With the re-re-introduction of the PERB for the resolution of Minnesota unfair labor practice claims, and dearth of caselaw in Minnesota surrounding concerted activity, we can expect the PERB to look at precedent of the National Labor Relations Board (“NLRB”) for guidance in its decisions on the matter.  The NLRB recently issued a decision on concerted activity that may be of assistance for employers in determining when to use caution with regard to employee complaints.

In the case of Miller Plastic Products, Inc. and Ronald Vincer, the employee was terminated after he raised concerns about the company’s COVID protocols and its decision to remain open for business back in 2020.  The employee had been frequently counseled about performance deficiencies, but never issued a written warning for such behavior.  When the pandemic started, the employee questioned the company’s policies on employees returning to work, and whether the company should remain open during the pandemic.  He encouraged a co-worker to talk to his supervisors about the company’s protocols, as well.

Board Decision-Miller Plastic Products (1)

The day after the employee raised his concerns, he was observed by his supervisor texting on his cell phone while at work, who went to the owner of the company and recommended the employee’s termination.  The employee, Vincer, alleged that the company violated section 8(a)(1) of the National Labor Relations Act (“the Act”), in that his actions in questioning the company’s protocols was concerted activity.  An administrative law judge agreed with him, and eventually the matter made its way to the NLRB.

On appeal, the employer argued that Vincer’s conduct was not concerted activity.  The employer argued that under recent precedent, Alstate Maintenance.  In that matter the Board adopted a checklist of factors that imposed restrictions on what constituted concerted activity.

In response, the Board then utilized prior precedent applying the totality of the circumstances test.  Under that test, in order for the activity to be concerted, the activity “must appear at the very least it was engaged in with the object of initiating or inducing or preparing for group action or that it has some relation to group action in the interest of the employees.”  Under the test, whether an individual employee’s activity incites group action is irrelevant – it is the employee’s right to speak to others about their concerns that is the protected activity.  With that, the Board overruled Alstate Maintenance and its checklist of factors, and applied the totality of the circumstances test.

In analyzing the evidence from that perspective, the Board found that Vincer had engaged in concerted activity.  At an all-company meeting, he yelled, “We shouldn’t be working,” and voiced concern about lack of proper precautions.  There was also evidence that other employees complained about the safety of working during the pandemic.  Even his one-on-one meeting with his supervisor was considered to be concerted activity, as it was a “logical outgrowth” of his original complaint at the company meeting.  The Board found that the company took its actions as a direct result of Vincer’s concerted activity.  With that, Vincer was returned to his position, and compensated for all harms that were the result of the company’s actions.

With the changing of administrations, the pendulum has swung back in favor of employees in matters of concerted activity.  Employers must be mindful of the statements made by employees pertaining to the safety of the workplace as well as terms and conditions of employment.  If you, or your organization, need assistance in navigating the world of unfair labor practices, contact Wiley Reber Law, for legal advice that works.