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September 11, 2023
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On August 31, 2023, the National Labor Relations Board issued a decision in Miller Plastic Products, Inc. that will make it easier for a single worker’s action to be considered “concerted” under the National Labor Relations Act. In a 3-1 decision, the Board overruled its 2019 decision in Alstate Maintenance, which had narrowed the circumstances in which the Board considered solo protests to be concerted activity and, thus, protected activity under the NLRA.

For reference, in Alstate Maintenance, an employee working at JFK International Airport was terminated for a comment he made about not receiving a tip. Specifically, the employee in Alstate Maintenance made his comment about poor tips to a manager with colleagues nearby. In determining whether the employee’s solo action constituted concerted activity, the Board found that he was raising a “purely personal grievance” as opposed to a group complaint. As such, the comment did not reflect a group complaint nor an intent to initiate a group action. The Board in Alstate Maintenance listed several relevant factors to determine if a solo action constituted concerted activity, including whether the employee protested a change in job terms in a formal meeting and whether there was an actual objection as opposed to a question about a change.

The Board in Miller Plastic rejected the Alstate Maintenance decision, finding that it “imposed significant and unwarranted restrictions on what constitutes concerted activity.” The Board in Miller Plastic held that Alstate Maintenance had adopted an unduly restrictive test for defining concerted activity by introducing a rigid checklist of factors in place of the Board’s more holistic approach that was applied in the past. Indeed, the Board in Miller Plastic has effectively reaffirmed the principle originally announced in Meyers Industries, which held that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” Applying these principles, the Board in Miller Plastic held that the employer violated the Act when it fired an employee for blurting out during a March 2020 meeting that he and his co-workers “shouldn’t be working amid the exploding COVID-19 crisis.”

Moving forward, an employee’s conduct will be considered protected activity based on the “totality of the record evidence,” which will include all relevant facts and circumstances. Chairman of the NLRB, Lauren McFerran, sees its return to the “holistic” approach as beneficial to employees, as she stated, “[b]y returning to the Board’s traditional approach, we better protect employees who seek to improve their working conditions.”

In keeping with its recent trend of employee-friendly decisions, the Board’s recent decision in Miller Plastic could lead to more decisions where an employee’s solo action, such as voicing a complaint during a work meeting, is considered protected activity under the NLRA. This decision will also make it more difficult to predict what solo actions are considered protected activity and which are merely personal gripes, as each case will be fact-specific.

If you have questions about the Miller Plastic decision or wish to discuss how it may impact your business, please contact a member of the McNees Labor & Employment Group.