Third Circuit: NLRA Protected Concerted Activity Clarified
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APPLIES TO All Employers with Employees in DE, NJ, PA, and U.S. Virgin Islands |
EFFECTIVE June 23, 2025 |
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Discussion
In Miller Plastic Products Inc. v. National Labor Relations Board, the Third Circuit Court of Appeals adopted a totality of the evidence approach when determining whether an individual’s action qualifies as protected concerted activity under the NLRA.
There, an employee was terminated early in the COVID-19 pandemic following complaints made to management about the employer’s COVID-19 protocols. He discussed with other workers that the company was not an essential business and encouraged another worker to speak to management about being vulnerable to the virus because of his health issues. He communicated his concerns to management about not having proper safety protocols in place to reduce the risk to employees. Although he was a highly skilled employee, he was spoken to about being overly social and using his phone while working. He was terminated a week after his safety comments “for poor attitude, talking, and lack of profit.”
The National Labor Relations Board (NLRB) took the position that the employer violated the NLRA, using a totality-of-the-evidence approach to determine whether the employee had engaged in protected concerted activity. Section 7 of the NLRA protects the rights of employees “to self-organiz[e], to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Conduct by a single employee can be “concerted” if it is sufficiently related to group concerns.
The Third Circuit said that concerted activity occurs when a lone employee acts “not solely . . . on behalf of the employee himself,” but by “seek[ing]to initiate or to induce or to prepare for group action. . . [or by] bringing truly group complaints to the attention of management.” The court rejected using a specific set of factors to evaluate concerted activity, looking instead to follow a more “holistic” approach by looking at the totality of the evidence. In its evaluation, the court said there is no ironclad requirement that employees coordinate before raising concerns to management, even if there is an opportunity to do so. Similarly, it is not necessary that multiple employees even be present for the discussion with management; but these are still factors to be considered. Additionally, concerted activity does not require the lone employee to have succeeded in galvanizing colleagues to act alongside them. The NLRA must protect successful attempts to raise group concerns, as well as unsuccessful attempts to do so.
Ultimately, the court determined that the employee’s activities were sufficient to qualify as concerted activity in that they addressed work safety concerns applicable to all employees in group settings, and in individual settings with management, which was an extension of his other concerted activity. Employers must take care when seeking to terminate employees who have engaged in concerted protected activity to ensure that disciplinary actions are defensible and unrelated to the protected activity.
Action Items
- Review potential terminations with legal counsel involving employees who have engaged in protected concerted activity.
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