September 20, 2017

September 20, 2017

Subscribe to Latest Legal News and Analysis

September 19, 2017

Subscribe to Latest Legal News and Analysis

September 18, 2017

Subscribe to Latest Legal News and Analysis

Labor Law Lessons from Our Favorite Films: Dirty Dancing

There are films with clear labor law undertones, such as On The Waterfront and Norma Rae. The National Labor Relations Act and its teachings, however, lurk in other pop culture examples.

Thirty years ago, the romantic drama, Dirty Dancing premiered. The plot centers around the relationship between Baby (Frances) Housman (coincidentally, named after the first female Secretary of Labor) and Johnny Castle, a staff dance instructor, during the summer of 1963 at Kellerman’s, a fictitious Catskills resort.

When brazen thieves start stealing money and jewelry from guests all across the Catskills, one of the resort’s guests who had a previous relationship with Johnny reports Johnny as a burglary culprit to Kellerman’s management in retaliation.

Johnny denies involvement in the burglaries (more on Weingarten rights in a later post) and Baby even pleads to the resort’s owner to consider an elderly couple as possible suspects. When that fails, Baby provides a critical alibi for Johnny (that she was with him on the night of the burglary). Johnny is terminated anyway.

However, in a critical plot twist, Baby was right — the elderly couple were the culprits. However, Johnny delivers bittersweet news:

Frances “Baby” Houseman: They fired you anyway because of me!

Johnny Castle: And if I leave quietly, I’ll get my summer bonus.

Labor law questions/lessons:

Did Kellerman’s violate the NLRA by keeping Johnny from engaging in protected concerted activity under the NLRA by threatening to withdraw a benefit (his summer bonus) in exchange for his silence? Johnny could argue that he reasonably feared he would face reprisal if he shared his concerns with his coworkers about how Kellerman’s addressed false accusations. In defense, Kellerman’s could assert that Johnny’s scenario amounts to nothing more than his individualized gripe (i.e., his discipline does not involve other employees) and does not qualify as concerted activity. Kellerman’s also could defend by arguing that at the time he was told to keep quiet, he already had been terminated, and thus, was no longer an employee under the NLRA. However, Section 2(3) of the NLRA defines “employee” to include those who have been terminated as a result of an unfair labor practice. Under the current state of the law, the National Labor Relations Board likely would side with Johnny on that issue.

Kellerman’s is not out of options in defending against Johnny’s claim, however. Under the Wright Line theory (the case is from 1980, but we need to suspend reality just a little bit here), Kellerman’s would not be liable if it could show it would have terminated Johnny regardless of whether he engaged in protected concerted activity. Here, Kellerman’s could argue that romantic relationships between staff and guests are prohibited. Of course, Johnny would have the opportunity to rebut that explanation as pretextual, perhaps by showing that other staff members engaged in similar activity, but were not disciplined.

Under a pro-employee, Kennedy-era NLRB, odds would be on Johnny in this dispute. However, under the soon-to-be newly composed Trump-era NLRB, the odds certainly shift in Kellerman’s favor. Stay tuned — Johnny (and his union) may have other unfair labor practices for us to consider in the coming weeks.

Jackson Lewis P.C. © 2017

TRENDING LEGAL ANALYSIS


About this Author

Daniel D. Schudroff, Jackson Lewis, Employment Litigation Lawyer
Associate

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.  His practice is focused on traditional labor matters, employment litigation, and counseling.  Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of...

(212) 545-4000
Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

212-545-4000