06/24/2025: Third Circuit Affirms Expansive Definition of Concerted Activity
A lone employee seeking to induce group action still counts.
Miller Plastic Products Inc v. NLRB, 23-2689 (3rd Circuit)
This Third Circuit case involves an appeal of an NLRB decision regarding whether an employee was unlawfully terminated for engaging in protected concerted activity under the National Labor Relations Act (NLRA).
Miller Plastic Products Inc. fired Ronald Vincer on March 24, 2020, in the early weeks of the COVID-19 pandemic. The NLRB determined that the termination violated Section 8(a)(1) of the NLRA because it was motivated, at least in part, by Vincer's expression of concerns about the company's COVID-19 protocols and operating status during the pandemic.
Background Facts
Miller Plastic manufactures plastic machining and fabrication products at a plant in Burgettstown, Pennsylvania. Vincer worked as a fabricator from 2015 until his termination. While considered a skilled employee, Vincer had been counseled periodically about performance issues, including excessive talking, distracting coworkers, and using his cell phone during work hours.
When the COVID-19 pandemic reached Pennsylvania in early 2020, it became a frequent topic of conversation at the plant. On March 16, 2020, Miller Plastic held an all-hands meeting where Chief Operating Officer Timothy Zeliesko explained that the company planned to stay open because it expected to be classified as an essential business. Several employees, including Vincer, questioned whether the company qualified as essential. Vincer explicitly disagreed with management, stating that the company lacked proper precautions and employees should not be working.
On March 23, 2020, Vincer approached Zeliesko and questioned the company's protocols for employees returning to work after potential COVID-19 exposure. He also asked whether the company should be open and operating. The following day, Vincer was fired after Plant Manager Blake Trenary observed him using his cell phone on the plant floor. Management cited "poor attitude, talking, and lack of profit" as reasons for the termination.
The Court's Analysis
Concerted Activity
The Third Circuit applied the principles established in the NLRB's Meyers cases to determine whether Vincer's conduct constituted protected concerted activity. The court explained that "concerted activity" occurs when a lone employee acts "not solely on behalf of the employee himself," but by "seeking to initiate or to induce or to prepare for group action... or by bringing truly group complaints to the attention of management."
The court found substantial evidence supporting the Board's conclusion that Vincer's statements at the March 16 meeting raised a "truly group complaint" with management. The court emphasized that the pandemic was a topic of discussion in the plant, and Boustead (a colleague deemed the most credible witness) testified that "several people more than Mr. Vincer" had expressed concerns about whether the company qualified as an essential business.
The court rejected Miller Plastic's argument that questioning management cannot constitute concerted activity, stating that "asking questions is not inherently inconsistent with seeking to induce group action or raise group complaints."
Mutual Aid or Protection
The court found substantial evidence that Vincer's activity was for "mutual aid or protection" because his concerns about workplace safety during the pandemic affected all employees. His statements and conduct revealed a belief that shutting down the facility or implementing more stringent protocols was necessary to ensure employee safety.
Motivating Factor
The court concluded there was substantial evidence that Vincer's protected activity was a motivating factor in his termination. This evidence included:
Close temporal proximity between Vincer's protected activities and his termination (one day after his conversation with Zeliesko)
A change in how the employer responded to rule violations (switching from tolerating Vincer's cell phone use to terminating him for it)
The absence of any credited warning reports, analysis, or formal termination letter in Vincer's file
Affirmative Defense
The court found that the Board failed to adequately address evidence supporting Miller Plastic's affirmative defense that it would have fired Vincer even absent his protected conduct. While the ALJ acknowledged that pandemic-era economic pressures led Miller Plastic to fire several employees in late March, the ALJ did not seriously address testimony indicating that Vincer's performance was problematic enough to justify his inclusion in this group regardless of his protected activity.
The court remanded the case for the Board to reassess whether Miller Plastic would have discharged Vincer even absent his protected conduct.
After-Acquired Evidence
The court rejected Miller Plastic's argument that the ALJ erred by precluding testimony about information discovered after Vincer's termination. The court endorsed the practice of deferring consideration of after-acquired evidence to compliance proceedings rather than the liability phase.
Conclusion
The Third Circuit denied in part Miller Plastic's petition for review and granted in part the Board's cross-application for enforcement, affirming the finding that Vincer was terminated because of his concerted activity. However, the court vacated the Board's order and remanded the case for further consideration of evidence bearing on Miller Plastic's defense to liability.
Significant Cases Cited
Meyers Industries, Inc., 268 NLRB 493 (1984) ("Meyers I"): Established that conduct is "concerted" if engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself.
MCPc, Inc. v. NLRB, 813 F.3d 475 (3d Cir. 2016): Recognized individual conduct as "concerted" where individual employees seek to initiate group action or bring truly group complaints to management.
NLRB v. City Disposal Systems Inc., 465 U.S. 822 (1984): Endorsed the notion that a lone employee's conduct may be "concerted" when it grows out of group activity.
Meyers Industries, Inc., 281 NLRB 882 (1986) ("Meyers II"): Clarified that concerted activity encompasses circumstances where individual employees seek to initiate group action or bring truly group complaints to management.
Wright Line, 251 NLRB 1083 (1980): Established the test for determining whether protected conduct was a motivating factor in an employer's decision to take adverse action.