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“One for All and All for One” Lands Employers in Hot Water

September 8, 2023

Don Walsh

The Three Musketeers (1921), Public domain, via Wikimedia Commons

The National Labor Relations Board (NLRB) continues to force employers to proceed cautiously before terminating disruptive employees. Section 7 of the National Labor Relations Act (NLRA) affords employees the right to act jointly with co-workers to address work-related issues. Employers cannot discharge, discipline, or threaten employees for engaging in such “concerted activity.” In Miller Plastic Products, Inc., 372 NLRB 134, released on August 31, the Board reset the standards for determining whether and when protests by a single worker constitute protected concerted activity under Section 7 of the NLRA. This decision now provides lone wolf employees greater protection for their activities if they could prompt future group action.

Under this new test, the Board held that the “totality of the circumstances” must be evaluated before and after an individual employee's conduct to determine whether the conduct is a group complaint to management or a call to group action and therefore protected. The Board warned that even "spontaneous, informal" protests and employee questions which occur between a single employee and a single manager can constitute concerted activity because such activity is an "indispensable preliminary step to employee self-organization." As long as the complaint by the single employee has some relation to a group activity or complaint, it may be protected activity.

In Miller, the employee was complaining about a lack of safety measures and protections for employees during the COVID-19 pandemic. The Board found his vocal complaints at company meetings and to management were protected activity and that his subsequent termination for being disruptive and poor performance violated the NLRA. The standard to determine whether an adverse employment action was motivated by employee conduct requires NLRB General Counsel to establish, through direct or circumstantial evidence, that (1) the employee was engaged in protected activity, (2) the employer knew of that activity, and (3) the employer had animus for the protected activity. The burden then shifts to the employer to establish it would have taken the same employment action regardless of protected activity.

As a result of this decision, more employee outbursts and conduct may be considered protected activity, providing increased job protection when an employee’s comments arise from a likely group complaint and the conduct benefited or protected the entire group. Termination decisions arising from employees being disruptive or speaking out should now account for the employee's conduct and the circumstances surrounding that conduct. Any statement by an individual concerning the terms and conditions of employment may now qualify as protected concerted activity.

If you need assistance in weighing a difficult termination decision, feel free to reach out to the labor group at RKW.

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