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US court says worker's COVID safety concerns covered by labor law
June 23 (Reuters) - A U.S. appeals court on Monday agreed with the National Labor Relations Board that a Pennsylvania factory worker's critical comments about the plant remaining open in the early days of the COVID-19 pandemic were protected by federal labor law.
A unanimous three-judge panel of the Philadelphia-based 3rd U.S. Circuit Court of Appeals rejected claims by Miller Plastic Products that the worker, Ronald Vincer, was not acting for the benefit of other employees when he made the comments at a 2020 meeting.
"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," Circuit Judge Theodore McKee wrote.
But the court said the NLRB, which in 2023 used the case to expand the type of worker conduct that it considers concerted activity and thus protected by federal labor law, must reconsider whether Miller fired Vincer about a week after the meeting because of his comments or for other, legitimate reasons.
The five-member NLRB already had two vacancies when President Donald Trump took office in January and now lacks a quorum to decide cases after Trump fired Democratic Member Gwynne Wilcox, who is challenging her removal.
An NLRB spokesman and lawyers for Miller and Vincer did not immediately respond to requests for comment.
Miller claimed that Vincer was fired for performance issues and not because of his comments about keeping the plant open. But the company had also argued that Vincer's comments were not protected by the National Labor Relations Act because he was expressing concerns about his personal safety and not advocating on behalf of his coworkers.
The board disagreed and also said that the test that a Republican majority had adopted in the 2019 case Alstate Maintenance to determine when conduct is concerted was flawed. That ruling said raising concerns in a group setting is not necessarily protected activity, and required workers to show evidence of prior group discussions on a topic to prove their conduct was protected.
The board said that instead, it would consider the "totality of the circumstances" on a case-by-case basis to determine whether a worker had engaged in concerted activity.
Miller appealed, arguing that it was unreasonable for the board to overturn the Alstate decision and that under that standard, Vincer's comments were not protected.
The 3rd Circuit disagreed on both counts on Monday. McKee, an appointee of Democratic President Bill Clinton, wrote that the standard announced by the board was not entirely new and was instead a refinement of a series of rulings released since the 1980s.
But the board did not adequately explain why it concluded that Vincer's termination resulted directly from his comments at the meeting, the panel found. McKee said the board should take another look at that claim while considering the credibility of workers who testified and the fact that three other employees were fired around the same time as Vincer.
The panel included Circuit Judges D. Brooks Smith, an appointee of Republican President George W. Bush, and Luis Restrepo, who was appointed by Democratic President Barack Obama.
The case is NLRB v. Miller Plastic Products, 3rd U.S. Circuit Court of Appeals, No. 23-2689.
For Miller: Robert Bracken of Bracken Law Firm
For the NLRB: Jared Cantor
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