The acting general counsel for the National Labor Relations Board on Friday rescinded numerous general counsel memoranda on key Biden-era policies and priorities issued by his predecessor. William Cowan’s memorandum indicates the first significant shift in labor policy priorities under the Trump Administration, previewing fewer restrictions on employers in the next four years.
Although GC memos are non-binding, they provide enforcement guidance for NLRB Regional Offices and inform unions and employers of recent developments in board law and policy.
New Priorities Impact Both Unionized and Nonunionized Employers
Cowan, a former member of the NLRB under President George W. Bush and former regional director based in Los Angeles, blamed the backlog of NLRB cases on the board’s efforts to “attempt to accomplish everything.” He rescinded prior memos providing NLRB regional offices with enforcement guidance on controversial issues that expanded workers’ rights under the Biden Administration, including the rights of student athletes to unionize, electronic monitoring of employees and full remedies for complainants of unfair labor practice charges.
Cowan also rescinded former General Counsel Jennifer Abruzzo’s guidance memos related to the NLRB’s recent impactful decisions on union organizing in Cemex Construction Materials, which required employers to voluntarily recognize a union or file an RM Petition to test the union’s majority support within two weeks from a union’s demand for recognition; and Amazon.com Services, which significantly limited employers’ ability to hold “captive audience” meetings during union organizing campaigns.
The acting general counsel also rescinded guidance memos on issues affecting nonunionized employers, including those on workplace rules, noncompete agreements, and confidentiality and non-disparagement provisions in severance agreements — all of which sought to tighten board prosecution of unfair labor practices related to alleged employer conduct that has a reasonable tendency to interfere with or restrain prospective exercise of employees’ Section 7 rights.
Takeaways, Considerations for Employers
As former NLRB member Gwynne Wilcox continues to challenge her removal from the board by President Donald Trump, the NLRB’s ability to issue decisions consistent with Cowan’s policy enforcement positions is stifled until a new member of the board is appointed and confirmed by the Senate. Notwithstanding the lack of quorum, NLRB regional offices continue to process petitions and charges, while administrative law judges continue to review matters and issue decisions at the lower level based on existing board precedent.
Although recission of the memos will not directly affect pending cases, it could influence how administrative law judges and NLRB regional directors interpret board decisions. Employers should continue to exercise thoughtful consideration of potential risks for unfair labor practice charges when making business judgments that deviate from Abruzzo’s prior guidance.
Cowan, or the next-named general counsel, is expected to continue adjusting the board’s priorities through further rescissions in the coming months.
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