The National Labor Relations Board’s Acting General Counsel has moved quickly to undo the work of his predecessor, a Biden appointee, who President Trump recently removed from office.  On February 14, 2025, Acting General Counsel William B. Cowen rescinded more than a dozen guidance memoranda that many employers considered to be significantly favorable to unions.  Cowen’s memorandum signals a shift to a more employer-friendly NLRB. 

Cowen cited the NLRB’s large backlog of cases to justify the rescissions, writing, “if we attempt to accomplish everything, we risk accomplishing nothing.”

GC 25-05 rescinds the following memoranda, including some on controversial topics such as student athletes, noncompetes and “stay or pay” provisions:

• 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

Cowen rescinded several other memoranda “pending further guidance,” including the former General Counsel’s interpretation of the Board’s decision in Cemex Construction Materials Pacific, LLC, a decision that upended more than fifty years of established law regarding the framework in union representation elections.  GC 25-05 rescinded at least two other memoranda as no longer relevant.  Employers should expect further guidance from the Acting General Counsel in the weeks to come.

While the General Counsel sets the agenda for the NLRB’s regional offices, which investigate and prosecute unfair labor practice charges, the General Counsel cannot change extant law, which is set by the NLRB’s five-member Board.  On January 28, 2025, President Trump fired Board Member Gwynne Wilcox, in an unprecedented move that is currently under challenge.  Since Member Wilcox’s termination, the Board has lacked the requisite quorum of three members, rendering it unable to issue decisions.  Board members are appointed by the President with Senate consent, but President Trump has not yet named anyone to fill the Board’s three vacancies.

Ballard Spahr’s Labor and Employment Group frequently advises employers on issues related to labor law and policy. We will continue to monitor the new administration’s agenda and the impact of further changes to NLRB guidance. Please contact us if we can assist you with these matters.