Labor Law Lessons from "Dirty Dancing"

The National Law Review has published an informative article titled Labor Law Lessons from Our Favorite Films: Dirty Dancing. The authors are

* Daniel D. Schudroff, a lawyer specializing in employment litigation and counseling. He advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations, and he regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act.

* Philip B. Rosen, a lawyer who lectures and advises with respect to business ethics, reductions-in-force and workplace conduct rules, wrongful discharge, union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings.

These two labor-law experts criticize the Kellerman hotel's firing of Johnny Castle.

.... Johnny denies involvement in the burglaries, 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 [National Labor Relations Act] 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.

I am happy to see professional experts such as these two lawyers writing scholarly articles about important issues raised by the movie Dirty Dancing. I look forward to their future articles about the movie.