Acting National Labor Relations Board General Counsel Rescinds Biden-Era Memoranda

Under the new Trump Administration, there has been a number of recent developments at the National Labor Relations Board (Board) affecting employers. In particular, the Board's new general counsel (GC), William B. Cowen, has issued rescission memoranda that have pulled back much of the guidance issued by previous GC Jennifer Abruzzo. These GC memos are nonbinding guidance from the Board that informs employers, unions and workers about how Cowen plans to deal with novel or controversial issues.

The rescission memo demonstrates that Cowen has different policy priorities, moving the Board away from the expansion of organizing rights and providing more room for employers to protect their operations and workforce. Below is a selection of some of the more significant rescinded memoranda, along with a brief explanation of the effects of their rescission on employers.

The Rescinded Memoranda

GC 21-03: Effectuation of the National Labor Relations Act (NLRA or Act) Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines

This memo had challenged the Board's findings in Alstate Maintenance and Quicken Loans. Those decisions found certain non-organizing employee actions were not in furtherance of their mutual aid or protection and therefore not protected. The memo also identified factors that, if present, favor a finding of protection. This memo stated that cases involving retaliation against concerted employee conduct would be vigorously pursued, not just where these identified factors existed.

Cowen's rescission of this memo halts the prior expansion of what conduct may be considered by the Board to be inherently protected and restores the prior application of the factors from Alstate Maintenance and Quicken Loans.

GC 21-08: Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the NLRA

This memo had expanded the status of college athletes as statutory employees under the NLRA – affording them all rights and protections under federal labor laws, including the right to organize. More broadly, the memorandum signaled an expansive view by the agency of protected concerted activity, joint employer liability and independent violations for misclassifying workers, which impact all employers and not just private colleges and universities. This memo also extended NLRA protections to activities that are not directly related to the workplace or terms and conditions of employment such as actions related to general political stances and racial justice issues, which previously had not been considered protected concerted activities.

The rescission of this memo will likely slow litigation and organizing activity involving athletes at both private and public academic institutions and restore the prior boundaries for protected employee conduct under federal labor laws.

GC 23-02: Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights

This memo had urged the Board to adopt a new framework that sought to impose penalties on employers for use of what Abruzzo called "omnipresent surveillance and other algorithmic-management tools" if they tended to impair the exercise of Section 7 rights under the NLRA. The memo took the position that employers were required to disclose the use of these technologies and may violate the NLRA even if employers were using these tools for some other lawful purpose.

The memo's rescission provides more room for employers to productively utilize surveillance and algorithmic-management tools for legitimate purposes, such as to increase production efficiency, without potentially violating the NLRA.

GC 23-05: Guidance in Response to Inquiries About the McLaren Macomb Decision

This memo had provided guidance on the Board's decision in McLaren Macomb, which returned to older precedent holding that employers violate the NLRA when they offer employees severance agreements that require employees to broadly waive their rights under the Act. Specifically, the Board held that where a severance agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer of the agreement itself violates Section 8(a)(1) because it has a reasonable tendency to interfere with or restrain the prospective exercise of those rights by employees. The memo also outlined the kinds of severance agreement provisions that could violate the NLRA if proffered, maintained or enforced, including confidentiality, non-disclosure and non-disparagement, among others.

Although waivers that attempt to limit an employee's ability to participate in the Board's processes or to waive future claims under the NLRA likely will remain prohibited, the rescission of GC 23-05 suggests a generally broader view of what waivers employers may utilize in severance agreements with respect to their Section 7 rights.

GC 24-04: Securing Full Remedies for All Victims of Unlawful Conduct

This memo had expanded the scope of "make whole" damages that the Board should seek for employees who are harmed as a result of an unlawful work rule or contract term, declaring that merely rescinding an overbroad or unlawfully applied rule or contract term is insufficient. Instead, the memo stated additional relief such as compensation for lost contributions to pension funds; increases in the amounts of health insurance premiums, copays, deductibles or co-insurance; lost anticipated earnings from already-accumulated retirement fund amounts; and penalties imposed for early retirement fund withdrawal caused by cessation of participation would often be required to properly make an employee whole after a violation. (See Holland & Knight's previous alert, "NLRB Expands Standard Remedies Available to Victims of Unfair Labor Practices," Dec. 20, 2022.)

The memo's rescission indicates a reduction in the scope of "make whole" damages going forward, leaving room for employers to offer rescission of a rule or contract term as sufficient relief.

GC 25-02: Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations

GC 25-02 had declared an intent to ensure "the general public, Regional personnel, parties to unfair labor practice claims, and administrative law judges" were aware of the Board's insistence that settlement agreements adequately address the "public rights" implicated by the underlying unfair labor practice allegations and to "encourage Regional personnel to vigorously object to any settlement agreements that fail" to address those public rights. The memo further noted that regions should be aware of the Board's ability and inclination to reject private settlements that go against the NLRA or that don't address the effect of underlying unfair labor practices on the public. The memo's rescission indicates that the Board may be more flexible in its approach to settlement of unfair labor practice charges and not as insistent on settlement agreements addressing public rights or the rights of nonparties.

GC 23-08 and GC 25-01: Noncompete Agreements that Violate the NLRA and Remedying the Harmful Effects of Noncompete and "Stay-or-Pay" Provisions that Violate the NLRA

GC 23-08 had declared that the "proffer, maintenance, and enforcement" of noncompete agreements in employment contracts and severance agreements violate the NLRA, except in limited circumstances. (See Holland & Knight's previous alert, "NLRB Decision Restricting Broad Confidentiality/Non-Disparagement Clauses Applies Retroactively," April 5, 2023.) GC 25-01 expanded on GC 23-08 by not only urging the Board to find noncompete provisions unlawful (because they may have a harmful financial impact on employee wages and benefits by explicitly restricting their job opportunities), but it also urged regions to seek make-whole relief to remedy their potentially harmful effects on employees. The memo also addressed how "stay-or-pay" provisions, under which an employee must pay their employer if they separate from employment, infringe on employees' Section 7 rights in a similar manner as noncompete agreements do and, therefore, also violate Section 8(a)(1) of the NLRA unless narrowly tailored. The memo further explained that where a stay-or-pay provision is voluntarily entered into, it would not be considered unlawful if it contained a reasonable and specific payment amount and reasonable "stay" period and did not require repayment if the termination is without cause.

The rescission of these memos broadens the scope of circumstances in which noncompetes and stay-or-pay provisions are permissible under the NLRA (although state laws may find otherwise). Additionally, employers may no longer have to prove that a stay-or-pay provision is narrowly tailored to advance a legitimate business interest when a stay-or-pay provision is challenged.

GC 24-05: Section 10(j) Injunctive Relief and the U.S. Supreme Court's Decision in Starbucks Corp. v. McKinney

On June 13, 2024, the U.S. Supreme Court issued its decision in Starbucks Corp. v. McKinney, 144 S. Ct. 1570 (2024), where it determined that the four-factor test articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), should be the test applicable to all injunction petitions filed under Section 10(j) of the NLRA. Prior to the Starbucks Corp. decision, many of the circuit courts had applied a less stringent two-part test that inquired into reasonable cause and justness of injunctive relief. The GC 24-05 memo had noted that following the Supreme Court's Starbucks decision, the Board intended to continue to aggressively seek Section 10(j) injunctions where necessary despite the stricter standard. The memo's rescission may indicate a new the Board will be more circumspect in seeking Section 10(j) injunctions.

GC 24-06: Clarifying Universities' and Colleges' Disclosure Obligations Under the NLRA and Family Educational Rights and Privacy Act (FERPA)

GC 24-06 provided guidance on the requirements of the NLRA and FERPA in cases involving the duty to furnish information where both statutes may be implicated. In particular, the memo explained that private institutions subject to FERPA (which protects the privacy of student education records and personally identifiable information) must take certain steps to comply with their NLRA obligations upon receiving a request for relevant information from a collective bargaining representative: 1) the institution must determine whether the request seeks education records or personally identifiable information, 2) if a request seeks information protected by FERPA, the institution must offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution, and 3) if the parties reach an agreement over an accommodation, the institution must abide by that agreement and furnish the records.

The rescission of GC 24-06 provides private education institutions more latitude to unilaterally determine whether to provide a reasonable accommodation in response to requests seeking information protected by FERPA.

Memoranda Rescinded Pending Additional Guidance

Cowen also rescinded several other memoranda "pending additional guidance" on those topics, indicating that these areas likely will be the focus of the new administration and that new guidance will be on its way. Those memoranda are summarized in more detail below.

GC 22-01: Ensuring Rights and Remedies for Immigrant Workers Under the NLRA

This memorandum stated the Board's prior policy of seeking immigration relief – including deferred action, parole, continued presence, U or T status, a stay or removal, or other relief – to protect immigrant workers who exercise their statutory rights under the NLRA. By rescinding this memorandum, Cowen appears to be aligning the Board's immigration policy with the current administration. Additional guidance is forthcoming to determine what immigration remedies, if any, are appropriate when immigrant workers exercise their statutory rights under the NLRA.

GC 24-01 (Revised): Guidance in Response to Inquiries About the Board's Decision in Cemex Construction Materials Pacific, LLC

By overruling the Linden Lumber Division, Sumner & Co. decision when it decided Cemex Construction Materials Pacific, LLC, the Board issued a new standard for remedying unlawful failures to recognize and bargain with employees' designated representatives and substantially changed union representation proceedings to the detriment of employers. By rescinding GC 24-01, Cowen may have his eye on overturning the Cemex standard and returning to the Linden Lumber standard, which permitted employers to refuse to accept evidence of union support such as authorization cards and insist on an election.

Memoranda Pertaining to Section 10(j) Injunctions

Several of the memoranda rescinded pending additional guidance were related to the Board's use of Section 10(j) injunctive relief, which permits the Board to seek temporary relief for unfair labor practices during litigation. By rescinding the following memoranda, Cowan is signaling that the Board will no longer focus on seeking injunctions in unfair labor practices cases, which could lead to delayed legal interventions until after a final ruling is made.

• GC 21-05: Utilization of Section 10(j) Proceedings. This memorandum stated the then-GC's intention to utilize Section 10(j) injunctive relief and endorsed the Section 10(j) initiatives of prior Board GCs.
• GC 22-02: Seeking Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns. This memorandum directed regional offices to identify coercive actions made during union organizing drives as appropriate for Section 10(j) injunctive relief, even in the absence of other unlawful actions.
• GC 23-01: Settling the Section 10(j) Aspect of Cases Warranting Interim Relief. This memorandum directed regional offices to attempt to settle the Section 10(j) aspects of a case before continuing to litigate the underlying administrative matter.

Memoranda Pertaining to Remedies Sought by the Board

Cowan rescinded two memoranda pertaining to the remedies regional offices were directed to seek in certain situations, including when negotiating settlement agreements. By rescinding these memoranda, Cowan is likely signaling that he will provide guidance on the types of remedies the Board and its regional offices will be emphasizing and seeking over the coming years.

• GC 21-06: Seeking Full Remedies. This memorandum directed regional offices to seek a full array of remedies from the Board in appropriate circumstances, including consequential damages, front pay, liquidated damages, union access, extended posting periods, reimbursement of organizational costs, etc.
• GC 21-07: Full Remedies in Settlement Agreements. This memorandum directed regional offices to seek a full array of remedies when negotiating settlement agreements, including consequential damages, backpay and benefits owed, reinstatement, letters of apology, sponsorship of work authorizations (in cases involving immigrant workers), forms of security, admissions and notices to employees.

Memoranda Pertaining to Board Case Efficiency

Cowan rescinded three memoranda concerning the procedures and processes for speedy and efficient case resolution. Given the current administration's emphasis on reducing the size of the federal government, it is possible that Cowan is planning on issuing new guidance to streamline the process for resolving cases and enforcing Board orders. The result may be slower case resolutions and enforcement and less pressure on respondents to comply with Board orders.

• GC 22-05: Goals for Initial Unfair Labor Practice Investigations. This memorandum replaced the goal of requiring each regional office to annually reduce the average number of days from the filing of a charge, with a goal of using the impact analysis to manage the timelines of unfair labor practice cases.
• GC 23-07: Procedures for Seeking Compliance with and Enforcement of Board Orders. This memorandum set forth a procedure to more efficiently determine whether a regional office would need to a submit recommendations for enforcement to the Appellate and Supreme Court Litigation Branch (ASCLB). This procedure required the regional offices to send written communications to respondents to ask if it intended to comply with the Board's order. If the respondent responded in the negative or failed to respond in the designated timeline, the regional offices would go ahead and submit recommendations for enforcement.
• GC 25-03: New Processes for More Efficient, Effective, Accessible and Transparent Case Handling. This memorandum discussed that a surge of unfair labor practice charges and insufficient resources had put a strain on Board staff and detailed plans to expand the accessibility of case documents on the Board's case docket pages.

Memoranda Pertaining to the Board's Relationship to Other Workers' Rights Agencies and Laws

Cowan rescinded two memoranda dealing with the Board's relationship to other agencies and equal employment opportunity (EEO) laws. By rescinding these memoranda pending further guidance, Cowan is most likely seeking to restructure the Board's role in enforcing workers' rights and how it relates and operates with other agencies. This could delay and muddy efforts for agency coordination and Board enforcement.

• GC 22-03: Inter-Agency Coordination. This memorandum stated the then-GC's desire that the Board engage in better interagency collaboration with other worker protection agencies. Updated guidance concerning how the Board will interact with various agencies, such as the Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA), is expected.
• GC 25-04: Harmonization of the NLRA and EEO Laws. This memorandum stated that the NLRA and EEO laws are meant to work together and be complementary while encouraging employers to maintain and consistently enforce EEO laws and narrowly tailored workplace rules.

Impact on the Rescinded Memoranda on Board Law

GC memoranda provide guidance as to how the board agents who enforce the NLRA should interpret and resolve issues – but they are not binding precedent. Accordingly, the rescinding of the various memoranda does not change the current state of Board law.

The Board was frozen following President Donald Trump's removal of Board Member Gwynne Wilcox because it lacked a quorum. On March 6, 2025, Judge Beryl A. Howell of the U.S. District Court for the District of Columbia held Wilcox's removal to be unlawful and ordered her reinstatement. With Wilcox's ordered reinstatement, the Board can now resume its normal operations. Employers should continue to monitor the Board's actions, as its democratically appointed majority engages with Cowen's positions.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.