Key Takeaways
- National Labor Relations Board (NLRB or the Board) Acting General Counsel (GC) William B. Cowen issued his first GC memorandum rescinding some of the most controversial Biden-era GC memoranda.
- The memorandum specifically rescinds more than 30 GC memoranda issued by former GC Jennifer Abruzzo, including those addressing expanded remedies, the rights of student-athletes, the National Labor Relations Act’s (NLRA or the Act) application to severance agreements and noncompete agreements, and the Board’s decision in Cemex Construction Materials Pacific, LLC.
- Cowen signaled that his review of Biden-era guidance is “ongoing”; thus, employers should anticipate further dismantling of the prior administration’s policies.
What Did Acting GC Cowen Do?
On Feb. 14, the NLRB’s acting GC, Cowen, issued a memorandum to Board personnel rescinding more than 30 “GC memoranda” issued by the former GC, Abruzzo. Cowen’s action – which had been expected after President Donald Trump removed Abruzzo and the initial acting GC (and Abruzzo’s former deputy GC), Jessica Rutter, from office – represents a significant reversal of the agenda of former President Joe Biden’s NLRB.
GC memoranda do not have the force of law; however, since the GC typically drives the agenda and day-to-day operations of the Board, such memoranda articulating their legal theories and priorities demonstrate where the Board most likely is heading.
As justification for rescinding Abruzzo’s memoranda, Cowen cited what he perceived as the extensive backlog created by Abruzzo’s initiatives. Cowen concluded, “The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.”
What Did Cowen’s Memorandum Rescind?
Among the topics covered in the rescinded Abruzzo-issued memoranda are:
- More expansive interpretation of, and aggressive enforcement related to, employee conduct constituting “mutual aid or protection” and “concerted activity” (GC 21-03)
- The extension of the NLRA to student-athletes (GC 21-08)
- Unlawful labor practices (ULPs) associated with electronic monitoring and algorithmic management of employees (GC 23-04)
- Interpretation of the Board’s decision in McLaren Macomb limiting the use of confidentiality and non-disparagement provisions in severance agreements (GC 23-05)
- Finding the proffer, maintenance and enforcement of noncompete agreements and “stay or pay” provisions to be ULPs, and the expansion of remedies associated with such alleged ULPs (GC 23-08, GC 25-01)
- The expansion of remedies generally available for ULPs and settlements (GC 21-07, GC 24-04, GC 25-02)
- The aggressive use of injunctive relief pursuant to Section 10(j) of the Act (GC 21-05, GC 22-02, GC 23-01, GC 24-05)
- Guidance as to the Board’s Cemex decision facilitating the recognition of unions as employees’ collective bargaining representatives (GC 24-01)
- The encouragement of NLRB cooperation with other agencies, including the sharing of information (GC 22-03, 23-03)
Cowen’s memorandum also reinstates several of the first Trump-era GC memoranda addressing issues – such as employer handbook policies, duty of fair representation charges against unions, employees’ right to revoke union dues authorization, the Board’s deferral to arbitration and intervention in ULP hearings by employees opposed to a union – that Abruzzo had rescinded early on in her tenure.
What Does This Mean for Employers?
As we have chronicled in numerous client alerts and The Bargaining Table blog over the past few years, Abruzzo had been perhaps the most aggressively pro-union GC in the history of the NLRB. As listed above, many of her now-rescinded GC memoranda sought to expand greatly the subject matter covered by the Board, as well as the Board’s remedial arsenal. From defining protected “concerted activity” to cover matters traditionally considered outside the scope of the Act to including various types of out-of-pocket costs as proper remedies for ULPs to intervening earlier and more assertively in union elections, Abruzzo attempted to push the Board beyond how it had traditionally operated.
Cowen’s rescission of Abruzzo’s memoranda is the first step in shifting the Board away from its Biden-era policies back toward the policies of the first Trump Board. As stated in our recent Client Alert, once a “permanent” GC is nominated and confirmed, they will issue memoranda that most likely will seek to establish priorities very different from those found in Abruzzo’s memoranda – including, but not limited to, looking for cases that will allow a soon-to-be Republican-majority Board to reverse cases decided by the Biden Board.
One cautionary note: Cowen’s rescission of the memoranda providing guidance on Cemex and McLaren Macomb suggests that the new GC will argue that those cases should be overturned; however, the Board decisions themselves – addressing the recognition of unions attempting to organize and non-disparagement and confidentiality provisions in severance agreements, respectively – both remain binding precedent at this point. In other words, the rescission of the guidance memoranda does not mean that those decisions have been overturned, and employers should continue to treat those decisions as the law until a new Trump Board overturns them.
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