NLRB Acting General Counsel Rescinds Dozens of Predecessor’s Directives, Signals New Agency Priorities | DLA Piper

The National Labor Relations Board (NLRB) Acting General Counsel (GC) William Cowen issued GC Memo 25-05 to agency personnel in all field offices on February 14, 2025, seeking to refine the allocation of NLRB resources by rescinding dozens of GC memoranda issued by his predecessor, all of which were regarded as advancing union and employee-friendly positions.

Employers with pending matters before the NLRB, particularly those related to subjects of rescinded memoranda such as settlement and noncompete agreements and electronic surveillance, are encouraged to consult with counsel to evaluate the impact of the recissions.

Employers likely to face less scrutiny

These recissions were expected, as the GC is a presidential appointee tasked with evaluating NLRB priorities in a manner aligned with those of the administration. While GC memos are nonbinding, they provide a useful tool when seeking to understand the agency’s positions on what is required for full compliance with the National Labor Relations Act (NLRA) and the GC’s enforcement posture and priorities.

Some of the most significant now-rescinded GC directives involved the NLRB’s rigorous handling of issues, such as remedies to be sought for NLRA violations, the rights of student-athletes under the NLRA, electronic monitoring and algorithmic management, severance agreements, and noncompete agreements. As a result, employers are likely to face less NLRB scrutiny, if any, on these issues.

Although recission of these directives is seen as a positive development for employers, the administrative process takes time, and cases must work their way through that process before changes to NLRB precedent can follow.

Employers with existing or forthcoming cases before the NLRB are encouraged to consult with counsel to evaluate whether any of the above-referenced recissions or others set forth in GC Memo 25-05 warrant refinement of case strategy or positions.

Memoranda rescinded by the NLRB Acting GC

Memoranda rescinded through GC Memo 25-05 include the following:

• 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 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 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”
• GC 21-01, “Guidance on the Propriety of Mail Ballot Elections, pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020)

The Acting GC also rescinded the following memoranda “pending further guidance,” indicating additional directives to NLRB personnel are forthcoming as related to the following matters:

• 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

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