Despite the National Labor Relations Board's ("NLRB" or "Board") continuing lack of quorum, federal courts of appeal have been busy reviewing...
Despite the National Labor Relations Board's ("NLRB" or "Board") continuing lack of quorum, federal courts of appeal have been busy reviewing its decisions.
The latest appellate decision comes out of the Third Circuit. In NLRB v. Miller Plastic Products Inc., No. 23-02857 (3rd Cir. June 23, 2025), the court reviewed an NLRB decision finding Miller Plastic Products violated the National Labor Relations Act (the "Act" or "NLRA") when it terminated an employee after he allegedly raised concerns about its COVID protocols and decision to remain open for business during the early months of the pandemic in an all-hands meeting and in other public ways with co-workers and managers.
There are two key aspects of the Third Circuit's ruling:
Third Circuit Affirmed the NLRB's Precedent Shift Concerning When Individual Conduct Is "Concerted" and "Protected" Under The Act
In 2023, in Miller Plastic Products, the NLRB overturned 2019 precedent issued during the Trump administration in Alstate Maintenance. Rather than adopting a checklist of specific factors to review when determining whether a single person's individual action could be considered "concerted' and protected under the Act, the Miller Plastics Board adopted a holistic approach based on the totality of the record evidence. The Miller Plastics standard was a standard borne out of Myers...
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