NLRB Kicks Skycap’s Wrongful Discharge Claim to the Curb: Employee’s Comment in Group Setting is Mere Gripe
By: Attorney Bryan T. Symes – Weld Riley, S.C.
Earlier this year, the National Labor Relations Board eliminated a bit of baggage remaining from the previous regime, when it determined that an employee’s comment—arguably concerning his wages and working conditions—when made in a group setting involving coworkers and management, is not per se “concerted” activity that may be eligible for protection under the National Labor Relations Act. This is a significant development for employers, because the Board has now narrowed the circumstances under which employees may invoke the protection the Act. The case is Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).
In Alstate Maintenance, LLC, the complainant employee worked as a skycap at JFK International Airport. The bulk of the complainant employee’s compensation came from tips from travelers. On one particular day, complainant employee was working with three other skycaps—outside of the terminal, as the skycaps normally did. On this same day, management approached the complainant employee and the other skycaps, to inform the group that Lufthansa had requested assistance from skycaps to move a French soccer team’s equipment. In response to the request, complainant employee, in the presence of his coworkers and supervisor, replied, “[w]e did a similar job a year prior and we didn’t receive a tip for it.” Later, when a van containing the soccer teams’ equipment approached, the skycaps walked away instead of assisting. Alstate Maintenance ultimately fired the complainant employee and the three other skycaps for being indifferent to the customer. The termination decision precipitated the unfair labor charge.
After considering the above facts, the Board concluded that the skycap “…was discharged for griping about not being tipped.” The Board’s emphasis of the word “gripe” is important, and signals how the current Board views “concertedness” analysis in unlawful discharge cases, as explained below. Under long-standing Board law, an employee’s activity is protected under the Act if: (1) it is “concerted;” and (2) it is engaged in for the purpose of mutual ad or protection. Employee activity generally is “concerted” for purposes of the Act if:
- It is engaged in with or on the authority of other employees, and not on behalf of the employee himself/herself;
- An individual employee brings a truly group complaint to the attention of management [this requires evidence of “group activities”—e.g., prior or simultaneous discussion of the concern between or among coworkers]; or
- Even in the absence of evidence of “group activities,” there is evidence that a single employee communicates to another who merely listens, where such communication was engaged in with the object of initiating/inducing/preparing for group action [i.e., the talk must be looking toward group action].
As the above factors demonstrate, “concertedness” analysis is an intensely fact-driven exercise, and necessitates a careful examination of the history of communications leading up to the employee comment that invites employer scrutiny. Through Alstate Maintenance, LLC, the Board majority corrected what it viewed as a departure from long-standing Board law, which occurred during the Obama era. To that end, prior to Alstate Maintenance, LLC, the Obama Board, through WorldMark by Wyndham, 356 NLRB 765 (2011), “…unmoored itself…announc[ing] a new rule of law, that an employee who protests publicly in a group meeting is [per se] engaged in initiating group action.”
According to the current Board, the Obama-era WorldMark by Wyndham decision was not faithful to prior Board law concerning “concertedness,” and was susceptible to absurd results—viz., purely individual gripes would be cloaked in protection under the Act. However, through Alstate Maintenance, LLC, the current Board overruled WorldMark by Wyndham. In other words, employee comments made in the context of group setting, must be analyzed under the long-standing “concertedness” rubric—including the following, non-exhaustive factors:
(1) Whether the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment;
(2) Whether the decision affects multiple employees attending the meeting;
(3) Whether the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely to ask questions about how the decision has been or will be implemented;
(4) Whether the speaker protested or complained about the decision’s effect on the workforce generally or some portion of the workforce, not solely about its effect on the speaker himself or herself; and
(5) Whether the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.
Applying the newly-reiterated rubric and newly-articulated factors [above], the Board majority “easily [found] that [complainant employee] did not engage in concerted activity.” More specifically, the Board concluded that based upon the unique facts of the case, the complainant employee was not brining a truly group complaint to the attention of management. For example, the Board stated that, “[t]here is no evidence that the tipping habits of soccer players had been a topic of conversation among the skycaps prior to [complainant employee’s] statement.”
Also, the Board concluded that complainant employee’s statement, in and of itself, does not demonstrate that complainant employee was seeking to initiate or induce group action. On this point, the Board found significant the fact that at the administrative hearing, the complainant employee characterized his statement about being stiffed by the soccer team as “just a comment”—one that was not aimed at changing policies or practices. The Board found, “[w]here a statement looks forward to no action at all, it is more than likely mere griping, and we find as much here.”
Finally, it should be noted that through Footnote 2 of the decision, the Board hints that given the right set of circumstances, it is poised to reexamine the doctrine of “inherently concerted” activity, through which certain comments—those concerning wages, work schedules and job security—in and of themselves, are automatically protected under the Act [without an exacting analysis of “concertedness”]. Accordingly, this is worth watching closely.
Employers, both union and nonunion, are wise to carefully consider the possibility of protected concerted activity when scrutinizing employee conduct that is viewed by management as insubordinate behavior supporting employee discipline. The Alstate Maintenance, LLC case teaches that a thorough investigation of the facts—including the specific context in which employee comments are made, and the history of similar employee comments—is imperative to avoid making a potentially costly misstep.