NLRB Acting General Counsel Rescinds Biden-Era Policy Memos

NLRB Acting General Counsel William Cowan rescinded several policy memos issued by his predecessor, Jennifer Abruzzo. Abruzzo was terminated by President Trump earlier this month in a continuation of a precedent first set by President Biden.

A new era: Cowan’s first major move as Acting General Counsel represents the latest major departure from a Biden-era Board dominated by pro-union policy, of which former General Counsel Abruzzo was a major driver.

• While the Board alone engages in policymaking through its adjudication and rulemaking authority, the General Counsel helps set the agenda by driving which cases and issues make it before the Board.

• Ms. Abruzzo made great use of this role during her tenure, setting out major policy priorities through extensive memos on numerous issues, including restrictive covenants, captive audience meetings, and expanded remedies.

Why it matters: Acting General Counsel Cowan’s memo recissions indicate that he will not pursue the policy or enforcement priorities or positions contained in such memos.

The rescinded memos, and policy positions stated therein, include:

• Non-compete agreements as violative of federal labor law;

• The extent to which workplace monitoring violates federal labor law;

• Severance agreements as violative of federal labor law;

• Expanded remedies (consequential damages beyond make-whole backpay); and

• Cemex application and guidance (Acting GC Cowan indicated new guidance would be provided regarding when bargaining orders would be imposed.)

Not unexpected: The slew of memo recissions is a common feature of transitions between party control over the Board, although before President Biden’s unprecedented termination of then-General Counsel Robb, such moves did not occur until much further into a new administration.