NLRB Expands What May be Considered Protected “Concerted Activity”

Ashley Graves, Associate

The National Labor Relations Board (“NLRB” or the “Board”) issued a decision on August 25, 2023, which broadens the circumstances in which the NLRB may find that an individual employee engaged in concerted activity under the National Labor Relations Act (“NLRA” or “the Act”).  Under Miller Plastic Products, Inc., concerted activity may be found if an individual employee questions the conditions of employment with management, without group involvement among the employee’s coworkers.

Miller Plastic Products, Inc. - Background

In Miller Plastic Products, Inc., the Board held that the employer violated Section 8(a)(1) of the NLRA by terminating an employee who expressed concerns about the employer’s health and safety measures during the COVID-19 pandemic and criticized the employer’s decision to remain open for business.[1]  The employer argued that the employee was terminated for legitimate work performance reasons, and also relied on Alstate Maintenance, LLC[2] to argue that the employee’s act of asking questions about COVID-19 protocols was not protected, concerted activity under the Act.[3]  

The Board disagreed and found that “asking questions is frequently an indirect way of criticizing and drawing others to oppose a new policy.”  The majority added that “Section 7 protects employees who bring a group complaint to the attention of management or make an explicit or implicit call to group action.”  Thus, the Board found that the employee’s COVID-related comments constituted concerted action because they were bringing group concerns to management’s attention.  The majority went further to find that the employee’s private conversation with management expressing concern over another employee’s sudden return to work after being exposed to COVID-19 was also concerted activity, as it was a “logical outgrowth of the truly group complaint.”

Departure from Prior Precedent and Return to Meyers II

Prior to the Alstate Maintenance decision in 2019, in Meyers II, the NLRB clarified that concerted action includes circumstances where an employee is planning for or inducing group action and even encompasses individual employees bringing truly group complaints to management’s attention.[4]  Thus, under Meyers II, the totality of the circumstances must be considered in deciding whether an action constitutes concerted activity.  However, in Alstate Maintenance, the Board disregarded this holistic approach in favor of analyzing five specific factors that ultimately narrowed which actions and statements from employees could be considered concerted for Section 7 purposes.  The majority in Alstate Maintenance held that “an individual employee who raises a workplace concern with a supervisor or manager is engaged in concerted activity if there is evidence of . . . prior or contemporaneous discussion of the concern between or among members of the workforce.”  

The Board in Miller overruled Alstate Maintenance because its analysis of concerted activity “invited unwarranted restrictions on what constitutes concerted activity under Section 7 of the Act[.]”  The majority added that it is unnecessary that the action or statement be derived from group action, and instead, it must merely appear that conduct was engaged in with the object of initiating or inducing group action, or that it is related to group action in the interest of employees, thereby returning to the more holistic standards previously set forth in Meyers II.

Employer Considerations

The NLRB’s departure from Alstate Maintenance and its return to a more expansive interpretation of concerted activity reflects the current Board’s ongoing trend of overturning its own relatively recent precedent established during the Trump administration.  Employers should be cognizant that even ostensibly private complaints made by individual employees to management outside of a group setting may be considered protected, concerted activity, when evaluated under the Board’s totality of the circumstances test.

[1]Miller Plastic Products, Inc., 372 NLRB No. 134 (2023)

[2]367 NLRB No. 68.

[3]Section 8(a)(1) of the Act makes it an unfair labor practice “to interfere with, restrain, or coerce employees” when they are exercising rights guaranteed to them under Section 7 of the Act.  Section 7 protects employees who engage in concerted activity for the purpose of mutual aid or protection.

[4]Meyers Indus., 281 NLRB 882 (1986)