Employment Law Daily NLRB: Cursing about clients in company restroom not protected concerted activity
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Monday, April 15, 2019

NLRB: Cursing about clients in company restroom not protected concerted activity

By Ronald Miller, J.D.

The General Counsel failed to establish that an employee was unlawfully discharged for his restroom conversation with a coworker that included profanity about clients.

A brief restroom conversation between two mortgage bankers which involved complaints about clients, including swearing about clients, was not protected concerted activity, ruled a three-member panel of the NLRB. The Board determined that the conversation amounted to “mere griping” because the employee’s “looked forward to no action at all.” Because the conversation focused only on a personal complaint by one employee about receiving a customer call and that neither employee contemplated taking any concerted action about this event, the General Counsel failed to establish that an employee was discharged because he engaged in protected, concerted activities (Quicken Loans, Inc., April 10, 2019).

Restroom complaints. Two mortgage bankers 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, complained that a client he had assisted four years ago “had been trying to get in touch with a client specialist for over a week, and that the client should get in touch with a f*#@ing client specialist and quit wasting his f*#@ing time.” 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. Thereafter, the supervisor forwarded an email to all employees reminding them of proper employee conduct in public areas. The email specifically admonished that employees should not be swearing in the bathroom especially about clients. Immediately after the supervisor sent the email, the employer’s site vice president and regional vice president met with the supervisor to find out what prompted his email. The supervisor told them about the conversation he overheard in the restroom.

Discharge. A human resources representative later told the site vice president that Laff had previously been accused of “making rude comments about homosexuals” and, in a separate incident, asking a female coworker if she “put out” on a first date. As a consequence, the employer planned to meet with Laff, and to see if he admitted his involvement in the incident. Two sets of documents were prepared; if he was forthcoming, he would receive a written final warning. If he denied his participation and management “felt like that he was being truthful,” he would be terminated.

The employer asked him specifically about “being in the bathroom speaking about clients, saying that clients were “f*#@ing wasting his time,” thereby prompting the email by the supervisor. Laff said he had “no clue” what prompted the emails. So he was asked to sign the separation document and was escorted from the building. That evening, Laff sent an email and left a voice mail to officials, remembering that it was Woods who was swearing about clients during the restroom conversation. Nevertheless, the employer discharged Laff.

No concerted activity. The Board has held that 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.” Here, an administrative law judge found that the restroom conversation was protected concerted activity and that Laff was unlawfully discharged for participation in that conversation. The ALJ concluded that the restroom conversation constituted concerted activity because “there is no question that Laff and Woods were discussing common concerns regarding terms and conditions of employment, specifically relating to how calls are forwarded.”

Contrary to the ALJ, the Board found that the General Counsel failed to prove that the restroom conversation was concerted. The employee’s credited testimony, objectively viewed, showed that the brief conversation focused only on a personal complaint by Woods about receiving a customer call and that neither he nor Laff contemplated taking any concerted action about this event to improve their working conditions or those of their fellow employees. Moreover, there was no evidence that employees as a group had any preexisting concerns about the routing of customer calls.

Adverse inference. The Board further found that the ALJ erred by relying on an impermissible adverse inference, drawn from Woods’ failure to testify, in order to provide the missing “evidence” needed to prove the General Counsel’s case. Accordingly, the Board reversed the ALJ’s determination that Laff was unlawfully discharged.

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