One of the least appreciated federal workplace laws is Section 7 of the National Labor Relations Act, the 1935 law which gives most private sector employees in the U.S. the right to form and join unions. Section 7 of the Act, which applies with equal force in non-unionized and unionized workplaces, says that employees have “the right to self-organization, to form, join or assist labor organizations … and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.”
The National Labor Relations Board, the federal agency responsible for enforcing the Act, has interpreted the underlined clause to mean that, with or without a union, employees have the right to join together and speak up about pay, or other working conditions. As a practical matter, this means that if an employer fires an employee for beefing about pay – or a wide variety of other workplace issues – the employee can file an unfair labor practice charge and, if the Labor Board decides the charge is valid, the Board’s prosecution arm file will file a complaint against the employer. In many such cases, the outcome – after a Labor Board trial – has been that the employer is ordered to reinstate the fired employee with full back pay.
In a number of recent cases, the Labor Board has expanded the definition of what kinds of complaints are “concerted activity” for “mutual aid or protection” and therefore protected by Section 7. For example, the Board has ruled that employees disciplined for complaining about the lack of pay raises at an ‘all hands’ meeting, pointing out the unfairness of a new policy on breaks or gathering a group of employees together to go see a company vice president to challenge a new dress code were engaged in protected activity and overturned the disciplinary action. But in January, the Board issued a decision which just might signal a sea change in its view of what kind of complaints are protected.
In this case, Alstate Maintenance, LLC, the Board ruled that the firing of an airport skycap for complaining about poor tips was lawful. In Alstate, a skycap at New York’s JFK Airport, Trevor, was working with three other skycaps when their supervisor informed them that an airline requested skycaps to assist with a French soccer team’s equipment. Trevor then remarked, in front of his supervisor and co-workers, that, “we did a similar job a year prior and we didn’t receive a tip for it.” When the soccer team’s equipment van arrived, managers waved Trevor and the other skycaps over, but they walked away. Airline baggage handlers were then summoned to do the job. After most of the work was completed, the skycaps reappeared and pitched in at the very end. The soccer team tipped the skycaps $83.
An airport terminal manager complained to the skycaps’ employer, Alstate Maintenance, reporting that they provided subpar service and stating that she had never been so embarrassed in front of a customer. An investigation ensued, and Trevor was fired. Trevor filed an unfair labor practice charge alleging that he was fired for engaging in protected, concerted activity for mutual aid or protection under the Section 7 Act. Following a hearing, a Labor Board administrative law judge concluded that the termination as lawful because Trevor’s complaint was neither concerted nor undertaken for mutual aid or protection. The Board upheld the judge’s decision.
The Board first found that Trevor’s comment was not “concerted activity,” citing precedents in which it has 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.” Examining Trevor’s comment in context, the Board stated that “we easily find that [Trevor] did not engage in concerted activity.” The Board noted that there was no evidence that Trevor was voicing a group complaint; the Board found his use of the plural pronoun “we” not to be significant; and the Board found that there was no evidence Trevor was trying to induce group action. The Board also noted that tipping was a matter between employee and customer and did not even implicate the pay practices of Trevor’s employer.
Here are some takeaways from Alstate Maintenance for HR professionals:
- Don’t forget that even though the National Labor Relations Act is a law about unionization, Section 7 rights apply with equal force in non-unionized workplaces. With or without a union, if you discipline employees for making complaints about their jobs, you run the risk of being charged with committing an unfair labor practice.
- Even though the Labor Board ultimately found that Trevor’s firing was lawful, I advise employers to think long and hard before sacking employees for raising concerns about working conditions. Employers should have a thick enough skin to accept that employees will sometimes beef about their jobs. Imagine if, instead of firing Trevor, a manager, with support from HR, had held a positive coaching meeting to remind Trevor that as a skycap who receives a fair hourly wage in addition to tips, he is expected to give all customers high-quality, courteous service, regardless of whether they tip and regardless of whether he regards a given tip as generous? What if Alstate had given Trevor a second chance? The employer probably would have saved itself a lot of money and grief.