United States: NLRB Protects Solo Worker Protests As "Concerted Activity" Under Federal Labor Law

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.

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