On February 14, 2025, the Acting General Counsel of the National Labor Relations Board (“NLRB”) William B. Cowen issued his first General Counsel Memorandum (“GC Memo”) GC 25-05 rescinding nearly all of the Biden administration General Counsel’s substantive prosecutorial guidance memos, which furthered a pro-union and pro-employee agenda. While these memoranda do not have the weight of law or regulation, they do set out the agency’s priorities and key interpretations of the National Labor Relations Act (“NLRA”).
There were generally two types of rescissions. In addition to simply rescinding certain GC memos, Cowen also rescinded additional memos “pending further guidance” – suggesting those areas where the new administration will be placing its focus. Cowen cited the Board’s backlog of cases as one of the reasons necessary for the rescission of the GC memos.
Cowen’s GC Memo did not address the impact of the NLRB’s current lack of a quorum on the Acting GC’s prosecutorial agenda. President Trump’s unprecedented firing of former NLRB Chair Gwynne Wilcox, which deprived the NLRB of a quorum, is currently being litigated.
Which Memos Were Rescinded?
While we include a complete list of the memos that were rescinded by Cowen’s GC Memo below, of note, the memo rescinded the following key GC memos:
Confidentiality and Non-Disparagement Provisions in Severance Agreements – GC Memo 23-05 endorsed prosecuting employers that imposed on employees broadly worded severance agreements with expansive non-disparagement and confidentiality clauses. A link to earlier articles about the issuance of GC Memo 23-05 can be found here and here.
Damages – GC Memo 24-04 had greatly expanded the scope of consequential damages regional offices should seek in unfair labor practice proceedings, including pursuing make-whole remedies for employees harmed, regardless of whether the employees are identified in an unfair labor practice charge. A link to an earlier article about the issuance of GC Memo 24-04 can be found here.
ULP Settlements – GC Memo 21-07 had instructed regional offices to seek no less than 100 percent of the backpay and benefits owed in cases that are settled, and required regional offices to include front pay in settlements for cases where a discharged employee waived reinstatement to his or her former position. This memo was rescinded pending further guidance from the Board.
Electronic Monitoring and Automated Management – GC Memo 23-02, in this memo, Abruzzo had advocated for zealous enforcement and NLRB adoption of a “new framework” to protect employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with protected activity. A link to an earlier article about the issuance of GC Memo 23-02 can be found here.
“Stay-or-Pay Provisions” – GC Memo 25-01 had directed regional offices to find “stay-or-pay” provisions and employee non-solicit agreements unlawful under the NLRA and called for employers to go beyond mere rescission of the provision and directed regions to seek traditional make-whole remedies for unlawful provisions consistent with Board law.
Non-Competes – GC Memo 23-08 had expressed Abruzzo’s opinion that the use of non-compete provisions in employment agreements violated section 7 of the NLRA and that the proffer, maintenance, and enforcement of such agreements violated section 8(a)(1). A link to an earlier article about the issuance of GC Memo 23-08 can be found here.
10(j) Injunctions – GC Memo 24-05 in which Abruzzo reaffirmed her commitment to seeking 10(j) injunctions in federal court against employers to protect employee rights from remedial failure due to the passage of time. This memo was issued following the Supreme Court decision in Starbucks Corp. v. McKinney, 144 S. Ct. 1570 (2024), where SCOTUS resolved a circuit split and set a uniform four-part test applicable to Section 10(j) injunction petitions.
Rescinded GC Memos:
- 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 24-06 Attachment
- 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 Memos Rescinded Pending Further Guidance from the Board:
- 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 22-01 (en Español) Asegurando los Derechos y Remedios para Trabajadores Inmigrantes Bajo la 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
GC Memos Rescinded Due to Board Precedent:
- GC 22-04 The Right to Refrain from Captive Audience and other Mandatory Meetings
GC Memos Rescinded and Replaced by Prior GC Memos:
- 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 and GC Memo 18-01 was restored
GC Memos Rescinded as COVID-19 Is No Longer a Federal Public Health Emergency:
- GC 21-01 Guidance on Propriety of Mail Ballot Elections, pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020)
Key Takeaways
Acting General Counsel Cowen’s GC Memo signals the Board’s agenda is progressing towards overturning many of the key controversial and pro-labor Biden-era Board decisions. Employers should consult labor counsel to discuss the updated guidance and the issues presented by the GC Memo, particularly if employers are still dealing with the previous guidance of the rescinded GC memos related to non-compete agreements, settlement agreement provisions, “stay-or-pay” provisions, electronic surveillance, and others.