## Facts

- Miller Plastic Products, Inc. operated a small manufacturing plant in Burgettstown, Pennsylvania.
- Ronald Vincer, a skilled fabricator employed since 2015, frequently engaged coworkers in accepted, workplace discussions at their stations.
- In March 2020, during the early COVID-19 pandemic, the employer decided to remain open and informed employees they would continue working as “essential” workers.
- At a management meeting announcing continued operations, Vincer objected to working under the circumstances, stating in substance that employees “shouldn’t be working.”
- The employer terminated Vincer shortly after the meeting.
- Vincer filed an unfair labor practice charge alleging his discharge was retaliation for protected concerted activity under § 7, violating § 8(a)(1) of the NLRA.
- An ALJ found the discharge unlawful; the employer argued Vincer’s conduct was individual “griping” under Alstate Maintenance, while the General Counsel urged overruling Alstate and applying the Meyers Industries standard.

## Issues

1. Whether Vincer’s COVID-19-related objections, including his statement at the meeting, constituted protected “concerted activity” under § 7 rather than unprotected individual complaining.
2. Whether the Board should apply Alstate Maintenance’s restrictive, factor-based approach to concerted activity or return to the Meyers Industries totality-of-the-evidence standard.

## Decision

- The Board affirmed the ALJ’s finding that Miller violated § 8(a)(1) by discharging Vincer for engaging in protected concerted activity.
- The Board overruled Alstate Maintenance and reinstated the Meyers Industries approach requiring a fact-specific assessment based on the totality of the record evidence.
- The Board applied its restored standard retroactively.
- One member concurred in the unlawful-discharge result but would not have reached the question of overruling Alstate.

## Legal Principles

- Individual employee conduct may be “concerted” when undertaken with or on the authority of other employees, or when the employee seeks to initiate, induce, or prepare for group action, or presents truly group complaints to management.
- Whether activity is concerted is a factual determination made on a case-by-case basis from the totality of the record evidence.
- A rigid, checklist-style test that restricts meeting-based complaints is inconsistent with the NLRA’s protection of concerted activity and may not be used to narrow § 7 rights.
- Discharging an employee because of protected concerted activity violates § 8(a)(1).

## Conclusion

The Board held that an employee’s workplace-safety objection to continued work during the COVID-19 pandemic was protected concerted activity and that terminating him for that objection violated § 8(a)(1); it rejected Alstate’s restrictive framework and restored the Meyers totality-of-the-evidence standard, applied retroactively.


Miller Plastic Products, Inc., 372 N.L.R.B. No. 134 (2023)