“Beyond the Alstate Checklist” — The Third Circuit Re-embraces a Holistic Test for Concerted Activity after Loper Bright
Commentary on NLRB v. Miller Plastic Products Inc., 2025

1. Introduction

During the first chaotic weeks of the COVID-19 pandemic, Miller Plastic Products, a 30-employee plastics fabricator in western Pennsylvania, dismissed one of its most skilled workers, Ronald Vincer. The National Labor Relations Board (NLRB) concluded that the discharge was motivated by – and thus violated §8(a)(1) of the National Labor Relations Act (NLRA) – because Vincer had voiced concerns about the plant’s pandemic safety and its “essential” status. Miller Plastic petitioned the Third Circuit for review; the Board cross-petitioned for enforcement.

The Court (McKee, J.) largely sided with the Board, holding that:

• Vincer’s remarks were “concerted activity” protected by §7, and the Board revived an expansive, circumstance-sensitive definition, expressly distancing itself from the “five-factor” lens of Alstate Maintenance.
• Substantial evidence supported the Board’s prima facie conclusion that the protected conduct was a motivating factor in the firing.
• The Administrative Law Judge (ALJ) correctly postponed “after-acquired evidence” to the compliance phase.
• But the Board inadequately engaged with record evidence relevant to Miller Plastic’s Wright Line affirmative defense (i.e., that it would have fired Vincer anyway for performance reasons). The case was therefore partially remanded for that limited purpose.

2. Summary of the Judgment

Applying plenary review to questions of law and the post-Loper Bright non-Chevron standard of interpretation, the Court:

1. Affirmed the Board’s re-adoption of the “Meyers holistic” test for concerted activity: a solo employee’s act is concerted when it seeks to initiate, induce, or prepare for group action, or when it brings truly group complaints to management.
2. Held that asking pointed questions can qualify as concerted activity; the form (question vs. statement) is not dispositive.
3. Accepted the Board’s inference that the firing was partly motivated by protected activity (close temporal proximity, change in disciplinary response, lack of contemporaneous documentation).
4. Found, however, that the Board did not meaningfully weigh credible testimony (especially from the employer-favoured witness Boustead) that Vincer’s rule-breaking could itself have justified termination at a time when the company was trimming staff for PPP eligibility. The Court therefore vacated and remanded on the limited issue of the employer’s alternative-cause defense under Wright Line.
5. Upheld the ALJ’s decision to defer “after-acquired evidence” to the compliance stage, citing longstanding Board practice endorsed by the Supreme Court.

3. Analysis

3.1 Precedents Cited and Their Influence

• Meyers Industries, Inc. (Meyers I, 268 NLRB 493 (1984); Meyers II, 281 NLRB 882 (1986))
  Restated that solo conduct is concerted if it originates from, or is directed toward, group concerns – the core standard the Board reverted to in the present case.
• Alleluia Cushion (221 NLRB 999 (1975))
  Earlier expansion of “concerted” based on the societal importance of safety complaints alone, later repudiated by Meyers I. Cited to show the pendulum of Board doctrine.
• Worldmark by Wyndham (356 NLRB 765 (2011))
  Illustrated a fact-specific rather than per-se analysis; the present Board insisted Worldmark was misread in Alstate.
• Alstate Maintenance, LLC (367 NLRB No. 68 (2019))
  Imposed a five-factor test; now effectively relegated to persuasive, non-exclusive status. The Third Circuit notes that the factors remain useful but not mandatory.
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
  Overruled Chevron deference. The Court seized on this to stress its independent duty to interpret “concerted activity”, yet relied on the Board’s expertise as persuasive.
• Wright Line, 251 NLRB 1083 (1980) and NLRB v. Transportation Management, 462 U.S. 393 (1983)
  Two-step burden-shifting for mixed-motive discharges. Central to the partial remand.
• NLRB v. Deena Artware, 361 U.S. 398 (1960) & subsequent Board/Circuit authority
  Endorsed the Board’s “two-stage” procedure (liability first, remedies later), underpinning the after-acquired-evidence ruling.

3.2 Court’s Legal Reasoning

a) Interpreting “Concerted Activity” post-Loper Bright

“The focus must be on whether the employee acted not solely for herself but with an eye to group concerns; labels or rigid checklists cannot eclipse context.” (Slip op. at 25–27)

With Chevron gone, the Third Circuit asserted a more independent role but found the Meyers tradition persuasive. It rejected the idea that Alstate set binding elements; instead, the five factors are illustrative clues. The Court also clarified that:

• Questions can be vehicles for protest.
• Prior discussion among employees is helpful but not indispensable.
• Protection extends to attempts at group action, even if they fail.

b) Applying Wright Line

1. Prima facie Stage. The Court found adequate circumstantial proof (knowledge, timing, shift in disciplinary pattern, thin personnel file) that protected activity was a motivating factor.
2. Employer’s Burden. Because the ALJ ignored or inadequately weighed testimony about chronic performance issues, the Court could not evaluate whether the Board fairly rejected Miller Plastic’s “same-decision” defense. Hence the targeted remand.

c) After-Acquired Evidence

The employer was barred from litigating post-termination discoveries (e.g., alleged résumé fraud) during the merits hearing. The Court confirmed that such evidence pertains to remedy, and Board precedent favours addressing it in the compliance stage, not on liability.

3.3 Likely Impact of the Judgment

• Concerted-activity litigation will broaden. Employees (unionised or not) can rely on a fact-rich, flexible approach, increasing the likelihood that safety, health, or wage protests—particularly from a single outspoken worker—fall under §7.
• Board adjudication post-Loper Bright. Although Chevron deference disappeared, the Third Circuit’s respectful engagement with Board expertise suggests courts will still treat long-standing Board doctrines as persuasive, limiting doctrinal whiplash.
• Employers’ documentation practices. The opinion underscores that sparse or inconsistent personnel records can doom an employer’s Wright Line defence. Robust, contemporaneous documentation of performance problems will be essential.
• End of the “Alstate trap.” The five-factor checklist lives on only as a helpful heuristic; employers and counsel who relied on it as a safe harbour must now refocus on the global context.
• Pandemic-era terminations under scrutiny. By treating COVID-19 safety complaints as workplace-condition grievances, the ruling sets a path for other pandemic-related NLRA claims.

4. Complex Concepts Simplified

Concerted Activity

Any employee action – even by one person – that is designed to initiate or further group concerns about work conditions. It is not limited to formal union activity.

Mutual Aid or Protection

The requirement that the action benefit, or seek to benefit, more than just the speaker (e.g., safety, pay, scheduling) rather than a purely personal matter.

Wright Line Test

Step 1: The General Counsel (or the Board) must show protected conduct was a motivating factor.
Step 2: The employer can still avoid liability if it proves it would have made the same decision anyway for legitimate reasons.

After-Acquired Evidence

Misconduct discovered after the firing that would have justified dismissal. It does not erase liability but can limit remedies (e.g., back pay ends the day the new evidence is found).

Two-Stage Procedure

Board first decides whether a violation occurred (liability). Only later, often in a separate compliance phase, does it quantify back pay or reinstatement.

Loper Bright & End of Chevron Deference

Supreme Court decision instructing courts to interpret statutes independently rather than defer automatically to agency interpretations of ambiguous text. Agencies’ views are still “persuasive,” but not controlling.

5. Conclusion

NLRB v. Miller Plastic Products is significant for several reasons. First, it cements a return to the flexible, circumstance-driven test for concerted activity, freeing the analysis from rigid factors and harmonising Board and court precedent post-Loper Bright. Second, it illustrates the enduring vitality of Wright Line: employers must marshal concrete, well-documented evidence if they wish to prove an inevitable termination. Third, it re-affirms the Board’s two-stage method for evaluating after-acquired evidence, shielding liability findings from collateral issues best addressed in remedy proceedings.

Going forward, practitioners should expect:

• Increased protection for outspoken employees—especially on safety and public-health matters—provided their complaints resonate beyond a purely individual gripe.
• More rigorous judicial review of Board findings under the non-Chevron paradigm, but with continued respect for the Board’s labour-relations expertise.
• Greater emphasis on contemporaneous disciplinary records if employers hope to prevail at Step 2 of Wright Line.

Ultimately, the Third Circuit’s meticulous engagement with precedent, statutory text, and administrative procedure offers a roadmap for future NLRA disputes in the post-Chevron landscape, placing contextual analysis—and careful evidentiary development—at the heart of concerted-activity litigation.