Labor & Employment Law Daily Wrap Up, NLRB NEWS—Advice memo rescinded, replaced with new conclusion in case involving non-solicitation agreement, (Jul 30, 2025)

By Brandi O. Brown, J.D.

Previously, the Office of Advice had found that an employer’s action in sending cease-and-desist letters violated the Act, but the new memo presents a different conclusion.

After a Region, acting pursuant to a General Counsel memo issued in mid-February, resubmitted a case for consideration to the Office of Advice, that office, contrary to the conclusion it previously reached in a December 2024 memo, has concluded that the employer’s actions in the case—seeking to enforce a non-solicitation provision in a compensation agreement entered by it and an employee by sending the employee, after his voluntary resignation two years later, cease-and-desist letters—do not violate Section 8(a)(1) and (5).

In Memorandum GC 25-05, Acting General Counsel William Cowen rescinded multiple General Counsel memoranda, including those relating to noncompete agreements, as well as some relating to requests for advice on particular matters.

Therefore, although the Office of Advice in December 2024 had already issued a memorandum of advice on a case in which a union alleged the employer had violated Section (a)(5) by unilaterally implementing an agreement and/or by direct dealing, the Region, which had not yet issued the complaint, resubmitted it to the Office.

Previous advice. In the prior Advice memo, the Office of Advice concluded that while the noncompete provision was lawful, the non-solicitation of employees and customers provisions were overbroad. It concluded that the employer failed to establish the individual was a manager or supervisor at the relevant times. Moreover, it found that the employer violated Section 8(a)(5) by failing to give the union notice and opportunity to bargain over the agreement, that the employer engaged in direct dealing with the individual over the agreement, and that its cease-and-desist letters, sent after the employee left his job, violated Section 8(a)(1).

It also instructed the Region to urge the Board to adopt as a standard remedy for overbroad rules and contract provisions a make whole remedy for the individual and any similarly situated employees who might have been harmed by the unlawful non-solicitation of employees provision.

New advice. Now, upon reconsideration, the Office of Advice has found that the employer will likely be able to establish that at the time the employee entered the agreement with the employer, he was not in the bargaining unit but was instead employed in a managerial capacity and, therefore, was not a statutory employee. As such, the employer was not obliged to bargain with the union over any changes to the employee’s working terms and conditions and there were no Section 8(a)(1) and (5) violations when the employer entered into the compensation agreement with the employee.

Even assuming he were a statutory employee at the time he resigned, the employer’s efforts to enforce the agreement thereafter did not violate the Act, the Office concluded, stating that the employer was “just seeking to enforce the lawful non-solicitation of customers provision.” And, the memo explains, because the employee was not a statutory employee upon entering the agreement initially, there was no argument the employer was seeking to enforce an unlawfully obtained agreement, and the cease-and-desist letters did not violate the Act. Moreover, noting the employee’s voluntary resignation, the Office explained its belief that it “would not effectuate the Act to issue complaint on the non-solicitation of employees provision in the agreement.”

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