United States: In Another NLRB Shift, An Employee's Complaint Was A Mere Gripe And Not Protected Concerted Activity Under NLRA

Last Updated: April 10 2019
Article by Francine Esposito and Gregory S. Tabakman

Section 7 of the National Labor Relations Act protects employees—both union and nonunion—who engage in "concerted activities for the purpose of ... mutual aid and protection." However, not all employee complaints are shielded from consequence, and the National Labor Relations Board outlined a clear standard of determining what conduct is protected when it recently upheld the discharge of an airport skycap who commented about the lack of tip from a particular group of travelers.

Skycaps assist passengers with their luggage outside airline terminals and make a majority of their income from tips received from such passengers. One day, an airline requested that skycaps assist with a traveling soccer team's equipment. A skycap, in front of three others, told his supervisor, "We did a similar job a year prior, and we didn't receive a tip for it." When the soccer team arrived, the skycaps walked away, and it was reported they did not want to do the work because they anticipated receiving too small of a tip. Airline baggage handlers completed a majority of the work before the skycaps joined, and the skycaps ultimately received $83 in tips. After the airline complained about subpar service, the skycaps were discharged. The one skycap's discharge letter stated that he made his tip comment in front of other skycaps and his manager. The skycap alleged that his discharge violated the NLRA.

In its Alstate Maintenance and Trevor Greenidge decision, a majority of the Board disagreed and overturned a 2011 Board decision that it claimed "blurred the distinction between protected group action and unprotected individual action." The Board held that the skycap's comment was not "concerted activity" just because he complained in front of others and used the pronoun "we." To be concerted activity, either an individual employee's statement to a supervisor must bring a truly group complaint regarding a workplace issue to management's attention, or the totality of the circumstances must support a reasonable inference that the employee's statement was seeking to initiate, induce or prepare for group action. As such, the Board outlined a "clear standard that can be relied upon" by employers and employees, comprised of five factors to consider in determining whether activity is concerted:

  1. whether the statement was made at a meeting called by the employer to announce a decision affecting employees' terms and conditions of work;
  2. whether the decision affects multiple employees attending the meeting;
  3. whether the employee who speaks up does so to protest the decision, not simply to ask questions about the implementation of the decision;
  4. whether the employee protested the decision's effect on the workforce generally or some portion of it, and not simply on his/her employment; and
  5. whether the meeting was the first opportunity employees had to address the decision, so the employee could not have discussed it with other employees beforehand.

In this case, the Board held that the skycap's comment did not bring a group complaint to management or attempt to induce group action. The Board stated that "[w]here a statement looks for no action at all, it is more than likely mere griping." It further held that the comment was not made at an employer-called meeting to announce a policy change and there was no subsequent protest—"a supervisor made a work assignment, [the employee] grumbled about it, and that is all."

The Board went a step further and held that, even if it was concerted activity, the comment was not "protected" as having been made for the purpose of mutual aid and protection because it did not relate to the skycaps' wages, hours or other conditions of employment. Rather, the Board noted that a tip is between the passenger and the skycap, a decision in which the "employer is essentially detached." Moreover, relying on the employee's admission that his remark was "just a comment" and not intended to change company policy or practice or induce any action on the part of the employer, the Board concluded that the comment was not aimed at improving the skycaps' working conditions or modifying any existing tipping arrangements.

The lone Democratic Member of the Board dissented, making several arguments that the comment was protected concerted activity, including that 1) the employee objected to his supervisor about taking the job because of a poor tip, lodged a complaint in front of co-workers and prompted his supervisor to notify his superiors; 2) tipping was a matter of interest to all the skycaps, and the comment sought to induce action since the skycaps then refused to take the job; and 3) the "obvious" concern was that the skycaps be compensated fairly for their work, and that by broadly holding that tips are not a matter of mutual aid or protection, the Board "unquestionably curtailed" the NLRA's protections for tipped employees who engage in any concerted activity related to this important component of their job.

The Board's decision in this case should serve to assist employers and employees in determining whether conduct is within the protection of the NLRA. Nevertheless, given the associated dangers, employers should seek advice from legal counsel prior to taking action against employees for comments or other potential concerted activities that relate to their employment.

Click here to read further Insights from Day Pitney

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions