Alstate Maintenance LLC

National Labor Relations Board - Administrative Judge Opinions

Jun 24, 2016

29-CA-117101 (N.L.R.B. Jun. 24, 2016)

JD(NY)-18-16
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ALSTATE MAINTENANCE LLC
And Case No. 29–CA–117101
TREVOR GREENIDGE, an Individual
Colleen Breslin Esq., for the
General Counsel.
Ian B. Bogaty Esq. and
Kathryn J. Barry Esq., for the
Respondent.
Brent Garren Esq., for Local 32B/J
SEIU.
Decision
Statement of the Case
RAYMOND P. GREEN, Administrative Law Judge. I heard this case on various dates in
Brooklyn, New York. The charge in this proceeding was filed on November 13, 2013, and the
complaint was issued on November 21, 2014. In substance, the complaint alleged that on or
about July 19, 2013, the Respondent discharged Trevor Greenidge because of his concerted
activity of complaining about the amount of tips received.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
Findings and Conclusions
I. Jurisdiction
The parties stipulated that Alstate Maintenance, LLC, located in Rockville Centre, New
York, is engaged in providing ground services at JFK Airport. They also stipulated that during
the past calendar year, it purchased and received at its Rockville Center facility goods and
supplies valued in excess of $50,000 directly from points outside the State of New York and
performed services valued in excess of $50,000 for Lufthansa Airlines, Air France and Aero
Mexico, which are themselves directly engaged in interstate commerce.
The question here is whether Alstate as a contractor performing services for airlines, is
exempt from the NLRA’s jurisdiction and should be covered by the Railway Labor Act. Section
2(2) of the National Labor Relations Act excludes any person subject to the RLA.
This case is related to Case 29–CB–103994. That case, although involving a different
set of transactions, involved the same employer. And for the same reasons set forth in that
JD(NY)-18-16
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case, JD(NY)–12–16, I find that Alstate is not covered by the National Mediation Board, but is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. The alleged unfair labor practice
5
Alstate has a contract to perform services for an airline consortium at terminal 1 located
at JFK airport. Among the airlines using this terminal is Lufthansa. Alstate’s employees are
classified as skycaps, wheelchair agents, baggage handlers, passenger service agents,
boarding gate agents, and CTX baggage handlers.
10
Trevor Greenidge, at the time of his discharge, was employed as a skycap. In this job,
he earned the minimum wage for tipped employees and the remainder of his income consisted
of passenger gratuities. And although the minimum wage for skycaps is lower than for others, it
appears that this is a desired job because tips more than compensate for the lower wage rate.1
15
During the evening of July 17, 2013, Greenidge was working at terminal 1 with a group
of other skycaps whose names were Allan Wills, Terrence Boodram, and Basil Rodney. From
the account of the witnesses, this was a slow time.
At some point during the early evening, the skycaps were notified by Respondent’s 20
supervisor, Crawford, that Lufthansa Airlines had requested Alstate to provide four skycaps to
meet and assist a van that was soon to arrive with a soccer team and their equipment. Upon
receiving this notification Greenidge commented to the other skycaps that: “We did a similar job
a year prior and we didn’t receive a tip for it.”
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The credible evidence shows that when the van arrived, the four skycaps did not go to
the van to offer assistance in unpacking the luggage. Instead, despite being waved over, they
walked away. At this point, Lufthansa’s manager, Isabelle Roeder, told the terminal one
Manager, Klaudia Fitzgerald, that there was no one willing to assist with the baggage. Shortly
thereafter, while Roeder was standing outside with the van, Alstate’s supervisor, Crawford, told 30
her that the skycaps did not want to take the equipment because they did not think that they
would get a big enough tip. In my opinion, the skycaps simply refused to assist the soccer team
with their equipment and luggage and thereby refused to do their jobs. It is also clear that their
refusal was based on the belief that the soccer team would not be generous in their tips. The
result was that Alstate brought in a group of baggage handlers to do the work and only after the 35
baggage handlers started bringing in the luggage, did the skycaps begin to assist the customer.
Notwithstanding the initial refusal of the skycaps to assist, Lufthansa gave them an $83-tip.
With respect to the above, it should be noted that although tips comprise a substantial
part of a skycap’s income, it cannot be construed as a wage that is paid by their employer. For
better or worse, the custom of tipping in the United States, puts the onus on the customer and 40
not the employee’s employer. If a customer refuses to tip (or gives an inadequate tip), this is
not a matter that is addressable between the employee and his or her employer. In this case,

1
The General Counsel claims that the minimum wage paid to skycaps and skycap captains was lower
than what was permitted under the relevant wage-and-hour laws. She cites to the fact that several
months after Greenidge was discharged, the New York Attorney General’s Office began an investigation
regarding their pay rates. I do not know whether the skycaps were paid in accordance with either Federal
or State law and it is not within my jurisdiction to make such a determination. More importantly, for
purposes of this case, there is no evidence that Greenidge initiated or was involved in that investigation or
that the Respondent was motivated by that investigation in its decision to discharge him.
JD(NY)-18-16
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the reason for the refusal to perform work was the perceived dissatisfaction with the customer
and not with Alstate. Perhaps it would have been a different matter, if Greenidge and the other
skycaps had concertedly complained to Alstate and engaged in a work stoppage in order to
compel the Respondent to raise their wages or in some other fashion compensate them in lieu
of tips.2 But that is not what happened here. This particular dispute was between the skycaps5
and the soccer team. It was not between the skycaps and the Respondent.
That night, Fitzgerald sent an email to Alstate’s managers, Deb Traynor and Vince
Orodisio and to Ed Paquette, the manager of terminal one. This stated:
As you may be aware, a French soccer team is travelling on LH405 tonight 10
and on behalf of Lufthansa, we had requested skycap services. There were no
issues with the soccer team players regular baggage as they dropped them off
directly at the pit, however, the equipment was a totally different story. At
approximately 1900 hrs, we were advised by LH that the truck with the
equipment was stuck in traffic and wasn’t going to arrive for at least another 15
hour, but at 1920 LH ASM Isabelle informed that the equipment should be
arriving in the next five minutes. I requested assistance from Crawford via
radio to mobilize all the sky caps so that they are standing by. I observed only
one skycap standing outside, but not assisting the soccer team and LH ASM
Isabelle. I proceeded outside and at this point Crawford was explaining to 20
Isabelle that the skycaps don’t want to handle it because of the large quantity
of bags and a small tip. I interjected and instructed Crawford to get all the
skycaps on departures by revolver #2 to handle these bags immediately. As
per Crawford and LH Isabelle, Wills was one of the skycaps who refused to
assist and eventually showed up after being called on the radio for the third 25
time. I believe Crawford will fill you in with the additional details as to who
were the other employees and supervisors being uncooperative. In attempt to
compensate for the mishandling, I asked Crawford to send over few [sic]
baggage handlers to assist and Crawford went above and beyond to do so.
One of the soccer coaches said to LH ASM that they might as well handle 30
these bags themselves. Even after providing this substandard service, the
skycap captain received a tip from LH Isabelle. I’m wordless; how service
provider [sic] employees don’t comprehend their job descriptions, why they
have jobs and would refuse to provide skycap services to a partner carrier or
any customer for that matter. I must say that in my entire professional career I 35
have never been this embarrassed in front of the customer and I expect that
you thoroughly investigate and take appropriate action immediately. I had
personally apologized to LH ASM Isabelle on behalf of Terminal One and
Alstate, but would highly suggest that you do the same.
40
On the following morning there was a series of emails between Paquette and Alfred
DePhillips. The first of which was sent at 5:28 a.m.
This is totally unacceptable and embarrassing to say the least. I expect a full
report on my desk before lunchtime.45

2
For example, in many European countries, restaurants add a service charge to a customer’s bill and
customers are not expected to tip the restaurant’s staff.
JD(NY)-18-16
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I want each of the SKYCAPs involved removed from the Terminal One project
immediately, the supervisors as well. I do not need supervisors on duty who
cannot control their people.
Figure out how you are going to cover the vacancies as I also expect
uninterrupted service.5
At 12:25 p.m., Paquette sent a second email that stated:
It’s now 12:30 and I have yet to hear from anyone regarding this incident or the
one Neil sent to you regarding wheelchairs.10
If I do not hear from someone shortly I will pull everyone I think was Involved
from the swipe system. 3
At 12:37 p.m. DePhillips replied:
15
We have not ignored the issue at hand. We are currently finishing our
investigation. Our report will be to you shortly.
At 1:07 p.m. Deborah Traynor responded to Paquette’s email. This read:
20
Based on my investigation this morning all 4 skycaps will be removed from
service, it is unacceptable to Alstate as well to speak or behavior [sic]
unprofessional [sic] at any time while doing your Job. Based on the video
footage I watched, the equipment was taken from the truck into the terminal
in 12 minutes. I do understand that it was not the service provided but the 25
lack of professionalism on Alstate employee’s part. I assure you that the
removal of this employees will not impact Terminal Ones operation
At 2:35 p.m. Paquette replied to Traynor’s email and stated:
30
Can I please have the names of the four individuals so that I can have Gary
remove them from the Terminal One system.
Subsequent to this exchange of emails, the respondent, by Traynor, informed each of
the four skycaps that they were discharged for the circumstances surrounding the Lufthansa35
incident. The discharge letter to Greenidge states:
You were indifferent to the customer and verbally make comments about the
job stating you get no tip or it is very small tip. Trevor, you made this comments
in front of other skycaps, Terminal One Mod and the Station Manager of 40
Lufthansa.
The letters given to the other skycaps also indicate that the reason for the discharges
was because of their refusals to perform their duties and the comments made about tipping.
45
After the four skycaps were discharged, they filed grievances with Local 660, United
Workers of America which at that time had a contract with the Respondent. It appears that after

3
The swipe system refers to the use of a card that allows a person entry to certain nonpublic parts of the
terminal.
JD(NY)-18-16
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a period of time, the other three skycaps were offered jobs at the Respondent’s sister company,
Airway Cleaners. Goodridge was not offered employment.
Analysis
5
In pertinent part, Section 7 of the Act states:
Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of 10
collective bargaining or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities…
The provisions relating to “other concerted activity” for the purpose of “other mutual aid
or protection,” are interpreted broadly and encompass activity that need not be related to union 15
activity. Brown & Root, Inc. v. NLRB, 634 F.2d 816, (5th Cir. 1981) (refusal to work in the face
of dangerous working conditions); Walls Mfg. Co. v. NLRB, 321 F.2d 753 (D.C. Cir.) (writing a
letter about sanitary conditions on behalf of fellow employees).
In order to be covered by Section 7, the activity must be concerted in the sense that it is 20
ordinarily engaged in by two or more employees. However, the Board has found that actions by
an individual employee may be construed as concerted in a variety of circumstances. For
example, if an individual seeks to enforce a collective-bargaining agreement by, for example
filing a grievance involving only himself, this will be construed as concerted because it is in
furtherance of enforcing a collectively bargained contract. NLRB v. City Disposal System, 465 25
U.S. 822 (1984). Also, activity by a single person may be construed as concerted if it is done in
an effort to gain the support of other employees for some type of action, or if it is done on behalf
of or in support of the interests of other employees. 200 East 81st Restaurant Corp. d/b/a
Beyoglu, 362 NLRB No. 152 (2016) (lawsuit filed by an individual as a class action for overtime
wages construed as concerted activity). 30
On the other hand, activity by a single individual for that person’s own personal benefit is
not construed as concerted activity. NLRB v. Adams Delivery Services, 623 F.2d 96 (9th Cir.
1980) (individual griping about his overtime pay was not concerted activity); Pelton Casteel Inc.,
v. NLRB, 627 F.2d 23 (7th Cir. 1980) (venting of personal grievance not concerted activity). 35
In order to fall within the protection of Section 7, the activity has to have some
relationship to the wages, hours, or other terms and conditions of employment of employees
and not to matters that are personal or unrelated to those subjects. MCPc, Inc., 360 NLRB No.
39 (2014); Plumbers Local 412, 328 NLRB 1079(1999). For example, in Waters Orchard Park, 40
341 NLRB 642 (2004), a Board majority concluded that two employees who called a New York
State hotline to report that patients were experiencing excessive heat were not engaged in
protected activity. Two of the Board members stated that the employees’ calls to the hotline did
not involve a term or condition of their employment and were not otherwise an effort to “improve
their lot as employees.” They concluded that this only involved a concern for the quality of care 45
of patients, and therefore did not involve the interests “encompassed by the mutual aid or
protection clause.” In a concurring opinion, member Meisburg stated that “the statutory
language is not infinitely malleable. It was not intended to protect every kind of concerted
activity, no matter how salutary.” He went on to state; “Absent an intent to improve wages, hours
or working conditions, concerted action of the type in this case cannot be deemed” “mutual aid 50
JD(NY)-18-16
6
or protection” because the employees testified that their sole motive was to act in the interests
of their patients.
In Metro Transport LLC d/b/a Metropolitan Transportation Services; 351 NLRB 657,
661–662, (2007) the claim was that a group of mechanics were unlawfully suspended because 5
they protested the discharge of a supervisor. In concluding that this was not concerted activity
for mutual aid and protection, the Board, with Member Liebman dissenting, applied a three part
test: (1) whether the protest originated with the employees rather than other supervisors; (2)
whether the supervisor at issue dealt directly with the employees; and (3) whether the identity of
the supervisor was directly related to the employees’ terms and conditions of employment. The 10
Board majority noted that even assuming that the first two parts of the test were met, the
suspension allegation had to be dismissed because there was no relationship between the
supervisor and the mechanics’ terms and conditions of employment. The Board noted that the
record showed that the mechanics were only concerned with the supervisor’s employment
situation and made no mention of their own interests. 15
In my opinion, Section 7 affords employees protection for engaging in concerted activity
for their mutual aid and protection but this encompasses matters relating to their own or to other
workers’ wages, hours and/or other terms and conditions of employment. In MCPc, Inc., supra,
the Board stated:20
In agreement with the judge, we find that Galanter engaged in concerted
activity when discussing with other employees their terms and conditions of
employment—staffing shortages resulting in heavy workloads—which
constituted protected concerted activity under Meyers Industries, 281 NLRB 25
882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988). See Worldmark by Wyndham, 356 NLRB No.
104 [765], slip op. at 2 [766] (2011) (“[T]he Board has consistently found activity
concerted when, in front of their coworkers, single employees protest changes
to employment terms common to all employees.”).30
It is a violation of Section 8(a)(1) for an employer to discharge or discipline an employee
or employees who engage in protected concerted activity. In order to establish a primae facie
case the General Counsel is required to show that the employee(s) engaged in protected
activity and that the activity was a motivating reason for the employer’s action. Wright Line, 251 35
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See
NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 399 (1983) (approving Wright Line
analysis). Assuming that the General Counsel meets that burden, then the Respondent can
defend its action by establishing that it would have taken the same action notwithstanding the
employee’s concerted activity. 40
The entire theory of the General Counsel’s case is that on July 17, 2013, Greenidge
engaged in concerted activity when, while waiting for the arrival of the van carrying a French
soccer team, he said to the other skycaps; “We did a similar job a year prior and we didn’t
receive a tip for it.” This single statement by Greenidge did not call for or request the other 45
skycaps to engage in any type of concerted action or to otherwise make any kind of concerted
complaint to their employer about their wages. In my opinion, this was simply an offhand gripe
about his belief that French soccer players were poor tippers.
JD(NY)-18-16
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I also do not think that Greenidge’s comment can be construed as concerted activity
because it did not relate to the skycap’s wages, hours, or other terms and conditions of
employment.
It is of course true that for income tax purposes, tips are considered to be part of an 5
employee’s wages by the IRS. But they are not considered to be a deductible expense for the
employer as they are not construed as wages paid by the employer. Although constituting a
large portion of a skycap’s income, tips are not moneys received from their own employer.
Instead, they are received as gratuities from customers. Indeed, in this case, the tips received
by skycaps are twice removed from the Respondent as they are received from Alstate’s 10
customer’s customers. The fact is that if there was any dispute in this case, it was not between
the employees and the Respondent. As noted above, a comment about the poor tipping habits
of French soccer players was not and could not be addressed by the skycap’s employer as this
was not within Alstate’s control.
15
Accordingly, I hereby recommend that the complaint be dismissed.
Dated, Washington, D.C. June 24, 2016
20
____________________
Raymond P. Green
Administrative Law Judge
25