NLRB Returns to Expansive Concerted Activity Standard for Solo Employee Complaints

It takes two to tango, but the National Labor Relations Board (“Board”) reaffirmed that it might only take one to engage in protected concerted activity. On August 25, 2023, the Board issued its decision in Miller Plastic Products, Inc., in which it returned to its totality of the circumstances test for evaluating whether an individual employee’s complaints to management are concerted activity and therefore protected under the National Labor Relations Act (“Act” or “NLRA”). The decision reverses a 2019 Trump-era Board decision, Alstate Maintenance, LLC, that limited the instances in which solo complaints warrant protection under the NLRA.

To understand the import of Miller, a brief summary of the Board’s “concerted activity” jurisprudence is helpful. For the better part of the last 30 years, the Board had used a totality of the circumstances test when evaluating whether individual employee conduct, such as a lone employee’s complaint to a manager, amounted to concerted activity. The test was borne out of a pair of decisions issued by the Board in the 1980s commonly referred to as Meyers I and Meyers II. Under those decisions, an employee acting alone is nevertheless engaged in concerted activity when he or she either (i) seeks to initiate, induce, or prepare for “group action” or (ii) “bring[s] truly group complaints to the attention of management.” Regardless of the employee conduct at issue, however, the Meyers decisions emphasized the importance of looking at the totality of the record evidence in determining whether an employee engaged in concerted activity.

Nearly five years ago, however, the Board issued its Alstate decision, in which it adopted a checklist of five “relevant factors” for determining whether an employee’s complaint to a manager in the presence of other employees is concerted activity. The Alstate Board also emphasized that such solo conduct is concerted activity only when it is accompanied by evidence of group activities occurring contemporaneously with, or prior to, the individual action.

In Miller, the Board cast aside Alstate and its “unduly cramped interpretation of concerted activity under [the NLRA],” and instead returned to the “holistic” totality of the circumstances test set forth in Meyers I and Meyers II. Applying that test, the Board had no issue determining that the employer in Miller violated the NLRA when it terminated an employee shortly after the employee voiced concerns about the employer’s decision to remain open during the start of the COVID-19 pandemic. Specifically, the Board ruled that the employee engaged in protected concerted activity when he criticized the employer’s decision in a company-wide meeting and when he asked questions about the employer’s decision in a one-on-one meeting with his supervisor.

The Miller Board also clarified the breadth of what may constitute concerted activity under its totality of the circumstances approach. Specifically, the Board:

• Ruled that events transpiring after an employee’s conduct can serve as “objective evidence” of whether the employee sought to initiate, induce, or prepare for group action;
• Specified that employee questions, not just declarative protests, can be a method of inducing group action, and therefore can be concerted activity under the Act;
• Ruled that both explicit and implicit calls to action are protected under the Act; and
• “[R]eaffirmed that activity that at inception involves only a single speaker and a listener”—such as an employee’s one-on-one conversations with his or her supervisor—can also constitute concerted activity.

As evidenced by the Miller decision, the current Board has taken an expansive view of protected concerted activity under the NLRA. This has important implications for employers, particularly in disciplinary or termination decisions involving employees who have voiced complaints about the terms or conditions of their employment. Even when an employee acts individually, employers must now carefully consider not only the nature of the complaint, but also the circumstances surrounding the complaint in order to determine whether concerted activity has taken place. This revised standard may prove challenging for employers to discern whether apparent solo acts may be deemed protected concerted activity by the Board.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.