September 12, 2023

NLRB Reevaluates What It Means to Engage In Protected Concerted Activities

The National Labor Relations Board’s (NLRB) latest decision in Miller Plastic Products, Inc., overrules existing standards and returns to prior precedent for determining what constitutes concerted protected activity under the National Labor Relations Act (NLRA or the Act).

Section 8 of the NLRA makes it an unfair labor practice “to interfere with, restrain, or coerce employees” in the exercise of the rights guaranteed in Section 7 of the Act. Section 7 establishes the right “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” To be protected under Section 7 of the Act, employee conduct must be both ‘concerted’ and engaged in for the purpose of ‘mutual aid or protection.

Prior precedent held that an employee’s activity is concerted when it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” And that concerted activity under Section 7 “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Not wanting to establish a rigid case-based definition, prior NLRB actions made clear that “the question of whether an employee engaged in concerted activity is, at its heart, a factual one” based on the totality of the record evidence. This is the standard returned to under the Miller decision.

What it All Means

Simply dismissing workplace complaints as merely ‘griping,’ without taking into consideration the context within which the complaint was made, could put the employer in a position of having inadvertently violated an employee’s NLRA rights. Employers need to consider the whole of the circumstances surrounding the complaint.

Before taking disciplinary action against an employee who has voiced a workplace complaint, consider the following:

  • Does the complaint raise a concern about company health and safety protocols?
  • Was the complaint voiced in a group setting? Keeping in mind that voicing concerns to one other employee can, under certain circumstances, be considered concerted activity for mutual aid or protection and a preliminary step to employee self-organization.
  • Does the complaint affect the individual and their co-workers as a group?
  • Was the complaint presented by the individual using group terms such as “we” and not just “I”?
  • Is the complaint likely to be a matter of concern to the individual’s co-workers?

If the answer to one or more of the above questions is “yes,” consider reaching out to legal counsel to get an opinion on how best to move forward in addressing the issue and/or taking any disciplinary steps.