Since taking office in January of this year, the new presidential administration has made numerous changes to federal regulations intended to help New Jersey employees and others throughout the country. This includes adjustments by the National Labor Relations Board (NLRB) to its interpretation of federal labor law. The NLRB’s general counsel (GC), who is responsible for investigating alleged unfair labor cases and pursuing actions against employers, issued two memoranda in August 2021 outlining changes in procedures and priorities. One memorandum announces that the GC will be reviewing cases in which the NLRB overturned its own precedents in recent years. This could signal a new direction for the NLRB, which seems to have taken a pro-employer stance in many recent decisions. The second memorandum sets new enforcement priorities for the GC’s office.
Section 7 of the National Labor Relations Act protects employees’ right to organize themselves for the purpose of collective bargaining. This could include joining an existing union or forming a new one. The statute also protects workers who engage in “other concerted activities” related to organizing “or other mutual aid or protection.” Under § 8(a) of the statute, employers may not interfere with employees who are exercising any of these rights, nor may they discriminate or retaliate against employees who engage in protected or concerted activities.
Courts and the NLRB have interpreted “concerted activities” rather broadly at various times since the NLRA’s enactment in 1935. A 2019 decision by the NLRB, however, overruled an earlier decision that took an expansive view of “concerted activities.” The board stated at the time that it sought to overrule cases “that erroneously shield individual action” as opposed to concerted activities. In Memorandum GC 21-04, issued on August 12, 2021, the GC includes the 2019 decision and several others in a list of NLRB decisions addressing the definition of “concerted activity.” This is one of numerous areas of labor law where the GC intends to review the NLRB’s recent decisions.