PUBLICATIONS

On February 14, 2025, National Labor Relations Board Acting General Counsel (“GC”) William Cowen issued Memorandum 25-05, which rescinded dozens of policy memos issued by his predecessor, Jennifer Abruzzo, during the Biden Administration. Cowen cited an unsustainable “backlog of cases” as the primary motivation for the rescission and shed light on his more measured prosecutorial intent, writing that “[t]he unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.” Cowen also signaled that he plans to publish new guidance to replace some of the rescinded policy memos and signaled that his office may completely abandon other Biden-era policy initiatives.

The rescission memo is among the first public steps Cowen has taken since assuming the Acting GC role in early February. As we expected, it confirms that he plans to chart a different course for some of the most visible and controversial issues in labor law today.

Background: Under the administrative scheme established by the National Labor Relations Act (NLRA) – the federal law that governs the relationship between employers, employees, and labor unions – the discretion whether to issue an administrative complaint against an employer based on an unfair labor practice charge is vested with the NLRB’s GC.  The GC therefore acts as the NLRB’s chief prosecutor. In that role, the GC controls what issues are presented to the NLRB for decision (by deciding what issues are to be prosecuted), including those cases that may present novel issues or that provide vehicles through which to seek a change in existing federal labor law.

GC memos are nonbinding guidance materials issued directly by the GC, who uses them to publicly instruct and inform field staff and the general public about the GC’s priorities and interpretations of the NLRA. They also inform employers, unions, and workers how the GC plans to deal with unsettled or controversial issues.

Jennifer Abruzzo was the GC during the Biden Administration. During her tenure, she issued more than two dozen guidance memoranda addressing a wide range of issues. Many of these GC Memos were controversial because they sought to stake out new positions in areas not previously regulated by the NLRA. For example, in 2021, Abruzzo expressed her position in a GC Memo that scholarship athletes at private universities are employees and therefore can organize and bargain collectively, as well as enjoy the protections of the NLRA. In 2023, she issued a GC Memo that set out her position – and therefore signaled her intent to prosecute in appropriate cases – that certain non-competition and employee training repayment agreements violate the NLRA. Other GC Memos issued by Abruzzo changed the NLRB’s approach to negotiating settlement agreements with parties charged with violating the NLRA, essentially requiring that any settlements provide full remedies, and consequently making the environment for obtaining pre-complaint settlements far more challenging.

The Rescission Memo

The rescission memo issued late last week confirms what we expected – Cowen has vastly different policy priorities than his predecessor.

In all, the rescinded memoranda include:

• GC 21-02 Rescission of Certain General Counsel Memoranda
• GC 21-03 Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines
• GC 21-04 Mandatory Submissions to Advice
• GC 21-08 Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act
• GC 22-06 Update on Efforts to Secure Full Remedies in Settlements (Revised Attachment)
• GC 23-02 Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights
• GC 23-04 Status Update on Advice Submissions Pursuant to GC Memo 21-04
• GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision
• GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act
• GC 24-04 Securing Full Remedies for All Victims of Unlawful Conduct
• GC 24-05 Section 10(j) Injunctive Relief and the U.S. Supreme Court’s Decision in Starbucks Corp. v. McKinney
• GC 24-06 Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act
• GC 24-06 Attachment
• GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act
• GC 25-02 Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations
• GC 21-01 Guidance on the Propriety of Mail Ballot Elections, pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020)
• GC 22-04 The Right to Refrain from Captive Audience and other Mandatory Meetings
• GC 23-03 Delegation to Regional Directors of Section 102.118 Authorization Regarding Record Requests from Federal, State, and Local Worker and Consumer Protection Agencies

Acting GC Cowen also rescinded several memoranda pending further guidance on those topics, signaling that additional guidance may be forthcoming from this administration. Those memoranda include:

• GC 21-05 Utilization of Section 10(j) Proceedings
• GC 21-06 Seeking Full Remedies
• GC 21-07 Full Remedies in Settlement Agreements
• GC 22-01 Ensuring Rights and Remedies for Immigrant Workers Under the NLRA
• GC 22-02 Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns
• GC 22-03 Inter-agency Coordination
• GC 22-05 Goals for Initial Unfair Labor Practice Investigations
• GC 23-01 Settling the Section 10(j) Aspect of Cases Warranting Interim Relief
• GC 23-07 Procedures for Seeking Compliance with and Enforcement of Board Orders
• GC 24-01 (Revised) Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC
• GC 25-03 New Processes for More Efficient, Effective, Accessible and Transparent Casehandling
• GC 25-04 Harmonization of the NLRA and EEO Laws

Acting GC Cowen further indicated he would be restoring prior guidance set forth in GC Memorandum 18-01, which had previously delegated authority to authorize certain disclosures by the agency to the Division of Legal Counsel, as opposed to Regional Directors as had been previously authorized under the now rescinded GC Memorandum 23-03.

The directive from the GC to all Board Regions is likely to lead to a re-examination over time of the most far-reaching and precedent-setting decisions from Abruzzo’s tenure. But change typically happens slowly, as cases still must work their way through the Board’s administrative process, which is difficult without a quorum, as we previously wrote.