Quicken Loans, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 2013

359 N.L.R.B. 1201 (N.L.R.B. 2013)

QUICKEN LOANS, INC. 1201

359 NLRB No. 141
Quicken Loans, Inc. and Lydia E. Garza. Case 28–
CA–075857
June 21, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On January 8, 2013, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Acting Gen-
eral Counsel filed an answering brief, and the Respond-
ent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs
1
and has decided to affirm the judge’s rulings,
2

findings, and conclusions as modified, to amend the rem-
edy, and to adopt the recommended Order as modified
and set forth in full below.
3

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent excepts to many of the judge’s evidentiary rulings.
It is well established that the Board will affirm an evidentiary ruling of
an administrative law judge unless that ruling constitutes an abuse of
discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587 (2005),
petition for review denied sub nom. Local Joint Executive Board of Las
Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a careful review of
the record, we find no abuse of discretion in any of the challenged
rulings.
3 We agree with the judge, for the reasons stated in his decision, that
the provision of the Mortgage Banker Employment Agreement
(MBEA) entitled, “Non-disparagement” is unlawful because employees
would reasonably construe its broad prohibitions as encompassing Sec.
7 activity. See Knauz BMW, 358 NLRB 1755, 1755 (2012).
In finding the MBEA unlawful regarding nondisclosure of certain
personnel information, we agree with the judge that it is significant that
Attachment A to the Agreement defines “Proprietary/Confidential
Information” as including the following: (1) “non-public information
relating to or regarding . . . personnel” and (2) “personnel information
including, but not limited to, all personnel lists, rosters, personal infor-
mation of co-workers” and “handbooks, personnel files, personnel
information such as home phone numbers, cell phone numbers, ad-
dresses, and email addresses[.]” The Board has found that rules prohib-
iting employees from disclosing this type of information about employ-
ees violate Sec. 8(a)(1) of the Act. See, e.g., DirecTV U.S. DirecTV
Holdings, LLC, 359 NLRB 533, 535 (2013); Flex Frac Logistics, LLC,
358 NLRB 1131, 1131–1132 (2012); Costco Wholesale Corp., 358
NLRB 1099, 1099–1100 (2012).
We shall modify the judge’s conclusions of law, remedy, and rec-
ommended Order to conform to the violations found and to the Board’s
standard remedial language, and in accordance with our decision in
Excel Container, Inc., 325 NLRB 17 (1997). As explained in the
amended remedy, our modifications include revising the recommended
Order to require rescission of only those portions of the “Proprie-
tary/Confidential Information” rule found unlawful by the judge. We
shall substitute a new notice to conform to the Order as modified.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 2.
“2. The Respondent has violated Section 8(a)(1) of the
Act by maintaining the following provisions of the Mort-
gage Banker Employment Agreement (MBEA):

“1. The term ‘personnel’ in Attachment A, Para-
graph A(a);
“2. The paragraph entitled ‘Personnel Infor-
mation’ in Attachment A insofar as it applies to
‘personnel information including, but not limited to,
all personnel lists, rosters, personal information of
co-workers’ and ‘handbooks, personnel files, per-
sonnel information such as home phone numbers,
cell phone numbers, addresses, and email addresses’;
and
“3. Section K, Paragraph 2, entitled ‘Non-
disparagement.’”
AMENDED REMEDY
The judge’s recommended Order requires the Re-
spondent to rescind the “Proprietary/Confidential Infor-
mation” and “Non-disparagement” provisions in their
entirety. We agree that the entire “Non-disparagement”
provision should be rescinded. With respect to the “Pro-
prietary/Confidential Information” provision, however,
the judge’s analysis of the rule addressed only certain
language in Attachment A, viz. where “Proprie-
tary/Confidential Information” is defined. Accordingly,
we shall require the Respondent to rescind only the of-
fending language.
We agree with the judge that the Respondent may
comply with our order of rescission by reprinting the
MBEA without the unlawful language or, in order to
save the expense of reprinting the MBEA, supply its
mortgage bankers with handbook inserts stating that the
unlawful rules have been rescinded or with lawfully
worded rules on adhesive backing that will correct or
cover the unlawfully broad rules, until it republishes the
MBEA without the unlawful provisions. Any copies of
the MBEA that include the unlawful rules must include
the inserts before being distributed to employees. Ac-
cord: Bettie Page Clothing, 359 NLRB No. 96, slip op. at
2–3 (2013); Guardsmark, LLC, 344 NLRB 809, 812 fn. 8
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007).
ORDER
The National Labor Relations Board orders that the
Respondent, Quicken Loans, Inc., Scottsdale, Arizona,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

(a) Maintaining provisions in attachment A of its
Mortgage Banker Employment Agreement (MBEA) that
define “proprietary/confidential information” to include
the following: (1) “non-public information relating to or
regarding . . . personnel” and (2) “personnel information
including, but not limited to, all personnel lists, rosters,
personal information of co-workers” and “handbooks,
personnel files, personnel information such as home
phone numbers, cell phone numbers, addresses, and
email addresses[.]”
(b) Maintaining MBEA section K, paragraph 2, enti-
tled, “Non-disparagement.”
(c) In any like or related manner interfering with, re-
straining, 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) Rescind the following provisions of the MBEA:
(1) Attachment A, paragraph A(a) to the extent that it
defines “Proprietary/Confidential Information” to include
“non-public information relating to or regarding the
Company’s . . . personnel”; (2) the paragraph entitled,
“Personnel Information” in attachment A insofar as it
applies to “personnel information including, but not lim-
ited to, all personnel lists, rosters, personal information
of co-workers” and “handbooks, personnel files, person-
nel information such as home phone numbers, cell phone
numbers, addresses, and email addresses”; and (3) sec-
tion K, paragraph 2, entitled, “Non-disparagement.”
(b) Furnish all current mortgage bankers with inserts
for the current MBEA that (1) advise that the unlawful
rules have been rescinded, or (2) provide the language of
lawful rules; or publish and distribute a revised MBEA
that (1) does not contain the unlawful rules, or (2) pro-
vides the language of lawful rules.
(c) Within 14 days after service by the Region, post at
all of its offices nationwide copies of the attached notice
marked “Appendix.”
4
Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
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

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current mortgage
bankers and former mortgage bankers employed by the
Respondent at any time since September 5, 2011.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain the following provisions con-
tained in our Mortgage Banker Employment Agreement
(MBEA):

1. Attachment A, Paragraph A(a) to the extent
that it defines “Proprietary/Confidential Infor-
mation” to include “non-public information relating
to or regarding the Company’s . . . personnel[.]”
2. The paragraph entitled “Personnel Infor-
mation” in attachment A insofar as it applies to “per-
sonnel information including, but not limited to, all
personnel lists, rosters, personal information of co-
workers” and “handbooks, personnel files, personnel
information such as home phone numbers, cell
phone numbers, addresses, and email addresses[.]”
3. Section K, Paragraph 2, entitled “Non-
disparagement.”

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
QUICKEN LOANS, INC. 1203

WE WILL rescind the following language in the follow-
ing provisions of our MBEA:

1. Paragraph A(a) of attachment A to the extent
that it defines “non-public information relating to or
regarding the Company’s . . . personnel” as “Pro-
prietary/Confidential Information.”
2. The paragraph entitled “Personnel Infor-
mation” in attachment A of the MBEA insofar as it
applies to “personnel information including, but not
limited to, all personnel lists, rosters, personal in-
formation of co-workers” and “handbooks, person-
nel files, personnel information such as home phone
numbers, cell phone numbers, addresses, and email
addresses[.]”
3. Paragraph 2 of Section K of the MBEA, enti-
tled “Non-disparagement.”

WE WILL furnish all mortgage bankers with inserts for
the current MBEA that (1) advise that the unlawful rules
have been rescinded, or (2) provide the language of law-
ful rules; or WE WILL publish and distribute a revised
MBEA that (1) does not contain the unlawful rules, or
(2) provides the language of lawful rules.
QUICKEN LOANS, INC.
Eva Herrera, Esq., for the General Counsel.
Frederick Miner, Esq. (Littler Mendelson, P.C.), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 13, 2012,1 in Phoenix, Arizona.
The complaint, which issued on September 14 and was based
upon an unfair labor practice charge that was filed on March 5
by Lydia Garza, alleges that Quicken Loans, Inc. (the Respond-
ent) has maintained certain overly broad and discriminatory
rules in its Mortgage Banker Employment Agreement, in viola-
tion of Section 8(a)(1) of the Act.
I. JURISDICTION
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE FACTS
Respondent, which is engaged in providing mortgage loan
services, has its main office in Detroit, Michigan, as well as
other offices throughout the country, including one in Scotts-
dale, Arizona, where Garza was employed as a mortgage bank-
er from 2006 to 2011. Respondent employs approximately
1,700 mortgage bankers nationwide. Their job duties include
the processing of loan applications, as well as negotiating the

1 Unless indicated otherwise, all dates referred to relate to the year
2012.
terms and interest rate of the proposed loans. The sole issue
here is the legality of two provisions contained in its Mortgage
Banker Employment Agreement, (the Agreement), which all of
its mortgage bankers must agree to be bound by. The allegedly
unlawful provisions are “Proprietary/Confidential Information”
and “Non-Disparagement.”
Section D: Proprietary/Confidential Information
2. You agree that:

(a) You shall hold and maintain all Proprietary/ Confidential
Information in the strictest of confidence and that you shall
preserve and protect the confidentiality, privacy and secrecy
of all Proprietary/Confidential Information;

(b) You shall not disclose, reveal or expose any Proprie-
tary/Confidential Information to any person, business or entity
. . .

* * *
(e) You shall take all necessary precautions to keep Proprie-
tary/Confidential Information secret, private, concealed and
protected from disclosure, and shall follow and implement the
Company’s privacy and security procedures . . .
Attachment A
A. “Proprietary/Confidential Information”—For purposes
of this Agreement, “Proprietary/Confidential Information”
means: (a) non-public information relating to or regarding the
Company’s business, personnel, customers, operations, or af-
fairs; (b) non-public information which the Company labeled
or treated as confidential, proprietary, secret or sensitive busi-
ness information . . .

“Proprietary/Confidential Information” includes, but is not
limited to, the following categories of information, irrespec-
tive of the medium in which it is stored . . . :

. . . .

Personnel Information including, but not limited to, all per-
sonnel lists, rosters, personal information of co-workers, man-
agers, executives and officers; handbooks, personnel files,
personnel information such as home phone numbers, cell
phone numbers, addresses, and email addresses;

Personal Information Pertaining to Company Executives and
Officers including, but not limited to, personal and family in-
formation, personal financial information, investment and in-
vestment opportunities, background information, personal ac-
tivities, information pertaining to the work and non-work
schedules, contacts, meetings, meeting attendees, travel, home
phone numbers, cell phone numbers, addresses, and email ad-
dresses;

Section K: Additional Terms and Requirements
2. Non-disparagement. The Company has internal pro-
cedures for complaints and disputes to be addressed and
resolved. You agree that you will not (nor will you cause
or cooperate with others to) publicly criticize, ridicule,
disparage or defame the Company or its products, ser-
vices, policies, directors, officers, shareholders, or em-
ployees, with or through any written or oral statement or
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

image (including, but not limited to, any statements made
via websites, blogs, postings to the internet, or emails and
whether or not they are made anonymously or through the
use of a pseudonym). You agree to provide full coopera-
tion and assistance in assisting the Company to investigate
such statements if the Company reasonably believes that
you are [the] source of the statements. The foregoing does
not apply to statutorily privileged statements made to gov-
ernmental or law enforcement agencies.

Garza had been employed as a mortgage banker for the Re-
spondent for about 5 years beginning in 2006, when she signed
the Agreement. After she resigned that employment on October
18, 2011, she received a letter from Respondent regarding her
“continuing obligations to Quicken Loans,” stating inter alia:

As a reminder, some of the terms contained in your Employ-
ment Agreement remain in effect despite your voluntary de-
parture from Quicken Loans. Such ongoing obligations in-
clude:

1. Your continuing obligation to keep secret all Proprie-
tary/Confidential Information. This includes, but is not lim-
ited to, information relating to proprietary software, business
methods, client information, employee information, financial
information, or any other internal information about Quicken
Loans.

2. Your obligation to return all Company Property and In-
formation 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, employ-
ee handbooks, manuals, business cards, diskettes or any other
Quicken Loans equipment and material. . .

3. Your continuing obligation to refrain from using any work
product outside of Quicken Loans, even if you created it, in-
vented it or developed it while working here.

4. Your continuing obligation to refrain from contacting or
soliciting Quicken Loans’ employees or clients, for any rea-
son, even if you cultivated the clients while working here.

5. Your continuing obligation to refrain from engaging in a
competing line of business or working for a competing com-
pany for a period of nine months after your date of separa-
tion.

The letter ends by saying that if the recipient has any questions
“pertaining to your continuing obligations under your employ-
ment agreement,” he/she should call the Respondent for an-
swers.
Garza testified that shortly after she left the Respondent’s
employ, she and five other former employees of the Respond-
ent were sued by the Respondent for an alleged violation of the
no contact/no raiding and the noncompete provisions of the
Agreement. Matthew Stoffer, site vice president for the Re-
spondent’s Scottsdale Web Center, where Garza was employed,
testified that all employees employed as mortgage bankers are
required to sign the Agreement. He also testified that to his
knowledge, no employee of the Respondent has ever been dis-
ciplined for violating the Agreement.
III. ANALYSIS
The issues here are whether the Respondent’s Proprie-
tary/Confidential Information Rule, Section D, and the Non-
Disparagement Rule, Section K, contained in the Agreement,
which Garza and all mortgage bankers employed by the Re-
spondent were required to sign, violates Section 8(a)(1) of the
Act. Counsel for the General Counsel alleges that the re-
strictions contained in these two provisions unlawfully restrict
employees in the exercise of their Section 7 rights. Respondent
defends that because of the time and expense spent in educating
and training its mortgage bankers, it requires them to sign the
Agreement in order to protect its investment in them, as well as
to protect the confidential and proprietary information that they
are entrusted with.
The line between lawful and unlawful restrictions is very
thin and often difficult to discern. The two principal Board
cases relevant to this issue are Lafayette Park Hotel, 326 NLRB
824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), and Lu-
theran Heritage Village-Livonia, 343 NLRB 646 (2004). In
Lafayette Park, the Board stated: “The appropriate inquiry is
whether the rules would reasonably tend to chill employees in
the exercise of their Section 7 rights. Where the rules are likely
to have a chilling effect on Section 7 rights, the Board may
conclude that their maintenance is an unfair labor practice even
absent evidence of enforcement.” The test enunciated in Lu-
theran Heritage is:

Our inquiry into whether the maintenance of a challenged rule
is unlawful begins with the issue of whether the rule explicitly
restricts activities protected by Section 7. If it does, we will
find the rule unlawful.

If the rule does not explicitly restrict activity protected by Sec-
tion 7, the violation is dependent upon the showing of one of
the following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was prom-
ulgated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.

The Proprietary/Confidential Information rule requires employ-
ees to maintain this information “in the strictest of confidence”
and “you shall not disclose [it] to any person, business or enti-
ty.” The Agreement defines proprietary and confidential infor-
mation as “non-public information relating to . . . the Compa-
ny’s business, personnel . . . all personnel lists, personal infor-
mation of co-workers . . . personnel information such as home
phone numbers, cell phone numbers, addresses and email ad-
dresses.” There can be no doubt that these restrictions would
substantially hinder employees in the exercise of their Section 7
rights. In complying with these restrictions, employees would
not be permitted to discuss with others, including their fellow
employees or union representatives, the wages and other bene-
fits that they receive, the names, wages, benefits, addresses or
telephone numbers of other employees. This would substantial-
ly curtail their Section 7 protected concerted activities. The
Proprietary/Confidential Information Rule contained in the
Agreement therefore violates Section 8(a)(1) of the Act. NLS
Group, 352 NLRB 744, 745 (2008); Security Walls, LLC, 356
QUICKEN LOANS, INC. 1205

NLRB 87 (2011).
The remaining issue is whether the Non-Disparagement pro-
vision contained in Section K also violates Section 8(a)(1) of
the Act. That provision states that the employees will not “. . .
publicly criticize, ridicule, disparage or defame the Company or
its products, services, policies . . . through any written or oral
statement . . .” In Albertson’s, Inc., 351 NLRB 254, 259 (2007),
the Board stated: “In determining whether an employer’s
maintenance of a work rule reasonably tends to chill employees
in the exercise of Section 7 rights, the Board will give the work
rule a reasonable reading and refrain from reading particular
phrases in isolation.” There can be no doubt that an employee
reading these restrictions could reasonably construe them as
restricting his rights to engage in protected concerted activities.
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. A rea-
sonable employee could conclude that the prohibitions con-
tained in the Agreement prohibited them from doing so. The
Non-Disparagement provision therefore violates Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The provisions and restrictions contained in Section D,
Proprietary/Confidential Information, and Section K2, Non-
Disparagement, of Respondent’s Mortgage Banker Employ-
ment Agreement, violate Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices by promulgating and maintaining the Pro-
prietary/Confidential and the Non-Disparagement rules in its
Mortgage Banker Employment Agreement, I recommend that it
be ordered to post the attached notice and to notify all of its
mortgage bankers, nationwide, that it will rescind these provi-
sions. Respondent may comply with this Order by reprinting
the Mortgage Banker Employment Agreement without these
provisions or, in order to save the expense of reprinting the
Agreement without these provisions, Respondent may supply
its mortgage bankers either with handbook inserts stating that
the unlawful rules have been rescinded, or with new and law-
fully worded rules on adhesive backing which will cover the
old and unlawfully broad rules regarding Proprie-
tary/Confidential and Non-Disparagement rules. Carney Hos-
pital, 350 NLRB 627, 631 (2007).
[Recommended Order omitted from publication.]