifically mentioning that employees should not swear about clients. Probably not realizing the impact of his email on upper management, Quicken's site vice president and regional vice president looked into the reason for the email and unlike the supervisor, thought that harsher action should result from the behavior.

For some reason, possibly because the supervisor saw him in the bathroom that day, or because he had received prior disciplinary action for inappropriate remarks, their focus was on Laff. When he refused to acknowledge his part on the inappropriate bathroom conversation, Laff was discharged.

Laff filed an action against Quicken Loans under Section 7 of the NLRA which prohibits adverse employment action in retaliation for concerted protected activity. This is most commonly seen as union organizing activity and raising or discussing grievances or complaints on behalf of one or more other employees. In this case, Laff argued that he and Woods were discussing company procedures which they believed were inefficient, making their conversation concerted and protected.

The trend for the NLRB over the last several years has been to interpret the phrase “concerted activity” expansively. Using vulgarities among co-workers about their employer or its operations or management, had often garnered Section 7 protection, sometimes even when done publicly. Here, the NLRB held otherwise. It found that rather than speaking about Quicken’s operations in general, Woods and Laff were commiserating over Woods’s personal gripe with the company and in particular the client who was calling him instead of another employee whose job it was to provide the assistance that the client needed. Personal gripes do not reflect a general employee concern, but only a complaint or inconvenience for the employee expressing it.

While it is unclear what happened to Woods, the one who actually swore in the bathroom, the NLRB dismissed Laff’s charge on the basis that he was not engaged in concerted, protected activity. It’s good news for employers as it serves as a signal that the NLRB is reigning in its definition of concerted activity.

Public criticism of an employer, especially coupled with use of vulgarity, is usually disconcerting to employers. It is always important to distinguish between statements which represent personal gripes (not covered) and those that either represent a topic of public concern or a topic that is important to more than one employee (might be protected).