Acting General Counsel William Cowan of the National Labor Relations Board (NLRB) has rescinded over 30 guidance memos issued by his predecessor, former General Counsel Jennifer Abruzzo. This marks the first steps of the expected pivot at the NLRB from the union-friendly positions it pursued during the Biden administration.
Several of the rescinded memos were typical guidance issued to instruct and inform field staff about the General Counsel’s priorities. These provide instructions and information to staff on administrative issues and policies, such as what types of issues to refer to the Division of Advice for review and interagency cooperation.
However, others set out unprecedented positions that altered the landscape of labor relations in favor of unions. These include:
- GC 23-05, holding that severance agreements, or even just offering a severance agreement, with broad waivers of legal rights are not generally lawful under the National Labor Relations Act (NLRA).
- GC 23-08 and GC 25-01, stating that noncompete agreements violate the NLRA.
- GC 23-02, stating the potential interference with protected employee rights by electronic monitoring and algorithmic management tools.
- GC 24-01, providing additional information on the lowered Cemex criteria for issuing a bargaining order due to unfair labor practices during an organizing election.
- GC 25-04, setting out how requirements under the NLRA and EEO laws can be harmonized.
The 2022 guidance holding that mandatory “captive audience” meetings to discuss labor issues are unlawful was also rescinded, although the recent NLRB decision in Amazon.com Services LLC endorsed that position.
Cowen also announced that the 2021 GC memorandum regarding the use of mail ballots for union organizing elections also was rescinded because COVID-19 is no longer a federal public health emergency.
Although GC memos are not legally binding guidance, they provide useful information to employers on how the General Counsel plans to deal with novel or controversial issues. By revoking these memos, Cowen is signaling his intention to reexamine NLRB policy and lay the groundwork for undoing some of the more far-reaching decisions of the previous Board. However, the NLRB currently has no quorum and cannot issue any rulings.
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