Quicken Loans, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 17, 2016

28-CA-146517 (N.L.R.B. Mar. 17, 2016)

JD(SF)–08–16
Scottsdale, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
QUICKEN LOANS, INC.
and Case 28–CA–146517
AUSTIN LAFF, an Individual
Fernando J. Anzaldua, Esq., for the General Counsel.
Robert J. Muchnick, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case was tried before me on
August 18–20, 2015, in Phoenix, Arizona. Austin Laff (Charging Party) filed a charge on
February 17, 2015, which was later amended on April 24, 2015, alleging violations by Quicken
Loans, Inc. (the Respondent) of Section 8(a)(1) of the National Labor Relations Act (the Act).
Respondent filed an answer denying that it violated the Act. At the start of the hearing, on
August 18, 2015, the General Counsel moved to withdraw the allegations contained in paragraph
4(e) of the complaint and amend the complaint by alleging that Respondent also violated Section
8(a)(1) of the Act by disciplining Michael Woods, a coworker of Austin Laff. Respondent
opposed the amendment and also denied that it violated the Act with respect to the discipline of
Michael Woods. The General Counsel’s motion to withdraw the allegations in paragraph 4(e) of
the complaint and its motion to include the discipline of Michael Woods was granted and the
motion to amend the complaint to add allegations regarding Michael Woods was granted. 1
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of
witnesses as they testified and I rely on those observations here. I have studied the whole record,

1 Applying the standards set forth in Redd-I Inc., 290 NLRB 1115 (1988), it is apparent that the
allegations regarding Woods involved the same legal theory, arose from the same set of facts and that
Respondent would raise similar defenses and thus the amendment was proper.
JD(SF)–08–16
2
and based upon the detailed findings and analysis below, I conclude that the Respondent violated
the Act as alleged.
FINDINGS OF FACT
5
I. JURISDICTION
The complaint alleges, Respondent in part admits and I find that:
1. At all material times, Respondent has been a corporation with an office and place 10
of business in Scottsdale, Arizona (Respondent’s facility), and has been engaged in providing
mortgage loan services to the public.
(a) In conducting its operations during the 12-month period ending February 17,
2015, Respondent performed services valued in excess of $50,000 directly from points outside 15
the State of Arizona.
(b) At all material times, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
20
2. At all material times, the following individuals held the positions set forth opposite their
respective names and have been supervisors of Respondent within the meaning of Section 2(11)
of the Act and agents of Respondent within the meaning of Section 2(13) of the Act:
Drew Glomski- Regional Vice President25
Jorge Mendez- Executing Solutions Consultant
Jordan Smith - Director of Mortgage Banking
Adam Swanson- Team Lead
II. ALLEGED UNFAIR LABOR PRACTICES30
Background
Austin Laff was employed as mortgage banker in Respondent’s Arizona office beginning
on August 25, 2014, and ending on February 11, 2015, the date that he was terminated. He 35
began his employment as an associate mortgage banker and was later, after completing training
in November of 2014, placed into the mortgage banker position. His immediate supervisors
were Adam Swanson who held the title of team captain, and Jordon Smith, the director of
mortgage banking. His basic duties revolved around negotiating the terms of loans with clients.
(Tr. 206). Michael Woods is a current employee and was a mortgage banker during the same 40
timeframe that Laff was employed. Woods reported to Ryan Cooper who was the director of
mortgage banking. (GC Exh. 9.)
45
JD(SF)–08–16
3
A. Austin Laff and Michael Woods Engage In a Short Conversation in a Bathroom Located
in Respondent’ Facility
On or about February 11, 2015, a conversation ensued between Austin Laff and Michael
Woods in the restroom which is adjacent to the Quicken Loans reception area and open for use to 5
members of the public as well as Respondent’s employees. During the time of the conversation
there were four persons present in the restroom, Austin Laff, Michael Woods, Jorge Mendez, a
president’s club/executive solutions consultant, and Luis Santacruz, a mortgage banker. Of those
present at the time of the conversation, only Mendez and Laff testified at the trial. An unsworn
statement in the form of an email from Santacruz regarding the incident was admitted into the 10
record and Woods did not appear at the hearing to testify. The testimony of the two witnesses
and the statement from Santacruz yielded three different versions of events. Laff testified as
follows regarding the event:
I cross path with Woods on the way to the restroom. He looked kind of upset so I 15
said something to the effect of, “Hey Mike, Smile.” And he proceeded to tell me
that he had a client who had been dropped in his pipeline who had refinanced
about four years ago and had been trying to get in touch with a Client Specialist
for over a week, and that client should get in touch with a fucking Client Care
Specialist and quit wasting his fucking time.“ (Tr. 213). He then testified that he 20
responded to Wood’s by telling him he “understood why he was frustrated.” [Tr.
214.]
Regarding the same conversation, Mendez testified that he had not been feeling well, was
in the restroom to use the facility and was occupying one of the stalls. He testified that “two 25
gentlemen came in having a conversation. One gentleman asked the other gentleman how his
day was going.” He said, “it’s been kind of crazy.” He felt that every client that was calling in
was just wasting his “fucking time,” and he did not know why they were calling him because
they were already in process and that they should be calling CCS to help them out. (Tr. 154.)
He further testified that at the time he did not know who made the statement regarding clients 30
“wasting my fucking time” but hurried to finish and walked out of the stall. (Tr. 154.) After
leaving the stall he testified, “the gentleman was still talking and I matched the voice and I ID’d
the person based upon what he was wearing and his appearance.” (Tr. 155.) He did not know
Laff’s name at the time but after speaking with others including Paul Conway, one of
Respondent’s directors, and describing the dress of the individual, he learned the identity of the 35
person to be Austin Laff. (Tr. 156, 157.). (GC Exh. 6).
Santacruz did not testify at trial. Regional Vice President Andrew Glomski on February
12, 2015, the day after Laff’s termination, asked him to write a statement detailing what he heard
in the bathroom that day. The statement provided as follows:40
Whilst I was in the men’s restroom using the last stall, two men came in and were
talking really loudly about each other’s negative experiences with clients and
client care specialists. They were both using the urinals and I could not recognize
their voices until I came out and saw who they were. The two were Austin and 45
Mike W. I am not sure who initiated the conversation, but both of them shared the
same complaints. Both used the F-word when talking about client and care
JD(SF)–08–16
4
specialists and both were equally as negative. Some of the comments were “this
just got drop in (sic) me I don’t know what the fuck you’re talking about.” This is
all I can remember as I was in the restroom for a short period of time. The
conversation from what I heard wasn’t about one client care specialist. I do recall
Austin using “. . . Fuck . . .” really loud at one point in the conversation. (GC Ex. 5
5).
Laff’s version has Woods making the statements, Mendez ascribes to Laff responsibility
for the statements, and Santacruz indicates that they both made statements which included the
use of profanity. 10
1. Witness credibility
As noted in the summary above, three different versions of what happened in the
restroom emerged. It is not without some difficulty that three versions of the same event are 15
examined in an effort to determine which version of the events to credit as truthful. In doing so,
I have relied on a variety of factors, including the context of the witness' testimony, the witness'
demeanor, the weight of the respective evidence, established or admitted facts, inherent
probabilities and reasonable inferences that may be drawn from the record as a whole. Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) 20
(citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx.
516 (D.C. Cir. 2003). I am also keenly aware that credibility findings need not be all-or-nothing
propositions—indeed, and it is common and a judicially accepted practice to believe some, but
not all, of a witness' testimony. Daikichi Sushi, 335 NLRB at 622.
25
After studying the record, I find that Laff’s version of events to be the most believable.
In making this finding, I note that I agree with Respondent that some aspects of Laff’s testimony
were not worthy of credence. For example, I did not find Laff’s testimony particularly credible
when he testified that he “did not recall” making statements to another female employee asking
if she, “put out on the first date.” (Tr. 261.) Nevertheless, regarding the bathroom incident, I 30
find that Laff’s version of events more credible.
Santacruz’ version of events contradicts both Mendez and Laff. He did not testify in
person, his statements were not given under oath and there is nothing in the record which
suggests that his version is more accurate than that of Laff. Mendez’ version is very similar to 35
that of Laff, and in many ways almost mirrors it, except that Mendez asserts that it was Laff and
not Woods that made the comments. Of particular note is that Mendez in his reports and
subsequent email describing the events never mentions Woods. Mendez testified he never
described Woods because, “he barely talked throughout the conversation.” This is exactly how
Laff described his own participation in the conversation. Mendez never saw Laff or Woods 40
make the comments directly, he just overheard their voices in the restroom. (Tr. 133.) Although
Mendez asserts he put a voice to a face, I do not find this particularly credible given efforts made
to identify Laff by his clothing. I find that, more likely than not, when Mendez came out of the
restroom Laff was the only person left washing his hands and he became the target of the
investigation. (Tr. 101.) I also find support in Laff’s version of the events in Laff’s invitation to 45
Glomski to investigate the calls the mortgage banker’s received, and by determining who
received the call in question, Respondent could trace the call back to the person who would have
JD(SF)–08–16
5
received it. Thus, Respondent could identify in fact who received the call and who would have
been complaining about that particular call. I also find support of Laff’s version in the
Opportunity Letter of Woods wherein the Respondent notes that it had “confirmed” that Woods
was discussing company business in an unprofessional demeanor “especially with the use of
profanity.” (GC Exh. 9). 5
B. Mendez’ Email to All Employees
After Mendez went through the identification process described above at 10:24 a.m. on
February 11, 2015, he sent an email to all of the employees in the Arizona office. The email had 10
as its subject heading “Clients in the building?” and a designated level of importance of “High.”
The font of the email type was enlarged so that what amounted to a six and a half sentence email
took up the entire email page. The email provided as follows:
I know that this email has been sent out before and I will send it out again!!!! 15
Under no circumstances should we be discussing the pay we receive, in an area
that a client or potential client could ever hear us. This goes along with
discussion specific clients, client profiles, credit costs and rates that we have
given to clients. Never, EVER should we be swearing in the bathroom especially
about clients. Also, please refrain from stating that clients that call in are wasting 20
your (*swear word*) time. This is NOT who we are and NOT what we stand for.
Check yourself at the door. [GC Exh. 10b.]
Mendez also attached to his email a February 3, 2015, email from Deon Dyer, the director of
mortgage banking which contained some of the exact language that Mendez included in his 25
email. (GC Exhs. 10(a), 10(b), 10 (c).)
Immediately after Mendez sent the email, he was called by Site Vice President Matt Stoffer
to inquire about what triggered the email. He spoke with Mendez who thereafter met with Stoffer
and Glomski. During this meeting Mendez relayed his version of events. At the meeting, when 30
asked by Stoffer who the other person was in the restroom Mendez “just said he saw Mr Laff.”
(Tr. 101.) At Stoffer’s request Mendez walked past Laff’s desk to again confirm his identity.
Stoffer at 11:41a.m. on February 11, 2015, sent his own email to the Arizona employees. The
email forwarded what had already been sent by Mendez but had language that Stoffer himself
added. The language was in the same enlarged font as the Mendez email. The email provided as 35
follows:
I want to be very clear . . . Things like this WILL NOT be tolerated in this culture
and will be dealt with swiftly. ELITE PROFESSIONALS. THAT IS WHO WE
ARE AT QUICKEN LOANS AND HERE IN THE ICON NATION. LIVE IT. 40
The I in ICON stands for INTEGRITY. LIVE IT. Every Client, Every Time, No
Exceptions, No Excuses. LIVE IT. [GC Exh. 10 (a).]
45
JD(SF)–08–16
6
D. Respondent’s Investigation
After the meeting with Mendez, Stoffer and Glomski contacted Gregg Oenning, the team
relations specialist who functions as the head of the human resources department at the facility.
Stoffer specifically wanted to inquire about Laff’s prior work history because he recalled some 5
allegations of misconduct. Oenning reported that Laff, “was making rude comments about
homosexuals and then also made a pass at another banker making them feel uncomfortable.” (Tr.
83.) Regarding the incident with the female, Glomski testified that he “ didn’t know the specific
verbiage that he (Laff) used but it was some sort of asking another female if she’s put out on the
first date or something of (sic) that.” (Tr. 84.) 10
After speaking with Oenning, Stoffer and Glomski discussed the next steps. They decided to
prepare two documents an “Opportunity Letter” and separation of employment documents. (GC
Exh. 3, 4(a-h.) Their plan was to meet with Laff, “go over the incident, see if he had a—if he
admitted the incident. If he owned up to it [they] were going to put him on (sic) opportunity 15
letter. If he denied the incident [they] felt like he was not being truthful then [they] would move
for separation.” (Tr. 52). Glomski instructed Oenning to prepare both documents.
E. Laff’s Discharge
20
In the afternoon on February 11, 2015, Glomski and Director Jordon Smith (Laff’s
immediate supervisor) met with Laff. At no time prior to the meeting were any written
statements taken from any other employees including Mendez. At the beginning of the meeting,
Glomski asked Laff, “if he had seen the email that went out earlier that day.” (Tr. 87.) He also
asked if, “he had any part in the situation that went down.” (Tr. 87.) He then specifically asked 25
him “about being in the bathroom speaking about clients, saying clients were wasting his fucking
time and that they should call the fucking CSS.“ (Tr. 87.) Laff responded, “that he had no clue.”
(Tr. 88.) Glomski then gave Laff the separation documents and when he was given the
separation letter Laff admitted to having a conversation in the restroom but asserted that he
wasn’t using profanities. (GC Exh. 4(a), 7(a), Tr. 89.) After Glomski gave Laff the separation 30
documents, he discussed the COBRA portions of the documents but did not discuss items 1–5 of
the document. (Tr. 50.) The meeting ended after Laff, Smith, and Glomski all signed the
separation of employment documents. (Tr. 50–51.) Laff was escorted out and on the way out
reiterated to Glomski that he didn’t say the things attributed to him. (Tr. 221.)
35
F. Laff’s Actions After His Discharge
Later on the evening of February 11, 2015, at 8:21 p.m. Laff sent Glomski an email. (GC
Exh. 7.) In this email Laff set forth the following:40
When you called me into your office this afternoon I was shocked at your
accusations and a bit flustered. Now that I’ve calmed down, I realize exactly
what transpired: Another banker and I were walking together towards the men’s
room. In the hall and the continuing into the bathroom, he was telling me about a 45
client who had dropped in his pipeline. The client refinanced four years ago and
has been trying to get a hold of someone for a week. The banker said, “why
JD(SF)–08–16
7
doesn’t he call a client care specialist and stop wasting my fucking time?’ The
other banker left the men’s room while I was still washing my hands. Your
informant who said he heard it “over the stall,” must have only seen me when he
came out. In fact, I have never had a client with that set of circumstances. If you
check the other banker’s calls, I am sure you’ll be able to identify that particular 5
client. I sincerely hope you will reconsider your actions. [GC Exh. 7(a).]
The next morning, at 6:48 a.m. on February 12, 2015, Oenning responded to an email
from Jordon Smith advising him that Laff had been separated. In Oenning’s email, he indicated,
he would “take it from here” and asked the question “I am assuming he lied?” (GC Exh 7(c).) In 10
response to Oenning’s question Glomski forwarded Laff’s email from the prior evening to
Oenning, Smith and Stoffer. (GC Exh. 7.) Glomski responded to Oenning’s question indicating,
“Yes Greg, FYI. We can talk more about it but at first he denied everything and then he stated
the he said it but without the swear words. Now he is saying someone else said it.” (GC Exh.
7(a).) 15
On February 12, 2015, Oenning called Laff in response to a voicemail that Laff left for
Jordon Smith. During the conversation, Laff asked if Glomski had received his email and asked
Oenning if, given the email, Glomski was going to reconsider the termination decision. Oenning
advised that they would continue on the same course of action. During the conversation with
Oenning, he reiterated that he did not make the statements attributed to him and specifically 20
identified Michael Woods as the person who made the statements. At some point during the
conversation, Oenning advised Laff, “the fact of the matter is that you shouldn’t have been
talking about clients at all.” (Tr. 225.) Thereafter, on February 13, 2015, Laff sent another email
asserting that his termination was wrongful and in violation of federal statutes. (GC Exh. 8.).
25
G. Michael Woods’ Discipline
On February 12, 2015 Glomski received the above referenced email from Santacruz
which implicated Woods in the restroom incident. Glomski discussed the matter with Oenning.
Gloomski recommended that Oenning speak to Woods to find out what happened and then issue 30
“an Opportunity Letter” to Woods because he had no prior issues. (Tr. 65.) On February 13,
2015, the “Opportunity Letter” was issued to Woods. The “Opportunity Letter” contained the
following language:
We have confirmed that on Tuesday February 11, 2015, you were observed and 35
heard by other team members in the men’s restroom discussing your company
business in regards to clients in an unprofessional demeanor, especially with the
use of profanity. Moving forward your professionalism must be corrected
immediately. Any further instances in this manner will result in immediate
separation from the company. 40
45
JD(SF)–08–16
8
H. Analysis
1. Laff and Woods engaged in concerted activity
The concept of concerted activity has its basis in Section 7 of the Act. Section 7 of the 5
Act in pertinent part states: “Employees shall have the right to self-organization to form, join, or
assist labor organizations, to bargain collectively through representatives of their own choosing
and to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid and protection.” In order for the actions to be protected under the statute they must be
both “concerted” and engaged in for the purpose of “mutual aid or protection.” Fresh & Easy 10
Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (2014). In general, to find an employee's
activity to be “concerted,” the employee must be engaged with or on the authority of other
employees and not solely by and on behalf of the employee himself. Whether an employee's
activity is “concerted” depends on the manner in which the employee's actions may be linked to
those of his coworkers. See NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984); Meyers 15
Industries, 268 NLRB 493, 497 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented Meyers Industries, 281
NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988). The Supreme Court has observed, however, that
“[t]here is no indication that Congress intended to limit [Section 7] protection to situations in 20
which an employee's activity and that of his fellow employees combine with one another in any
particular way.” NLRB v. City Disposal Systems, 465 U.S. at 835. Fresh & Easy Neighborhood
Market, Inc., 361 NLRB No. 12 (2014).
The question of whether an employee has engaged in concerted activity is a factual one 25
based on the totality of record evidence. See, e.g., Ewing v. NLRB, 861 F.2d 353 (2d. Cir. 1988).
The Board has found an individual employee's activities to be concerted when they grew out of
prior group activity. Every Women’s Place, 282 NLRB 413 (1986). The Board has found that
“ostensibly individual activity may in fact be concerted activity if it directly involves the
furtherance of rights which inure to the benefits of fellow employees.” Anco Insulations, Inc.,30
247 NLRB 612 (1980). An employee's activity will be concerted when he or she acts formally or
informally on behalf of the group. Oakes Machine Corp., 288 NLRB 456 (1988). Concerted
activity has been found where an individual solicits other employees to engage in concerted or
group action even where such solicitations are rejected. El Gran Combo de Puerto Rico, 284
NLRB 1115 (1987), enfd. 853 F.2d 966 (1st Cir. 1988). 35
a. Concerted activity
I find that considering the totality of the evidence, the conversation of Woods and Laff
falls within the umbrella of the Board’s broad definition of “concerted activity.” As new factual 40
circumstances arise, the Board considers additional factors in determining if activity is concerted,
such as (1) whether the comments involved a common concern regarding conditions of
employment, and was the issue framed as a common concern; and (2) the context under which
the alleged concerted activity occurred. In the first instance there is no question that Laff and
Woods were discussing common concerns regarding terms and conditions of their employment 45
specifically relating to how calls are forwarded and whose responsibility it was to field calls.
The conversation between Woods and Laff falls in the category of those types of preliminary
JD(SF)–08–16
9
actions necessary to lay the groundwork for group activity i.e., causing another employee to
voice support for his complaints. Walls Mfg., 128 NLRB 487, 491 (1960) (holding that “[g]roup
action is not deemed a prerequisite to concerted activity” since “a single person's action may be
the preliminary step to acting in concert”). Conduct may be concerted without any actual or
planned future group action if it is “the type of preliminary groundwork necessary to initiate 5
group activity.” See Salon/Spa at Boro, 356 NLRB 444,453–454 fn. 31 (complaints that “did not
produce . . . group protest to management” but “did produce some group activity [by causing]
other employees to voice support for [the] complaints”). “The activity of a single employee in
enlisting the support of his fellow employees for their mutual aid or protections is as much
concerted activity as is ordinary group activity.” Whittaker Corp, 289 NLRB 933 (1988). See 10
also Amelio’s, 301 NLRB 182 fn. 4 (1991). In this case, Woods’ actions indeed produce
vocalized support from Laff wherein he verbally concurred with Woods asserting that he
understood his frustrations. See World Mark by Wyndham, 356 NLRB 765 (2011), holding that
when a single employee protested a change in company dress code and a second employee
joined the action “any doubt of the concerted nature of [the employees] action is removed by [a 15
second employee joining that action].”
b. Protected activity under the Act
In order for concerted activity to be protected it must be undertaken “for the purpose of 20
collective bargaining or other mutual aid or protection,” 29 U.S.C. § 157 (1976), and actions
taken for mutual aid or protection include those intended to improve conditions of employment.
The concept of “mutual aid or protection” focuses on the goal of concerted activity; chiefly,
whether the employee or employees involved are seeking to “improve terms and conditions of
employment or otherwise improve their lot as employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 25
565 (1978). Under Section 7, both the concertedness element and the “mutual aid or protection”
element are analyzed under an objective standard. An employee's subjective motive for taking
action is not relevant to whether that action was concerted. “Employees may act in a concerted
fashion for a variety of reasons—some altruistic, some selfish—but the standard under the Act is
an objective one.” Circle K Corp., 305 NLRB 932, 933 (1991), enfd. mem. 989 F.2d 498 (6th 30
Cir. 1993). Nor is motive relevant to whether activity is for “mutual aid or protection.” Rather,
the analysis focuses on whether there is a link between the activity and matters concerning the
workplace or employees’ interests as employees. The motive of the action in a labor dispute must
be distinguished from the purpose for his activity. The motives of the participants are irrelevant
in terms of determining the scope of Section 7 protections; what is crucial is that the purpose of 35
the conduct relate to collective bargaining, working conditions and hours, or other matters of
“mutual aid or protection” of employees. The Board has long held, however, that for
conversations between employees to be found “protected” concerted activity, they must look
toward group activity and that mere “griping” is not protected. See Mushroom Transportation
Co. v. NLRB, 330 F.2d 683 (3d. Cir. 1964).40
If an employee’s action benefits others then this is proof that the action comes within the
mutual aid or protection clause of Section 7. Fresh & Easy Neighborhood Market, supra at 7,
citing Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB,
835 F.2d 1481 (D.C. Cir. 1987). The Board has found a broad range of employee activities 45
regarding the terms and conditions of employment fall within Section 7's mutual aid and
protection clause. Fresh & Easy Neighborhood Market, supra, at 7. See, e.g., Dreis & Krump
JD(SF)–08–16
10
Mfg., 221 NLRB 309, 314 (1975) (employees’ complaints over supervisory handling of safety
issue); Tanner Motor Livery, 148 NLRB 1402, 1404 (1964), enfd. in relevant part 349 F.2d 1
(9th Cir. 1965) (employees’ protest of racially discriminatory hiring practices); Jhirmack
Enterprises, 283 NLRB 609, 609 fn. 2 (1987) (one employee’s communication to another in an
attempt to protect the persons continued employment). The resolution of the question of whether 5
the activity was protected under the Act is directly related to the imposition of the adverse
inference rule more fully discussed below.
c. The adverse inference
10
There exists an evidentiary hole in the record due to the lack of testimony of Michael
Woods, the person whom I have found to have made the statements that were attributed to Laff.
Both the General Counsel and Respondent assert that the adverse inference should be imposed
against the other based upon Laff’s failure to testify. I find that an adverse inference against the
General Counsel is clearly unwarranted as the General Counsel actively sought to have the 15
witness participate in the investigation and testify at the hearing. These efforts included
including issuing a subpoena addressed to Respondent’s facility, the location at which Wood’s
was employed. (GC Exh. 13.)
Unlike the General Counsel, Respondent made no showing of any bona fide attempts to 20
call its own employee to testify. Clearly, Woods was an employee and was an agent and within
the authority and control of Respondent. Roosevelt Memorial Medical Center, 348 NLRB 1016,
1022 (2006); see also Martin Luther King, Sr., Nursing Center, 231 NLRB 15, 15 fn. 1 (1977);
Underwriters Laboratories Inc. v. NLRB, 147 F.3d 1048, 1054 (9th Cir. 1998) (“The decision to
draw an adverse inference lies within the sound discretion of the trier of fact”). In that event, 25
drawing an adverse inference regarding any factual question on which the witness is likely to
have knowledge is appropriate. International Automated Machines, 285 NLRB 1122, 1123
(1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988). Respondent argues that an adverse inference
against it is unwarranted because there is “no reasonable expectation that that an employee
favors one party over another” citing Global Contact Services, Case No. 29–RC–134071, 2015 30
WL 1939736, slip op. at 1 fn.1 ( NLRB Apr. 28 2015). I join my other colleagues who have
rejected the notion that the adverse inference rule could only be appropriately drawn when a
supervisor and not an employee is not called to testify. See Ready Mix Concrete Co., 317 NLRB
1140, 1141–1142 (1995), Judge Mary Cracraft; DPI New England, 354 NLRB 849, 858 (2009),
Judge Paul Bogas; Associated Builders, Inc., 2001 WL 1589691 (2001); Judge Thomas Patton, 35
Nc-Dsh, LLP d/b/a Desert Springs Hospital Medical Center and Theresa Van Leer, 28–CA–
127971, 2015 WL 1169324 (Mar. 13, 2015); Judge Ira Sandron, all applying in varying
circumstances an adverse inference when a Respondent failed to call an employee. I find
considering all of the above that given the critical nature of the missing testimony that drawing
an adverse inference against the Respondent is appropriate. 40
The matters about which Woods could have testified go to the heart of the complaint.
For example, he could have testified whether he had previously complained to management and
whether his bathroom complaint was a logical outgrowth of those complaints. He could have
testified regarding whether he was aware that Mendez was in the bathroom and whether his 45
comments were in fact meant to be overheard as an indirect method of bringing the matters to
Respondent’s attention. In reality, it is Woods who is the person whose “goals” are in issue.
JD(SF)–08–16
11
Eastek at 565. Given Woods’ absence, and the fact that he is the person who made the
statements which form the basis of Laff’s discipline, I find that the only logical, and appropriate
remedy is to apply the adverse inference and resolve any ambiguities regarding the concerted
and/or protected nature of the conversation in the General Counsel’s favor. Applying the
adverse inference rule, I specifically find that Woods was sharing workplace concerns with the 5
goal of improving terms and conditions of employment and thus was engaged in concerted and
protected activity with Laff.
(1) Laff’s discharge violated the Act10
In NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964), the Supreme Court found that
Section 8(a)(1) is violated if an employee is discharged for misconduct arising out of a protected
activity, despite the employer’s good faith, when it is shown that the misconduct never occurred.
The Court delineated the scope of its holding by noting that Section 8(a)(1) is violated if it is 15
shown that the discharged employee was at the time engaged in a protected activity, that the
employer knew it was such, that the basis of the discharge was an alleged act of misconduct in
the course of that activity, and that the employee was not, in fact, guilty of that misconduct. The
Court reasoned that, “otherwise the protected activity would lose some of its immunity, since the
example of employees who are discharged on false charges would or might have a deterrent 20
effect on other employees. . . A protected activity acquires a precarious status if innocent
employees can be discharged while engaging in it, even though the employer acts in good faith.”
Id. at 173.
Applying the reasoning and rationale of Burnup & Simms to the facts of this case, I find 25
that all of the above-mentioned elements requisite to finding a violation of the Act were present
in Laff’s termination. Laff was engaged in protected activity which the Employer knew of and
which formed the basis of the misconduct, which Laff was in fact not guilty of.
Accordingly, I find that Laff’s discharge violated the Act.
30
(2) Woods’ discipline violated the Act
In order to determine whether an adverse employment action was effected for prohibited
reasons, the Board applies the analysis articulated in Wright Line, 251 NLRB 1083 (1980), enfd. 35
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management. Corp., 462 U.S. 393 (1983).
To establish an unlawful discipline under Wright Line, the General Counsel must first
prove, by a preponderance of the evidence, that the employee's protected activities were a 40
substantial or motivating factor in the employer's decision to take action against them. Manno
Electric, Inc., 321 NLRB 278, 280 (1996). The General Counsel makes a showing of
discriminatory motivation by proving the employee’s protected activity, employer knowledge of
that activity, and animus against the employee’s protected conduct. Naomi Knitting Plant, 328
NLRB 1279, 1281 (1999). Proof of an employer’s motive can be based upon direct evidence or 45
can be inferred from circumstantial evidence, based on the record as a whole. Ronin
Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food Services, 343 NLRB 1183 (2004).
JD(SF)–08–16
12
If the General Counsel is successful, the burden of persuasion then shifts to the employer
to show that it would have taken the same action even in the absence of the employee's protected
activities. Wright Line, 251 NLRB at 1089; Septix Waste, Inc., 346 NLRB 494, 496 (2006);
Williamette Industries, 341 NLRB 560, 563 (2004). 5
Once the General Counsel has met its initial burden under Wright Line, an employer does
not satisfy its burden merely by stating a legitimate reason for the action taken, but instead must
persuade by a preponderance of the credible evidence that it would have taken the same action in
the absence of the protected conduct. T&J Trucking Co., 316 NLRB 771 (1995); Manno Electric, 10
Inc., 321 NLRB at 280 fn. 12. In applying Wright Line the Board has cautioned that, “a judge's
personal belief that the employer's legitimate reason was sufficient to warrant the action taken
[cannot be] a substitute for evidence that the employer would have relied on this reason alone.”
Ingramo Enterprise, 351 NLRB 1337, 13380 fn. 10 (2007), review denied 310 Fed.Appx. 452
(2d Cir. 2009). The Board has also reminded that “[a]n employer has the right to determine when 15
discipline is warranted and in what form . . . . The Board’s role is only to evaluate whether the
reasons the employer proffered for the discipline were the actual reasons or mere pretexts.” Cast-
Matic Corp., 350 NLRB 1349, 1358–1359 (2007).
Applying the law to the facts of the case, I find that the General Counsel has established a 20
prima facie case. Charging Party engaged in protected and concerted activity when he
complained about work policies including the manner in which calls were forwarded to him. See
Chromalloy Gas Turbine Co., 331 NLRB 858, 863 (2000), enfd. 262 F.3d 184, 190 (2d. Cir.
2001). See also, Worldmark by Windham, 356 NLRB at 765. Thus, I find that the first element
of the prima facie case has been met. 25
The second element of the prima facie case is also met as it is undisputed that the
Employer was aware of Woods’ complaints. This is necessarily true because the complaints were
made while Mendez one of Respondent’s managers was present.
30
The third element of the prima facie case is also met as the discipline took place within a
time frame in which improper motives can be inferred. Wood’s discipline was set in motion the
day after he complained. I find the timing of the discharge sufficient to support an inference of
animus. See Sawyer of Napa, 300 NLRB 131 (1990), Olathe Health Care Center, 314 NLRB 54
(1994), Daniel Construction Co., 264 NLRB 569 (1982), enfd. 731 F.2d 191 (2d. Cir. 1984). 35
Having concluded that the General Counsel satisfied his initial burden under Wright Line,
the burden shifts to the Respondent to prove, as an affirmative defense, that it would have
disciplined Woods even in the absence of his protected activities. This burden may not be
satisfied by proffered reasons that are found to be pretextual, i.e., false reasons or reasons not in 40
fact relied upon for the discharge. Rather, as the Board has consistently held, a finding of pretext
defeats an employer’s attempt to meet its rebuttal burden. Stevens Creek Chrysler Jeep Dodge,
357 NLRB 633, 637 (2011), enfd. sub nom. Mathew Enterprise, Inc. v. NLRB, 498 Fed.Appx. 45
(D.C. Cir. 2012). Further, an employer does not carry its Wright Line burden merely by asserting
a legitimate reason for an adverse action, where the evidence shows it was not the real reason 45
and that protected activity was the actual motivation. T&J Trucking Co., 316 NLRB 771, 771–
773 (1995), enf. mem. sub nom. NLRB v. T&J Container Systems, 86 F.3d 1146 (1st Cir. 1996);
JD(SF)–08–16
13
Stevens Creek, supra at 637; Metropolitan Transportation Services, 351 NLRB 657, 659–660
(2007). Applying these principles, I find that the Respondent failed to satisfy its burden under
Wright Line. In particular, I concur with the General Counsel’s analysis and I find Respondent’s
assertions that the discipline would have been effectuated in the absence of the protected
activities because of the use of profanity is insufficient to carry its burden because various5
management witnesses all testified to regular and tolerated use of profanity in the workplace
including the use of the word “fucking.” Similarly, I find that Woods did not lose protection of
the act by his use of profanity. In order to answer this question, the factors set forth in Atlantic
Steel Co., 245 NLRB 814 (1979); require me to analyze (1) the place of discussion; (2) the
subject matter of the discussion; (3) the nature of the employees outburst (4) whether the 10
outburst was, in any way, provoked by an employer’s unfair labor practice. In this case, the
discussion took place in a public place, the subject concerned terms and conditions of
employment, the outburst was not particularly egregious given it occurred in a location with an
inherent degree of privacy away from the regular work force. All of these factors, including the
undisputed fact that profanity was used regularly and tolerated in and outside of the workplace 15
weigh in favor of finding that in fact Woods did not lose protection under the Act. I therefore
find that Respondent violated the Act when it disciplined Woods.
3. The unlawful work rules20
a. The Mendez email
In order to determine whether a work rule violates NLRA section 8(a)(1), the Board
considers “whether the rule would reasonably tend to chill employees in the exercise’ of their 25
statutory rights.” Lafayette Park Hotel, 326 N.L.R.B. 824, (1998) enfd. 203 F.3d 52 (D.C. Cir.
1999). In making this assessment, the Board engages in a two-step inquiry. Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004), First, the Board examines whether the rule “explicitly
restricts” section 7 activity; if it does, the rule violates the Act. But if nothing in the rule
explicitly restricts section 7 activity, then the Board moves to the second step, under which the 30
rule violates the Act if it satisfies any one of the following three conditions: “(1) employees
would reasonably construe the language to prohibit Section 7 activity; (2) the rule was
promulgated in response to union or other Section 7 activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.” The mere maintenance of a rule likely to chill Section 7
activity, whether explicitly or through reasonable interpretation, can amount to an unfair labor 35
practice “even absent evidence of enforcement.” Cmty. Hosps. of Cent. Cal. v. NLRB, 335 F.3d
1079, 1088 (D.C.Cir.2003) (citing the Board's “mere maintenance” rule). In determining whether
a challenged rule is unlawful, the Board must, however, give the rule a reasonable reading. It
must refrain from reading particular phrases in isolation, and it must not presume improper
interference with employee rights. Lafayette Park at 825, 827. 40
The General Counsel argued that the Mendez email contained rules that were unlawful on
their face because they specifically prohibited employees from discussing their terms and
conditions of employment and their pay. I concur. In The Loft, 277 NLRB 1444, 1461 (1986),
the Board clearly recognized that a rule prohibiting discussions of pay “constituted a serious 45
impediment to, and a clear restraint upon, and interference with the employees’ Section 7 rights
to engage in protected and concerted activity.” See also Waco Inc., 273 NLRB 746 (1984),
JD(SF)–08–16
14
holding that, “there can be little question that Respondent’s rule prohibiting employees from
discussion wages constitutes a clear restraint on employees’ Section 7 right to engage in
concerted activities for mutual aid and protection concerning an undeniably significant term of
employment..” Id. at 748. I also find that like wages, the discussion of specific clients, client
profiles, credit, costs and rates that are given to clients all relate to the most particular aspects of 5
the mortgage banker’s work and discussions surrounding these matters lies at the heart of what
constitute their terms and conditions of employment. Of particular importance in considering the
overly broad and restrictive nature of the rule is the admonition that discussions are precluded in
any location that a “potential client” may hear. A “potential client” could be anyone and the
location of a “potential client” could be anywhere therefore (at least in theory) the rule could be 10
interpreted to preclude any conversations regarding pay and terms and conditions anywhere. I
find that these restrictions unlawfully restrain employees Section 7 rights. See Double Eagle
Hotel & Casino, 341 NLRB 112, (2004), enfd. 414 F.3d 1249 (10th Cir. 2005), cert. denied 546
U.S. 1170 (2006).
15
The General Counsel argues that other rules that provided that, “Never, EVER should we
be swearing in the bathroom, especially about clients,” and the prohibition against stating, “that
clients that call in are wasting your (*swear word*) time” also violated the Act. (GC Exh.10(b)).
I agree. Applying the applicable legal principles enunciated in Lutheran Heritage, I find that all
of the rules set forth above violate the Act because they were all promulgated in direct response 20
to what I have found to be Section 7 protected and concerted activity. In fact, the rules were
promulgated after Woods and Laff engaged in protected and concerted activity for the specific
purpose of terminating Laff and later disciplining Woods. So too, the rules were specifically
applied to restrict the exercise of Section 7 rights meeting not only the second prong of the test
set forth in Lutheran Heritage but also the third.25

b. The separation documents
The General Counsel argues that the separation documents that were provided also Laff 30
violated the Act.
(1) The confidentiality rule contained within the separation documents which requires
employees to keep secret “employee information” is overly broad;
35
The separation documents which Laff received upon his termination require that he keep
secret all proprietary /confidential information, including “client information, employee
information, financial information, or any other internal information about Quicken Loans.” (GC
Exh. 4(a)). In Advance Transportation Co., 310 NLRB 147 (1993), the Board found that a rule
which prohibited “discussing company affairs, activities, personnel, or any phase in operations 40
with unauthorized persons; to be on its face unlawful because it failed “to define the area of
permissible employee conduct thus it is calculated to cause employees to refrain from engaging
in protected activities.” Similar reasoning is applicable to this case as the requirement to keep
secret employee information is so broad as to potentially encompass directly Section 7 activity
and could reasonably be construed by employees to restrict Section 7 activities. 45
JD(SF)–08–16
15
(2) The obligation to return all company property is overly broad because it restricts
employees from providing items like employee handbooks to government agencies and
private counsel.
General Counsel argues that the return of property rule is overly broad because it restricts 5
employees from providing employee handbooks from government agencies. I agree. At the very
least without any language to except the provision of company property to government agencies
for lawful investigative purposes the rule is ambiguous and as such is susceptible to the
reasonable interpretation that it bars Section 7 activity.
10
(3). The prohibition in the rules to “Refrain from Contacting or Soliciting Quicken
Loans’ Employees or Clients” “For Any Reason” is Overly Broad.
I also find that the rule which restricts employees from contacting or soliciting Quicken 15
Loans’ employees or clients “for any reason” to be overly broad. As noted in Quicken Loans,
Inc., 359 NLRB No. 141 (2013). “within certain limits, employees are allowed to criticize their
employer and its products as part of their Section 7 rights, and employees sometime do so in
appealing to the public, or to their fellow employees, in order to gain their support.” Id. See also
Arlington Electric, Inc., 332 NLRB 845 (2000). I find an employee reading the document could 20
reasonably conclude that the prohibition contained in the separation documents directly restrict
Section 7 rights and thus the rule violates the Act.
1. The interrogation of Laff
25
In determining whether an interrogation is coercive in violation of Section 8(a)(1), the Board
applies a totality of the circumstances test which considers whether under all circumstances the
interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.
Bloomfield Health Care Center, 352 NLRB 252 (2008). Relevant factors for consideration were
set forth by the Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel 30
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and derived by the Board from
standards articulated by the court in Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964). The
underlying premise of the Board’s holding in Rossmore House is that on many occasions
interrogations can be completely lawful acts. Rossmore House sets forth factors to consider in
determining whether any particular interrogation falls outside the bounds of a lawful 35
interrogation. The factors are as follows: (1) The background, i.e. is there a history of employer
hostility and discrimination? (2) The nature of the information sought, e.g. did the interrogator
appear to be seeking information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e., how high was he in the company hierarchy? (4). Place and
method of interrogation, e.g., was employee called from work to the boss’ office? Was there an 40
atmosphere of “unnatural formality”? (5). Truthfulness of the reply. See McClain & Co., 358
NLRB 1070 (2012), see also Camarco Loan Mfg. Plant, 356 NLRB 1182 (2011). Mediplex of
Danbury, 314 NLRB 470, 472 (1994). Donaldson Bros. Ready Mix, Inc., 341 NLRB 958 (2004).
Rossmore House provides relevant factors for consideration however, the factors are not meant
to be “mechanically applied” and it is not essential to a finding of a coercive interrogation that 45
each and every element of Rossmore House be met. The fundamental issue is whether the
questioning would reasonably have a tendency to interfere with, restrain or coerce employees in
JD(SF)–08–16
16
the exercise of their Section 7 Rights. This is an objective standard and does not turn on whether
the employee was actually intimidated. Multi-Aid Service, 331 NLRB 1126 (2000), enf. 255
F.3d 363 (7th Cir. 2001).
The interrogator, Glomski was seeking information to use to take action against the 5
employee, the meeting was held in his office, the office of the regional vice president, the
meeting was conducted in the presence of Laff’s supervisor, Jordon Smith. In addition, the
meeting came at the heels of what I have already found to be an overly broad email which limits
discussion of wages. Of critical importance is the manner in which the interrogation was
conducted. Instead of directly asking Laff if he had engaged in any specific misconduct Glomski 10
began the meeting by referring to the email asking Laff had seen it and then asking “if he had
any part in the situation that went down.” Applying the totality of the circumstances test
enunciated in Rossmore House to the facts of this case, I find that a reasonable employee who
had read the email could have concluded by Glomski’s questions that they were being
interrogated about the overly broad and unlawful rules i.e. discussing their pay and/or clients. 15
Thus, I find that the interrogation was coercive and in violation of Section 8(a)(1) as it would
reasonably tend to restrain, coerce, or interfere with Section 7 rights.
2. Respondent created the impression of surveillance among its employees
20
The test for determining whether an employer unlawfully creates an impression of
surveillance is whether under the circumstances, the employee reasonably could conclude from
the statement in question that his protected activities are being monitored. Mountaineer Steel,
Inc., 326 NLRB 787 (1998), enfd. 8 Fed.Appx. 180 (4th Cir. 2001). The Board has held that an
employer “creates the impression of surveillance when it monitors employees’ protected 25
concerted activity in a manner that is “out of the ordinary” even if the activity is conducted
openly. I find that any employee who underwent an interrogation about a conversation he had in
the restroom (a location that has inherent in it some level of privacy), with another employee in
which in which a company vice president tells them he has information, “from someone he
trusted” about what another said in the bathroom after receiving an email that referenced 30
discussing client and pay would reasonably conclude that their protected activities were being
monitored. The Board has held that, “employees should not have to fear that “members of
management are peering over their shoulders” or as in this case peering over or under the
bathroom stall taking note of their concerted activities. Conley Trucking, 349 NLRB No. 30
(2007) (not published in Board volumes). 35
3. The Respondent’s discharge and discipline of Laff and Woods violates Section 8(a)(1)
pursuant to the Board's “Double Eagle” rule
40
After the occurrence of the bathroom incident, Respondent via email created rules the
violation of which Respondent specifically warned, “things like this WILL NOT be tolerated in
this culture and will be dealt with swiftly.” (GC Exh.10(a)). After promulgating the rules
Respondent thereafter proceeded to discharge Laff and discipline Woods pursuant to the
unlawfully over broad rules. The Board has consistently held that discipline imposed under an 45
unlawfully overbroad rule violates the Act (the “Double Eagle rule”). See Double Eagle Hotel &
Casino, 341 NLRB 112, 112 fn. 3 (2004), enfd . 414 F.3d 1249 (10th Cir. 2005), cert. denied 546
JD(SF)–08–16
17
U.S. 1170 (2006); Opryland Hotel, 323 NLRB 723 (1997). In Continental Group, Inc., 357
NLRB409, 412 (2011), the Board outlined limits to the application of “the Double Eagle rule.”
The Board held there that discipline imposed under an unlawfully overbroad rule only violates
the Act where an employee violated the rule by (1) engaging in protected conduct (e.g.,
concerted solicitation, distribution, or discussion of terms and conditions of employment); or (2) 5
engaging in conduct that “implicates the concerns underlying Section 7 of the Act.”
Applying Continental Group Inc., to Laff’s discharge raises an important issue which
apparently the Board has not had occasion to address. The analysis is Continental Group Inc.,
contemplates a situation in which the employee actually violated the over broad rule. It does not 10
however address the question of what rule applies when in fact the employee did not violate the
rules for which he is disciplined.
In any event, I find that Laff and Woods were both engaged in protected conduct and
conduct that implicates the concerns underlying Section 7 the Act. Namely engaging in protected 15
and concerted activity discussing their concerns regarding their terms and conditions of
employment. Thus the termination and discipline falls within the ambit of Continental Group,
Inc.’s standards upon which I find that liability is established.
20
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
25
2. By discharging Charging Party for engaging in protected and concerted activities
Respondent violated the Section 8(a)(1) of the Act as alleged in the complaint.
3. The Respondent has also violated Section 8(a)(1) by:
30
(a) Since February 11, 2015, promulgating and maintaining overly broad rules
prohibiting employees from discussing pay, clients and terms and conditions of
employment.
(b) Applying the overly broad rules to discipline Michael Woods and discharge Austin 35
Laff
(c) Maintaining overly broad confidentiality rules pertaining to employees who are
separated that restrict employees’ Section 7 activity.
40
4. The above unfair labor practices affect commerce within the meaning of Section
2(2), (6), and (7) of the Act.
45
JD(SF)–08–16
18
Remedy
Having found Respondent has engaged in certain unfair labor practices, I find
Respondent must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.5
The General Counsel requests that Laff be reimbursed for “all search-for-work and
work-related expenses regardless of whether the discriminatee received interim earnings in
excess of these expenses, or at all, during any given quarter, or during the overall backpay
period” (GC Exh. 1(ee).) I concur that in order to make the employee whole such expenses ought 10
to be recoverable. However, as the Board has not yet authorized such a remedy, I decline to order
such.
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), 15
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), enf.
denied on other grounds sub. nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir.
2011). Respondent shall file a report with the Regional Director for Region 28, within 21 days
of the date the amount of back pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar year(s). AdvoServ of New Jersey, 363 20
NLRB No. 143 (March 11, 2016). Respondent shall also compensate the discriminatee for the
adverse tax consequences, if any, of receiving one or more lump-sum back pay awards covering
periods longer than 1 year, Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014).
25
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2
Order
30
The Respondent, Quicken Loans, Inc., Scottsdale, Arizona, its officers, agents,
successors, and assigns, shall
1. Cease and desist
(a) Terminating or disciplining any employee for engaging in protected concerted
activities, including but not limited to expressions of concern regarding policies relating to which 35
calls are fielded by mortgage bankers.
(b) Maintaining any rule that prohibits employees from discussing pay, or clients
and/or terms and conditions of employment in the workplace including the restroom located at its
facility. 40

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–08–16
19
(c) Discharging or disciplining employees because they violated an overly broad rule
which restricts their Section 7 rights.
(d) Maintaining overly broad confidentiality rules pertaining to employees who are
separated that restrict employees’ Section 7 activity.5
(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Austin Laff full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without 10
prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Austin Laff whole for any loss of earnings and other benefits suffered as a
result of the unlawful discrimination against him, in the manner set forth in the remedy section of
the decision. Compensate Austin Laff for the adverse tax consequences, if any, of receiving a 15
lump-sum backpay award, and shall file a report with the Regional Director for Region 28,
within 21 days of the date the amount of back pay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate calendar year(s).
(c) Rescind the overly broad rules which prohibit discussion of pay, clients and terms 20
and conditions of employment and notify all employees that such rules have been rescinded.
(d). Rescind and remove the overly broad confidentiality rules from Respondent’s
separation documents.
(e) Within 14 days from the date of this Order, remove from its files any reference to 25
the unlawful termination of Austin Laff and the unlawful discipline of Michael Woods and
within 3 days thereafter notify him in writing that this has been done and that the materials
removed will not be used as a basis for any future personnel action against him and/or referred to
in response to any inquiry whatsoever including but not limited to any inquiry from any
employer, employment agency, unemployment insurance office, or reference seeker or otherwise 30
used against him in any way.
(f) Provide at a reasonable place designated by the Board or its agents, all payroll
records, social security payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of back pay due under the terms of this Order.35
(g) Within 14 days after service by the Region, post at its facility in Scottsdale,
Arizona, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms

3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–08–16
20
provided by the Regional Director after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In addition to physical posting of 5
paper notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to 10
all current employees and former employees employed by the Respondent at any time since
February 24, 2011.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that 15
the Respondent has taken to comply.
Dated, Washington, D.C. March 17, 2016
20
___________________25
Dickie Montemayor
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An AGENCY OF THE United States GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join or assist a union;
Choose representatives to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
YOU HAVE THE RIGHT to discuss wages, hours, and working conditions with other employees
and we will not do anything to interfere with your exercise of that right.
WE WILL NOT maintain the following unlawful rules in our separation of employment
documents.
“Your continuing obligation to keep secret all Proprietary/Confidential Information. This
includes, but is not limited to, information relating to proprietary software, business
methods, client information, employee information, financial information, or any other
internal information about Quicken Loans;”
“Your obligation to return all Company Property and Information and to delete any
residual Information stored on any of your personal devices or other electronic storage
means. Company Property and Information includes, but not limited to, computers,
monitors, pagers, lists, reports, employee handbooks, manuals, business cards, diskettes or
nay other Quicken Loans equipment or material;” and
“Your continuing obligation to refrain from contacting or soliciting Quicken Loans’
employees or clients, for any reason, even if you cultivated the clients while working here.”
WE WILL NOT maintain unlawful rules that prohibit you from discussing your terms and
conditions of employment with your coworkers, including discussions about clients.
WE WILL NOT prohibit you from discussing your terms and conditions of employment with
your coworkers, including discussions about clients.
WE WILL NOT interrogate you about your protected concerted activities.
WE WILL NOT create the impression that your concerted activities are under surveillance by
us.
WE WILL NOT discharge you because you engaged in protected concerted activities,
including discussing clients with your coworkers.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of
the Act.
WE WILL rescind the unlawful rules in our employment documents.
WE WILL pay Austin Laff for the wages and other benefits he lost because we unlawfully
discharged him, with interest.
WE WILL remove from our files all references to the discharge of Austin Laff and the
written discipline of Michael Woods and WE WILL notify them in writing that this has
been done and that the discharge and discipline will not be used against them in any way.
WE WILL offer Austin Laff immediate and full reinstatement to his former job, or if that
job no longer exist, to a substantially equivalent position, without prejudice to his seniority
or any other rights and privileges he previously enjoyed.
QUICKEN LOANS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-146517 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.