Acting NLRB General Counsel Scraps Predecessor's Memos, Signals a New Direction

On Valentine’s Day, the Acting NLRB General Counsel, William B. Cowen, delivered a greeting card of sorts to his staff and the public signaling a new direction for the agency. Commenting that “the backlog of cases at the agency is no longer sustainable,” Cowen rescinded 31 memos by his predecessor Jennifer Abruzzo, some totally and others pending further guidance. Implicitly criticizing Abruzzo’s expansive view of federal labor Law, Cowen stated, “[I]f we attempt to accomplish everything, we risk accomplishing nothing.”

General Counsel memos signal where the lead NLRB prosecutor wishes to take labor law. The General Counsel then directs regional offices to advance that vision in litigation to the judges and the NLRB itself, or through prosecutorial discretion to dismiss cases. Many of the memos now canceled attempted to dramatically broaden the Board’s mission. Topics included: requiring stricter penalties for labor law violators, sweeping more employee conduct under the protection of the law, designating college athletes as employees, making non-compete agreements and Stay-or-Pay agreements unlawful, and limiting employer behaviors during a unionization campaign. One memo that was shelved concerned the Board’s Cemex decision in 2023, which overturned decades of secret-ballot election procedure and bargaining order jurisprudence. The labor movement tended to favor Abruzzo’s approach, while the business community largely criticized the agency for overreach and lack of statutory authority. Abruzzo’s more aggressive view led to more labor charges against employers and created more obstacles to settling disputes, contributing to the backlog of cases.

Cowen has now put the Abruzzo era in the NLRB’s rearview mirror and can begin the process of detailing the direction he plans to take the Board. In some respects, as with the Cemex decision, rescinding a General Counsel memo doesn’t change the law but indicates what the NLRB’s priorities are. It will take a Board decision to overrule Cemex. However, Cowen’s memo portends the end of Cemex and many other Board decisions of the past four years, and a return to the case law issued by the Board during Trump 1.0.

Should you have any questions, please contact Partner Edward J. Bonett, Jr., Esq. at 908.546.6991 or via email here, Partner Patrick W. McGovern, Esq. at 973.535.7129 or via email here, or any Partner in our firm’s Labor Law Practice Group.