In a significant decision for labor and employment law, the Third U.S. Circuit Court of Appeals recently endorsed the broader interpretation of “concerted activity” by the National Labor Relations Board (NLRB) under federal law, while also sending an important question back to the Board for further review.
This case, NLRB v. Miller Plastic Products, involves factory worker Ronald Vincer, who was let go shortly after raising concerns at a 2020 staff meeting about his employer’s decision to stay open during the early days of the COVID-19 pandemic. Vincer asked to either close the plant or improve safety measures, highlighting risks to employee health.
Key Legal Takeaways:
- The Third Circuit affirmed a wider understanding of what qualifies as protected activity under the NLRB. They moved away from the old “Alstate Maintenance” test, which required evidence of prior group discussions to determine if speech was “concerted.” Instead, they adopted a more flexible “totality of the circumstances” approach, taking into account the context and intent behind employees’ comments to better apply the rules.
- On Vincer’s comments during COVID, the court agreed with the NLRB that his remarks were aimed at enhancing workplace safety. His comments weren’t just personal frustrations but part of his effort to improve working conditions, making them protected under the National Labor Relations Act.
- Remand on retaliation issue: Although the court upheld the legal standard, it found that the Board didn’t fully explain its conclusion that Vincer was fired because of his protected comments. It has ordered a more thorough review of the employer’s reasons for termination and the credibility of witnesses, especially considering that several other employees were also laid off around the same time.
Broader Implications for Employers:
This ruling highlights how employee concerns about workplace health and safety, even if they aren’t directly linked to past group discussions, can be seen as protected concerted activity. Employers should be cautious and avoid dismissing or disciplining employees for raising these concerns unless there’s a well-documented and non-retaliatory reason. It’s important to create a supportive environment where employees feel comfortable sharing their worries without fear.
Additionally, the case highlights the continuing impact of COVID-19-related disputes on labor law and the evolving standards applied by the NLRB in analyzing protected activity. More information on this case can be found here.
