Complaining and Swearing About Clients Is Not Protected Under the NLRA

In Quicken Loans, Inc., the National Labor Relations Board found that two mortgage bankers’ discussion involving complaints about clients, including swearing about the clients, was not protected concerted activity under the National Labor Relations Act.

One of the employees, during a conversation in a bathroom open to the public and customers, complained that a client he had assisted years ago “should get in touch with a f***ing client specialist and stop wasting [the employee’s] f***ing time.” The second employee responded that he understood his co-worker’s frustration. The conversation was overheard by a supervisor in a nearby bathroom stall. Later, the employer terminated the second employee.

While the NLRA protects employee discussions about the terms and conditions of employment, the Board found that the discussion amounted to “mere griping,” which is not protected. The Board reasoned that the employees were not looking forward to initiating any action at all, and, thus, neither employee was contemplating taking concerted action to improve their working conditions or the working conditions of their co-workers. The Board also noted that there was no evidence that employees had any pre-existing concerns about the issue raised during the employees’ bathroom discussion.  Because the second employee was not engaged in protected concerted activity at the time of the bathroom discussion, his termination stemming from that discussion did not violate the NLRA.

As in Alstate Maintenance, LLC, which we discussed in our January 2019 E-Update, this case illustrates the Board’s trend of holding that employees’ mere griping that does not seek to initiate group action, or better employees’ working conditions, does not constitute protected concerted activity.