The National Labor Relations Board (Board) recently ruled that the National Labor Relations Act (NLRA or Act) did not protect an employee’s complaint about tips. Alstate Maintenance, LLC and Trevor Greenidge, Case 29-CA-117101 (January 11, 2019).
The Act protects covered employees’ concerted activities for the purpose of mutual aid or protection. “Concerted” refers to group action rather than purely individual action. “Mutual aid or protection” usually concerns wages, hours of work, or other terms and conditions of employment.
In Alstate, the employer discharged a skycap for complaining about not being tipped. The skycap argued his comments were “concerted” because he made them to his supervisor in front of his co-workers, and he used the word “we.” The Board disagreed.
To be concerted, a lone employee’s statements either (1) must notify management about a group complaint or (2) there must be a reasonable inference that the employee was trying to initiate, induce, or prepare for group action.
Factors Suggesting Group Action
Evidence of communications between or among employees before or at the time an employee complains to management often can show that a group complaint is at issue. When it is not clear that a group complaint is at issue, examples of factors that may support an inference that an employee was trying to facilitate group action include the employee:
- Complaining at a meeting where the employer announces a change in terms of employment that will impact several employees;
- Protesting, not just asking how the change will be implemented;
- Expressing concerns about the impact of the change on others, not just on the employee him- or herself;
- Not having a chance to discuss the change with co-workers before the meeting.
After considering all of the circumstances, the Board ruled that the skycap’s complaint was not concerted activity. The presence of co-workers and the skycap’s use of the word “we” is not, without more, enough to infer that he intended for his comments to facilitate group action.
Mutual Aid or Protection
The skycap’s tips from customers were not wages received from, or controlled by, the employer. Therefore, the skycap did not complain for the purpose of mutual aid or protection. Even if the skycap’s complaint was “concerted,” it would not have been protected.
To be protected under the NLRA, a complaint must involve concerted activity for the purpose of mutual aid or protection. To be concerted, a true group complaint must be at issue, or there must be evidence that the employee made the complaint to facilitate group action. Complaining in the presence of a group, without more, is not enough.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)