US judges question NLRB's broad protections for worker conduct
By Daniel Wiessner
Sept 19 (Reuters) -U.S. appeals court judges on Thursday suggested that the National Labor Relations Board has for decades defined the type of worker conduct protected by federal labor law too broadly, in a challenge to a recent board ruling that revived a worker-friendly test.
A three-judge 3rd U.S. Circuit Court of Appeals panel in Philadelphia heard arguments in an appeal by manufacturer Miller Plastic Products of a 2023 NLRB decision that reversed Trump-era precedent and made it easier to show that complaints by individual employees qualify as concerted activity protected by the National Labor Relations Act.
The board found that Miller unlawfully fired Ronald Vincer, an employee at its Pennsylvania factory, for criticizing the company's decision to keep the plant open in the early days of the COVID-19 pandemic during a staff meeting.
Circuit Judge D. Brooks Smith told lawyers on both sides that the board ruling was only the latest over the last 50 years in which the agency adopted a test that seemed to ignore the plain meaning of 'concerted,' which he said "presupposes a kind of joinder, a kind of acting together."
"There's a long history here of using the term in ways that have no semblance whatsoever to the semantic basis of acting in concert," said Smith, an appointee of Republican former President George W. Bush.
Smith also noted that the U.S. Supreme Court in a June ruling in Loper Bright Enterprises v. Raimondo eliminated the doctrine known as Chevron deference that had required courts to defer to agencies' reasonable interpretations of ambiguous laws that they enforce. But he said that courts had typically not relied on Chevron in reviewing board decisions and was unsure whether it applied to Thursday's case.
Circuit Judge Theodore McKee echoed Smith's concerns about the NLRB's broad definition.
"'Concerted' ... has got to mean something more than a spontaneous or even a planned statement in front of folks," said McKee, an appointee of Democratic former President Bill Clinton.
Smith said an individual "gripe" about working conditions could only be concerted if it relates to action by a broader group of workers.
"It's what a singular person does, plus. There's got to be a plus," the judge said.
"And there's no plus here" in Miller's case, the company's lawyer, Robert Bracken, replied. Vincer merely said "we shouldn't be working," and no other employees seconded his comments or took further action, Bracken said.
But later in the argument, Smith told NLRB lawyer Jared Cantor that the "plus" could be as subtle as a worker vigorously nodding his head in agreement with a coworker's comment, or in Miller's case the pandemic itself since COVID spurred nearly universal concerns among workers.
"This is a special case factually and I'm wondering if ... that could have supplied the 'plus' to the one person," Smith said.
Cantor said it could, but that Vincer's conduct alone justified a finding that it was concerted. He was speaking on a work-related issue of broad concern and made his comment after several other workers questioned the company's decision, Cantor said.
Cantor also defended the board's broader ruling, saying that the U.S. Supreme Court has found that individual activity can still be concerted.
The Democratic-led board in its 2023 decision revived a standard first adopted in 1986 under which it considers the "totality of the circumstances" on a case-by-case basis to determine whether a worker had engaged in protected concerted activity.
The board overruled a 2019 decision by a majority of Republican appointees that said raising concerns in a group setting is not necessarily concerted activity, and required workers to show evidence of prior group discussions on a topic to prove their conduct was protected.
Smith on Thursday suggested that decades of back-and-forth on the issue underscored the argument that the NLRB has yet to get the definition of concerted activity right.
"I realize it's not defined in the statute so it falls on the board to try to figure out what it means," Smith said to Cantor, "but that's not a model of consistency, wouldn't you say?"
The panel includes Circuit Judge Luis Restrepo, an appointee of Democratic President Joe Biden.
The case is NLRB v. Miller Plastic Products, 3rd U.S. Circuit Court of Appeals, No. 23-2689.
For Miller: Robert Bracken of Bracken Law Firm
For the NLRB: Jared Cantor
Read more:
NLRB restores broader test for determining when labor law protects workers
NLRB at Work: Trump board takes narrower view of protected activity
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