Employment Law Daily 3-1 NLRB finds skycap’s gripe about tips from soccer teams not concerted activity; discharge lawful
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Wednesday, January 16, 2019

3-1 NLRB finds skycap’s gripe about tips from soccer teams not concerted activity; discharge lawful

By Ronald Miller, J.D.

Finding that a skycap was not engaged in protected concerted activity when he griped about not being tipped in the presence of other skycaps and a supervisor and included the word “we” in his statement, a divided four-member panel of the NLRB adopted an administrative law judge’s dismissal of a complaint. In so ruling, the Board restored the standard articulated in Meyers Industries by overruling any conflicting precedent, including WorldMark by Wyndham. The Board reasoned that subsequent decisions have blurred the distinction between protected group activity and unprotected individual activity. Member McFerran filed a separate dissenting opinion (Alstate Maintenance, LLC, January 11, 2019).

The employer provides ground services at JFK International Airport’s terminal one under contract with the terminal manager. The employee was employed as a skycap. His job was to assist arriving passengers with their luggage outside the terminal entrance. The bulk of skycaps’ compensation comes from passengers’ tips. On July 17, 2017, the employee was working with three other skycaps. He was approached by his supervisor who informed him that an airline had requested skycaps assist with a soccer team’s equipment. The employee remarked that “We did a similar job a prior year and we didn’t receive a tip for it.” When a van containing the team’s equipment arrived, the skycaps were waved over by two airline managers. The skycaps walked away.

When questioned, the supervisor explained that the skycaps did not want to do the job because they were anticipating a small tip. The airline managers then sought the assistance of baggage handlers inside the terminal, who completed most of the assignment before the skycaps helped finish the job. The soccer team gave the skycaps an $83 tip. That evening, one of the airline managers emailed the terminal manager to alert it that the skycaps had provided subpar service to a group of airline passengers regarded as a VIP client. After a series of emails, all four skycaps were terminated.

Concerted activity. The ALJ found that the employer did not violate Section 8(a)(1) by discharging the employee because his complaint about the tipping habits of soccer players was neither concerted activity nor was it undertaken for the purpose of mutual aid or protection. The Board agreed.

For employees to enjoy the protection of the Section 7 of the NLRA, two elements must be satisfied: the activity they engage in must be “concerted,” and the concerted activity must be engaged in “for the purpose of mutual aid or protection.” The governing standards for determining whether an activity is concerted are set forth in the Board’s decisions in Meyers Industries. In Meyers I, the Board held that “[i]n general, to find an employee’s activity to be ‘concerted,’ we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

Meyers II standard. Under Meyers II, an individual employee who raises a workplace concern with a supervisor or manager is engaged in concerted activity if there is evidence of “group activities”—prior or contemporaneous discussion of the concern between or among members of the workforce—warranting a finding that the employee was indeed bringing to management’s attention a “truly group complaint,” as opposed to a personal grievance. Further, Meyers II explained that a single employee’s efforts to “induce group action” would be deemed concerted based on “the view of concertedness exemplified by the Mushroom Transportation line of cases.”

In Mushroom TransportationCo., Inc. v. NLRB, the Third Circuit held that “a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees.” The appeals court added that “[a]ctivity which consists of mere talk must, in order to be protected, be talk looking forward toward group action. . . . [I]f it looks forward to no action at all, it is more than likely to be mere ‘griping.’”

Application of Meyers II. Viewing the employee’s remark in light of the standards established in Meyers II, the Board easily found that he did not engage in concerted activity. First, the General Counsel did not contend that the employee was bringing a truly group complaint to the attention of management, and the record was devoid of evidence of “group activities” upon which to base a finding that he was doing so. Second, the statement in and of itself did not demonstrate that the employee was seeking to initiate or induce group action. Where a statement looks forward to no action at all, it is more than likely mere griping. Accordingly, Meyers II compelled affirmance of the ALJ’s finding that the employee did not engage in concerted activity.

Matter between passenger and skycap. To warrant protection from Section 7, activity must be both concerted and undertaken for the purpose of mutual aid and protection. Here, the ALJ found that the employee’s statement concerning customers’ tipping habits “did not relate to the skycap’s wages, hours and other conditions of employment.” The Board pointed out that the amount of a tip given by an airline passenger to the skycap at curbside is a matter between the passenger and the skycap, from which the employer is detached. As a result, the employee’s statement was not aimed at improving the skycaps’ lot as employees through channels outside the immediate employer-employee relationship.

Accordingly, because the conduct for which the employee was discharged was not protected concerted activity, the employer did not violate Section 8(a)(1) by discharging him.

Dissent. In a dissenting opinion, Member McFerran argued that under the circumstances of this case, longstanding Board and court precedent compelled a finding that the employee’s complaint constituted an attempt to initiate group objection over tips, and he was engaged in concerted activity for the mutual aid and protection of his fellow skycaps—conduct for which he could not lawfully be fired. In upholding the employee’s discharge, McFerran argued that the majority upheld the discharge by misreading and overruling (without being asked) recent precedent. She noted that the employee’s comment raised an issue of shared interest among all skycaps—how much they were paid.

McFerran concluded that the employee’s objection to handling the soccer team’s equipment plainly was for the “mutual aid or protection” of the skycaps as a group, and that the majority ignored workplace realities and the wide range of means by which employees might protest unfair conditions.

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