The National Labor Relations Board in August broadened the scope of what constitutes “protected concerted activity” under federal labor law with two key decisions. In Miller Plastic Products, Inc., 372 NLRB No. 174 (2023), the Board returned to a “totality of the circumstances” approach to evaluating whether an employee’s activity is concerted within the meaning of the National Labor Relations Act (“the Act”). In American Federation for Children, Inc., 372 NLRB No. 137 (2023), the Board held that advocacy efforts by statutory employees on behalf of non-employees constitutes concerted activity under the Act.

Miller Plastic Products

Miller Plastic restores longstanding Board precedent set by a pair of cases from the 1980s known as Meyers I and Meyers II. See Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985); Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). In Meyers I, the Board 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.” In Meyers II, the Board clarified that concerted activity under Section 7 of the Act “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.”

The Board in both Meyers cases acknowledged that “a myriad of factual situations” will continue to arise in this area of law and, therefore, “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.

Miller Plastics overrules Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), in which the Board developed a checklist of five factors to evaluate whether activity is concerted. The Miller Board found that the Alstate checklist was likely to exclude concerted activity from protection because it placed “significant and unwarranted restrictions on what constitutes concerted activity.”[1]

American Federation for Children

In American Federation for Children, Inc., the Board held that a statutory employee, as defined under Section 2(3) of the Act, is protected when the employee advocates on behalf of non-employees. American Federation for Children reverses 2019 precedent set by Amnesty International, 368 NLRB No. 112, where the Board found that efforts of statutory employees to win pay for unpaid interns who worked alongside them was not protected activity. In American Federation for Children, the Board also reaffirmed the principle that job applicants are statutory employees and that an individual’s immigration status is immaterial to their status as a statutory employee.

In American Federation for Children, an employee for a nonprofit organization advocated among a group of coworkers in support of the rehire of a former colleague who had been terminated pending renewal of her work authorization status. The administrative law judge found that the employee’s actions on behalf of a former colleague did not constitute “concerted activity” under Section 7 of the Act – that is, activity engaged in for the purpose of “mutual aid or protection.”

On appeal, the Board reversed the judge’s finding that the employee was not engaged in concerted activity when she lobbied coworkers in support of their former colleague’s rehire. The Board explained that although “only statutory employees can invoke the protection of Section 7, the scope of mutual aid or protection covers the efforts of statutory employees to help themselves by helping persons who are not statutory employees.” Accordingly, the Board found that because the former colleague, a non-employee, was well-regarded by the staff, her rehire would have improved the employment terms and conditions of the statutory employees working with her, and that by advocating for the former employee to return to employment, the statutory employees created the possibility of future reciprocal support from others in their efforts to better working conditions.

The Board remanded the case to the administrative law judge for reconsideration based on a finding that the charging party was engaged in concerted activity when she sought to induce support from her coworkers to lobby management to rehire their former colleague. On remand, the judge will consider whether the employer unlawfully discharged the charging party because of her protected concerted activity or whether her discharge was for a legitimate business reason asserted by the company – namely, that the charging party had violated the employer’s harassment policy by repeatedly asserting that a manager was “racist” and “anti-immigrant” during the course of her advocacy efforts.

Employer Takeaways

Employers should remember that protected concerted activity can occur in any workplace, including nonunionized workplaces. The NLRB’s move to expand the definition of concerted activity means that more employee activity will fall within the Board’s ambit and employers should consider exercising caution when taking disciplinary action where such activity is or may be involved.

Miles & Stockbridge labor lawyers routinely assist employers with NLRB matters, collective bargaining, and other issues affecting unionized workplaces.

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