Sherman & Howard L.L.C.

“So, two guys walk into a bathroom…”  No, seriously, this case is about two co-workers who walked into a bathroom.  While in the bathroom, Employee A complained to Employee B that a former client had been dropped back in his lap, and that the former client should have been sent to someone else and “quit wasting his ***ing time.”  Employee B stated that he understood the frustration.  As bad luck would have it, a supervisor overheard the bathroom conversation, reported it to management, and Employee A was ultimately discharged.   

An Administrative Law Judge (“ALJ”) found the conversation constituted protected concerted activity under Section 7 of the NLRA.  The ALJ first found that Employee A’s complaint involved common concerns regarding their employment. The ALJ then found that Employee B’s statement of commiseration was “vocalized support” of Employee A’s supposed call to collective action. The ALJ then found that Employee A’s whining had the unstated goal of collective action because the employer failed to call Employee B to disprove this conclusion.  This bizarre conclusion was based on the NLRB’s adverse inference rule, which allows an ALJ to make adverse inferences against the employer when it fails to call a witness that would be expected to support the employer’s defense.

The NLRB made short shrift of the entire ALJ analysis.  First, the NLRB reminded us that protected concerted activity is only protected when it is work-related and made with an eye toward collective action among workers.  Here, there was zero evidence that the bathroom whining was intended to instigate any sort of collective behavior.  Second, the NLRB chastised the ALJ’s adverse inference; because Employee B was, by definition, adverse to the employer, the ALJ was not permitted to make any adverse determination against the employer simply because the employer did not call the witness.  Over the years, the NLRB has artificially expanded the notion of what is protected concerted activity under the Act.  It seemed that any comment about work made from one employee to another fell within the Act’s protections.  But the NLRB has now made clear that protected concerted activity does not encompass every single workplace gripe or statement of exasperation; Section 7 protects only those statements that relate to the terms and conditions of employment, and only when the proven purpose of those statements is to incite others to action.  The case is Quicken Loans, Inc., Case 28-CA-146517 (April 10, 2019).

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