The National Labor Relations Board (NLRB) again makes it easier for employees—both union and nonunion—to be deemed to have engaged in concerted activity protected by the National Labor Relations Act (NLRA) by overruling its decision in Alstate Maintenance, LLC and Trevor Greenidge, 367 NLRB 68 (2019). The NLRB’s new decision in Miller Plastic Products, Inc., 372 NLRB 134 (2023), rejects the five-factor test laid out in Alstate, and returns to a “totality of the record evidence” standard to determine whether an employee engaged in concerted activity.

Background
Ronald Vincer was employed by Miller Plastic Products, LLC as a fabricator. The employer periodically counseled Vincer about performance deficiencies, including excessive talking, using his cell phone, and distracting coworkers. On March 16, 2020, the same day the Pennsylvania Governor announced a stay-at-home order, the COO called an all-hands meeting to share his belief that the company would be considered an essential business and outline the health and safety measures being taken. Vincer stated that the company did not have the proper precautions and that “we shouldn’t be working.” After the meeting, Vincer continued to discuss concerns regarding the employer’s COVID protocols with colleagues and management. A little over a week later, Vincer was observed using his cell phone and recommended to be terminated without investigation. The question raised to the NLRB was whether Vincer was unlawfully terminated because, under Alstate, his COVID-related complaints constituted mere individual griping, not concerted and protected activity under the NLRA

“Concerted” Activity
Section 7 of the NLRA guarantees an employee’s right to engage in protected concerted activity. For an activity to be “concerted,” an employee’s statement to a supervisor must either bring a group complaint regarding a workplace issue to the attention of management or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate group action.
In this case, the NLRB found that Alstate established an unduly restrictive test. Instead, the Board returned to the Meyers Industries series of cases, under which “the question of whether an employee engaged in concerted activity is, at its heart, a factual one based on the totality of the record evidence.”

Notably, the NLRB in Miller clarified:

• Activity between a speaker and a listener can be concerted, “for such activity is an indispensable preliminary step to employee self-organization.”
• An employee does not need to expressly state their intent to induce group activity, as such intent could be implied from the context.
• Generally, the NLRB has consistently found a single employee’s activity to be concerted if it is in front of their coworkers and involves terms and conditions of employment common to the employees present.
• Asking questions is often an indirect way of criticizing and inciting others to oppose a new policy and therefore can constitute concerted activity.

Applying the totality-of-the-circumstances standard, the NLRB found that Vincer’s conduct was for mutual aid or protection, thereby engaging in concerted activity, and thus, his discharge was unlawful.

Takeaway
The Miller ruling makes it more difficult for employers to defend against claims that employee complaints do not constitute concerted activity. Employers should remain cautious when disciplining employees for actions taken in a group setting as well as for seemingly individual questions and complaints. Employers will need to carefully examine the totality of the circumstances surrounding the activity. This is particularly important in a meeting where an employer announces a decision affecting a term or condition of employment.