NLRB General Counsel Memorandum Walks Back the Prior NLRB’s Pro-Labor Stances

NLRB General Counsel Memorandum Walks Back the Prior NLRB’s Pro-Labor Stances  

Brett A. Whitley, Associate 

            On February 14, 2025, newly-appointed General Counsel of the NLRB (“GC”), William Cowen, issued Memorandum GC 25-05,[1]which rescinded no less than 31 previously-issued General Counsel Memoranda.[2] Out of the rescinded memoranda, 18 were issued by GC Jennifer Abruzzo, who was nominated for the position by President Biden in 2021 and fired from that position shortly after President Trump took office, demonstrating that the new, Trump-led NLRB will aim to reverse its pro-labor stance on many labor law issues.

The Role of General Counsel and the Memoranda They Issue

            The GC has the discretion to issue complaints against employers based on unfair labor practice charges.  Due to this discretion, the GC controls what issues are brought before the NLRB. By issuing General Counsel memoranda, the GC provides guidance to the NLRB field offices regarding how the GC will attempt to enforce the National Labor Relations Act (“NLRA” or the “Act”).  The memoranda are also used by employers, unions, and employees to assess how particular provisions of the NLRA may be applied or enforced by the NLRB.    

Pertinent General Counsel Memoranda Rescinded by GC 25-05

            Of note, is GC 25-05’s rescission of GC 21-06[3] and GC 21-07,[4] which address remedies for unfair labor practices under the Act.  In GC 21-06, GC Abruzzo reasoned that the NLRB’s field offices should be seeking compensation for consequential damages, front pay, and liquidated damages for those fired as a result of unlawful discrimination under the NLRA.  By issuing GC 21-06 and GC 21-07, GC Abruzzo seemingly expanded the available remedies under the NLRA, as Section 10(c) of the Act only specifies the reinstatement of the aggrieved employee with or without backpay as a potential remedy.[5] However, due to GC 25-05, employers who have violated the NLRA can expect the NLRB to limit the remedies aggrieved employees may seek to backpay and reinstatement.

            GC 25-05 also rescinded GC 23-08[6] and GC 25-01,[7] which express GC Abruzzo’s opinion that non-compete agreements violate the NLRA, except in special circumstances.  In GC 23-08, GC Abruzzo reasoned that non-compete agreements unlawfully chill employees from exercising their NLRA Section 7 rights[8] because, for example, employees are less likely to engage in certain concerted activities like threatening to quit in an effort to secure better working conditions since employers know the threatening employee would be violating their non-compete agreement if they were to actually quit and work for a competitor.  In GC 25-01, GC Abruzzo urged the NLRB to find certain non-compete provisions, such as “stay-for-pay” provisions,[9] unlawful, and focused on the remedies available to those affected by illegal non-compete provisions.  For instance, GC Abruzzo recommended that the NLRB should attempt to hold employers liable for the difference (in terms of pay or benefits) between what the employee would have received at a different job, but were prevented from receiving due to an unlawful non-compete provision, and what the employee did receive during the six months after the aggrieved employee has actual notice that an unfair labor practice has been committed.  However, due to GC 25-05, the NLRB has seemingly reversed course towards non-compete provisions, indicating that the NLRB will not aim to hold employers liable for non-compete provisions that arguably violate the NLRA, although it is still true that covenants not to compete are largely disfavored under Colorado law and elsewhere.

            Last, GC 25-05 notably rescinded GC 22-04, wherein GC Abruzzo stated she would urge the NLRB to hold that captive audience meetings[10] are unlawful due to their chilling effect on employees’ protected right to refrain from listening to compelled speech urging them to reject union representation.  Due to this rescission, it seems the NLRB will once again recognize employers’ entitlement to communicate their views on unionization to employees, so long as such communications are not threatening or interrogating and do not make specific promises to employees regarding unionization.[11]

Employer Considerations

            General Counsel Memoranda are not binding law, so the rescission of these memoranda does not directly affect any employers’ rights or obligations under the NLRA.  Nonetheless, GC 25-05 clearly indicates that the NLRB’s previous pro-labor approach is a thing of the past (at least for now).  Ultimately, in light of GC 25-05, it is fair to anticipate that GC Cowen will attempt to cement the NLRB’s change in position by refusing to prosecute employers on charges of unfair labor practices that are based on principles articulated in the rescinded memoranda. Campbell Litigation will continue to monitor developments in labor law in light of the NLRB’s changes under President Trump and will update the Rocky Mountain Employer accordingly.  

[1] See https://www.nlrb.gov/news-outreach/news-story/gc-25-05-rescission-of-certain-general-counsel-memoranda, which has a link to download GC 25-05, plus links to other General Counsel memoranda discussed herein which were rescinded by GC 25-05. 

[2] See id. for the complete list of the General Counsel Memoranda that were rescinded by GC 25-05.

[3] See id.

[4] See id.

[5] See 29 U.S.C. § 160(c).

[6] See n. 1, supra.

[7] See id.

[8] Under 29 U.S.C. § 157, employees have the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

[9] Such provisions require an employee to pay their employer if they separate from employment.

[10] A “captive audience meeting” is a mandatory meeting during working hours, organized by an employer with the purpose of discouraging employees from organizing or joining a labor union.

[11] The Colorado General Assembly recently attempted to ban captive audience meetings under Colorado law, but the bill was vetoed by Governor Polis on May 17, 2024.  See https://leg.colorado.gov/bills/hb24-1260.