The National Labor Relations Board (NLRB) recently held that the firing of an airport skycap—who refused to help a French soccer team with their baggage because they were “poor” tippers—was legal because the skycap’s complaint about tips was not a protected concerted employment activity.1
Lufthansa had requested that Alstate Maintenance LLC (Alstate)—a ground service provider at JFK Airport—provide skycap assistance to a French soccer team arriving that evening on a Lufthansa flight. Upon receiving notification of the job, one of the skycaps told the others: “We did a similar job a year prior and we didn’t receive a tip from it.” Accordingly, because they did not think they would receive an adequate tip, the skycaps did not assist the soccer team with their baggage and equipment after arrival. Alstate was required to bring in a group of baggage handlers to do the work and, only after this occurred, did the skycaps begin to assist the soccer team.
Notwithstanding the skycap’s initial refusal to assist, Lufthansa ultimately tipped the skycaps itself. As a result of the incident, Alstate fired the four skycaps involved in the incident and all four filed grievances with their union. After a period of time, three of the four skycaps were offered employment with Alstate’s sister company. The fourth skycap, who had instigated the incident and made the comment about poor tipping, was not offered employment.
After receiving a charge from the skycap’s union, the NLRB issued a complaint against Alstate, alleging that Alstate fired the skycap because of his complaint about tips (both before and during the incident) and his refusal to assist. The NLRB asserted that skycap’s activity was, in effect, a complaint about wages and, therefore, was protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Activity is concerted under Section 7 if it is ordinarily engaged in by two or more employees, or is the activity of a single person performed on behalf or in the interests of other employees. In contrast, activity by a single person is not concerted if it is performed for that person’s own personal benefit. Thus, to fall within the protection of Section 7, the individual’s activity must have some relationship to the wages, hours or other terms and conditions of employment, and not to matters that are personal and unrelated to those subjects.
Based on this definition, the NLRB Administrative Law Judge (ALJ) held that the statement by the skycap (“We did a similar job a year prior and we didn’t receive a tip from it”) did not constitute a concerted activity because it was not a complaint about wages, hours or other terms and conditions of employment. Rather, it was simply an “offhand gripe about his belief that French soccer players were bad tippers.” Although he acknowledged that skycaps derive much of their income from tips, the ALJ noted that tips are gratuities received from customers and thus cannot be construed as wages paid by the employer.2 The ALJ concluded by noting that a comment about poor tipping habits could not have been addressed by Alstate because it was outside of Alstate’s control. Accordingly, the ALJ held that the skycap’s comment did not constitute protected, concerted activity, and recommended that the complaint be dismissed. This decision makes it clear that a skycap’s complaints about tipping habits do not relate to wages and, therefore, are not protected under the NLRA. In so doing, it clarifies the scope of concerted activity under the NLRA and provides helpful guidance for ground service providers who may face similar complaints from their employees.
1 Alstate Maintenance LLC and Trevor Greenidge, an Individual, No. 29-CA-117101 (Nat’l Labor Relations Bd. June 24, 2016).
2 Indeed, in this case, the NLRB found that the tips were “twice removed” from Alstate because they were received from the soccer team, who were Alstate’s customer’s customers.