Third Circuit Affirms NLRB’s Totality of the Evidence Test in Finding that a Single Employee’s Conduct Constituted Protected Concerted Activity

On June 23, 2025, in Miller Plastic Products Inc. v. National Labor Relations Board, the Third Circuit ruled that substantial evidence supported the Board’s determination that a single employee’s conduct was protected concerted activity (PCA) and a motivating factor for his termination. In doing so, the court affirmed the Biden Board’s overruling of Alstate Maintenance LLC and expansion of the analysis of whether a single employee’s conduct constitutes PCA. However, the Third Circuit found that the Board failed to adequately address certain evidence supporting the company’s affirmative defense that it would have fired the employee even absent his PCA.

Background

In this case, an employee claimed his termination was the result of his questioning—during a staff meeting and one-on-one to management—the company’s COVID-19 protocols and decision to remain open. He also had urged a colleague to raise concerns with management about the colleague’s own health vulnerabilities and the company’s return-to-work protocols. No group action resulted, although employees had previously questioned the company’s status as an essential business. 

The company terminated the employee for poor attitude, talking, and lack of profit after management witnessed him on his cell phone. Although considered “highly skilled,” he had been counseled about performance deficiencies, including excessive talking, distracting coworkers, and using his cellphone, but was not considered to have been disciplined. Shortly thereafter, the company fired three additional employees as a cost-cutting measure. 

ALJ and Board Decisions

The administrative law judge (ALJ) applied the Wright Line¹ test, a burden-shifting framework under which the Board’s general counsel must initially show that an employer imposed discipline or otherwise took an adverse action against an employee because of the employee’s Section 7 activity. If that threshold is met, an employer can defend its actions by showing that it would have taken the same action even in the absence of the Section 7 activity.

A key issue was whether the employee’s solo actions constituted protected concerted activity. The National Labor Relations Act protects concerted activity for mutual aid and protection, not mere personal “gripes.” The ALJ applied the five-factor checklist outlined by the first Trump Board in Alstate Maintenance for determining whether a single employee’s actions are “concerted,"² and held that his actions constituted PCA. Moreover, the ALJ rejected the company’s argument that it terminated him for poor performance and violating its policies. 

Finding against the company, the Board overruled Alstate Maintenance for taking an “unduly restrictive” approach to defining concerted activity. In so holding, the Board decided that the question of whether an employee is engaged in concerted activity depends on the “totality of the record evidence.” The majority emphasized a return to the “holistic” approach articulated in the Meyers line of cases³ to determine whether individual complaints are linked enough to other employees and common working conditions to qualify the individual comments as “concerted” and, thus, protected under the Act. 

Here, the Board concluded that the employee’s conduct was concerted as his comments at the staff meeting sought to bring group complaints to management’s attention and that his subsequent conversation with a colleague about return-to-work protocols was a “logical outgrowth” of his comments at the staff meeting. The Board adopted, without further analysis, the ALJ’s findings that the company failed to prove it would have discharged the employee even absent the PCA. 

Third Circuit Decision

The company appealed the Board’s determination that the employee’s PCA was a motivating factor in his termination and that the company failed to meet its burden under Wright Line to prove it would have made the same decision even in the absence of protected activity. 

In examining the meaning of “concerted activities” under the Meyers line of cases and Third Circuit precedent, the court agreed with the Board that the five-factor checklist of Alstate Maintenance was too limited. The court looked to its decision in MCPc, Inc. v. NLRB, 813 F.3d 475 (3d Cir. 2016), where it “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.’” In MCPc, the court explained that “mere griping” is not protected, the presence of employee spectators does not make a solo complaint something concerted, and evidence that other employees share the same concern, even without coordination among them, can distinguish between a solo complaint and a truly group concern. Thus, MCPc described “the touchstone for an individual’s concerted activity” as “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.”

In examining the facts of the instant case, the Third Circuit concluded that there was substantial evidence that the employee engaged in activity that was both concerted and for mutual aid and protection. The court noted he “sought to bring ‘truly group complaints to the attention of management’” in speaking about pandemic safety concerns, which affected all employees, at the staff meeting and to his colleague. The pandemic was a frequent topic around the plant and other employees asked about the company’s qualifying as an essential business, even if no group action later ensued. 

However, the Third Circuit found that the ALJ and Board erred at the second step of the Wright Line analysis, as to whether the company would have terminated the employee even absent his PCA. The court found that the ALJ and the Board did not fully analyze whether the company had met its burden that it would have taken the same adverse action for legitimate reasons. The court noted that the ALJ did not account for testimony and evidence regarding the employee’s performance and the company’s need to make staff cuts, while the Board failed to analyze the issue at all. The court remanded the case for the Board to address the evidence and reassess whether the company would have discharged the employee even absent his PCA. 

Takeaway Lessons

• Tread cautiously when making disciplinary decisions involving an employee who has raised workplace concerns. Under the Board and Third Circuit’s totality of the circumstances approach, a single employee’s actions or remarks are more likely to be protected under the Act.
• Be consistent with following and documenting application of company policies. Even if an employee’s activity is deemed PCA, the employer can defend its decision by showing that it would have taken the same action regardless. Documenting uniform application and enforcement of company policies and performance standards bolsters the employer’s case.
• What about Loper Bright?⁴ While noting that the Supreme Court held that federal courts must independently interpret statutory text and doing so in this case, the Third Circuit acknowledged that the Board’s assessment of what constitutes “concerted activities” forms a “body of experience and informed judgment” that can aid in the court’s analysis. Also, the court indicated it would look to pre-Loper precedent notwithstanding that it may have been guided by the now-overruled Chevron decision. This serves as a reminder that notwithstanding Loper, courts of appeal may continue to give weight to agency precedents, particularly if they were consistently affirmed by federal courts. 

Whether an employee’s conduct is PCA is a frequently litigated topic. It is recommended to consult with experienced legal counsel to navigate this complicated area when determining whether an employee has engaged in action that constitutes PCA.