Corporate Counsel Daily, Employee fired, in part, for expressing concerns about COVID-19 protocols and operating status, (Jun 24, 2025)

By Ronald Miller, J.D.

Concerted activity does not require the lone employee to have succeeded in galvanizing colleagues to act alongside him/her.

Substantial evidence supported the NLRB’s determination that an employee’s conduct in speaking up about pandemic-safety measures was protected under the NLRA and was a motivating factor for his termination, ruled the Third Circuit. The appeals court recognized individual conduct as “concerted” both where “individual employees seek to initiate or induce or to prepare for group action” and where “individual employees bring truly group complaints to the attention of management.” Thus, the appeals court granted in part the Board’s cross-application for enforcement, insofar as it affirmed the Board’s finding that the employee met his prima facie burden to show he was terminated because of his concerted activity. However, the Board’s order was vacated and remanded to address the significance of evidence as to whether the employee would have been discharged even absent his protected concerted activity (Miller Plastic Products Inc. v. NLRB, Nos. 23-2689 and 23-2857 (3d Cir. Jun. 23, 2025)).

Social employee. The employee worked as a fabricator from 2015 until March 24, 2020, at which time the employer fired him. He was generally considered “a highly skilled employee,” but he “was also very social.” He “would often talk with other employees at their work stations.” He also used his cellphone during working hours, despite a prohibition on cellphone use in the plant. Management “periodically counseled him about performance deficiencies, including excessive talking, distracting coworkers, and using his cell phone.”

COVID-19 pandemic. The COVID-19 pandemic reached Pennsylvania in early 2020, and by March of that year, it “was a frequent topic of conversation within the plant.” The employee spoke daily about the pandemic with a coworker. The coworker was especially vulnerable to COVID-19 due to his preexisting medical conditions. The employee discussed his belief that the employer was not an essential business with at least four other colleagues. His belief that the employer was not an essential business and therefore should shut down caused him to suggest that someone should inform authorities that the plant remained open.

Essential business. On March 16, Pennsylvania’s governor issued a stay-at-home order that required closure of non-life-sustaining businesses—but the order did not identify which businesses were “life-sustaining.”

That same day, the employer convened an “all-hands meeting.” The employer’s Chief Operating Officer explained that the company planned to stay open because its products were used for food and purified water, such that it expected to be classified as an essential business. The employee disagreed with the COO and complained that the employer “did not have the proper precautions in place and that the employees should not be working.”

On March 20, the governor’s office identified “plastic product manufacturing” as an essential business, meaning that the employer could remain open.

Return-to-work protocols. On March 23, the employee learned that a colleague who had been sent home due to a potential COVID-19 exposure had returned to work two days later. He approached the COO and asked about the protocols for returning to work in such a situation.

The employee later urged the coworker with preexisting conditions to raise concerns with management about his own health vulnerabilities and the company’s return-to-work protocols. The coworker spoke with the plant manager about his preexisting conditions. The plant manager assured the coworker that the employer “would follow proper procedures, make anyone who came into contact with COVID stay home, and inform [the coworker] if he should get tested.”

Terminations. On March 24, the plant manager again witnessed the employee using his cellphone while on the floor of the plant. Following the incident, the employee was fired “for poor attitude, talking, and lack of profit.” Swiftly on the heels of the employee’s termination, the employer fired three additional employees. The ALJ concluded that economic conditions contributed to the employer’s decision to fire the four employees at the end of March.

NLRB charge. The employee filed a charge with the Board alleging that the employer violated the NLRA by “discharg[ing] an employee[] because the employee[] engaged in protected concerted activities by, inter alia, protesting terms and conditions of employment and in order to discourage employees from engaging in protected concerted activities.” An investigation resulted in the Board filing a complaint alleging that the employer had violated Section 8(a)(1) of the NLRA by discharging the employee.

The ALJ held that the employee had engaged in concerted activity for mutual aid or protection, and that this protected activity was the basis for his termination. Thus, the ALJ concluded that the employer had violated the NLRA by discharging the employee.

Thereafter, the Board issued a decision agreeing with the ALJ that the employer had violated the NLRA and upheld the conclusion that the employer committed an unfair labor practice when it fired the employee. In reaching that conclusion, the Board purported to overrule its prior decision in Alstate Maintenance, LLC, a key Board precedent related to evaluating “concerted activity.” The Board explained that it believed that Alstate had taken an “unduly restrictive” approach to defining “concerted activity,” and applied a totality-of-the-evidence approach.

Protected concerted activity. On appeal, the employer challenged the Board’s determination that the employee engaged in protected concerted activity. Consequently, the Third Circuit had to determine the correct legal test for identifying concerted activity and the application of that test here. Thus, the appeals court inquired into whether the employee acted for mutual aid or protection.

The NLRA does not define “concerted activities,” but the phrase “clearly enough embraces the activities of employees who have joined together in order to achieve common goals.” Beyond this, federal courts and the Board have long agreed that conduct by a single employee can be “concerted” if it is sufficiently related to group concerns.

After considering the evolution of the Board’s analysis of the concept of concerted activity, the Third Circuit concluded that concerted activity occurs when a lone employee acts “not solely... on behalf of the employee himself,” but by “seek[ing] to initiate or to induce or to prepare for group action... [or by] bringing truly group complaints to the attention of management.”

The Board’s resolution of the employee’s complaint clarified that the Board will not be formulaically restricted to the Alstate criteria in determining whether such surrounding circumstances cloak the employee’s conduct with the protection of the NLRA. Rather, the Board announced that it was returning to the “holistic” approach of Meyers I (Meyers Indus., Inc., 268 N.L.R.B. 493 (1984)) and its progeny.

Concerted nature of employee’s conduct. As explained in MCPc, Inc. v. NLRB, 813 F.3d 475, 482 (3d. Cir. 2016), and consistent with Meyers II (Meyers Indus., Inc., 281 N.L.R.B. 882 (1986), individual conduct is recognized as “concerted” both where “individual employees seek to initiate or induce or to prepare for group action” and where “individual employees bring[] truly group complaints to the attention of management.” “The touchstone for an individual’s concerted activity” is “whether the employee intends to induce group activity or whether the employee’s action bears some relation to group action in the interest of the employees.” Concerted activity does not require the lone employee to have succeeded in galvanizing colleagues to act alongside him/her.

Applying these principles, the appeals court concluded that substantial evidence supported the Board’s determination that the employee, in speaking up about pandemic-safety measures under the circumstances here, “sought to bring ‘truly group complaints to the attention of management.’”

The employee spoke out about safety concerns arising from the COVID-19 pandemic. He spoke to others in an effort to have his employer close during the pandemic because of his COVID-19-related fears. He raised issues about COVID protocol in his one-on-one conversation with the COO on March 23. In addition to speaking out at the group meeting, he also encouraged at least one coworker to raise pandemic-safety concerns directly with management. The fact that no significant group action followed his activity did not change the nature of his conduct.

Accordingly, the appeals court concluded that substantial evidence supported the Board’s conclusion that the employee’s statements at the March 16 all-hands meeting raised a “truly group complaint” with management, and thus, constituted concerted activity under the NLRA.

“Mutual aid or protection.” The appeals court also found that substantial evidence supported that the employee’s concerted activity was for the purpose of “mutual aid or protection.” The court agreed with the ALJ’s finding that the employee acted in service of mutual aid or protection because he raised concerns about workplace safety, and those concerns affected all employees.

Improper motive for termination. As an initial matter, the appeals court agreed with the employer that there was no evidence of explicit animus toward the employee’s protected conduct. Therefore, the court needed to consider whether the totality of circumstances surrounding his dismissal nonetheless supported an inference of an improper motive for the termination.

The ALJ determined that the employee’s concerted activity was a motivating factor in his termination. It was clear that the employer acted with full knowledge of the employee’s protected activity. Given the employer’s awareness of the employee’s protected activities, the timing of his termination provided circumstantial evidence of animus. The employee was fired a week and a day after he spoke up at the all-hands meeting, and just one day after his conversation with the COO. Such a close temporal connection between the protected activities and the termination was highly indicative of a causal connection.

The employer appeared to have switched from tolerating the employee’s cellphone use to terminating him in response to that behavior one day after he engaged in protected activity. Moreover, the employee’s personnel file “was relatively bare in comparison” to those of other terminated employees.

The employer’s knowledge of the employee’s protected activity, coupled with a change in its response to his problematic behavior mere days after the protected activity, and the absence of any investigation, or documentation in his personnel file to otherwise explain the termination, constituted substantial circumstantial evidence that the protected activity was at least a motivating factor in the employee’s termination.

Economic pressures. The ALJ agreed that pandemic-era economic pressures would have led the employer to fire some employees in late March. These factors were acknowledged by the ALJ as “a factor” in the employee’s termination. Nonetheless, the ALJ believed that it was unclear whether the employee would have been among those fired if not for his protected conduct.

The appeals court saw no evidence in the record that the employer selected the employees to fire in late March by comparing production times. Concomitantly, the ALJ’s analysis failed to account for the substantial evidence of other reasons that plausibly could have caused the employee to be among those fired: his excessive talking and cellphone use.

Regardless of whether the employee received warnings or just counseling, his performance was sufficiently problematic that management repeatedly spoke to him about it and colleagues took notice. Moreover, the Board did not independently analyze this issue.

Accordingly, the appeals court denied in part the Board’s cross-application for enforcement of its order because the NLRB failed to adequately address evidence bearing on the employer’s defense to liability under Wright Line. Thus, the Board’s order was vacated and the case remanded for the Board to address the significance of this evidence.

The cases are Nos. 23-2689 and 23-2857.

Judge: McKee, T.

Attorneys: Robert A. Bracken (Bracken Law Firm) for Miller Plastic Products Inc. Jared D. Cantor for NLRB.

Companies: Miller Plastic Products Inc.

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