NLRB Tightens “Concerted Activity” Standard

A skycap for Alstate Maintenance at New York’s JFK airport complained about the tips he previously received from the French soccer team. The majority of skycaps’ compensation comes from tipping. The skycap complained in front of his co-workers to his supervisor, “we did a similar job a year prior and we did not receive a tip for it.” The managers then sought assistance from baggage handlers inside the terminal who completed most of the work for the French soccer team before the skycaps returned and helped them finish the job.

The terminal manager emailed the skycap’s manager and expressed her dismay about the situation because the skycaps provided subpar service to a VIP client. She had “never been this embarrassed in front of a customer.” Alstate Maintenance terminated the complaining skycap.

The former skycap filed an unfair labor practice charge alleging that his complaint was protected by the National Labor Relations Act. The NLRB determined his comment about poor tips was not part of a “group activity.” His statement did not demonstrate that he was seeking to initiate or induce any sort of group activity among the skycaps. His remark “was just a comment” and not aimed at changing the employer’s policies or practices. He was not seeking mutual aid or protection because the issue of customer tipping habits is a concern between workers and customers, not between workers and their employer, as employers have no ability to control the amount customers choose to tip.

Through this case the Board has tightened the critical “concerted activity” standard and restored a measure of balance to the equation. Employers should still be cautious when discipling employees for activities carried out in a group setting, though, particularly where those activities occur during group meetings where management announces changes to terms and conditions of employment. Depending on what is said and how it is communicated, some things could still be protected by federal labor law.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.