NLRB Restores Broad Test for Determining when Individual Action is “Concerted Activity”

September 18, 2023 by Andrew Baker

In one of several decisions released August 31st overturning decisions issued by the Trump NLRB that deviated from established precedent, the Board in Miller Plastic Products returned to the long-established test, “based on the totality of the record evidence,” for determining whether an employee who intends to induce group action by fellow employees engages in “protected concerted activity” under Section 7 of the National Labor Relations Act.

The Board overruled Alstate Maintenance (2019), which effectively narrowed the test for determining concerted activity by introducing a mechanical checklist of factors in place of the Board’s traditional, fact-based approach. The Board noted that the Alstate checklist narrowed the circumstances in which statements made by individual employees in front of their coworkers would be found concerted.

In Miller Plastic Products the Board also reaffirmed that activity that at inception involves only a speaker and a listener can be concerted, that the “object of inducing group action need not be express,” and that the ultimate question is whether an individual employee’s protest had “some linkage to group action.” Id. at 884.

The Board on the same day also released its decision in American Federation for Children reversing the Trump NLRB’s 2019 decision in Amnesty International, returning to longstanding precedent that concerted advocacy by statutory employees on behalf of nonemployees, such as unpaid interns and volunteers, qualifies as “protected concerted activity” when the advocacy can benefit the statutory employees.

These decisions help tilt the NLRB’s enforcement of federal labor law in favor of the type of informal organizing that occurs organically in the workplace, informal organizing that is often a precursor to formal union organizing.

 

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