In Miller Plastic Products, Inc. v. NLRB, A fabricator questioned whether the company at which worked early during the Covid pandemic was truly "essential." He challenged return-to-work protocols at an all-hands meeting and again later during a one-on-one with his manager, and urged a coworker with health risks to speak up. Days later, he was fired for "talking, attitude, and productivity."
The NLRB found that he had been fired in retaliation for engaging in protected concerted activity. The 3rd Circuit agreed that he had engaged in "concerted" activity, but sent the case back for more analysis on whether he would have been fired regardless.
So what's "concerted" here? The court found that it's not about rigid checklists but instead about whether the employee is acting solely for themselves by raising personal gripes, or trying to raise group concerns. A lone employee's complaints, the court said, can be concerted if they seek to initiate or induce group action, or bring a truly group complaint to management. It's an issue of the intent of the complainer to raise a workforce-wide issue (such as pandemic safety), not how many people complain.
The lesson here is an important one. A single voice can still be "concerted" if it's raising group concerns, as opposed to a mere personal gripe. Managers should be trained to treat safety or policy challenges as protected first, even if they come from your "problem employee."
Not every gripe is protected. But when the "lone wolf" is speaking for the pack—even if the pack stays silent—the NLRA may have their back.
The NLRB found that he had been fired in retaliation for engaging in protected concerted activity. The 3rd Circuit agreed that he had engaged in "concerted" activity, but sent the case back for more analysis on whether he would have been fired regardless.
So what's "concerted" here? The court found that it's not about rigid checklists but instead about whether the employee is acting solely for themselves by raising personal gripes, or trying to raise group concerns. A lone employee's complaints, the court said, can be concerted if they seek to initiate or induce group action, or bring a truly group complaint to management. It's an issue of the intent of the complainer to raise a workforce-wide issue (such as pandemic safety), not how many people complain.
The lesson here is an important one. A single voice can still be "concerted" if it's raising group concerns, as opposed to a mere personal gripe. Managers should be trained to treat safety or policy challenges as protected first, even if they come from your "problem employee."
Not every gripe is protected. But when the "lone wolf" is speaking for the pack—even if the pack stays silent—the NLRA may have their back.