At a Glance

• The Third Circuit affirmed the NLRB’s application of a totality of the evidence test and overruling of Alstate Maintenance LLC in finding that a single employee’s conduct was protected concerted activity (PCA).
• While the Third Circuit found the PCA to be a motivating factor in the employee’s dismissal, the court determined that the administrative law judge and Board failed to analyze certain evidence bearing on the employer’s affirmative defense that it would have taken the same action absent the employee’s PCA.

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...

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