Continuing what otherwise has been a very busy week for the National Labor Relations Board (NLRB or Board), the Board on Thursday significantly broadened the circumstances under which an employee's solo complaint could be considered "protected concerted activity" under the National Labor Relations Act. Returning to the Board's reasoning from the Meyers I and II decisions from the 1980s, the Board found that a complaint involving a single speaker and a single listener can be concerted when, based on a totality of the circumstances, it appears the conduct had the object of initiating or inducing or preparing for group action or had some relation to group action in the interest of employees.
In Miller Plastic, the NLRB considered whether the employer violated the National Labor Relations Act by terminating an employee who, during the COVID-19 pandemic, complained to his employer about its COVID-19 protocols and questioned whether it should remain open for business. During an all-hands meeting, the employee blurted out, "We shouldn't be working" and voiced concerns about the employer's lack of proper precautions. The Board concluded this activity was concerted because the employee had spoken to another employee before the meeting about whether the company should stay open, and thus his comment "sought to bring 'truly group complaints to the attention of management'" and because the employee was not the only one who voiced concern during the meeting. Also, the Board noted that in the days after the all-hands meeting, the employee spoke to other employees about his concerns. The Board held that later events can be "relevant objective evidence" as to whether an employee's conduct was concerted activity.
Calling it "significant and unwarranted restriction" on concerted activity, the Board explicitly overruled Alstate Maintenance, a decision issued in 2019. Alstate Maintenance held that an individual employee concern raised with a manger or supervisor was "concerted" if there was evidence of "group activities," based on a set of five relevant factors: (1) whether the statement was made in an employer-called meeting to announce some decision affecting a term or condition of employment; (2) whether the decision affected multiple employees attending the meeting; (3) whether the employee spoke up to protest rather than merely ask questions; (4) whether the employee complained about the decision's affect on the workforce generally, rather than personally; and (5) whether the meeting presented the first opportunity for employees to address the decision.
It is possible that even under Alstate Maintenance, the employee's conduct could have been concerted activity. However, the Board's overruling of Alstate Maintenance opens the door for many individual complaints and statements to be treated as "concerted activity" by the Board and to become so only because of unpredictable later events. Miller Plastic gives employers yet another reason to be hypervigilant in reacting to employee statements in the workplace. Sherman & Howard's labor attorneys can provide guidance on the appropriate steps to take in specific situations.