by Phil Wilson

The worst job I ever had was waiting tables at Pizza Hut in Sapulpa Oklahoma. One of the (many) things I hated about that job was tips. In 1985 people didn’t tip a 16-year old boy waiting tables at the Pizza Hut in Sapulpa Oklahoma. Almost never.

Now I’ll be the first to admit that one explanation for my meager tip income may be related to my less than stellar table-waiting skills. Part of it certainly was that we were not a fine dining establishment (although Pizza Hut was what counted as fine dining in Sapulpa). But I did get a little dejected when I took great care of a table only to find a big fat goose egg in the tip column. I’d complain to my manager but she treated this situation like she did everything else, by promptly ignoring it. Mercifully I got promoted to the kitchen after a few months.

I thought about this formative time when I read through the recent Alstate Maintenance decision from the NLRB. In Alstate an airport baggage handler complained to his supervisor - in front of his coworkers - about being assigned to help the French soccer team with their luggage. His complaint was that skycaps helped the French team the year before and didn’t get a tip. The supervisor promised to raise the concern but told them to help with the luggage. The skycap and his co-workers delayed for a while but eventually they did help the team. Later, after reviewing the situation, Alstate decided to terminate the skycap because he was “indifferent to the customer” and complained about the job in front of coworkers.

The NLRB found that the skycap’s complaints about the French soccer team were not protected concerted activity and therefore upheld the termination. The 3-1 NLRB majority overturned the 2011 WorldMark decision and returned to the question of protected concerted activity to the Myers line of cases. Generally, the Act does not protect individual complaints. The question in cases like this is when does an individual complaint rise to the level of protected activity?

Under Alstate Maintenance, just because an individual gripe is made around coworkers and a supervisor, does not give it protection. To gain protection the statement must either be a true group complaint or be a clear attempt to instigate or prepare coworkers for group action.

This decision makes a lot of sense. The Obama Board made every effort it could to expand the types of activity that qualify for protection under the Act. Pretty much any complaint made around others (in real life or online) qualified for protection under WorldMark. Alstate just puts the law back on the very reasonable ground under Myers.

The general impact of this decision is limited. The only activities that lose protection under Alstate are individual gripes that happen to be made in the presence of others. A very broad range of workplace complaints still qualify for protection if they are done in a concerted manner. 

When I complained to my manager at Pizza Hut about my tips that was about me. While I wish my complaint had gotten more consideration that “meh,” it was me griping about my situation. There is no reason the federal government should be stepping into situations like that. If instead I had made the complaint about all wait staff or was encouraging all wait staff to join me in complaining, that’s different. 

From a policy standpoint this decision also makes sense. If the purpose of the NLRA is to encourage and protect collective action, the act shouldn’t protect individual complaints. The fact that the Act only protects collective action should, on balance, encourage individuals to take group action instead.

The vast majority of what was considered protected concerted activity remains. Almost any complaint about work qualifies for protection if it is made on behalf of coworkers or intended to encourage coworkers to take group action. The big difference after Alstate is just making an individual gripe in front of coworkers or on social media will no longer qualify for protection. The Act was never designed to protect such activity.

Employers can rest a bit easier after Alstate. The Ring Board signaled here that a lot of the nuisance PCA cases involving individual gripes won’t be considered. It gives employers a bit more confidence about when a gripe rises to the level of protected activity. At the same time, these cases are always very fact-sensitive and potential employee relations landmines. For that reason, it is important to take every employee complaint seriously and to save disciplinary action for only the most serious situations.

Finally, I’d like to applaud the Ring Board for this decision. The Worldmark decision is just one of many Obama-era decisions that overturned years of Board precedent that I hope will get more thorough consideration than my complaint to my Pizza Hut manager. Have a great month.