On February 14, the Acting General Counsel of the National Labor Relations Board (NLRB), William Cowen, issued a memo (GC 25-05) that rescinds a long list of memos by the previous General Counsel, Jennifer Abruzzo. Although the memo does not offer any tangible guidance to employers, it likely foreshadows how the NLRB will approach certain labor law issues under the Trump administration.
What Are General Counsel Memos?
Memos from the NLRB General Counsel (usually referred to as “GC memos”) are nonbinding guidance documents that inform field offices, employers, and employees about the General Counsel’s enforcement priorities. The General Counsel also frequently uses GC memos to share guidance in response to inquiries regarding recent Board decisions or judicial opinions.
When a new General Counsel is installed (especially when the General Counsel’s party changes), the new General Counsel typically rescinds GC memos issued by their predecessor. For example, in February 2021, Biden’s Acting General Counsel issued a memo (GC 21-02) that rescinded a list of GC memos published under the Trump administration. The February 14 memo from Acting General Counsel Cowen once again swings the pendulum back in the other direction.
Highlights from GC 25-05
University Students
GC 25-05 rescinds two GC memos involving university student unionization efforts. The first rescinded memo is GC-21-08, which argued that college student-athletes may be considered “employees” under the NLRA (and therefore covered by the Act’s statutory protections). By rescinding this memo, the General Counsel is likely signaling that he does not believe that student-athletes meet the statutory definition of “employee,” and therefore it is unlikely that any union comprised of college athletic teams would be certified.
The memo also rescinds GC 24-06, which addressed how universities should navigate the tension between their obligation to share information with unions and their obligation to protect certain information under FERPA. Again, rescinding this memo probably indicates that the Board will be less likely to extend NLRA protections to certain university students, such as student-athletes. This could have an impact on recent unionization efforts in traditionally non-unionized areas such as resident advisor positions and undergraduate part-time research assistantships.
Severance Agreements
GC 25-05 also rescinds some earlier GC memos regarding severance agreements. The rescinded memos (GC 23-05, GC 23-08, and GC 25-01) all took the position that employers violated the NLRA if they included certain provisions in severance agreements. In particular, the GC memos criticized non-compete provisions, “stay-or-pay” provisions (agreements requiring employees to pay their employer if they separate from employment), confidentiality provisions, and non-disparagement provisions. The previous General Counsel argued that these provisions prevented or discouraged employees from engaging in activity protected by the NLRA. However, these recissions suggest that the new General Counsel will not seek to prohibit employers from including these types of provisions in severance agreements.
Make-Whole Remedies
Finally, GC 25-05 rescinded three memos (GC 21-06, GC 22-06, and GC 24-04) about “make-whole” remedies available to employees who allege unfair labor practices by their employers. Historically, employees harmed by an employer’s unfair labor practice could only obtain a limited set of remedies, such as reinstatement and backpay. Former General Counsel Abruzzo took the position that more expansive remedies should be available to these employees. The Board agreed with her in Thryv (2022), which provides that monetary remedies should address “all direct or foreseeable pecuniary harms” caused by the unfair labor practice. This expanded slate of remedies could include compensation for credit card debt, out-of-pocket medical expenses, bank overdraft fees, and moving expenses. The recission of these memos may indicate that the new General Counsel will seek to overturn Thryv and limit the scope of available monetary remedies.
Potential Future Litigation
Many of the rescinded memos provided guidance to Biden-era Board decisions. The recission of these memos likely signals that the new General Counsel will seek to bring cases to the Trump Board that will overturn those decisions. Examples include:
- McLaren Macomb (2023): In this decision, the Board stated that broad confidentiality and non-disparagement agreements in severance agreements likely violate the Act because they chill the rights of employees to discuss working conditions. Since GC 25-05 rescinded multiple memos in this area, this topic will probably come up in litigation.
- Cemex (2023): The new memo rescinded GC 24-01, which provided guidance on the Board’s decision in Cemex.Cemex made substantial changes to union representation proceedings, overturning more than half a century of precedent. Rescinding this memo suggests that the new General Counsel will seek to overturn the Cemexstandard and return to the longstanding Linden Lumber (1971) standard.
