In a recent determination, the National Labor Relations Board (NLRB) has circled back to the “totality of the circumstances” test to arbitrate when individual employee action forms protected concerted activity. This decision was made in the case of Miller Plastic Products, Inc., 372 NLRB No. 134 (Aug. 25, 2023).
This ruling implies that employee activity will be evaluated under the antecedent tests of Meyers Industries Inc., 281 NLRB 882 (1986). The approach will be a comprehensive, fact-based one, scrutinizing whether individual complaints or protests have a connection to collective action.
This new test is of significance to the legal community as it exhibits the NLRB’s commitment to a rigorous, fact-intensive inquiry. The “totality of the circumstances” test places emphasis on the entirety of the situation surrounding an employee’s activity, providing a wide lens through which the NLRB may assess the nature of said activity.
Additional details regarding this labor board decision can be found in the original review by Jackson Lewis P.C., which was posted on JD Supra.
In the light of the NLRB’s ruling, corporations and law firms should take into account this comprehensive approach when dealing with labor relations issues. It’s essential for legal professionals to understand the potentially broad scope of protection afforded by this “totality of circumstances” test. It will undoubtedly guide individual employee action in the future, molding the framework within which labor relations are managed.