New NLRB Acting General Counsel’s Actions and Increased White House Oversight Signal Shift in Enforcement

National Labor Relations Board Acting General Counsel William B. Cowen on February 14, 2025 changed the course of the agency’s strategic goals by rescinding more than a dozen memos penned by former General Counsel Jennifer Abruzzo. Cowen’s repeal of several specific memos signals a shift from the more union-friendly litigation strategy pursued by the prior general counsel. Regardless of Cowen’s agenda, the White House may play a more significant role in setting the general counsel’s enforcement priorities moving forward.

The National Labor Relations Board (NLRB) general counsel (GC) serves as the presidentially appointed chief prosecutor for the agency. Each GC, upon assuming office, introduces a distinct set of policy objectives articulated in GC memoranda (memos). The memos provide a comprehensive overview of the GC’s positions on various labor law issues and inform the agency’s direction in line with the GC’s prosecutorial priorities. Each GC memo is subject to recission upon the appointment of a successor GC.

Acting General Counsel Cowen’s Policy Reset

Cowen, the regional director of NLRB Region 21 in Los Angeles, was appointed by President Donald Trump to lead the agency’s prosecutorial arm as acting general counsel (AGC) on February 3, 2025.[1] After eleven days in office, Cowen issued Memorandum 25-05 (Rescission Memo), which rescinded many of his predecessors’ initiatives. In the Rescission Memo, Cowen explained his reasoning for scaling back the prior GC priorities, pointing to the backlog of NLRB cases which had swelled under the previous administration. Cowen noted, the “unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.” Based on the memo, the AGC signals a return to an institutionalist enforcement philosophy

Importantly, the AGC’s Rescission Memo reverses many of the former GC’s policies, which, since 2021, were the cause of protracted litigation and expensive outcomes for employers. For example, the rescission of GC Memos 21-06 and 22-06 indicates the return to more flexibility on reasonable settlements in unfair labor practice cases, now that NLRB regions will no longer be expected to seek “the full panoply of remedies available.”[2] More than a dozen other memos were also reversed, including the memos which asserted student-athletes qualify as employees under the National Labor Relations Act (NLRA), deemed employer surveillance and automated management practices legally questionable, argued that most noncompete agreements generally violate the NLRA, and concluded that “stay-or-pay” provisions infringe on employees’ rights under the NLRA.

Several of the prior memos were “rescinded pending further guidance.” This strongly indicates that the AGC has a new memo in mind to replace the prior Abruzzo-era memos. This includes GC 25-04, “Harmonization of the NLRA and EEO Laws,” which had attempted to minimize the competing requirements of the NLRA and anti-discrimination laws. This is a controversial area following the NLRB’s decision in Lion Elastomers LLC, 372 NLRB No. 83 (2023), which effectively declares NLRA supremacy.  

The Rescission Memo also revokes GC Memo 21-02, issued by then-AGC Peter Sung Ohr on February 1, 2021, which rescinded a series of memos issued under the Trump-Pence administration. The revocation of GC Memo 21-02 signals a return of previously issued memos, some of which increase enforcement of unfair labor practices against unions. The re-adopted memos will include the following guidances:

• GC 18-06 – Instructing NLRB regions not to oppose intervention in unfair labor practice hearings by employees who filed decertification petitions or circulated a document upon which the employer had withdrawn recognition from the collective bargaining representative.
• CG 19-01 – Clarifying that where unions raise “mere negligence” defenses in duty of fair representation cases based on having lost track, misplaced, or otherwise forgotten about a grievance, unions must establish the existence of established, reasonable procedures or systems to track grievances.
• GC 20-09 – Instructing NLRB regions to urge the Board to adopt an “arguable merit” standard in Section 8(b)(1)(A) duty of fair representation cases, which would shift the burden of proof onto the union to prove the grievance was not meritorious. The GC Memo also argues that the union should carry full liability for mishandling employee grievances.
• GC 20-13 – Requiring NLRB regions to urge the Board in charges involving union neutrality agreements to adopt the “more than ministerial aid” standard used in union decertification cases.

The reinstatement of these and other memos signals a broader shift toward the philosophy we can expect to shape the NLRB’s prosecutorial policy over the next four years. However, as explained below, the NLRB GC’s policy prerogatives may require executive vetting by the president.

PRESIDENTIAL CONTROL OVER NLRB

On January 27, 2025, President Trump dismissed GC Jennifer Abruzzo, as expected, but also dismissed sitting NLRB Chair Gwynne Wilcox, under both a theory that they were removable at-will, with some intimation of malfeasance in carrying out executive policies. Wilcox swiftly sued, and the case over the president’s ability to terminate NLRB members will likely end up at the US Supreme Court.

Various employers in 2024 had argued that board bembers were unconstitutionally shielded from executive removal, and with the dismissal of Wilcox, the White House has agreed with this argument. In a February 12, 2025 letter to Senator Richard Durbin of Illinois, the acting solicitor general indicated the administration’s intent to urge the Supreme Court to overrule Humphrey's Executor v. United States,[3] a decision that upheld some removal protections for administrative agency officials who perform quasi-judicial or quasi-legislative functions.

Following this move to remove Chair Wilcox and the acting solicitor general’s letter, on February 18, 2025, the White House published an Executive Order titled Ensuring Accountability for All Agencies (EO) that seeks to increase presidential “supervision and control” over “so-called ‘independent regulatory agencies.’” Specifically, the EO criticizes previous administrations for allowing independent regulatory agencies to operate with “minimal Presidential supervision” and provides, “these regulatory agencies have been permitted to promulgate significant regulations without review by the President.”

The promulgation of regulations, the EO states, undermine “the agencies’ accountability to the American people and prevent a unified and coherent execution of Federal law.” Going forward, the Office of Management and Budget (OMB) is to “establish performance standards and management objectives” for agencies and will provide reports on agency performance to the president. OMB will also review agency actions for “consistency” with presidential policies and “adjust such agencies’ apportionments by activity, function, project, or object, as necessary and appropriate, to advance the President’s policies and priorities.”

Although former President Biden’s firing of the Trump-appointed NLRB GC meant greater control by the White House over the GC’s actions, the EO expands the president’s control over not only the GC but also NLRB policymaking. This apparently covers even Board adjudication as well, because the EO states that interpretations of law the come from the White House are controlling:

The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General. (Emphasis added).

In the EO, the president’s emphasis on “supervision and control” over agencies that have traditionally operated with a high degree of independence could place substantial pressure on the NLRB, as it has historically functioned with a high degree of autonomy in setting labor policy and adjudicating related disputes. The EO effectively provides that the White House will directly control the policymaking functions of administrative agencies such as the NLRB. Moreover, an OMB determination that the NLRB’s adjudicative, enforcement or rulemaking efforts conflict with broader White House priorities could result in NLRB member and GC dismissals, budgetary constraints or other administrative roadblocks that limit both the GC’s and the whole of the agency’s abilities to implement any self-created agendas. Accompanying this has been an effort to enhance the White House’s ability to replace NLRB administrative law judges and LRB members, as noted above.[4]

PRACTICAL TAKEAWAYS

With the rescission of various memos, employers should reassess how these changes affect both the charges they face and those they may pursue. Key considerations include:

• Investigation Phase: Determine which types of charges may be directly impacted by the rescinded memos and adjust strategies accordingly.
• Settlement Considerations: The rollback of aggressive enforcement may allow for more reasonable settlement terms, offering greater flexibility in resolving disputes.
• Post-Complaint: Refine litigation strategies in light of changing interpretations and reconsider what legal standards may apply.
• Noncompete and Employee Agreements: Consider opportunities to challenge existing Board precedent based on the rescission of GC memos on these topics.

Employers should work proactively with counsel to navigate these changes and optimize their approach in response to the evolving legal landscape.