Board Overturns Alstate Maintenance, Reestablishing the Totality of the Circumstances Test for Determining Whether an Employee’s Solo Conduct is Protected, Concerted Activity

When is the action of one employee protected, concerted activity? The National Labor Relations Board answered this question in Miller Plastic Products, Inc. 372 NLRB No. 134 (Aug. 25, 2023) by returning to the totality of the circumstances test for determining whether an employee acting on their own is engaged in protected, concerted activity.

The employer in Miller Plastics manufactures plastic storage containers. At the onset of the COVID-19 pandemic, an employee raised concerns about the employer’s COVID-19 policies, including the decision to remain open. The employer terminated this employee soon after he raised these concerns. The Board in Miller Plastics determined that the employee’s COVID-related concerns were concerted activity under the totality of the circumstances because they sought to bring “truly group complaints to the attention of management.” The ultimate question for the Board was whether the employee had engaged in “concerted” activity under Section 7 of the NLRA.

The Board reaffirmed that action by one employee is “concerted” (1) when it involves other employees, or is on the authority of other employees, and not on behalf of only one employee, and (2) where individual employees try to initiate or induce group action, as well as individual employees raising group complaints to the attention of management. These standards are set forth in an earlier line of cases: the Myers Industries cases.

Overturning Alstate Maintenance, LLC, which established a checklist of factors for determining concerted activity where an employee attempts to initiate or induce group action, the Board returned to the Myers Industries standard. Because of the countless factual scenarios the Board is presented with, the Board found Alstate Maintenance to be unduly restrictive and returned to the broader standard found in the Myers Industries cases.

With a return to the totality of the circumstances test for determining whether an employee who appears to be acting solo is engaged in concerted activity, a broader range of employee conduct will likely be considered concerted and, thus, protected by the NLRA.  For more information on Miller Plastics, please contact your labor law counsel.