Acting NLRB GC Cowen Rescinds Multiple Abruzzo-Era Memos

Under the Biden administration and with former General Counsel Jennifer Abruzzo at the helm, the National Labor Relations Board (“the Board”) adopted a pro-union, pro-employee agenda. As expected, under the Trump administration and with new acting General Counsel William Cowen, the NLRB’s focus has shifted.

The Board’s General Counsel has significant prosecutorial discretion and directs the regional offices to prioritize specific issues and cases above others in the agency’s administration and enforcement of the National Labor Relations Act (NLRA). The General Counsel often articulates these directives by issuing memoranda. While memoranda are not binding law, they are a tool the General Counsel uses to direct the agency’s regional offices (“the Regions”) in their enforcement efforts and put the public on notice of the Board’s priorities.

Within just two weeks of Trump’s appointment of Cowen, the NLRB’s Office of the General Counsel issued Memorandum GC 25-05, which rescinded multiple Biden-era memoranda and reinstated another. In the memo, Cowen justified the recissions to address the “back log of cases [which has] grow[n] to the point where it is no longer sustainable.” Cowen has indicated additional adjustments will be made. For now, the below list details memoranda recently rescinded. All memoranda denoted with an asterisk indicate ones that were “rescinded pending further guidance.”

1. GC 21-01, which provided guidance on mail ballot elections. Cowen noted the memo was rescinded because “COVID-19 is no longer a Federal Public Health Emergency.”
2. GC 21-02, which rescinded numerous other memoranda issued during the first Trump administration.
3. GC 21-03, which urged the Regions to vigorously enforce the Mutual Aid or Protection and Inherently Concerted Doctrines.
4. GC 21-04, which required the Regions to submit certain cases to the Office of the General Counsel for further consideration.
5. GC 21-05* and GC 22-02*, which encouraged the Regions to seek injunctions under Section 10(j) of the NLRA.
6. GC 21-06*, which directed the Regions to seek “the full panoply of remedies available” when litigating unfair labor practice charges.
7. GC 21-07*, which directed the Regions to craft expansive settlements, including front pay when an employee waived the right to reinstatement.
8. GC 21-08, which directed that certain college athletes fit within the definition of “employees” under the NLRA.
9. GC 22-01*, which emphasized the need to protect migrant workers’ rights.
10. GC 22-03*, which encouraged coordination among many employment-related agencies, including but not limited to the Equal Employment Opportunity Commission, the Department of Labor, and the Occupational Safety and Health Administration.
11. GC 22-04, which advocated for the right to refrain from “captive audience and other mandatory meetings.” Cowen noted the memo was rescinded due to the Board’s Decision in Amazon.com Services LLC, 373 NLRB No. 136 (2024).
12. GC 22-05*, which articulated goals for initial investigations of unfair labor practice charges and alleviated certain time constraints.
13. GC 22-06, which advised the Regions that, rather than merely seeking default judgment, the Regions may seek judgments forcing employers to comply with settlement agreements in certain unfair labor practice cases.
14. GC 23-01*, which encouraged the Regions to “routinely attempt to obtain full interim relief by the charged party’s written agreement to resolve the 10(j) portion of the case” if the case cannot be resolved in its entirety.
15. GC 23-02, which condemned employers’ use of “Electronic Monitoring and Algorithmic Management of Employees,” arguing such use interfered with employees’ exercise of Section 7 rights and explaining that such use creates a rebuttable presumption that the employer violated the NLRA.
16. GC 23-03, which promoted information sharing in response to records requests from federal, state, and local worker and consumer protection agencies. GC 23-03 was replaced with GC 18-01, which delegates to the Division of Legal Counsel the authority to manage certain records requests.
17. GC 23-04, which provided a status update on advice submissions pursuant to GC Memo 21-04.
18. GC 23-05, which directed the Regions to promote enforcement of the McLaren Macomb decision, in which the Board found that broad confidentiality and non-disparagement clauses in severance agreements violate Section 8(a)(1).
19. GC 23-07*, which provided instruction on procedures for seeking compliance with, and enforcement of, Board orders.
20. GC 23-08, which advised that non-competition agreements violate the NLRA.
21. GC 24-01*, which provided guidance in response to inquiries about the Board’s decision in Cemex Construction Materials Pacific, LLC, which set forth a new framework for conducting elections.
22. GC 24-04, which directed the Regions to seek “make-whole remedies” in cases where employers were found to maintain overbroad work rules.
23. GC 24-05, which directed the Regions to continue “to aggressively seek Section 10(j) injunctions,” notwithstanding the Supreme Court’s decision in Starbucks Corp. v. McKinney, in which the Court rejected the relaxed standard for preliminary injunctions sought under Section 10(j) and affirmed the standard four-factor test applies.
24. GC 24-06 (and its attachment), which advocated an expansive approach that both student-athletes and student-workers at institutions of higher education fit within the definition of “employee” under the NLRA.
25. GC 25-01, which advised that “stay-or-pay” provisions violate the NLRA.
26. GC 25-02, which advised that the inclusion of non-disparagement and confidentiality provisions violate the NLRA, as articulated in the McLaren Macomb decision, and explained the ruling applied to agreements signed prior to the decision.
27. GC 25-03*, which implemented new processes for case management, purportedly designed to improve efficiency and transparency.
28. GC 25-04*, which advocated for “[h]armonization of the NLRA and EEO laws.”

Taken together, the recission of these General Counsel Memoranda signals a substantial sea change in how, and the extent to which, the NLRB will manage unfair labor practice and representation cases. More changes are sure to come. Moreover, once the new NLRB Board member appointments are finalized, it is expected there will be significant overruling of a number of NLRB decisions issued during the Biden administration.  Venable’s Labor and Employment Group will continue to monitor any developments by the Trump administration and the NLRB on these issues. If you have specific questions about the above GC memos, rules, and decisions or any forthcoming NLRB decision, please contact the authors of this alert.