Joel Dillard & Associates

Representing Working People

The NLRB gaslights labor lawyers with its absurd Alstate Maintenance decision.

For some time now I’ve been meaning to write about the National Labor Relations Board’s decision in Alstate Maintenance, LLC, 367 NLRB No 68, which came out last year. But I just can’t.

It’s too outrageous. I cannot even fathom how the Board somehow thinks it is free to rewrite Supreme Court decisions. This issue was settled, resolved, completely put to bed by perhaps my favorite case of all time, NLRB v. Washington Aluminum, 370 U.S. 9 (1962).

And the majority doesn’t even mention it. It makes no effort to try to distinguish or explain what it is doing on this backdrop. Almost like the majority is completely unaware of the case. Which they aren’t. Every single one of those guys read this case in law school, I can promise you. And the dissent, in the very first sentence, pointed out the great big Washington Aluminum problem the majority was ignoring.

Thing is, they could confront the issue and explain their reasoning, try to explain why Washington Aluminum proved unworkable, or somehow problematic, and justify a change in the rules. But they cannot just ignore it. They just can’t.

In Washington Aluminum an employee said to his coworkers something to the effect of it is too cold in this factory with the heaters broken, we can't work in these conditions. Lets get out of here. And they left. This was concerted activity, because they acted together to address an issue at work.

In Alstate Maintenance an employee (a Skycap) said to his coworkers something to the effect of these guys don't tip, and they are always terrible to work with, let's not serve them. And so they refused them service. The Board said this was not concerted because... I don't know, um, reasons? I still cannot tell what the actual reasoning is here.

I could see saying what the Skycaps did in Alstate Maintenance was perhaps unprotected if they crossed the line to inappropriate conduct, but to say it was not CONCERTED? They f....... I mean, they walked off. THEY walked off. As a group. TOGETHER. That’s what concerted means. It was literally the facts of Washington Aluminum. And it was obviously about the terms and conditions of work. Tips are compensation under the FLSA. To say they are just a matter between the customer and employee is basically making every customer harassment or mistreatment case outside the purview of the Act. Every single sentence in Alstate Maintenance makes me feel like I’m losing my mind, like somehow maybe I’m the crazy one, as if I’m missing something somewhere. The Board is gaslighting me.

So I guess I’m not going to write a blog post about Alstate Maintenance. I just cannot handle it right now.


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