Employers are confronting yet another expansion of what constitutes protected employee concerted activity under Section 7 of the National Labor Relations Act (NLRA). As employers well know, Section 7 guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." It is an unfair labor practice, for both unionized and non-unionized employers, to "interfere, restrain, or coerce employees in the exercise of their Section 7 rights, including engaging in concerted activity." Section 8(a)(1).

Over the past decade, the parameters of protected concerted activity have expanded and contracted, based on the objectives of the NLRB under different political administrations. The whipsaw nature of the NLRB's shifting priorities from administration to administration makes compliance challenging at best. On August 31, 2023, it again expanded its definition of concerted activity, creating new uncertainty over what conduct now qualifies.

Reviewing the Prior Standard: The Alstate Maintenance, LLC Decision

Under the prior controlling law of the NLRB issued in the 2019 Alstate Maintenance, LLC decision, an employee's individual gripes and complaints related to work did not amount to concerted activity merely because such complaints were uttered in the presence of other employees. To qualify as concerted activity, such gripes must have been made in an attempt to induce group activity.

As part of the Alstate decision, the NLRB identified five factors for analyzing whether an employee attempted to induce group action:

• The employee's statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment
• The employer's decision that was announced affected multiple employees attending the meeting
• The employee who spoke up in response to the announcement did so to complain about the decision, not merely to ask questions about how the decision would be implemented
• The speaking employee protested the decision's effect on the workforce, not solely its impact on the speaking employee
• The meeting presented the first opportunity employees had to address the decision

At the time the Alstate decision was announced (just three years ago), it provided clarity to employers, allowing them to determine with a high degree of certainty what employee conduct was protected concerted activity, and what conduct was merely an unprotected individual gripe.

This standard remained in effect only until August 31, 2023, when the NLRB decided to reverse course and return to the fact-driven analysis of the decision in Meyers Industries, 281 NLRB 882 (1986), which set forth the controlling law that existed before the decision in Alstate.

A Return to the Meyers Industries Standard: The Miller Plastics Decision

In Miller Plastics, the NLRB faced a fact pattern similar to that presented in Alstate: an individual employee claimed that he was terminated for voicing his individual concerns about company policy regarding COVID-19 protocols. Relying on Alstate, Miller Plastics challenged the employee's charge by arguing that his concerns were individual gripes that were not intended to induce group activity. Rather than following the existing Alstate framework, the NLRB reversed course and returned to a vague and more malleable analytical standard based on a factual review of "the totality of all available evidence" to determine whether the employee was engaged in Section 7 protected activity. The NLRB called for a broad interpretation of the claimed concerted activity based on the context in which the complaint was made. Underlying this about-face was the NLRB's belief that a thorough review of the evidence was necessary to determine whether an employee's individual protest was linked to self-organization and group activity.

Thus, under this new (old) standard, employers will be forced to return to the opaque "totality" analysis to discern whether a complaint by a single employee or a conversation between an employee and supervisor is likely to be viewed as protected concerted activity by the Board.

Takeaways

The NLRB's moment of clarity in the Alstate decision was short lived. Going forward, employers should be cautious when taking disciplinary action against employees who have complained about their wages, hours, or working conditions. The return to an analysis of the totality of the factual record creates increased uncertainty over what the NLRB will consider sufficient to turn an individual concern into protected concerted activity.

Furthermore, given the Miller Plastics decision, employers will have less ability to argue along bright-line rules that an employee's individual concerns do not qualify as protected concerted activity. These cases will now be very fact and context dependent and will inevitably require employers to focus the defense of these charges less on the individuality of the employee conduct at issue and more on the legitimate underlying reason for the employee discipline that gave rise to the NLRB charge.