NLRB: Individual complaint can be "concerted" activity

A single employee, complaining in front of other employees, can support an inference that the employee was seeking to induce group action. If so, that can be "concerted" activity rather than individual "griping" which would not be protected concerted activity.

In Miller Plastic Products (NLRB 08/25/2023) [PDF] the NLRB made it easier to find that employee action is "protected concerted" action.

The Board overruled Alstate Maintenance, LLC, (2019), which effectively narrowed the test for determining concerted activity.  The Board explained that Alstate Maintenance had adopted an unduly restrictive test for defining concerted activity by introducing a mechanical checklist of factors in place of the Board’s traditional, fact-sensitive approach.

The Board's decision included this unremarkable statement: "The question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence."