Key Takeaways:
- On August 31, 2023, the National Labor Relations Board ("NLRB" or the "Board") released a decision broadening the protection under federal labor law for protests by individual workers that could prompt future group action.
- The decision increases the range of individual worker activities that are protected as "concerted activity"—one of the core protections of the National Labor Relations Act ("NLRA" or the "Act")—and overturns a Trump-era ruling that had narrowed the scope of that protection.
- The Board will consider the totality of the circumstances before and after an individual employee's conduct to determine whether the conduct can be considered an act to bring a group complaint to the attention of management or make an explicit or implicit call to group action. Termination of individual employees engaging in such conduct violates the NLRA.
On August 31, 2023, the NLRB released its decision in Miller
Plastic Products, Inc. and Ronald Vincer, 372 NLRB No. 134
("Miller"), in which the Board re-established a
fact-sensitive totality of the evidence test to determine whether
protests by a single worker constitute protected concerted activity
under Section 7 of the NLRA. As a result of the decision, more
types of solo employee conduct will be considered protected
concerted activity by the Board, increasing job protections for
employees engaging in such conduct.
In Miller, the Board found that a Pennsylvania-based
plastic products manufacturer violated the NLRA when it fired an
employee after he raised concerns to management and other employees
regarding the company's COVID-19 protocols and decision to
remain open for business in March 2020 amid the exploding COVID-19
crisis. When the company decided to remain open following the
Pennsylvania governor's stay-at-home and business closure order
that excepted only "life-sustaining businesses," the
employee told several other employees that he did not believe the
employer was a life-sustaining business that could remain open and
suggested someone tell the authorities that the employer remained
open in violation of the Governor's order. During a March 16,
2020 all-hands meeting on the plant floor, the employee shouted
that he and his colleagues "shouldn't be working"
because the employer did not have sufficient COVID-19 protections
in place and should not have been open. The employee also shared
his concerns about the company's COVID-19 protocols with
management and other employees. On March 24, 2020, the employer
told the employee that he was being terminated for poor attitude,
excessive talking in violation of company policy, and lack of
profit.
An administrative law judge ("ALJ") found that the
employee's conduct—raising concerns to the company about
its COVID-19 protocols and its decision to stay open for
business—was protected conduct under Section 7 because it was
both concerted and engaged in for the purpose of mutual aid and
protection. He rejected the employer's arguments that the
employee's complaints were merely "individual
griping" and the company's assertion that it fired the
employee for poor performance and violating its policies.
The Board agreed with the ALJ and concluded that the employer
illegally fired the employee for engaging in protected concerted
activity in violation of the NLRA. In reaching its conclusion, the
Board expressly reversed its 2019 decision in Alstate
Maintenance, LLC, 367 NLRB No. 68, which had narrowed the
circumstances in which solo worker protests were protected under
the NLRA. There, the NLRB ruled that solo protests are only
protected concerted activity when accompanied by evidence of group
activities occurring contemporaneously with the individual action.
The Alstate decision set forth a list of five
"relevant factors" for determining whether an
individual's action was concerted activity, including whether
the worker protested in a formal meeting announcing a change to a
job term and whether they spoke up in protest or merely to ask
questions about the employer's decision. In Miller,
the Board rejected the Alstate factors as imposing an
improper minimum threshold for showing concerted activity that
impermissibly narrowed workers' right to organize. The Board
concluded that the "unduly cramped" checklist is likely
to exclude much concerted activity from the NLRA's
protection.
Instead, the Board returned to the standard from its 1986 decision
in Meyers Industries Inc., 281 NLRB 882 (1986), which
requires a fact-specific examination of the totality of all the
record evidence to determine if a solo worker's actions are
concerted activity. Without conducting such a fact-based analysis,
the Board warned, certain concerted activities such as
"spontaneous, informal" protests and employee questions,
which, the Board noted, are "frequently an indirect way of
criticizing and drawing others to oppose a new policy," would
be left unprotected. Leaving such conduct unprotected would be
impermissible, the Board explained, because Section 7 "does
not impose artificial limits on when and how employees engage in
concerted activity."
The Board also returned to its broad definition of concerted
activity established in Meyers, which includes
circumstances where individual employees seek to bring a group
complaint to the attention of management and/or make an explicit or
implicit call to group action. The Board also reaffirmed that
activity, that at its inception, involves only a single speaker and
a listener—such as the employee's one-on-one
conversations with his supervisor in Miller—can
constitute concerted activity because such activity is an
"indispensable preliminary step to employee
self-organization." Nor must an individual's actions
derive from or arise out of existing group activity to constitute
protected conduct. Rather, it must only have some relation to group
activity, even if that activity follows the individual action.
Under the Board's totality of the evidence test, later events
can be relevant objective evidence of whether an employee's
conduct sought to initiate, induce, or prepare for group
action.
Applying this totality of the evidence test to the facts in
Miller, the Board "easily conclude[d]" that the
employee's conduct was protected concerted activity because his
comments were an outgrowth of a "truly group complaint"
and his conduct was for the mutual aid or protection of the
group.
In light of this decision, employers seeking to terminate an
employee should carefully evaluate not only the individual
employee's conduct prompting termination, but the circumstances
surrounding that conduct that might elevate the individual's
actions to protected concerted activity under the NLRA. This
decision broadens the circumstances in which individual conduct
will be considered concerted activity protected under federal
law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.