But an employee complaint about the frugality of French footballers is not protected concerted activity under a new narrow definition of protected concerted activity from the NLRB. In Alstate Maintenance, a skycap at Kennedy Airport was asked to assist with handling a French soccer team’s equipment. In response, the skycap complained that “we did a similar job a year prior and we didn’t receive a tip for it.” The skycap (and his colleagues) then walked away and the equipment was handled by other airport personnel. The skycap who made the statement was fired and filed a claim asserting that his termination violated the NLRA because he was engaged in protected concerted activity when he complained about the bad tips.
In a significant narrowing of the law, the NLRB found that the skycap’s statement was not protected concerted activity. The employee was not bringing a group complaint to the attention of management or seeking to initiate or induce group action, and, he admitted that his statement was “just a comment.” The NLRB found that the skycap’s statement “was simply an offhand gripe about [the employee’s] belief that French soccer players were poor tippers.” The skycap’s comment was also determined not to have been made for the purpose of mutual aid or protection because: (i) the tips come from airline passengers and are not controlled by the employer; and (ii) the skycap admitted that he was satisfied with the existing tipping arrangements, i.e., he was not seeking to improve the terms and conditions of employment when making the comment.
The Alstate decision is a departure from prior law which had expanded to the point where virtually any employee complaint could be argued to be protected concerted activity (and discipline based on such complaints a possible violation of the NLRA). However, employers still need to analyze the content, purpose, and circumstances of employee complaints before taking disciplinary action. And, we all need to tip the skycap (even if we aren’t checking soccer equiment for an entire team).
The decision is here: nlrb decision (03080334x7ac43)