considering a regulation which interpreted statutory language because the regulation was consistent with the statute
How later courts described this case
- considering a regulation which interpreted statutory language because the regulation was consistent with the statute
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 23-2689 & 23-2857
_____________
MILLER PLASTIC PRODUCTS INC,
Petitioner in no. 23-2689
v.
NATIONAL LABOR RELATIONS BOARD
_____________
NATIONAL LABOR RELATIONS BOARD,
Petitioner in no. 23-2857
v.
MILLER PLASTIC PRODUCTS INC
_______________
On Petition for Review and
Cross-Application for Enforcement of a
Decision and Order of the
National Labor Relations Board
(NLRB Docket No. 06-CA-266234)
_______________
Argued September 19, 2024
Before: RESTREPO, McKEE, and SMITH, Circuit Judges.
(Opinion filed: June 23, 2025)
_______________
Robert A. Bracken [ARGUED]
Bracken Law Firm
101 Smithfield Street
Suite 100
Pittsburgh, PA 15222
Counsel for Petitioner Miller Plastic Products Inc.
Ruth E. Burdick
Jared D. Cantor [ARGUED]
Milakshmi V. Rajapakse
National Labor Relations Board
Appellate and Supreme Court Litigation Branch
1015 Half Street SE
Washington, DC 20570
Counsel for Cross-Petitioner National Labor
Relations Board
_______________
OPINION OF THE COURT
_______________
2
McKEE, Circuit Judge.
We are asked to review a decision and order of the
National Labor Relations Board that resulted from Miller
Plastic Products Inc.’s firing of Ronald Vincer in the early
weeks of the COVID-19 pandemic. The NLRB determined
that the firing occurred, at least in part, because Vincer had
expressed concerns about Miller Plastic’s COVID-19-related
pandemic protocols and operating status. It therefore ruled that
Vincer’s termination violated Section 8(a)(1) of the National
Labor Relations Act.1 Miller Plastic petitions for review of the
Board’s order, and the Board cross-applies for enforcement.
For the reasons that follow, we conclude that substantial
evidence supports the Board’s determination that Vincer’s
conduct was protected under the NLRA and was a motivating
factor for his termination. We also conclude that the
Administrative Law Judge did not err in disallowing testimony
regarding after-acquired evidence at the liability stage of the
proceeding. We therefore deny Miller Plastic’s petition for
review in part and grant the Board’s cross-application for
enforcement in part, insofar as the Board asks us to affirm its
finding that Vincer was terminated because of his concerted
activity.
However, because the NLRB failed to adequately
address certain evidence bearing on Miller Plastic’s affirmative
defense that it would have fired Vincer even absent his
protected conduct, we will remand this case to the Board so
1
29 U.S.C. § 151 et seq.
3
that it may adequately address the significance (if any) of that
evidence.
I. Factual Background2
Miller Plastic is a corporation with a plant in
Burgettstown, Pennsylvania that manufactures plastic
machining and fabrication products. In early 2020, Miller
Plastic employed approximately twenty-six to thirty-three
individuals at that plant. The employees included Ronald
Vincer, who worked as a fabricator from 2015 until Miller
Plastic fired him on March 24, 2020.
a. Vincer’s Performance
Vincer was generally considered “a highly skilled
employee,” but he “was also very social.”3 Vincer “would
often talk with other employees at their work stations,”
especially his fellow fabricator, James Boustead.4 Vincer also
used his cellphone during working hours, despite a prohibition
on cellphone use in the plant. While the company permitted
some casual conversation among employees during work,
management “periodically counseled Vincer about
performance deficiencies, including excessive talking,
2
The following account is drawn from the factual findings of
the Board and, where the Board did not discuss certain
events, from the findings of the ALJ.
3
Miller Plastic Prods., Inc., 372 N.L.R.B. No. 134, 2023 WL
5669331, at *1 (Aug. 25, 2023).
4
Id. Boustead was still employed by Miller Plastic when he
testified before the ALJ. The ALJ deemed Boustead “the
most credible witness in this case.” AR 462 n.12.
4
distracting coworkers, and using his cell phone.”5 One such
counseling incident occurred on March 5, 2020. In addition,
sometime in early 2020, management moved Boustead to a
different workstation further away from Vincer’s workstation
to discourage Vincer from talking to and distracting Boustead.
Miller Plastic’s written employee disciplinary policies
include an “Employee Warning Report” form for documenting
instances of discipline.6 When it is used, the form is signed by
the issuing supervisor and placed in the employee’s file. At the
hearing before the ALJ on Vincer’s complaint, Miller Plastic
moved into evidence three warning reports purportedly issued
to Vincer on June 28, 2019, September 4, 2019 and January 15,
2020. These purported warnings described infractions such as
talking and texting instead of working. However, the ALJ “did
not give any weight” to these warning reports.7 He
characterized them as “dubious” because they were unsigned,
whereas other warning reports issued to other employees were
signed.8 The Board adopted this reasoning with no further
discussion. Thus, according to the ALJ and the Board,
although Vincer was repeatedly “counseled” about his talking
and cellphone use, he was never formally disciplined.9
b. Onset of the COVID-19 Pandemic
The COVID-19 pandemic reached Pennsylvania in
early 2020, and by March of that year it “was a frequent topic
5
Miller Plastic Prods., Inc., 2023 WL 5669331, at *2.
6
AR 460.
7
Id. at 457–58 n.6.
8
Id.
9
Miller Plastic Prods., Inc., 2023 WL 5669331, at *2.
5
of conversation within the plant.”10 Vincer spoke daily about
the pandemic with Boustead. Boustead was especially
vulnerable to COVID-19 due to his preexisting medical
conditions. Vincer discussed his belief that Miller Plastic was
not an essential business with at least four other colleagues.11
His belief that Miller Plastic was not an essential business and
therefore should shut down caused him to suggest that
someone should inform authorities that the plant remained
open.
Pennsylvania Governor Tom Wolf responded to the
pandemic by declaring a disaster emergency on March 6. On
March 16, Governor Wolf issued a stay-at-home order that
required closure of non-life-sustaining businesses—but the
March 16 order did not identify which businesses were “life-
sustaining.”12
10
Id.
11
“Essential businesses” or “life-sustaining businesses” refer
to those businesses permitted to continue operating during
certain phases of the COVID-19 pandemic when authorities
ordered non-essential businesses to close. See AR 460, 462.
12
Miller Plastic Prods., Inc., 2023 WL 5669331, at *2. The
ALJ’s opinion, the Board’s opinion, and the parties’ briefs all
state that life-sustaining businesses were not identified by
March 16. The text of the order reproduced in the ALJ’s
opinion states that “[a] list of life sustaining businesses that
may remain open is attached to and incorporated into this
Order.” AR 461. We note this apparent inconsistency but
assume the accuracy of the factual finding that life-sustaining
businesses were not clearly identified as of March 16, as no
6
c. March 16: All-Hands Meeting
On March 16, Miller Plastic convened an “all-hands
meeting.”13 Chief Operating Officer Timothy Zeliesko led the
meeting, joined by Plant Manager Blake Trenary. Zeliesko
explained that the company planned to stay open. Because
Miller Plastic’s products were used for food and purified water,
Zeliesko explained that he expected it to be classified as an
essential business. Several employees asked questions, and
some expressed doubt about whether Miller Plastic would be
categorized as an essential business. Vincer was “upset” and
explicitly disagreed with Zeliesko.14 He complained that
Miller Plastic “did not have the proper precautions in place and
that the employees should not be working.”15
party has disputed it or come forward with evidence that such
a list was appended to the order.
13
Miller Plastic Prods., Inc., 2023 WL 5669331, at *2.
14
Id.
15
Id. Although Vincer’s statements are at the heart of this
case, the record of what occurred is thin. Vincer did not
testify about the March 16 meeting, and of the two witnesses
who did address it, Trenary was deemed not credible, and
Boustead could not recall Vincer’s statements. Upon being
shown his own previously drafted affidavit, Boustead agreed
with the accuracy of the statement in the affidavit that Vincer
“was upset, and he asked why we were still working when the
employer was not an essential business,” and stated that “he
didn’t think we had the proper precautions in place for the
pandemic.” AR 206:1–5. Although the ALJ deemed
7
On March 20, Governor Wolf’s Office identified
“plastic product manufacturing” as an essential business,
meaning that Miller Plastic could remain open.16 Zeliesko later
sought and obtained specific confirmation from the
Pennsylvania government that Miller Plastic was an essential
business exempted from the Governor’s closure order.
d. March 23: Discussion of Return-to-Work
Protocols
On March 23, Vincer learned that a colleague who had
been sent home due to a potential COVID-19 exposure had
returned to work two days later. Vincer approached Zeliesko
on the floor of the plant and asked about the protocols for
returning to work in such a situation. Zeliesko responded that
he would have to get back to Vincer. Vincer next “asked
Zeliesko if he thought the company should be open and
operating.”17 Zeliesko responded that “[Miller Plastic]
believed it was a life-sustaining business.”18 After that,
“Vincer griped briefly and the conversation ended.”19
Vincer later urged Boustead to raise concerns with
management about Boustead’s own health vulnerabilities and
Trenary’s testimony not credible, the Board’s factual
summary quoted from Trenary’s recollection that Vincer said,
“we shouldn’t be working.” Miller Plastic Prods., Inc., 2023
WL 5669331, at *2 & n.5.
16
AR 464.
17
Miller Plastic Prods., Inc., 2023 WL 5669331, at *2.
18
Id.
19
AR 464.
8
Miller Plastic’s return-to-work protocols. Boustead responded
by speaking to Trenary about his preexisting conditions.
Trenary assured Boustead that Miller Plastic “would follow
proper procedures, make anyone who came into contact with
COVID stay home, and inform [Boustead] if he should get
tested,”20 presumably meaning that management would notify
Boustead if he might have been exposed to the virus at work.
Boustead subsequently testified that he was satisfied that the
company was acting appropriately under the circumstances.
e. March 24: Vincer’s Termination
On March 24, Trenary again witnessed Vincer using his
cellphone while on the floor of the plant.21 Trenary reported
the incident to Zeliesko, and the two went “[a]lmost
immediately” to the company’s owner, Donnie Miller, to
recommend terminating Vincer.22 Miller agreed. “Shortly
thereafter,” Miller, Zeliesko, and Trenary jointly informed
Vincer that he was being fired “for poor attitude, talking, and
lack of profit.”23 Vincer responded by arguing “that there were
people worse than or slower than him,” nodding towards his
20
Miller Plastic Prods., Inc., 2023 WL 5669331, at *3.
21
The ALJ recounted that “Trenary told Vincer to get off his
cell phone and then observed Vincer walk away from his
table as he continued talking on his cell phone.” AR 471.
Trenary testified that Vincer’s termination was precipitated
by more “talking and texting,” which was “exacerbated by
him walking 80 feet away from his workstation to now go
talk to Mr. Boustead,” and “not listening” when management
instructed him to stop. Id. at 155:9–13.
22
Miller Plastic Prods., Inc., 2023 WL 5669331, at *3.
23
Id.
9
colleague, Christopher Cowger.24 “Vincer then packed up his
tools and left.”25
f. March 24–31: Additional Terminations
Swiftly on the heels of Vincer’s termination, Miller
Plastic fired three additional employees: Christopher Cowger
on March 24; Eric Saloom on March 25; and David Onuska on
March 31. While the Board did not comment on these other
terminations, the ALJ discussed them and concluded that
economic conditions contributed to Miller Plastic’s decision to
fire Vincer, Cowger, Saloom, and Onuska at the end of March.
Miller Plastic’s net operating income in January 2020 was
lower than it had been the previous year by some $160,314,
and management looked for ways to cut costs. Miller Plastic
was interested in taking advantage of federal pandemic-relief
programs to ease its financial burdens. In particular, the
Paycheck Protection Program (PPP) offered loans to cover
payroll expenses, but Miller Plastic was concerned that if it
waited until after taking out a PPP loan to make any necessary
terminations, the loan would not be forgiven.
II. Procedural History
Vincer subsequently filed a charge with the Board
alleging that Miller Plastic violated the NLRA by
“discharg[ing] an employee[] because the employee[] engaged
in protected concerted activities by, inter alia, protesting terms
and conditions of employment and in order to discourage
24
AR 466.
25
Id.
10
employees from engaging in protected concerted activities.”26
The following day, the Board informed Miller Plastic that it
was investigating the charge. That investigation resulted in the
Board filing a complaint alleging that Miller Plastic had
violated Section 8(a)(1) of the NLRA by discharging Vincer.27
Vincer, Boustead, Trenary, and Zeliesko testified at a
hearing on the charge before an ALJ. At the hearing, Miller
Plastic attempted to elicit testimony regarding information the
company discovered after terminating Vincer. That testimony,
if accepted, would have supported Miller Plastic’s after-
acquired-evidence defense. However, the ALJ did not permit
this testimony. He explained that such evidence could not be
considered in the merits phase of the case.
Thereafter, the ALJ issued a decision in which he found
that Vincer and Boustead were credible witnesses, but that
Trenary and Zeliesko were not. The ALJ held that Vincer had
engaged in concerted activity for mutual aid or protection, and
that this protected activity was the basis for Vincer’s
termination. Thus, the ALJ concluded that Miller Plastic had
violated the NLRA by discharging Vincer. Miller Plastic and
the Board’s General Counsel filed exceptions and cross-
exceptions to the ALJ’s decision.
The Board issued a decision agreeing with the ALJ that
Miller Plastic had violated the NLRA. The Board largely
adopted the ALJ’s factual findings, except for certain facial
26
Id. at 331.
27
See 29 U.S.C. § 158(a)(1).
11
errors and anomalies that it did not rely upon.28 But the Board
upheld the ALJ’s conclusion that Miller Plastic committed an
unfair labor practice when it fired Vincer. In reaching that
conclusion, the Board purported to overrule its prior decision
in Alstate Maintenance, LLC,29 a key Board precedent related
to evaluating “concerted activity.” The Board explained that it
believed that Alstate had taken an “unduly restrictive”
approach to defining “concerted activity.”30 Rather than
follow that approach, the Board resolved the complaint against
Miller Plastic by applying a totality-of-the-evidence approach,
which it had favored in its pre-Alstate decisions.31 However,
the Board also noted that it would have found Vincer’s conduct
to be concerted even under the Alstate approach.32
28
See Miller Plastic Prods., Inc., 2023 WL 5669331, at *1
n.1 (explaining that the Board was not relying upon the ALJ’s
statements that Trenary “lacked credibility because, although
he was no longer employed by [Miller Plastic], his roommate
still worked for the company,” and that “Vincer’s conduct
was ‘inherently concerted,’” and noting an inaccurate
quotation in the ALJ’s opinion).
29
367 N.L.R.B. No. 68, 2019 WL 183862 (Jan. 11, 2019).
30
Miller Plastic Prods., Inc., 2023 WL 5669331, at *3.
31
See id. at *4 (discussing Meyers Indus., Inc., 268 N.L.R.B.
493 (1984) (“Meyers I”); Meyers Indus., Inc., 281 N.L.R.B.
882 (1986) (“Meyers II”); and Worldmark by Wyndham, 356
N.L.R.B. 765 (2011)).
32
Id. at *11 n.22. One Board member concurred in the result
but disagreed with the portion of the decision purporting to
overrule Alstate. Id. at *14. The concurring Board member
characterized the discussion of Alstate as dicta because all
12
The Board concluded that Vincer’s conduct had been
concerted because (i) his comments at the March 16, 2020
meeting “sought to bring ‘truly group complaints to the
attention of management,’”33 and (ii) his subsequent
conversation with Zeliesko about return-to-work protocols on
March 23 “was a ‘logical outgrowth’” of the comments at the
March 16 meeting.34
The Board adopted without further analysis the ALJ’s
findings that Vincer’s conduct was for mutual aid or
protection, that the protected conduct was a motivating factor
in Vincer’s discharge, and that Miller Plastic failed to prove
that it would have discharged Vincer even absent the protected
conduct. In addition to other relief, the Board ordered Miller
Plastic to offer Vincer reinstatement to his former job and make
him whole for pecuniary harms resulting from the unfair labor
practice.
III. Discussion
The Board had jurisdiction over this matter pursuant to
29 U.S.C. § 160(a). We have jurisdiction to review the Board’s
order pursuant to 29 U.S.C. §§ 160(e) and (f).
three Board members agreed that Vincer’s conduct was
concerted even under Alstate.
33
Id. at *11 (quoting Meyers II, 281 N.L.R.B. at 887).
34
Id. (quoting Mike Yurosek & Son, Inc., 306 N.L.R.B. 1037,
1038–39 (1992)).
13
We exercise plenary review over questions of law and
the Board’s application of legal principles.35 We retain
ultimate responsibility to “determin[e] the meaning of statutory
provisions,”36 though we may look to the Board’s
interpretations as “a body of experience and informed
judgment.”37 We rely upon the Board’s factual findings so
long as “they are supported by substantial evidence, that is,
‘relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.’”38 To the extent that the
Board adopts the ALJ’s findings and conclusions, we also
review the ALJ’s decision.39
Miller Plastic challenges the Board’s determination that
Vincer engaged in protected concerted activity. That requires
us to determine the correct legal test for identifying concerted
activity and the application of that test here. In doing so, we
inquire into whether Vincer acted for mutual aid or protection.
Miller Plastic also contends that the evidence does not support
the conclusion that Vincer’s conduct was a motivating factor
in Vincer’s termination even if it falls within the scope of the
NLRA. Miller Plastic challenges the finding that Miller Plastic
failed to prove it would have fired Vincer even absent the
35
NLRB v. Starbucks Corp., 125 F.4th 78, 86 (3d Cir. 2024).
36
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394
(2024).
37
Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
38
Starbucks Corp., 125 F.4th at 86 (quoting NLRB v.
ImageFIRST Unif. Rental Serv., 910 F.3d 725, 732 (3d Cir.
2018)).
39
Id.
14
protected activity. Finally, Miller Plastic argues that the ALJ
should have permitted it to elicit testimony regarding its after-
acquired-evidence defense. We address these arguments in
turn.
a. Whether Vincer’s Conduct was “Concerted
Activity” Protected by the NLRA
Section 7 of the NLRA protects the rights of employees
“to self-organiz[e], to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.”40 Thus, if an employee’s conduct is concerted in
service of mutual aid or protection, it falls within the ambit of
Section 7.
1. The Meaning of “Concerted
Activities”
The NLRA does not define “concerted activities,” but
the phrase “clearly enough embraces the activities of
employees who have joined together in order to achieve
common goals.”41 Beyond this, federal courts and the Board
40
29 U.S.C. § 157 (emphasis added).
41
MCPc, Inc. v. NLRB, 813 F.3d 475, 482 (3d Cir. 2016)
(quoting NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 830
(1984)).
15
have long agreed that conduct by a single employee can be
“concerted” if it is sufficiently related to group concerns.42
Until recently, we were required to defer to the Board’s
reasonable interpretations of ambiguous terms in the NLRA
pursuant to Chevron, USA, Inc. v. Natural Resources Defense
Counsel.43 However, the Supreme Court overruled Chevron in
Loper Bright Enterprises v. Raimondo.44 There, the Court held
that federal courts must independently interpret statutory
text.45 Nevertheless, we acknowledge that the Board’s
construction of the phrase “concerted activity” has shaped our
jurisprudence over the years. Moreover, Loper Bright did not
necessarily displace our earlier precedents merely because they
42
City Disposal Sys. Inc., 465 U.S. at 832; MCPc, Inc., 813
F.3d at 483; Meyers II, 281 N.L.R.B. at 887.
43
467 U.S. 837 (1984). See, e.g., NLRB v. N.J. Bell
Telephone Co., 936 F.2d 144, 147 (3d Cir. 1991) (“Our
review of the Board’s construction of the National Labor
Relations Act is guided by Chevron . . . .”).
44
603 U.S. at 412.
45
See id. at 398–401. But see Alaris Health at Boulevard E.
v. NLRB, 123 F.4th 107, 121 (3d Cir. 2024) (identifying
without resolving “an open question” as to whether some
level of non-Chevron deference to the Board’s
“classifications of” phrases in the NLRA survives Loper
Bright). As in Alaris Health, we need not here resolve
whether any deference attaches to the Board’s assessment of
what constitutes concerted activity. For the reasons explained
below, even on plenary review, we agree with the Board’s
understanding of “concerted activity” as articulated in the
Meyers cases and their progeny.
16
were guided by Chevron.46 Given the Board’s expertise in
matters governed by the NLRA, the Board’s assessment of
what constitutes “concerted activities” continues to form “a
body of experience and informed judgment” that can aid our
analysis.47 We therefore find it helpful to begin by considering
the evolution of the Board’s analysis of the concept of
concerted activity. Certain core principles emerge from that
historical analysis.
i.
Congress enacted the NLRA in 1935, incorporating the
phrase “concerted activities” from a predecessor statute, the
Norris-LaGuardia Act of 1932.48 In the decades that followed,
the Board analyzed concerted activity primarily by
“considering whether some kind of group action occurred.”49
Certain early decisions acknowledged that interactions
“involv[ing] only a speaker and a listener” could be concerted,
“for such activity is an indispensable preliminary step to
employee self-organization.”50 However, the Board in this era
46
See Loper Bright, 603 U.S. at 412 (explaining that “prior
cases that relied on the Chevron framework . . . are still
subject to statutory stare decisis despite our change in
interpretive methodology”).
47
Id. at 394 (quoting Skidmore, 323 U.S. at 140).
48
City Disposal Sys. Inc., 465 U.S. at 834–35 (discussing
history of the phrase “concerted activity”); see also Meyers II,
281 N.L.R.B. at 883.
49
Meyers I, 268 N.L.R.B. at 494; see also id. at 494 n.7
(collecting cases).
50
Root-Carlin, Inc., 92 N.L.R.B. 1313, 1314 (1951).
17
primarily “define[d] concerted activity in terms of employee
interaction in support of a common goal.”51
The Board altered this approach in its 1975 ruling in
Alleluia Cushion Co., Inc.52 There, it ruled that a solo
employee’s complaint could be concerted even in “the absence
of any outward manifestation of support” from other
employees, so long as the lone employee was raising an issue
“of great and continuing concern for all within the work
force.”53 In Alleluia Cushion, the Board held that safety
complaints by a single employee were “concerted” because
they invoked a right recognized in the Occupational Safety and
Health Act.54 The Board reasoned that in enacting OSHA,
Congress had declared “minimum safe and healthful
employment conditions . . . to be in the overall public
interest.”55 Thus, “in the absence of any evidence that fellow
employees disavow such representation” when a single
employee invokes a statutory right in the interest of all
employees, the Board would “find an implied consent thereto
and deem such activity to be concerted.”56
Nine years later, in Meyers I, the Board overruled
Alleluia as “at odds with the [NLRA]” because it analyzed
51
Meyers I, 268 N.L.R.B. at 494 (discussing Traylor-Pamco,
154 N.L.R.B. 380 (1965), and Continental Mfg. Corp., 155
N.L.R.B. 255 (1965)).
52
221 N.L.R.B. 999 (1975).
53
Id. at 1000.
54
Id.
55
Id.
56
Id.
18
concerted activity according to the Board’s subjective
evaluation of the issue raised, rather than an objective
manifestation of group concern.57 The Board in Meyers I
purported to be returning to “the standard on which the Board
and courts relied before Alleluia”58: that conduct is “concerted”
if it is “engaged in with or on the authority of other employees,
and not solely by and on behalf of the employee himself.”59
Applying this standard, the Board held that an employee who
refused to drive an unsafe vehicle was not engaged in concerted
activity because he “acted solely on his own behalf,”
notwithstanding that government safety regulations validated
the concern he raised as a matter of public importance.60
While Meyers I was being appealed, the Supreme Court
in City Disposal Systems endorsed the notion that a lone
employee’s conduct may be “concerted” within the meaning of
the NLRA when it grows out of group activity.61 That case
also involved an employee who objected to driving an unsafe
vehicle.62 Importantly, in City Disposal Systems, the right not
to drive an unsafe vehicle was enshrined in an applicable
collective-bargaining agreement.63 This made the refusal to
drive a concerted act, the Supreme Court explained, because
enforcing the right was integral to, and an extension of, the
quintessentially group “process that gave rise to the
57
268 N.L.R.B. at 496.
58
Id.
59
Id. at 497.
60
Id. at 498.
61
465 U.S. at 831.
62
Id. at 824.
63
Id. at 824–25.
19
agreement.”64 Thus, the lone employee’s refusal to drive the
vehicle was tantamount to “reassembling his fellow union
members to reenact their decision not to drive unsafe trucks.”65
The Court of Appeals for the D.C. Circuit subsequently
reviewed Meyers I in Prill v. NLRB.66 The court in Prill
concluded that the Board had erroneously construed the NLRA
as requiring the definition of “concerted activity” articulated
in Meyers I.67 The D.C. Circuit Court wrote that the NLRA
endowed the Board with broad discretion to “determine the
scope of [Section 7] in light of its own policy judgment and
expertise” to effectuate the purposes of the NLRA.68 Prill
contrasted Meyers I’s conclusion that “conduct [must] be
actually concerted”69 with commentary in City Disposal
Systems that Congress did not “intend[] to limit [Section 7] to
situations in which an employee’s activity and that of his
fellow employees combine with one another in any particular
way.”70 The court in Prill therefore remanded Meyers to the
Board with instructions to reconsider the scope of concerted
activity in light of the Board’s broad latitude and the Supreme
Court’s intervening decision in City Disposal Systems.71
64
Id. at 831.
65
Id. at 832.
66
755 F.2d 941 (D.C. Cir. 1985).
67
Id. at 942.
68
Id. at 950.
69
Id.
70
Id. at 952 (quoting City Disposal Sys. Inc., 465 U.S. at
835).
71
Id. at 957.
20
On remand, the Board in Meyers II reaffirmed the
definition of concerted activity set forth in Meyers I, that is,
activity “engaged in with or on the authority of other
employees, and not solely by and on behalf of the employee
himself.”72 The Board explained that this definition
“encompasses those circumstances where individual
employees seek to initiate or to induce or to prepare for group
action, as well as individual employees bringing truly group
complaints to the attention of management.”73 But the Board
emphasized that the limiting principle of Meyers I—that
concerted activity does not occur when an employee acts solely
for her or himself—was important to give meaning to the
requirement of concerted activity, separate and apart from
whether the action served the employees’ “mutual aid or
protection.”74 Thus, according to the Board in Meyers II,
Alleluia remained wrongly decided, notwithstanding City
Disposal Systems, because the right invoked in Alleluia was a
statutory right that did not grow out of any underlying group
action.75
ii.
Since deciding Meyers II, the Board has continued to
invoke the Meyers definition, but it has inconsistently applied
72
Meyers II, 281 N.L.R.B. at 885 (quoting Meyers I, 268
N.L.R.B. at 497).
73
Id. at 887.
74
Id.
75
Id. at 887–88.
21
it. In Worldmark by Wyndham,76 the Board wrote that the
principles of Meyers mean that “an employee who protests
publicly in a group meeting is engaged in initiating group
action.”77 On this premise, the Board held that an employee
engaged in concerted activity by questioning his supervisor
about a new dress code in front of other employees.78 The facts
supporting this conclusion included that the employee “took
the first opportunity to question a newly announced rule”
affecting himself and his colleagues, “[h]e did so in the
presence of several colleagues,” he used words that “cast his
complaint in group terms” such as “we” and “us,” and a second
employee joined in the protest.79
Eight years later, in Alstate, the Board overruled
Worldmark.80 The Board explained that Worldmark had
deviated from the Meyers standard by blurring the distinction
between group and individual action.81 The Board in Alstate
stressed that Meyers II requires decisionmakers to evaluate
concerted activity as “a factual [question] based on the totality
of the record evidence.”82 The Board therefore criticized
76
356 N.L.R.B. 765. This case is reported as Wyndham
Resort Development Corp, d/b/a Worldmark by Wyndham.
Because this case is referred to in other Board and court
decisions as Worldmark by Wyndham, we refer to it in that
same manner here.
77
Id. at 766.
78
Id. at 767.
79
Id. at 766 (emphasis omitted).
80
2019 WL 183862, at *1.
81
Id. at *1, *6.
82
Id. at *7 (quoting Meyers II, 281 N.L.R.B. at 886).
22
Worldmark for purportedly announcing a per-se rule that “an
employee who protests publicly in a group meeting is engaged
in initiating group action.”83 The Board in Alstate concluded
by identifying five “relevant factors that would tend to
support” an inference that “the employee was seeking to
initiate, induce or prepare for group action”84:
(1) the statement was made in an
employee meeting called by the
employer to announce a decision
affecting wages, hours, or some
other term or condition of
employment; (2) the decision
affects multiple employees
attending the meeting; (3) the
employee who speaks up in
response to the announcement did
so to protest or complain about the
decision, not merely (as in
WorldMark) to ask questions
about how the decision has been or
will be implemented; (4) the
speaker protested or complained
about the decision’s effect on the
work force generally or some
portion of the work force, not
solely about its effect on the
speaker him- or herself; and (5) the
meeting presented the first
opportunity employees had to
83
Id. (quoting Worldmark, 356 N.L.R.B. at 766).
84
Id. at *8.
23
address the decision, so that the
speaker had no opportunity to
discuss it with other employees
beforehand.85
This seemingly formulaic approach to interpreting
concerted activity was short-lived. A few years later, in
reviewing the case before us, the Board purported to overrule
Alstate. The Board criticized the approach taken in Alstate
because it “cast aside th[e] holistic approach” of Meyers II,
adopting instead “a checklist of factors that imposed
significant and unwarranted restrictions on what constitutes
concerted activity.”86 Rejecting a mechanical analysis of the
Alstate factors, the Board wrote that Alstate had
“fundamentally misconstrued” Worldmark, which “neither
established nor applied a per se rule,” but instead merely
recognized that a statement made in front of coworkers could,
“in combination with other relevant facts,” suggest an intent to
induce group action.87 In other words, Worldmark had
correctly followed the facts-and-circumstances approach
required by Meyers II and its progeny.88 As for the requisite
nexus to group action, the Board majority wrote that the
disputed employee conduct need not “derive[] from group
action,” so long as the lone employee “appear[ed]” to be acting
85
Id.
86
Miller Plastic Prods., Inc., 2023 WL 5669331, at *5.
87
Id. at *6.
88
Id.
24
to induce group action or with “some relation to group
action.”89
iii.
Even though the Board has purported to reverse itself,
the principles articulated in Meyers I and Meyers II
consistently emerge from this line of cases. They have guided
the Board’s inquiry since its earliest pronouncements, even
during the superficially tumultuous rulings before and shortly
after Alstate.90 It is therefore clear to us that concerted activity
occurs when a lone employee acts “not solely . . . on behalf of
the employee himself,”91 but by “seek[ing] to initiate or to
induce or to prepare for group action . . . [or by] bringing truly
group complaints to the attention of management.”92
Obviously, Congress did not intend when it enacted the
NLRA to enable every employee to make the proverbial
federal case out of every discontentment or displeasure that
89
Id. at *8 (emphasis omitted) (quoting Meyers II, 281
N.L.R.B. at 887).
90
See id. at *10 (applying and “reaffirm[ing] the fundamental
principle of Meyers II”); Alstate Maintenance, 2019 WL
183862, at *4 (stating that the Board was “[a]pplying the
Meyers II standard”); Worldmark, 356 N.L.R.B. at 766
(describing Meyers II as the “lead case on concerted activity”
and finding the at-issue conduct concerted in light of cases
“[a]pplying those [Meyers] principles”).
91
Meyers II, 281 N.L.R.B. at 885 (quoting Meyers I, 268
N.L.R.B. at 497).
92
Id. at 887 (emphasis added).
25
may arise in the course of his or her employment.93 Rather, the
focus was clearly on the nexus between an employee complaint
or action and “the terms and conditions of their employment.”94
Thus, a complaint that shoes furnished by an employer were
uncomfortable would probably not be the kind of complaint
that could be distinguished from a lone employee’s gripe.
However, complaints that protective shoes furnished by an
employer were of such poor quality that they failed to protect
employees from injury might well come within the ambit of the
NLRA.
The Board’s resolution of Vincer’s complaint clarifies
that the Board will not be formulaically restricted to the Alstate
criteria in determining whether such surrounding
circumstances cloak Vincer’s conduct with the protection of
the NLRA. Rather, the Board announced that it was returning
to the “holistic” approach of Meyers I and its progeny. As
explained above, that inquiry turns on whether an employee’s
93
See Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964) (rejecting the notion “that any conversation
between employees comes within the ambit of activities
protected by the Act provided it relates to the interests of the
employees”); Meyers II, 281 N.L.R.B. at 883 & n.16
(collecting cases to support that “protection for joint
employee action . . . lies at the heart of the Act”) (emphasis
added).
94
City Disposal Sys. Inc., 465 U.S. at 835 (describing
Congress’s intent “to equalize the bargaining power . . . by
allowing employees to band together in confronting an
employer regarding the terms and conditions of their
employment”).
26
conduct benefitted the group “and [was] not solely by and on
behalf of the employee himself.”95 The five-prong inquiry in
Alstate was nothing more than an attempt to provide a recipe
for determining if an employee’s complaint was more than an
individual gripe.96 Viewed in this light, Meyers I and its
progeny simply recognize that the inquiry into whether an
employee’s conduct comes within the scope of the NLRA must
encompass all of the surrounding circumstances and cannot be
limited only to those identified in Alstate.97 For convenience
and clarity, we reiterate those five factors in the margin.98
95
Meyers I, 268 N.L.R.B. at 497.
96
Alstate Maintenance, 2019 WL 183862, at *7 (faulting
Worldmark for having “un-moored itself from Meyers
Industries” by failing to “treat[] the question of whether an
individual employee has engaged in concerted activity as ‘a
factual one based on the totality of the record evidence’”)
(quoting Meyers II, 281 N.L.R.B. at 886); id. at *8 n.45
(clarifying that the five identified factors are “not necessary
elements” and that concerted activity could be established
based on other facts as well).
97
See Miller Plastic Prods., Inc., 2023 WL 5669331, at *10
(“[T]he question of whether an employee has engaged in
concerted activity is a factual one based on the totality of the
record evidence.”) (quoting Meyers II, 281 N.L.R.B. at 886);
Worldmark, 356 N.L.R.B.at 766 (cataloguing specific facts of
case to support conclusion that employee “intended to induce
group action”).
98
“(1) the statement was made in an employee meeting called
by the employer to announce a decision affecting [a] . . . term
or condition of employment; (2) the decision affects multiple
27
Thus, given the necessarily highly circumstantial nature
of the inquiry into concerted activity, there is no ironclad
requirement that employees coordinate before raising concerns
to management even if there is an opportunity to do so.99
Similarly, it is not necessary that multiple employees even be
present for the discussion with management.100 Those are,
however, factors to be considered. Nevertheless, there must be
employees . . . ; (3) the employee who speaks up . . . did so to
protest or complain about the decision, not merely . . . to ask
questions about how the decision . . . will be implemented;
(4) the speaker protested or complained about the decision’s
effect on the work force generally . . . not solely about its
effect on the speaker him- or herself; and (5) . . . the speaker
had no opportunity to discuss it with other employees
beforehand.” Alstate Maintenance, 2019 WL 183862, at *8.
99
See Miller Plastic Prods., Inc., 2023 WL 5669331, at *10
(emphasizing that an employee “may choose to confront their
employer . . . before discussing the matter with coworkers,”
and doing so “will not detract from their intent to induce
group action”); Alstate Maintenance, 2019 WL 183862, at *8
(describing circumstance in which statements could be
concerted even though “the speaker had no opportunity to
discuss it with other employees beforehand”); Worldmark,
356 N.L.R.B. at 767 (“[I]t is irrelevant that [two employees]
did not agree in advance to protest together.”).
100
Miller Plastic Prods., Inc., 2023 WL 5669331, at *4
(noting that Meyers II made clear “that activity that at
inception involves only a speaker and a listener can be
concerted”); Alstate Maintenance, 2019 WL 183862, at *3
(same).
28
evidence of some activity or discussion that imbues the
concern with a “truly group” character.101 The NLRA and the
protections it affords are just that: protections. The Act was
intended as a shield and not as a sword that an employee could
use to bludgeon an employer with individual (and perhaps
petty) complaints that would otherwise be dismissed as “mere
griping.”102
Accordingly, we recently explained in MCPc, Inc. v.
NLRB that, consistent with Meyers II, we “recognize[]
individual conduct as ‘concerted’ both where ‘individual
employees seek to initiate or induce or to prepare for group
action’ and where ‘individual employees bring[] truly group
101
See Miller Plastic Prods., Inc., 2023 WL 5669331, at *8
(explaining that while a solo complaint need not derive from
group action, “it 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 had some relation to group action in the
interest of the employees”) (quoting Meyers II, 281 N.L.R.B.
at 887) (emphasis omitted); Alstate, 367 N.L.R.B. at *3
(discussing evidence to establish that individual employee “is
acting other than solely by and on behalf of him- or herself”);
Worldmark, 356 N.L.R.B. at 766 (discussing evidence to
show employee is “engaged in initiating group action”).
102
MCPc, Inc., 813 F.3d at 483 (discussing Mushroom
Transp. Co., 330 F.2d at 6833, 685); see also id. at 488
(explaining that the NLRA does not undermine an
“employer’s general freedom” to discharge an employee . . .
‘so long as the terms of the [Act] are not violated’”) (quoting
Meyers I, 268 N.L.R.B. at 497 n.23).
29
complaints to the attention of management.’”103 But we
reiterated that “mere griping” is not protected,104 and the
presence of other employees as spectators does not transform
a solo complaint (i.e., an individual gripe) into something
concerted.105 However, absent evidence of coordination
among employees, evidence that other employees share the
same concern can distinguish between a solo complaint and a
truly group concern.106 Thus, MCPc described “the touchstone
for an individual’s concerted activity” as “whether the
employee intends to induce group activity or whether the
employee’s action bears some relation to group action in the
interest of the employees.”107
Importantly, this view of concerted activity does not
require the lone employee to have succeeded in galvanizing
colleagues to act alongside him/her. For reasons that should
be obvious, the NLRA must protect successful attempts to raise
group concerns as well as unsuccessful attempts to do so.108
103
Id. at 483 (quoting Meyers II, 281 N.L.R.B. at 887).
104
Id. (quoting Mushroom Transp. Co., 330 F.2d at 685).
105
Id. at 484–85.
106
See id. at 485 (“any doubt” as to group nature of lone
employee’s complaint was “dispelled” when other employees
expressed agreement).
107
Id. at 484.
108
See Mushroom Transp. Co., 330 F.2d at 685 (explaining
that “preliminary discussions” can be protected, for concerted
activity “has to start with some kind of communication” and
“it would come very near to nullifying the rights . . .
guaranteed by Section 7 . . . if such communications are
denied protection because of lack of fruition”).
30
Otherwise, an employer would be free to get rid of a
“troublesome” employee before s/he had a chance to bring a
legitimate group concern to the attention of other employees.
And this would reward any employer that creates a coercive
and intimidating atmosphere in which other employees would
be fearful of risking their jobs by speaking up.109 Congress
clearly did not intend to create such perverse incentives as
would arise from a narrow interpretation of “concerted
activity.”
As courts repeatedly have recognized, concerted
activity should not be limited to activities in which multiple
employees directly participate, for lone employees can inspire
or otherwise contribute to group action in ways that vindicate
the goals of the NLRA.110 And employers should not be free
to get rid of employees before they have had a chance to bring
their group concerns to the attention of others. Nevertheless,
Section 7 only protects the actions of a lone employee if s/he
seeks to induce group action or raises a truly group concern.
109
Cf. Jeannette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir.
1976) (holding an employer’s rule prohibiting wage
discussion among employees “prima facie violative of [the
NLRA]” because “higher wages are a frequent objective of
organizational activity, and discussions about wages are
necessary to further that goal”).
110
See City Disposal Sys. Inc., 465 U.S. at 835 (“There is no
indication that Congress intended to limit [Section 7’s]
protection to situations in which an employee’s activity and
that of his fellow employees combine with one another in any
particular way.”).
31
2. The Concerted Nature of
Vincer’s Conduct
Applying the foregoing principles to this appeal,
substantial evidence supports the Board’s determination that
Vincer, in speaking up about pandemic-safety measures under
the circumstances here, “sought to bring ‘truly group
complaints to the attention of management.’”111 Although this
record does not establish that group action resulted from
Vincer’s complaints about Miller Plastic remaining open, it
does not have to. As we have noted, the law protects concerted
activity whether or not that activity is successful. Vincer spoke
out about safety concerns arising from the deadly COVID-19
pandemic. He spoke to others in an effort to have his employer
close during the pandemic because of his COVID-19-related
fears. In addition to speaking out at the group meeting, he also
encouraged at least one employee—Boustead—to raise
pandemic-safety concerns directly with management. The fact
that no significant group action followed Vincer’s activity does
not change the nature of his conduct.
i.
This record establishes that the pandemic was a topic of
discussion in the plant generally, but also that Vincer’s views
and statements on pandemic-safety issues made him an outlier
among his colleagues.112 Although there is no evidence that
111
Miller Plastic Prods., Inc., 2023 WL 5669331, at *11
(quoting Meyers II, 281 N.L.R.B. at 887).
112
See AR 205:13–14 (Boustead reading previously
submitted declaration that “Vincer complained more than
32
any employees authorized Vincer to speak on their behalf,
Boustead testified that at the March 16 all-hands meeting,
“there was [sic] several people more than Mr. Vincer stating
that we were not an essential business.”113 The ALJ and the
Board relied upon this testimony in their factual findings. This
testimony was from the witness that the ALJ deemed “most
credible,”114 and it provides evidence “that a reasonable mind
might accept as adequate to support [the] conclusion”115 that at
least some other employees agreed with Vincer’s assertion that
“we shouldn’t be working.”116 This goes beyond “merely
complaining in a group setting.”117 There were plausible
reasons to disagree with Miller Plastic’s decision to remain
open: Governor Wolf had ordered non-life-sustaining
businesses to close but had not identified which businesses
were life-sustaining. It is clear that other employees shared
Vincer’s concerns about their employer remaining open during
a life-threatening pandemic so severe that the state’s governor
had ordered non-essential businesses to close.
other employees about COVID-19 concerns”); id. at 227:15–
16 (Boustead testifying that “a majority of [Vincer’s
statements] would be his own personal concerns”); id. at
234:14–15 (Boustead testifying that “[Vincer] was expressing
more concerns than other employees.”).
113
Id. at 203:24–25.
114
AR 462 n.12.
115
Starbucks Corp., 125 F.4th at 86 (quoting ImageFIRST
Unif. Rental Serv., 910 F.3d at 732).
116
Miller Plastic Prods., Inc., 2023 WL 5669331, at *11.
117
MCPc, Inc., 813 F.3d at 484.
33
In MCPc we explained that concerted activity can occur
when one employee “expresses grievances to management
about a matter of general employee interest in a group meeting
context,”118 even “without the imprimatur of other
employees.”119 There, during a team-building lunch, an
employee told a manager that he was working too many hours,
urged the manager to hire additional engineers, and cited the
high salary of a recently hired executive as evidence that the
company could afford additional hires.120 Other employees at
the lunch agreed.121 We explained that this was protected
concerted activity because the lunch “provided a group forum
within which [the employee] could relay to management
complaints shared by other employees about workplace
conditions they wished to see improved,” and other employees
spoke up in agreement, demonstrating the group nature of the
concern.122
Vincer’s conduct carries the same indicia of being
concerted as the conduct that qualified for protection under the
NLRA in MCPc. Vincer used the “group forum”123 of the
March 16 all-hands meeting to bring concerns about the plant’s
operating status to management. These concerns revolved
118
Id.
119
Id. at 483.
120
Id. at 479.
121
Id.
122
Id. at 485. However, as we have explained, it is not
imperative that other employees voice agreement with a
complaint for that speaker to be protected by the NLRA.
123
Id.
34
around “workplace conditions”124—pandemic-safety
measures. And, as discussed above, the record supports that at
least some employees openly shared Vincer’s belief that Miller
Plastic would not be designated essential. Vincer even went a
step further than the employee in MCPc when he convinced
Boustead to speak to management about workplace safety.125
The facts here differ somewhat from those in MCPc
because there, other employees expressed agreement after the
first employee spoke up, effectively ratifying the concern in the
group setting. This case is the inverse. Other employees said
the plant was not an essential business, and they appear to have
said so before Vincer spoke up. However, that distinction does
not undermine the group nature of Vincer’s complaint. In
MCPc, other employees’ subsequent agreement was important
to establish the group nature of the grievance. Here, however,
this is otherwise established through Boustead’s credited
testimony that at the March 16 all-hands meeting, there were
“several people more than Mr. Vincer stating that we were not
an essential business.”126 As the Board summarized, “the
emerging pandemic was a frequent topic of conversation
within the plant” even before the March 16 meeting, and at that
meeting, “[s]everal other employees also raised questions
regarding whether [Miller Plastic] qualified as an essential
business.”127
124
Id.
125
Miller Plastic Prods., Inc., 2023 WL 5669331, at *3.
126
AR 203:24–25.
127
Miller Plastic Prods., Inc., 2023 WL 5669331, at *2.
35
ii.
Vincer raised the same issues again in his one-on-one
conversation with Zeliesko on March 23. He asked Zeliesko
“if he [Zeliesko] thought the company should be open and
operating.”128 This conveyed that Vincer disagreed with the
decision to remain open. We agree with the Board that this
was an extension of his March 16 effort to bring this group
concern to the attention of management.129
Miller Plastic argues that questioning management
cannot constitute concerted activity. It challenges the Board’s
decision to overrule Alstate in this respect.130 As we have
explained above, we do not think that Alstate is categorically
irreconcilable with the approach the Board espoused in this
case. In Alstate, the Board contrasted a situation in which an
employee speaks up “to protest or complain about [a]
decision,” which it said would be indicative of concerted
activity, with a situation in which an employee speaks up
“merely . . . to ask questions.”131 On review in this case, the
128
Id. Zeliesko’s testimony, which appears to be the basis for
the Board and ALJ’s findings, formulated the question still
more provocatively: “[D]o you think we should even be
open?” AR 48:25–49:1.
129
See Miller Plastic Prods., Inc., 2023 WL 5669331, at *11.
130
As we noted above, the Board would have found concerted
activity here even under Alstate. See id. at *11 n.22. This
strongly suggests that even under Alstate, the fact that an
employee communicates via a question does not preclude a
finding of concerted activity.
131
2019 WL 183862, at *8.
36
Board opined that “asking questions is frequently an indirect
way of criticizing and drawing others to oppose a new
policy.”132
We disagree with the notion that asking questions is
inherently inconsistent with seeking to induce group action or
raise group complaints. Common experience establishes that
whether or not a question is actually an assertion depends on
context. For example, a statement like “are you really serious
about that” may well be nothing more than an expression of
disagreement. But it could also be a way of disparaging the
listener’s position (i.e., “you can’t be serious?”). As we have
explained and as our decision in MCPc made clear, concerted
activity must be assessed in context of the totality-of-the-
evidence.133 Circumstances simply should not be ignored in
determining when activity is concerted under the NLRA.
MCPc explicitly rejected restricting concerted activity to
“exclusive categories” of recognized conduct.134 Moreover,
our sister circuit courts of appeals agree that a question can be
posed in a manner that conveys concern about working
conditions.135
132
Miller Plastic Prods., Inc., 2023 WL 5669331, at *10.
133
813 F.3d at 486.
134
Id. at 484.
135
See, e.g., NLRB v. Caval Tool Div., 262 F.3d 184, 189–90
(2d Cir. 2001) (finding employee’s questions and comments
“directed at an announced change in the terms and conditions
of employment” were concerted); NLRB v. Talsol Corp., 155
F.3d 785, 797 (6th Cir. 1998) (agreeing that questions in a
“group meeting” about “the safety of the plant” furthered a
37
The Board could certainly consider a question and the
circumstances in which Vincer posed it in assessing concerted
activity under the holistic approach of Meyers and its progeny,
as well as assessing it as one of the factors set out in Alstate.
Indeed, the Board suggested that it had conducted just such an
inquiry here when it noted that it would have also found
concerted activity under the Alstate framework.136
We therefore conclude that substantial evidence
supports the Board’s conclusion that Vincer’s statements at the
March 16 all-hands meeting raised a “truly group complaint”
with management, and thus, constitute concerted activity under
the NLRA. Vincer’s March 23 conversation with Zeliesko was
an extension of his effort to raise that same group concern.137
common interest and were concerted within the meaning of
Section 7).
136
Miller Plastic Prods., Inc., 2023 WL 5669331, at *11
n.22.
137
See City Disposal Sys. Inc., 465 U.S. at 831–32
(explaining that Section 7 covers distinct actions that together
represent “a single, collective activity”); see also NLRB v.
Mike Yurosek & Son, Inc., 53 F.3d 261, 266 (9th Cir. 1995)
(reasoning that a lone act can be concerted if it is “a logical
outgrowth of prior concerted activity” (internal quotation
marks omitted)).
38
3. Vincer’s Conduct was for
“Mutual Aid or Protection”
There is also substantial evidence that Vincer’s
concerted activity was for the purpose of “mutual aid or
protection.”138 The Board adopted the ALJ’s finding that
Vincer acted in service of mutual aid or protection because he
raised concerns about workplace safety, and those concerns
affected all employees. We agree. The facility’s operating
status during the pandemic impacted the working conditions of
all employees.139 Vincer’s statements and conduct reveal a
belief that shutting down the facility, or alternatively
implementing more stringent quarantine protocols if it
remained open, was necessary to ensure employee safety.
Thus, he raised concerns “to improve conditions of
employment.”140 And there is no suggestion that Vincer’s
conduct was “unlawful, violent, or in breach of contract” so as
to otherwise “fall outside the shelter of § 7.”141
138
29 U.S.C. § 157.
139
See Wheeling-Pittsburgh Steel Corp. v. NLRB, 618 F.2d
1009, 1018 (3d Cir. 1980) (explaining “mutual aid or
protection” element satisfied where employees were
motivated by “concern for the safety of the other employees,
as well as themselves”).
140
MCPc, Inc., 813 F.3d at 486 (citing Asplundh Tree Expert
Co. v. NLRB, 365 F.3d 168, 172 n.3 (3d Cir. 2004)).
141
Id. (quoting Wheeling-Pittsburgh Steel Corp., 618 F.2d at
1018).
39
b. Whether Vincer was Fired Because of his
Protected Conduct
An employer violates the NLRA if it “interfere[s] with,
restrain[s], or coerce[s] employees in the exercise of the rights
guaranteed” in Section 7,142 including by firing an employee
for engaging in protected concerted activity.143 The Board
adopted, without analysis or discussion, the ALJ’s conclusion
that Miller Plastic violated Section 8(a)(1) by discharging
Vincer because of his protected concerted activity. Miller
Plastic contends that there is insufficient evidence to support
this conclusion and that it terminated Vincer for reasons
unrelated to his COVID-19 inquiry, namely, poor job
performance.
Where the parties present competing explanations for a
termination, we apply the test established by the Board in
Wright Line,144 which the Supreme Court approved in NLRB v.
Transportation Management Corp.145 “Under this test, if the
[Board] makes a prima facie showing that protected conduct
was a motivating factor in the employer’s decision, the burden
142
29 U.S.C. § 158(a)(1).
143
See NLRB v. Omnitest Inspection Servs., 937 F.2d 112,
122 (3d Cir. 1991) (“The Act prohibits an employer from
discharging an employee because of union membership or
activities.”).
144
251 N.L.R.B. 1083 (1980), enforcement denied, 662 F.2d
889 (1st Cir. 1981), abrogated by NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393 (1983).
145
462 U.S. at 397–404, abrogated in part on other grounds
by Dir., Office of Workers’ Compensation Programs v.
Greenwich Collieries, 512 U.S. 267 (1994).
40
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct.”146
1. Wright Line Step 1: The Board’s
Burden
The Board may rely on circumstantial evidence to meet
its burden under Wright Line.147 We agree with Miller Plastic
that there is no evidence of explicit animus toward Vincer’s
protected conduct. We therefore need to consider whether the
totality of circumstances surrounding Vincer’s dismissal
nonetheless support an inference of an improper motive for the
termination. In doing so, we remain mindful of the caution we
expressed in a very different context that today’s sophisticated
employer is not likely to leave a “‘smoking gun’ behind” that
would provide direct evidence of an illegal animus.148
The ALJ determined that Vincer’s concerted activity
was a motivating factor in his termination, citing the close
temporal proximity between that conduct and Vincer’s
termination, the lack of an investigation into Vincer’s
production deficiencies, Miller Plastic’s purportedly shifting
explanations for the termination, and the dearth of disciplinary
history for Vincer.
146
MCPc, Inc., 813 F.3d at 488 (quoting NLRB v. Alan Motor
Lines Inc., 937 F.2d 887, 889 (3d Cir. 1991)).
147
Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 815 (3d Cir.
1986).
148
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,1082
(3rd Cir. 1996) (referring to circumstantial evidence of racial
bias in the employment context).
41
As an initial matter, it is clear that Miller Plastic acted
with full knowledge of Vincer’s protected activity. Zeliesko
and Trenary witnessed Vincer’s statements at the March 16
meeting, and Zeliesko was a participant in the March 23
conversation. Although Donnie Miller ultimately made the
decision to fire Vincer, he did so on the recommendation of
Zeliesko and Trenary, and their direct knowledge is sufficient
to establish the company’s knowledge.149
Given Miller Plastic’s awareness of Vincer’s protected
activities, the timing of Vincer’s termination provides
circumstantial evidence of animus. Vincer was fired a week
and a day after he spoke up at the all-hands meeting, and just
one day after his conversation with Zeliesko. Such a close
temporal connection between the protected activities and the
termination is highly indicative of a causal connection.150
149
See MCPc, Inc., 813 F.3d at 487 n.8 (explaining that
employer’s knowledge would be established where concerted
activity occurred in the presence of management); Grand
Rapids Die Casting Corp. v. NLRB, 831 F.2d 112, 117 (6th
Cir. 1987) (imputing knowledge to employer where, even if
final decisionmaker lacked knowledge of employee’s union
activities, discharge was based on reports from supervisors
that did know of union activities).
150
See 1621 Route 22 W. Operating Co., LLC v. NLRB, 825
F.3d 128, 136, 146 (3d Cir. 2016) (upholding finding of
unlawful retaliation where employer began disciplining union
activists weeks after union election); Healthcare Emps.
Union, Local 399 v. NLRB, 463 F.3d 909, 920 (3d Cir. 2006)
42
This is especially so if the temporal connection
coincides with a change in how the employer responds to rule
violations.151 Here, the Board found that while management
historically had “counseled” Vincer about issues such as
excessive talking, cellphone use, and slow production times, it
never formally disciplined him for this behavior.152 Then, on
March 24, Miller Plastic terminated Vincer, purportedly
because he was using his cellphone at work. In other words,
Miller Plastic appears to have switched from tolerating
Vincer’s cellphone use to terminating him in response to that
behavior one day after Vincer engaged in protected activity.
We appreciate that a single act of misconduct, when
viewed cumulatively with the employee’s history, can equate
to the proverbial the straw that breaks the camel’s back.
(finding “an unmistakable inference of anti-union animus”
where employer subcontracted out work less than a month
after union filed petition for election, and less than two weeks
before scheduled election); D&D Distrib. Co. v. NLRB, 801
F.2d 636, 639, 641 (3d Cir. 1986) (finding concerted activity
was motivating factor when it occurred a week before
discharge); W.F. Bolin Co. v. NLRB, 70 F.3d 863, 872 (6th
Cir. 1995) (finding timing supported animus where employer
laid off two painters two-and-a-half weeks after they led a
meeting on employee grievances).
151
See 1621 Route 22 W. Operating Co., 825 F.3d at 136–37
(recounting how employer began disciplining employees after
union election for rule violations that it historically had
tolerated, which supported retaliation finding).
152
Miller Plastic Prods., Inc., 2023 WL 5669331, at *2.
43
Nevertheless, this record is sufficient to infer animus on the
part of Miller Plastic. Vincer’s personnel file “was relatively
bare in comparison” to those of other terminated employees.153
Vincer’s file did not contain any investigation into the reasons
for his termination, analysis of his performance deficiencies,
documentation of prior rule violations,154 or even a letter
memorializing the termination.155 By contrast, management
prepared a detailed analysis showing that Onuska—who was
terminated six days after Vincer—cost the company thousands
of dollars by his tardiness and absenteeism. The company did
a similar analysis for Shawn Peterson, a machinist discharged
in November 2019 for “slow production times and failing to
meet company standards.”156 While this level of analysis was
not completed for every termination, most other employees had
multiple warning-report forms in their files by the time they
153
AR 472.
154
As we have noted, Miller Plastic did submit into evidence
three unsigned warning-report forms, which the ALJ found
carried no evidentiary value. That finding is supported by
substantial evidence because, as the ALJ explained, the
majority of other warning-report forms produced in this
proceeding carried signatures, casting doubt on the
authenticity of the unsigned forms. In addition, Vincer
testified that he had no knowledge of these forms having been
placed in his file.
155
On June 4, 2020, more than two months after Vincer was
fired, Miller Plastic provided a bare-bones correspondence
that simply stated, “This is an official employment
termination letter for Ronald Vincer. He was let go from
Miller Plastic[] on March 24, 2020.” Id. at 388.
156
Id. at 467.
44
were fired. The exception is Saloom, who, like Vincer, was
fired in late-March 2020 for slow productivity but never
received a warning.
The ALJ conceded that Miller Plastic’s “approach to
employee discipline . . . has varied.”157 The record does not
reveal any fixed practice of issuing a particular number of
warnings or completing an analysis prior to terminating an
employee. Nonetheless, the absence of any credited warning
reports, analysis, or even a formal termination letter in Vincer’s
file is consistent with the ALJ’s conclusion that Miller Plastic
decided to fire Vincer at least partly in response to Vincer’s
protected conduct.
Miller Plastic frames the evidence quite differently, and
as we discuss in the following section, the record also could be
interpreted to show that management viewed Vincer’s chronic
rule violations as unacceptable and cause for termination.
However, given our deferential standard for reviewing the
ALJ’s factual determinations, we agree that a reasonable
decisionmaker could conclude that the absence of formal
discipline or reprimand meant that Vincer’s termination was a
significant reversal in Miller Plastic’s response to Vincer’s rule
violations. The company’s knowledge of Vincer’s protected
activity, coupled with a change in its response to Vincer’s
problematic behavior mere days after the protected activity,
and the absence of any investigation, analysis, or
documentation in his personnel file to otherwise explain the
termination, constitutes substantial circumstantial evidence
157
Id.
45
that the protected activity was at least a motivating factor in
Vincer’s termination.158
158
Nevertheless, we note that, contrary to the ALJ’s
conclusion, there is not substantial evidence that Miller
Plastic presented what the ALJ described as “[s]hifting
[d]efenses.” Id. at 472. Miller Plastic’s story consistently has
been that Vincer was fired for excessive talking and cellphone
use that got in the way of his work. The earliest evidence of
this is Vincer’s unemployment compensation application,
completed the day of his termination, in which he reported
that he had been fired for “to[o] much talking to coworkers,
lack of profits and poor attitude.” Id. at 429. Vincer later
testified that management informed him on March 24 that he
was being fired for “poor attitude, talking, and lack of profit.”
Id. at 247:8–9. Later, in a July 2020 form related to Vincer’s
unemployment claim, Miller Plastic wrote that Vincer was
terminated for “not meeting production time for efficiency.”
Id. at 363. While this is not a word-for-word recitation of the
language that Vincer used, common sense dictates that talking
(at the expense of working) hurts productivity and efficiency.
Along these same lines, in an October 2020 letter responding
to the Board’s investigation, Miller Plastic discussed the
reasons for terminating Vincer as “distracting other[s]” and
cellphone use, which “goes back to safety standards and
distraction of the quality of work” and “cause a lack of
efficiency and a slowdown of their output.” Id. at 404. The
ALJ faulted Miller Plastic for “add[ing]” that this conduct
posed “safety risks” and that Miller Plastic faced difficult
economic circumstances. Id. at 472. Yet it seems clear that
these are simply additional ways of explaining why Vincer’s
46
2. Wright Line Step 2: Miller
Plastic’s Burden
At the second step of the Wright Line analysis, the
burden shifts to the employer to “demonstrate by a
preponderance of the evidence that it would have taken the
same adverse action for legitimate reasons, not merely that it
could have done so.”159 Miller Plastic maintains that Vincer’s
poor performance would have led to his termination whether
or not he raised concerns about pandemic policies, particularly
in light of the financial pressures that Miller Plastic faced by
late-March of 2020.
The ALJ agreed that pandemic-era economic pressures
would have led Miller Plastic to fire some employees in late
March.160 The ALJ characterized the terminations of Cowger,
Saloom, and Onuska as “clearly related to the staffing
decisions that [Miller Plastic] needed to make prior to entering
the PPP program.”161 The ALJ acknowledged that these same
talking and cellphone use were unacceptable: Vincer was
talking instead of working, which was bad for efficiency,
safety, and profitability.
159
Starbucks Corp., 125 F.4th at 89.
160
AR 472–73 (“Facing a likely economic downturn, [Miller
Plastic] did have some hard decisions to make—keep the
business running but downsize in order to apply for the
amount of PPP program relief that it believed would
accurately reflect its payroll.”).
161
Id. at 471.
47
considerations were “a factor” in Vincer’s termination.162
Nonetheless, the ALJ believed that it was unclear whether
Vincer would have been among those fired if not for his
protected conduct, given the “absence of documentary or other
reliable evidence . . . [of] how Vincer’s production compared
to other employees.”163
This conclusion assumes that Miller Plastic selected the
employees to fire in late March by comparing production
times. We do not see evidence of this in the record. If
anything, the absence of any productivity or performance-
related analyses for Cowger and Saloom undercuts that
assumption. Concomitantly, the ALJ’s analysis fails to
account for the substantial evidence of other reasons that
plausibly could have caused Vincer to be among those fired:
his excessive talking and cellphone use.164
It is undisputed that company policies prohibited
cellphone use during working hours and that employees knew
of this policy. The Employee Handbook and Company
Policies warn of discipline for “interfer[ing] with the orderly
and efficient operation of a department”165 or “[n]eglect of
162
Id. at 465; see also id. at 472 (“[Miller Plastic’s] financial
condition was a factor in the decision to discharge four
employees, including Vincer, between March 24 and 31.”).
163
Id. at 473.
164
Excessive talking and cellphone use would logically be
expected to slow production times, as Miller Plastic argued
before the ALJ.
165
Id. at 346.
48
duty,”166 respectively. The common-sense meaning of those
phrases reasonably could comprise talking at the expense of
working. It also is undisputed, and the Board’s factual findings
reflect, that Vincer “would often talk to other employees at
their workstations,”167 leading management to “periodically
counsel[] Vincer about performance deficiencies, including
excessive talking, distracting coworkers, and using his cell
phone.”168
Beyond this, Boustead—the most credible witness—
testified that he and Vincer received multiple “verbal
warnings” for talking,169 which supervisors said “several
times” was “excessive” and could lead to suspension or being
“written up.”170 Even Vincer admitted to receiving multiple
166
Id. at 354.
167
Miller Plastic Prods., Inc., 2023 WL 5669331, at *1.
168
Id. at *2.
169
AR 194:21–23 (“We were—I was warned several times
when Mr. Vincer was here about talking, him and I, and those
were verbal warnings.”).
170
Id. at 195:1–12 (“A. If Mr. Vincer and I were talking or if
he was in my work area or vice versa, and a plant supervisor
or manager had walked through and seen us talking, they
would ask us to please quit talking. Q. Did they ever tell you
that something more might happen if you didn’t stop talking?
A. At first, they said that they didn’t like it much, but after
time had went on, yes, they did. They said that it was getting
excessive. Q. Okay. Did they tell you you could be
suspended for talking? A. Yes or be actually written up.”);
see also id. at 222:19–23 (“Q. Now, during those last few
49
verbal warnings.171 Boustead testified that he observed Vincer
disrupting other employees’ work172 and he understood from
management that this talking negatively impacted job times.173
He observed Vincer’s distracting behavior become more
severe beginning in late 2019. Boustead testified that he asked
to be moved to a workstation further from Vincer, and after he
months of Mr. Vincer’s employment with Miller Plastic, did
you ever observe him being warned about his behavior? A.
Yes, several times, because I was, as well, because of our
talking and him talking to me.”).
171
Id. at 262:7–10 (“Q. [D]id someone warn you not to be
talking on March 5th, 2020? A. Donnie Miller walked by
and said you need to stop talking.”); id. at 262:20–25 (“A.
[Trenary] came in front of my bench and [Boustead’s] bench .
. . and said, hey, guys, we got to get working, less talk. Q.
So, you had been warned about that type of conduct before, is
that fair? A. Once or twice, yes.”); id. at 264:19–24 (“A. I
was moved away from a former employee. I was moved to
the other end of the fabrication line. Q. So, at one point in
time, you had been caught talking too much to your co-
workers, and you were moved to a different location in the
plant, correct? A. If that’s how you want to put it, correct.”).
172
Id. at 220:9–12 (“Q. Was his conduct disrupting you? A.
Yes. Q. In your work. Q. Yes. And other employees as
well.”).
173
See id. at 196:7–16 (recounting a conversation in which
management asked Boustead why he and Vincer were talking
so much and “why the job times had went down”); id. at
199:21–23 (“A. . . . . Being new, I didn’t realize [at the
beginning] that the talking was causing the problems that it
was at work with job times and performance.”).
50
was moved, his productivity improved.174 Boustead also
testified that in the months before Vincer’s termination, Vincer
was on his cell phone ten or more times in a day, and continued
to walk over to Boustead’s new workstation to talk.
The ALJ did not seriously address the implications of
this testimony insofar as it bears on whether Vincer would have
been included in the group fired at the end of March. To be
sure, the ALJ discounted other evidence of Vincer’s poor
performance, such as the written warning reports and the
testimony of Trenary and Zeliesko. But the absence of written
warnings does not mean that management was unaware of, or
unconcerned with, Vincer’s rule breaking. Miller Plastic’s
Employee Handbook makes clear that Vincer was not entitled
to a particular number of formal warnings before being fired.175
Regardless of whether Vincer received warnings or just
counseling, his performance was sufficiently problematic that
management repeatedly spoke to him about it and colleagues
took notice.
174
Id. at 196:12–16 (“I had suggested that maybe if they
moved me, it might help the situation, which they ended up
doing. And after I was moved and Ron and I were sort of not
next to each other where he could talk to me all day, my job
times increased. And I’ve had no problems since then.”); id.
at 223:23–24 (“I realized after I was moved that my times had
increased.”).
175
See id. at 346 (stating that the company “does not
guarantee that one form of [disciplinary] action will
necessarily precede another”).
51
While a factfinder plausibly could disregard Boustead’s
descriptions of Vincer’s performance because Boustead was
not a supervisor, the ALJ never said that he was discrediting
Boustead’s testimony on this or any other basis. Moreover,
doing so would have the troublesome consequence of leaving
Vincer as the sole witness able to testify about his own
performance, to the extent the ALJ discredited Trenary and
Zelisko’s testimony. To compound this problem, the ALJ
appears to have selectively relied upon certain testimony from
Trenary and Zeliesko,176 despite having characterized those
witnesses as not credible overall.177 Without a more precise
explanation of which testimony was deemed credible and why,
we cannot determine if the ALJ adequately accounted for
pertinent testimony regarding Vincer’s performance.
Potentially relevant testimony from Trenary and Zeliesko
includes that: (1) management issued verbal warnings to
Vincer “many, many times”178 about “his distractions and not
176
See, e.g., id. at 459 n.8 (relying on Zeliesko and Trenary’s
testimony “that employee discipline should be based on
violations of [Miller Plastic’s] policies”); id. at 462 n.11
(relying on Zeliesko’s testimony to support the conclusion
that management communicated with employees about the
pandemic); id. at 467 nn.23, 24 (relying on Zeliesko’s
testimony to establish non-pretextual reasons for terminating
Cowger and Saloom); id. at 470 (recounting Vincer’s March
16 assertion that “we shouldn’t be working,” a direct quote
from Trenary’s testimony).
177
Id. at 460 n.9 (“Zeliesko . . . was not a credible witness.”);
id. at n.10 (“Trenary also lacked credibility.”).
178
Id. at 46:13.
52
following company policy,”179 (2) managers had to make sure
Vincer was still working “almost every single time” they went
through the plant, 180 (3) Vincer “just completely stopped
working” when talking to colleagues,181 (4) Vincer’s habit of
talking instead of working “was pretty bad”182 and getting
worse over time, and (5) Vincer frequently “walk[ed] 80 feet
away from his workstation to . . . talk with Mr. Boustead” after
Boustead moved to a new workstation.183
If Vincer’s performance declined in the months before
he was terminated, if management repeatedly spoke to him
about this, and if management planned to make certain staff
cuts in response to pandemic-era economic conditions, it is
reasonable to conclude that Vincer would have been included
in the group fired in late-March even if he had never spoken up
about pandemic safety. Yet the ALJ rejected Miller Plastic’s
affirmative defense in just three sentences that did not account
for the testimony discussed above. Rather, the ALJ focused
solely on “how Vincer’s production compared to other
employees.”184 The ALJ did not explain whether he was
discrediting the testimony about Vincer’s performance, nor did
he otherwise attempt to reconcile that testimony with the
evidence that Miller Plastic needed to make staff cuts in late-
179
Id. at 46:9–10.
180
Id. at 51:11; see also id. at 141:12 (“It was just constant
with [Vincer].”); id. at 154:7–8 (“[Vincer] was always
texting.”).
181
Id. at 142:21–22.
182
Id. at 144:6.
183
Id. at 155:10–11.
184
Id. at 473.
53
March. The Board, as we have noted, did not independently
analyze this issue at all, writing simply that “[f]or the reasons
stated by the [ALJ],” it was “reject[ing]” Miller Plastic’s
affirmative defense.185
On a petition for review, where the agency has not fully
analyzed an issue, we are “not generally empowered to conduct
a de novo inquiry into the matter being reviewed and to reach
[our] own conclusions based on such an inquiry.”186 Instead,
where, as here, a matter is “plac[ed] primarily in agency
hands,” the proper course “is to remand to the agency for
additional . . . explanation.”187 This holds true when an agency
addresses an issue to some extent but fails to grapple with
important evidence supporting a contrary result.188 Although
there are “‘rare circumstances’ where remand is not
185
Miller Plastic Prods., Inc., 2023 WL 5669331, at *3 n.9;
see also id. at *11 (“As stated in footnote 9, above, we adopt
the judge’s findings that . . . [Miller Plastic] failed to prove
that it would have discharged Vincer even absent this
[protected] conduct.”).
186
INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per
curiam) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S.
729, 744 (1985)) (holding court of appeals erred by reversing
agency based on evaluation of a factual issue that the agency
had never addressed in the first instance).
187
Id. (quoting Fla. Power, 470 U.S. at 744).
188
See, e.g., MCPc, Inc., 813 F.3d at 492–93 (remanding to
the agency to reevaluate the company’s Wright Line defense,
in part because “certain aspects of the ALJ’s findings raise
concerns” as to “whether due consideration has been given to
those portions of the record supporting the contrary result”).
54
necessary,” such as where “the record evidence
overwhelmingly supports—and indeed, compels” a particular
conclusion,189 this is not such a case. It is possible that further
analysis could reconcile the evidence discussed above with the
ALJ’s original conclusion. This evidence is not so powerful as
to compel the conclusion that Miller Plastic should prevail on
its affirmative defense. But there may well exist sufficient
evidence in support of Miller Plastic’s position, and we are
troubled by the ALJ’s rather dismissive analysis of the
evidence that contradicts its rejection of Miller Plastic’s
affirmative defense.
We therefore will remand this case for the Board to
address the evidence recounted above and to reassess in the
first instance whether Miller Plastic would have discharged
Vincer even absent his protected concerted activity. In doing
so, we take no position as to how that evidence should be
weighed or credited. That is not our job.
c. Whether Miller Plastic Should Have Had an
Opportunity to Present its After-Acquired-
Evidence Defense
Where an employer can show that it “would have
discharged an employee on lawful grounds based on evidence
acquired after an unlawful termination,” the employer may be
able to avoid certain remedies that it otherwise would owe to
189
Kang v. Att’y Gen., 611 F.3d 157, 168 (3d Cir. 2010)
(reversing the BIA without remanding for reevaluation of
evidence that “compel[led]” a contrary conclusion, where “no
amount of reconsideration by the BIA would change that”).
55
the unlawfully terminated employee.190 In particular,
“reinstatement is not appropriate and backpay is only available
from the time of the unlawful termination to when the
employer acquired knowledge of the misconduct.”191 After-
acquired evidence is not, however, a defense to liability.
Distinct from an employer’s affirmative defense under Wright
Line, the after-acquired-evidence defense bears only on the
nature of the appropriate remedy once an employer is found
liable for violating the Act.192
Because liability is a distinct inquiry from whether, and
to what extent, an employee may be entitled to reinstatement
and back pay, the Board historically has followed an
“established two-stage procedure,” first evaluating liability,
and later resolving the details of reinstatement and backpay.193
190
Starbucks Corp., 125 F.4th at 92–93 (emphasis added).
191
Id. at 93.
192
See Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221,
1228 (3d Cir. 1994), judgment vacated, 514 U.S. 1034
(1995), reaffirmed in relevant part, 65 F.3d 1072, 1073 (3d
Cir. 1995) (explaining in the analogous context of a Title VII
or ADEA suit that after-acquired evidence “is not relevant in
establishing liability . . . because the sole question to be
answered at that [liability] stage is whether the employer
discriminated against the employee on the basis of an
impermissible factor at the instant of the adverse employment
action”).
193
NLRB v. Deena Artware, Inc., 361 U.S. 398, 411 (1960)
(Frankfurter, J., concurring) (describing the Board’s
“established two-stage procedure” of “first . . . hold[ing] a
56
Federal courts repeatedly have endorsed this approach,
explaining that “compliance proceedings provide the
appropriate forum . . . to offer concrete evidence as to the
amounts of backpay, if any, to which the discharged employees
are individually entitled.”194 We accordingly have held that it
is appropriate to defer consideration of an after-acquired-
evidence defense to the compliance proceeding “where the
standard remedy of reinstatement and backpay has to be
tailored to the particular circumstances.”195
At the hearing before the ALJ, counsel for Miller Plastic
attempted to elicit testimony about information uncovered after
Vincer’s termination that purportedly would have justified
terminating Vincer. Counsel for the Board objected that such
evidence was not relevant to Miller Plastic’s liability and
should be explored only if and when Miller Plastic is ordered
to reinstate Vincer. The ALJ agreed with the Board, explaining
that such evidence would “relate[] to the remedial portion” of
hearing to determine whether an unfair labor practice was
committed,” and only later, after judicial review on liability,
determining the amount of back-pay due).
194
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984); see
also Waterbury Hosp. v. NLRB, 950 F.2d 849, 856 (2d Cir.
1991) (explaining “it was not inappropriate for the Board to
postpone . . . until the compliance stage of the proceedings” a
determination of which strikers were entitled to
reinstatement); Rogers Mfg. Co. v. NLRB, 486 F.2d 644, 649
(6th Cir. 1973) (“We leave to compliance proceedings the
question of which striker may not be entitled to
reinstatement.”).
195
1621 Rte. 22 W. Operating Co., 825 F.3d at 149 n.14.
57
the case but that at the liability stage, “after-acquired evidence
cannot be applied or considered” in determining whether
Vincer was discharged in violation of the Act.196 On appeal,
Miller Plastic argues that the ALJ erred as a matter of law by
precluding Miller Plastic from eliciting this testimony.
Our ruling in 1621 Route 22 West Operating Company
plainly endorses the practice of deferring consideration of
after-acquired evidence to compliance proceedings.197 Miller
Plastic relies on a sole Board decision, Tel Data
Corporation,198 in arguing that it nonetheless should have been
permitted to present its defense before the ALJ. In Tel Data,
the Board took note of after-acquired evidence that was “not
relevant” to the issue of liability but “nonetheless must be
considered in determining whether [the employee] is entitled
to reinstatement and full backpay.”199 The Board proceeded to
evaluate that evidence at the liability stage.200 While that case
and others do show after-acquired evidence has sometimes
been considered at the liability stage,201 we are aware of no
case suggesting that this is required. To the contrary, the cases
196
AR 116:8–15.
197
825 F.3d at 149 n.14 (concluding that it would be
“premature” in the liability phase of that case “to evaluate . . .
arguments regarding after-discovered evidence”).
198
315 N.L.R.B. 364, 366–67 (1994), aff’d in part, 90 F.3d
1195 (6th Cir. 1996).
199
Id. at 367.
200
Id.
201
See also Starbucks Corp., 125 F.4th at 92–93 (reviewing
after-acquired-evidence defense presented alongside
challenge to liability).
58
discussed above explicitly endorse withholding such
consideration until compliance proceedings.
The ALJ indicated that Miller Plastic would have an
opportunity to present its after-acquired evidence in a later
compliance proceeding, and the Board advocates this approach
in its brief. We see no basis to require the agency to follow a
different procedure now. We therefore will deny the petition
for review on this issue.
IV. Conclusion
For the foregoing reasons, we will deny in part Miller
Plastic’s petition for review and grant in part the Board’s cross-
application for enforcement, insofar as the Board asks us to
affirm its finding that Vincer met his prima facie burden to
show that he was terminated because of his concerted activity.
We will also deny Miller Plastic’s petition for review of the
ALJ’s decision to disallow testimony regarding Miller Plastic’s
after-acquired-evidence defense. However, we will deny in
part the Board’s cross-application for enforcement of its Order
and grant in part Miller Plastic’s petition for review because
the NLRB failed to adequately address certain evidence
bearing on Miller Plastic’s defense to liability under Wright
Line. Accordingly, we will vacate the Board’s Order and
remand this case for the Board to address the significance, if
any, of that evidence.202
202
We need not address Miller Plastic’s claim that the Board
abused its discretion in overruling its decision in Alstate. As
we explained above, Alstate is not irreconcilable with prior
Board precedent as set forth in Meyers I and its progeny.
59