Labor & Employment Law Daily Wrap Up, NLRB NEWS—Acting General Counsel rescinds memos relating to student athletes, monitoring of employees, and noncompete agreements, among others, (Feb 18, 2025)

By Brandi O. Brown, J.D.

The memo rescinds approximately 30 prior memos.

On Friday, NLRB Acting General Counsel William B. Cowen issued a memo to all field offices, rescinding certain memoranda issued by the former General Counsel, and announced his intention to assist the Regions by issuing further guidance on appropriate allocation of the Agency’s resources.

In the memo, ACG Cowen states, “Over the past few years, our dedicated and talented staff have worked diligently to process an ever-increasing workload. Notwithstanding these efforts, we have seen our backlog of cases grow to the point where it is no longer sustainable. The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.”

Cowen adds that, “working with experienced field and headquarters professionals,” since he was appointed to the Acting role 11 days earlier, he had “conducted a comprehensive review of active General Counsel Memoranda and determined that” certain rescissions were warranted.

Notable rescissions. As explained by the AGC, the rescissions include: GC 21-08 on the rights of student-athletes under the NLRA; GC 23-02 on electronic monitoring and algorithmic management of employees interfering with exercise of Section 7 rights; GC 23-05 on severance agreements, in response to inquiries about the McLaren Macomb decision; and GC 23-08 (Non-Compete Agreements that Violate the National Labor Relations Act) and GC 25-01 (Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act). The memos were rescinded without any provision for further guidance.

The list also includes such notable memos as GC 22-06 Update on Efforts to Secure Full Remedies in Settlements (Revised Attachment) and GC 24-04 Securing Full Remedies for All Victims of Unlawful Conduct.

And the memorandum rescinds as “no longer relevant in light of the Board’s Decision in Amazon.com Services LLC, 373 NLRB No. 136 (2024)” GC 22-04 The Right to Refrain from Captive Audience and other Mandatory Meetings.

Also, 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Authorization Regarding Record Requests from Federal, State, and Local Worker and Consumer Protection Agencies) was rescinded and the guidance in GC 18-01 was restored.

In addition, GC 21-01 (Guidance on Propriety of Mail Ballot Elections, pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020)) was rescinded “as COVID-19 is no longer a Federal Public Health Emergency (PHE)).

Other rescissions. Other GC Memos that were rescinded, without further guidance, include: 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-23-04 Status Update on Advice Submissions Pursuant to GC Memo 21-04; 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 (along with GC 24-06 attachment); and GC 25-02 Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations.

Further guidance promised on Cemex. AGC Cowen rescinded and will provide further guidance on GC 24-01 concerning the Board’s Decision in Cemex ConstructionMaterials Pacific, LLC.GC 21-06 and GC 21-07, addressing remedies to be sought, were also rescinded “pending further guidance.”

Memos that were rescinded pending further guidance also include GC Nos. 21-05, 21-06, 21-07, 22-01, 22-02, 22-03, 22-05, 23-01, 23-07, 24-01, 25-03, and 25-04.

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