Labor & Employment Law Daily Wrap Up, NLRB NEWS—Updated Bench Book no longer reflects pronoun-related changes made for 2024 book, (May 28, 2025)

By Brandi O. Brown, J.D.

It also reflects the Board’s recent ambiguity on the application of Thryv regarding remedial relief.

The NLRB’s Judges Division has announced that it has issued its 2025 Bench Book, which replaces the previous version issued in 2024. The annually updated Bench Book provides NLRB Administrative Law Judges (ALJs) with a reference guide for use during hearings, essentially acting as a trial manual, and is also helpful for practitioners before the Board. It sets forth Board precedent and other rulings and authorities on certain recurring procedural and evidentiary issues that may arise during hearings.

The NLRB this year has also included a separate document identifying some of the changes to this year’s book. Updates highlighted in the document include those relating to pleadings, subpoenas, settlements, special appeals, sequestration of witnesses, and evidence.

Personal pronouns. One change not identified in that document but nevertheless made in the 2025 edition is the stripping away of some of the changes made in last year’s edition related to personal pronouns.

A now-deleted section stated:

• “§ 1–600 Personal Pronouns

• “‘It is the Board’s practice to refer to individuals by the personal pronouns that they indicate they use.’ Starbucks Corp, 372 NLRB No. 93, slip op. at 1 n. 1 (2023) (using they/them pronouns to refer to a witness who used those pronouns), enfd. per curiam 2024 WL 1319142 (D.C. Cir. March 28, 2024) (doing the same). See also Home Depot USA, Inc., 373 NLRB No. 25, slip op. at 1 n. 5 (2024).”

Also removed from the book is the following statement from Section 15-800: “Note also that the judge should refer to individuals in the decision by the personal pronouns that they indicate they use. See § 1–600, above.”

Thryv and remedial relief. Another difference between this year’s book and last year’s has to do with its treatment of remedial relief as envisioned under Thryv, Inc., 372 NLRB No. 22 (2022).

In a memorandum recently released by the NLRB, Acting General Counsel William B. Cowen provided guidance to regional heads regarding make-whole relief, instructing that, at least for settlement purposes, the regions “should focus on addressing foreseeable harms that are clearly caused by the unfair labor practice,” a standard that is “admittedly” the one advocated by the dissent in Thryv. “[I]t is the only standard reasonably capable of application,” Cowen wrote.

And in the 2025 Bench Book, ambiguity introduced by that memo is reflected in a new paragraph in Section 14-150 regarding direct or foreseeable harms and the Thryv decision.

The new paragraph states:

• “The Board’s Thryv remedy was rejected by the Third Circuit in NLRB v. Starbucks Corp., 125 F.4th 78 (3d Cir. 2024) (holding that the remedy exceeded the Board’s authority under the NLRA), denying enf. in part of 372 NLRB No. 50 (2023), reconsideration denied 372 NLRB No. 102 (2023). However, the Board’s decision in Thryv remains valid precedent under the Board’s nonacquiescence policy unless and until it is overruled by the Supreme Court or the Board itself. See Airgas USA, LLC, 373 NLRB No. 102, slip op. at 1 n. 2 (2024). See also § 13–100, Board Precedent, above.”

The 2025 edition was edited by (now retired) ALJ Jeffrey Wedekind, who served as the Bench Book editor since 2010, and ALJs Mara-Louise Anzalone, Lauren Esposito, and Charles Muhl as associate editors. It also includes a foreword by Chief ALJ Robert Giannasi.

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