The “Holistic-Meyers” Revival and a Refined Wright-Line Remand:
Commentary on Miller Plastic Products Inc v. NLRB (3d Cir. 2025)

1. Introduction

On 23 June 2025, the United States Court of Appeals for the Third Circuit delivered a precedential decision in Miller Plastic Products Inc v. NLRB. The case arose out of the termination of fabricator Ronald Vincer during the early weeks of the COVID-19 pandemic. The National Labor Relations Board (“NLRB” or “Board”) concluded that Vincer’s dismissal violated §8(a)(1) of the National Labor Relations Act (“NLRA”) because it was motivated by his protected, concerted activity—namely, raising workplace-safety concerns and questioning the company’s “essential business” status.

Miller Plastic petitioned for review; the Board sought enforcement. The Third Circuit (Judge McKee writing, joined by Judges Restrepo and Smith) largely affirmed the Board on liability, but remanded for a fuller consideration of the employer’s Wright-Line affirmative defence—that it would have fired Vincer notwithstanding his protected conduct. The court also approved the ALJ’s decision to defer “after-acquired evidence” to the compliance phase. Most dramatically, the opinion endorsed the Board’s decision to return to the “holistic, totality-of-the-evidence” definition of concerted activity developed in Meyers I and II, thereby displacing the more mechanical five-factor test announced in Alstate Maintenance. The decision therefore sets a new litigative landscape for Section 7 disputes in the wake of the Supreme Court’s recent Loper Bright repudiation of Chevron deference.

2. Summary of the Judgment

• Concerted Activity: The court accepted the Board’s finding that Vincer’s statements at a plant-wide meeting and his follow-up questions to management were concerted under the Meyers framework, because they sought to bring “truly group complaints” to management and to induce group action.
• Mutual Aid or Protection: Pandemic-safety concerns plainly related to working conditions; therefore the conduct fell within §7.
• Motivating Factor: Substantial circumstantial evidence—temporal proximity, knowledge, and a sudden escalation from informal counselling to discharge—supported the Board’s conclusion that protected activity was a motivating factor.
• Employer’s Affirmative Defence: The Board failed to grapple with record evidence suggesting Vincer’s chronic performance problems and the company’s need to trim payroll for PPP-loan purposes. Hence, the court remanded for a fresh Wright-Line step-two analysis.
• After-Acquired Evidence: The ALJ correctly excluded testimony about evidence discovered post-termination; such matters belong in the compliance phase, not the merits phase.
• Precedential Holding: The Third Circuit endorsed the Board’s reinstatement of the holistic Meyers test, clarified that questioning management may constitute concerted activity, acknowledged the demise of Chevron, and articulated when remand is required if the Board overlooks significant contrary evidence.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Meyers Industries I, 268 NLRB 493 (1984) & Meyers II, 281 NLRB 882 (1986): Defined concerted activity as conduct undertaken “with or on the authority of other employees,” including efforts to “initiate, induce or prepare for group action.” The Third Circuit confirms these decisions remain the controlling paradigm.
• Worldmark by Wyndham, 356 NLRB 765 (2011): Earlier Board decision applying the holistic approach; relied upon by the court to show that a speaker’s use of “we” and “us” in a group meeting can evidence concerted intent.
• Alstate Maintenance, 367 NLRB No. 68 (2019): Introduced a five-factor checklist to identify concerted activity. The Board’s overruling of Alstate was endorsed; the Third Circuit found Alstate non-dispositive and not irreconcilable, but nonetheless confirmed the return to a flexible approach.
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Chevron deference overruled. The court explicitly invoked Loper Bright, but found that prior judicial interpretations grounded in agency expertise retain stare-decisis weight.
• Wright Line, 251 NLRB 1083 (1980), as approved in NLRB v. Transportation Management, 462 U.S. 393 (1983): Sets the burden-shifting framework for mixed-motives cases; centre-stage in the remand.
• 1621 Route 22 West Operating Co. v. NLRB, 825 F.3d 128 (3d Cir. 2016): Cited for the proposition that after-acquired evidence should be deferred to compliance proceedings.

3.2 Legal Reasoning

a) Concerted Activity Standard. The court canvassed the historical oscillation between broad and narrow readings of “concerted activity,” concluding that although Alstate offered helpful guideposts, it risked ossifying the analysis. The Meyers standard, as reaffirmed, asks two central questions: (1) did the employee attempt to initiate or induce group action or (2) did the employee bring a truly group complaint to management? Application is factual and holistic, not formulaic.

b) Application to Vincer. Because multiple employees voiced doubts about the company’s essential-business status, and because Vincer encouraged a vulnerable colleague to approach management, his conduct bore the “group nexus” required. The fact that he posed questions rather than made declarations was deemed immaterial; in context the questions functioned as criticism and an invitation to collective dialogue.

c) Mutual Aid/Protection. Pandemic protocols affected everyone’s health; therefore the activity was unquestionably for mutual aid.

d) Wright-Line. Step 1 was satisfied through circumstantial evidence: temporal proximity (one day), knowledge, and a sudden shift from tolerance to termination. But at Step 2 the Board glossed over substantial testimony that long-standing performance issues might have doomed Vincer anyway. Failure to wrestle with that evidence required a Lorion/Ventura-style remand.

e) After-Acquired Evidence. Relying on a “two-stage procedure” endorsed by the Supreme Court in Deena Artware and by circuit precedent, the court upheld the ALJ’s exclusion of evidence showing post-termination misconduct; such matters go only to the scope of reinstatement/back-pay in a later compliance proceeding.

3.3 Impact on Future Litigation

• Concerted-Activity Cases: Litigants can expect renewed emphasis on a flexible, circumstance-specific enquiry; arguments that rely solely on Alstate’s five factors will carry less weight.
• Questioning Counts: Employers should recognise that employees who “just ask questions” about policy changes may be treated as engaging in concerted activity.
• Loper Bright in NLRA Context: Though Chevron is gone, courts will continue to take the Board’s accumulated expertise seriously while exercising independent judgment—making the record, and the Board’s explanation, more critical than ever.
• Wright-Line Remands: Boards must explicitly confront contrary record evidence on an employer’s affirmative defence; failure to do so invites remand even where the complainant’s prima facie case is solid.
• Procedural Segregation of Defences: The decision affirms that after-acquired evidence remains a remedies-only issue, streamlining merits hearings but preserving the employer’s ability to limit liability later.

4. Complex Concepts Simplified

• Concerted Activity: An employee act that seeks to support, initiate, or further group efforts regarding workplace conditions. It can be solo if the speaker is rallying or representing others.
• Mutual Aid or Protection: The activity must aim to benefit more than just the speaker—e.g., pay, safety, scheduling.
• Wright-Line Test: (1) Employee shows protected activity was a motivating factor; (2) Employer can still win by proving it would have taken the same action for lawful reasons.
• After-Acquired Evidence: Misconduct discovered after the firing. It does not erase liability but can cut off reinstatement or back-pay from the date of discovery.
• Compliance Proceedings: A post-liability phase where the Board calculates back-pay and determines reinstatement details; akin to a damages phase in civil litigation.

5. Conclusion

Miller Plastic Products provides a comprehensive, post-Loper Bright road-map for NLRA litigation in the Third Circuit. It (a) revives and clarifies the holistic Meyers standard, (b) recognises that interrogative statements can be protected concerted activity, (c) re-asserts the importance of a fully articulated Wright-Line analysis, (d) confirms that after-acquired evidence belongs in compliance proceedings, and (e) demonstrates the Court’s willingness to scrutinise the Board’s reasoning in the absence of Chevron while still valuing the agency’s expertise. Going forward, employers must carefully document legitimate performance-based reasons for termination, and the Board must thoroughly engage with such evidence. Employees, for their part, can take measured comfort that good-faith, group-oriented expressions—even in the form of pointed questions—remain shielded by Section 7.