Where We Were

As many of you no doubt read in our Bradley Labor and Employment Practice Group publications and many other sources, the Biden presidency was probably the most pro-union administration in history, and the actions of the National Labor Relations Board (NLRB) demonstrated that. Our labor group wrote about the Biden initiatives many times, and many of those alerts can be found on our Labor and Employment Insights blog. In addition to aggressively litigating cases against employers and issuing very pro-union rulings in many of those cases, the NLRB was very aggressive in using other tactics as well. One of these tactics was to issue many “general counsel advice memos” that were contrary to decades of well-established labor law. It thus was very difficult during the last four years for companies to make important labor-related business decisions because companies knew that the board would take extreme pro-union positions pursuant to these advice memos even despite what established law clearly stated. Well, buckle up for the U-turn.

Where We Were Going

The NLRB has authority over all aspects of the company-union relationship, from the initial union organizing process to collective bargaining if a union is chosen, as well as individual employee protection for engaging in union activities. Within the agency is an actual decision-making body itself, often referred to as the board, composed of five members appointed by the president and confirmed by the Senate. Three of these members, or a majority, are from the current president’s party. Another key component of the NLRB is its general counsel, the chief lawyer, who guides the activities of the agency. Beneath these national positions are many regional offices with investigators who handle union election petitions, union elections themselves, and all types of unfair labor practice charges, most of which are filed by unions against employers.

The general counsel has a major impact on the direction of the NLRB. The previous general counsel, Jennifer Abruzzo, was a former union lawyer for the Communications Workers of America who was appointed by President Biden in July 2021. Abruzzo issued aggressive agency-directive memos sending the NLRB into uncharted territory in favor of employee and union rights. These memos covered a multitude of topics, including expansion of NLRB remedies, prohibition of employer-led workplace meetings, outlawing noncompete agreements, deeming student-athletes as employees under the labor law, recommending aggressive use of preliminary injunctive relief, and many others. Abruzzo was fired by President Trump on January 27, 2025, and quickly was replaced by the new general counsel, William Cowen (a long-term employee and advisor to the board). Abruzzo now has returned to her role with the Communications Workers of America and has joined a California law firm that represents unions.

The number of workers seeking union representation doubled during the Biden administration, and unfair labor practices increased at nearly a double-digit annual rate during this time. Large employers like Amazon and Starbucks were in the news regularly about their efforts to stem union activity at their companies. Needless to say, many nonunion, or open shop, companies were concerned about union organizing and unfair labor practice charges during the Biden administration. Companies updated policies and provided training on labor relations like never before.

The U-Turn

On February 3, 2025, Trump appointed Cowen as the new NLRB general counsel. Cowen had worked internally for the NLRB as a lawyer since 1979, had served as a member of the board for a short time, and most recently had been the regional director for the NLRB Region 21 in Los Angeles.

Very quickly, on February 14, 2025, Cowen issued Memorandum 25-05. This memo states very succinctly: “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.” With this stated justification, Cowen “determined that the following actions are warranted.” Cowen then withdrew the 31 previous general counsel memos from the Biden years, including:

• Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act
• Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights
• Non-Compete Agreements that Violate the National Labor Relations Act
• Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act
• Securing Full Remedies for All Victims of Unlawful Conduct
• Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations
• Section 10(j) Injunctive Relief
• Guidance on the Propriety of Mail Ballot Elections
• The Right to Refrain from Captive Audience and other Mandatory Meetings
• Ensuring Rights and Remedies for Immigrant Workers Under the NLRA
• Goals for Initial Unfair Labor Practice Investigations

New Destinations

Several other labor-relations issues no doubt will be addressed in the near future by the remade NLRB. However, some of these other issues are not governed by general counsel memos but are governed by NLRB decisions themselves. For example, the new card-check union recognition procedure from the Cemex decision and the ban on employer-led workplace meetings from the Amazon decision will have to be addressed in legal cases separately from these memo rescissions. We will have to stay tuned for these developments. As of now, the NLRB basically is non-functional because of a shortage of confirmed members at this point. Bringing the NLRB back to full operating status could take a year or more.

Despite the dramatic U-turn at the NLRB, union activity continues. Unfair labor practice charges, especially charges alleging discrimination on the basis of union support, continue. While many of the top-level functions (for example those of the board itself) seem to be stalled as of right now, the regional offices and their enforcement staffs are still at it. Accordingly, do not fall into the trap of thinking that being concerned about union activity and how to respond to it is over. Union election demands still require instantaneous actions by companies under Cemex, and caution dealing with union supporters still is required. Be safe and keep your seatbelt on.