NLRB Decision Makes Concerted Activity Claims Easier For Employees To Win

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education, Public Employers, Public Safety
DATE: Sep 07, 2023

Ronald Vincer worked in a manufacturing plant.  Vincer was very social.  He talked with others at their workstations, especially coworker James Boustead.  Vincer’s superiors periodically counseled him about performance deficiencies, including excessive talking, distracting coworkers, and using his cell phone.  His most recent counseling occurred on March 5, 2020.

On March 16, 2020, the state’s governor announced that a stay-at-home order and the closure of non-life-sustaining businesses would be effective the following day due to COVID 19.  Vincer’s supervisors periodically updated employees about developments.  Vincer and Boustead talked every day at work about the pandemic, including the fact that Boustead was at high risk because of his medical history.  Vincer told Boustead and other employees that the plant should close because it was not an essential or life-sustaining business.  Vincer also told Boustead that someone should tell the authorities that the plant was still open.

Also on March 16, two supervisors convened an all-hands meeting.  One stated that the plant was an essential business; he outlined the health and safety measures the plant was taking.  Vincer was upset; he said that the plant did not take proper precautions and that the employees should not be working.  Several others also questioned whether the plant was an essential business.  The supervisor stated that employees needed to keep working until there was clarification from the state government.

Two days later, a plant employee learned that his wife had been sent home from her job because of flu-like symptoms.  The employee shared that information with Vincer, who counseled the employee to tell the supervisor.  The supervisor sent the employee home, but he returned to work two days later.  Vincer asked the supervisor about the return-to-work requirements after having or being exposed to COVID.  Vincer asked the supervisor if the plant should be operating.  The supervisor said he believed the plant was a life-sustaining business.

Vincer spoke to Boustead and urged him to speak with supervisors about Boustead’s health vulnerabilities and the plant’s safety protocols.  The supervisor assured Boustead that the plant would direct anyone who had or who was exposed to COVID stay home and be tested.

On March 24, a supervisor observed Vincer text messaging and reported this to another supervisor.  Almost immediately, and without further investigation, the supervisors went to a third supervisor and recommended that Vincer be terminated.  The third supervisor agreed.  Shortly thereafter, Vincer was terminated for poor attitude, talking, and lack of profit.

The administrative law judge found that Vincer’s conduct – raising concerns to his supervisors about COVID protocols and the plant’s decision to remain open for business – was concerted activity and for mutual aid or protection of other employees within the meaning of the National Labor Relations Act (NLRA).  The judge rejected the plant’s arguments that Vincer’s complaints were only individual griping and not concerted.  The judge did not accept the plant’s arguments that it terminated Vincer for poor performance and policy violations.  The plant appealed to the National Labor Relations Board (NLRB).

The NLRB agreed that the plant’s decision to terminate Vincer interfered with Vincer’s rights to participate in concerted activities for mutual aid or protection. The NLRB decided that even an activity that starts with only a speaker and a listener can be concerted if the activity is an indispensable preliminary step to employee self-organization.  Moreover, an employee’s statement need not explicitly induce group action, but can implicitly elicit support from other employees.  The NLRB must conduct a thorough review of all the evidence to determine whether an individual employee’s protest had “some linkage to group action.”

The NLRB overruled its 2019 decision in Alstate Maintenance, which held that concerted activity only occurs if there is evidence of group activities, such as prior or contemporaneous discussion between or among members.

The NLRB held that Vincer’s COVID-related comments were concerted because they sought to bring “truly group complaints” to management’s attention.  Vincer’s one-on-one conversation with a supervisor was concerted because it was a logical outgrowth of the “truly group” complaint that Vincer had raised in the prior all-hands meeting.  The NLRB held that Vincer’s conduct was concerted under the NLRB’s totality-of-the-circumstances test.

Miller Plastic Products, Inc. and Ronald Vincer, NLRB Case No. 06-CA-266234 (8-25-2023).

Note:  Although the NLRA does not apply to public employers, the California Public Employment Relations Board (PERB) and the California courts can look to NLRA precedents.  Both the MMBA and the NLRA give employees the right to engage in concerted activities without employer interference.  A key takeaway for employers is to never to discipline an employee with a long-standing performance problem without thoroughly analyzing what precisely is precipitating the employer’s decision to now deal with a long-standing issue.  In this case, the plant had tolerated the employee’s social activity for about five years, but fired the employee within two weeks after he raised safety concerns at an all hands meeting.

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