There’s No Concerted Action If It’s Just One Employee or If It’s for a Non-Employee, Right? WRONG, Says the NLRB

By: Rodney L. Bean, Kaitlin L. Robidoux

Published: September 11, 2023

In two opinions released on August 31, the National Labor Relations Board (NLRB) overruled two 2019 decisions to expand the scope of workers’ concerted activity protections under the National Labor Relations Act (NLRA). Those decisions make clear that activity by a single worker and/or activity on behalf of a non-employee may in fact be NLRA-protected concerted activity.

In Miller Plastic Products, Inc. and Ronald Vincer, dated August 25, the NLRB discarded Alstate Maintenance’s “checklist” of factors to consider when analyzing whether an employee engaged in concerted activity and returned to the Meyers II “totality of the record evidence” analysis. In American Federation for Children, Inc. and Sarah Raybon, dated August 26, the NLRB overruled Amnesty International of the USA, Inc. and determined that the NLRA’s concerted activity protections do apply when employees support non-employees if that support can benefit the employees engaging in such action.

Action by a Single Worker

In Miller, a 3-1 majority reaffirmed the NLRB’s “longstanding totality-of-the-circumstances test” and overruled the 2019 Alstate Maintenance, LLC decision in deciding that a plastics manufacturing plant employee engaged in concerted activity when he voiced concerns about the company’s COVID-19 protocols at a company meeting and in face-to-face interactions with management. The court determined that Alstate should be overruled because in setting aside a “holistic approach” to analyzing employees’ concerted activity and adopting a checklist of factors to consider, Alstate provided “unwarranted restrictions on what constitutes concerted activity under Section 7 of the [NLRA].”

As supported by Meyers II, “activity that at inception involves only a speaker and a listener” can still constitute concerted activity because it “is an indispensable preliminary step to employee self-organization.” Therefore, because NLRA Section 7 “protects employees who bring a group complaint to the attention of management or make an explicit or implicit call to group action,” analyzing whether an employee engaged in concerted activity should be approached as “a factual [question] based on the totality of the record evidence” and not limited to a predetermined list of factors.

After overruling Alstate, the majority concluded that the employee’s conduct was concerted activity because he “sought to bring ‘truly group complaints to the attention of management,’” as required by Meyers II. Additionally, in the days following the company meeting, the employee continued to speak with the company’s chief operating officer about his concerns with company policies. Although concerns were voiced in a one-on-one setting, the activity was still concerted because it was a “logical outgrowth” of the employee’s “truly group complaint” at the meeting.

Advocacy for Non-Employees

In American Federation, a 3-1 majority concluded that a worker’s insistence that her employer rehire an immigrant colleague after the colleague obtained her work authorization and reapplied for employment was protected activity. The applicant was considered an employee because the NLRA covers applicants, but the worker’s actions were also protected because the worker could benefit from supporting her colleague.

The majority explained that the NLRB “has repeatedly held that employees’ concerted activity directed toward the retention or discharge of their supervisor is for mutual aid or protection, inasmuch as it bears on their terms and conditions of employment,” and that this “same basic principle applies when hiring or firing of a coworker is involved” because of “the obvious difference a coworker can make in the workplace, whether in performing work duties jointly or acting together to improve working conditions.” The majority pointed to the solidarity principle — the idea that a worker benefits from helping a colleague because he or she expects that colleague to later help them — to explain that the applicant’s statutory employee status was irrelevant because the principle “applies when another worker, whatever her statutory status, is in a position to aid statutory employees.”

In reaching its conclusion that federal labor law protects workers who advocate for non-employees, the majority overruled the 2019 Amnesty International of the USA, Inc. decision. The NLRB looked to the principle from the Supreme Court’s 1978 Eastex Inc. v. NLRB decision that “mutual aid or protection” encompasses “matters ‘outside the immediate employment context,’ because imposing a narrower scope would ‘frustrate the policy of the [NLRA] to protect the right of workers to act together to better their working conditions.’” The majority also revived the NLRB’s pre-Amnesty International reliance on NLRB v. Peter Cailler Kohler Swiss Chocolates Co.’s principle that statutory employees can act for their own mutual aid or protection when they support interests of workers who are not statutory employees.

Overall, these two NLRB rulings are pivotal because they expand the scope of protection for employees engaging in concerted activity and restore concerted activity analyses and principles embraced by the NLRB prior to 2019.

For assistance or answers to questions concerning this legal insight and/or other assistance with NLRA-related matters, including determining whether concerted activity is occurring, responding to concerted activity, and policy creation or review, please contact the authors or any members of the Steptoe & Johnson Labor Relations Team.

The authors thank Maggie Lohmann for her contributions to this article.

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