Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda

Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda

On February 14, 2025, the Office of General Counsel (OGC) of the National Labor Relations Board (NLRB) under Acting General Counsel William B. Cowen issued Memorandum 25-05, “New Process for More Efficient, Effective, Accessible and Transparent Case handling.” The Memorandum rescinds nearly all of the Memoranda issued by his direct predecessor, Jennifer Abruzzo, setting the stage for a new set of enforcement priorities and a re-balancing of labor relations policy under the Trump Administration.

Role of General Counsel Memoranda under Jennifer Abruzzo

OGC’s practice of issuing memoranda to Regional Directorates is not without precedent. However, as OGC memoranda is not legally binding, previous General Counsels have limited issuance of memoranda to procedural matters.  Jennifer Abruzzo was distinct in issuing non-binding memoranda to both change enforcement policy and presage policy arguments OGC would later make before the Board and federal courts of appeal.

Shortly after her confirmation, on August 12, 2021, Jennifer Abruzzo issued Memorandum 21-04, “Mandatory Submissions to Advice,”[1] centralizing power in OGC’s DC headquarters and requiring Regional Directorates to seek advice and counsel from Abruzzo’s lieutenants in Washington, D.C. before commencing litigation. Topics the Directorates must first seek advice from OGC’s DC headquarters included:

• the framework for the legality of workplace/employee handbook rules under The Boeing Co., 365 NLRB No. 154 (2017);
• the definition and applicability of protected concerted activity under the NLRA as articulated in Alstate Maintenance 367 NLRB No. 68 (2019), and whether individual complaints can constitute collective activity;
• whether employees of rail and air carriers are subject to the required mediation provisions of the Railway Labor Act rather than the self-help measures of the National Labor Relations Act (NLRA) under ABM Onsite Services West, 367 NLRB No. 35 (2018);
• the extent to which employers can exclude off-duty workers seeking to engage in union activity from company premises;
• the procedure and limitations period for de-certification of unions and collective bargaining agents that no longer hold majority support within a bargaining unit;
• cases involving worker classification under SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), in which the Board articulated a narrower standard for worker classification favoring independent contractor status emphasizing entrepreneurial activity;

In the nearly four years under Jennifer Abruzzo’s leadership, memoranda were issued on a wide array of policy issues that unions desired ideological shifts in their direction, presaging OGC enforcement priorities. Among other priorities, OGC utilized Memoranda to preview enforcement positions:

• curtailing the free speech rights of employers;
• restricting the right of employers to electronically monitor and algorithmically manage their employees;
• clarifying the Board’s decision in In re McLaren Macomb outlawing non-disparagement and confidentiality provisions in severance agreements and
• undermining the legality of non-compete agreements.

However, Jennifer Abruzzo’s use of memoranda to portend policy shifts and enforcement priorities soon proved controversial. Critics contended Jennifer Abruzzo often twisted or often outright ignored precedent and statutory language to achieve a desired outcome. For example, Abruzzo issued the now rescinded Memorandum 22-04, “The Right to Refrain from Captive Audience and Other Mandatory Meetings,” declaring mandatory employer meetings inveighing against unionization “at odds with fundamental labor law principles” and presumptively unlawful under the NLRA.

However, such a conclusion ran contrary to 75 years of Board precedent[2] as well as explicit NLRA  language, added by the Taft-Hartley Act of 1947, mandating that “the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form shall not constitute” a violation of the NLRA so long as the expression does not contain “the threat of reprisal or promise of benefit.”[3] As the Taft-Hartley Act’s explicit purpose was to amend the NLRA to give employers the same free speech rights as unions and to eliminate the disproportionate influence unions held in representation elections, critics also noted Memorandum 22-04 was contrary to NLRA’s legislative history.[4]

Further examples abound.  Infamously, Jennifer Abruzzo issued Memorandum 21-08 “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act,” classifying college athletes as employees eligible to strike under the NLRA. However, the authority Abruzzo cited was a Supreme Court case concerning not whether student-athletes were employees, but whether the National Collegiate Athletic Association (NCAA)’s prohibition on non-cash academic compensation violated the rule of reason under the Sherman Antitrust Act.[5]

In another instance, Jennifer Abruzzo, in Memorandum 23-08 broadly declared nearly all covenants not to compete violative of the NLRA unless they were narrowly tailored for special circumstances.[6] Such a proclamation was contrary to decades of state and federal precedent upholding the validity of non-compete agreements so long as they were limited in time, duration and scope.[7]

It was on the issue of remedies, however, that Jennifer Abruzzo most hoped to define her tenure as General Counsel. In Memorandum 21-05, “Utilization of Section 10(j) Proceedings,” Abruzzo extolled injunctions under Section 10(j) of the NLRA as “one of the most important tools available to effectively enforce the Act.” Section 10(j) of the NLRA authorized the NLRB to petition a federal district court to reinstate an employee pending the outcome of their Unfair Labor Practice Complaint before an Administrative Law Judge. As many circuit courts require the Board satisfy a stringent four-factor test for reinstatement similar to the test for a preliminary injunctions, Section 10(j) petitions were previously employed only in the most egregious of circumstances.

At the time of Memorandum 21-05’s issuance, a circuit court split existed regarding the proper standard to apply for prevailing on a 10(j) petition, with several circuit courts adopting a far more lenient two-factor test that focused on whether there was reasonable cause to believe an unfair labor practice occurred.[8] However, even after the U.S. Supreme Court resolved the circuit split by adopting the more stringent four-factor test,[9] Jennifer Abruzzo issued Memorandum 24-05 stating the Supreme Court’s decision did not change her intention to continue the “Agency’s 10(j) program in full force”.

Similarly, in Memorandum 21-06 “Seeking Full Remedies”, Jennifer Abruzzo instructed Regions to seek stronger remedial damages that had previously only been reserved for the most severe violators of workers’ organizing rights. Such remedies were to include not just back-pay, but “consequential damages” designed to make employees whole for all manner of general economic losses. Such losses could include everything from compensation for healthcare to late credit card and car payments.

Memorandums 21-05 and 21-06 were rescinded in Memorandum 25-05 by Acting General Counsel William B. Cowen “pending further guidance”, and Memorandum 24-05 has been rescinded entirely, signaling an end to aggressive use of remedial and injunctive relief. Memorandums 21-04 and 21-08 were also formally rescinded, signaling an end, respectively to NLRB’s campaign to shift Board precedent in favor of unions and render college student-athletes employees eligible to strike under the NLRA’s self-help provisions.

Memorandum 25-05: Implications for Employers

Memorandum 25-05 signals the end of Jennifer Abruzzo’s attempts to transform OGC into a union-friendly policymaking body by broadly interpreting or even at times disregarding policy and statute.  At a minimum, rescission of nearly all the memoranda issued during Jennifer Abruzzo’s tenure signals OGC will no longer pronounce policy firmly favoring unions and portends the Board shifting back to a more impartial posture between unions and management. 

Memorandum 25-05 will more likely presage, under Acting General Counsel William B. Cowen and his Senate-confirmed successor, an enforcement program that will return to legal tests and standards long favored by the management community. Rescinding memoranda issued by Jennifer Abruzzo advocating for a broader test of protected concerted activity clearly indicates OGC will no longer consider individual Human Resource (HR) complaints collective activity protected under the NLRA.  Similarly, OGC and the Board will likely return to enforcing and applying a worker classification test emphasizing entrepreneurial activity-a formulation perceived to favor employers and independent contractors.  The procedure for de-certifying unions and collective bargaining agents will become less protracted and cumbersome, and OGC is unlikely to relieve rail and air contractors of their duty to undergo required mediation mandated by the Railway Labor Act before striking.

 In addition, OGC will in all probability return to enforcing the traditional “community of interest” test when determining the scope of proper bargaining units, rather than the “overwhelming community interest” test previously reinstated by the Biden Board.  The overwhelming community of interest standard in all practicality allowed workers to organize in a unit of their choosing, so long as it was not arbitrary or irrational. As a result, employers often had to negotiate individually with legions of smaller micro-bargaining units in one worksite. In contrast, the traditional community of interest analysis likely to be reinstated considers the shared interests of the employees in the proposed unit and whether those shared interests are sufficiently distinct from the interests of the employees excluded from the unit. The more traditional community of interest test often results in larger or even sole bargaining units that are in turn easier to negotiate collective bargaining agreements with and manage administratively.

Most importantly, the aggressive and expansive use of remedial relief seems to have been stalled or extinguished entirely.  To the extent OGC and the Board pursue remedial and injunctive relief, it will likely return to being reserved only for the most egregious of violators. Remedial relief in turn will focus less on consequential damages and more on traditional equitable relief, such as reinstatement and back pay.  The Board and OGC are also more likely to pick and choose more carefully those cases in which 10(j) injunctive relief is pursued. 

Enforcement of various and sundry policy issues, including:

• employer speech during representation campaigns;
• the extent to which employers can electronically monitor and algorithmically manage their employees;
• the legality of non-compete clauses;
• confidentiality and non-disparagement clauses in severance agreements and
• the right of employers to fashion employee handbooks with rules concerning hygiene and civility

will likely become more impartial or employer friendly, and less likely to be litigated as violative of employees’ collective bargaining rights under the NLRA. Contact us today for more information or to discuss how these policy changes may affect your organization

[1] On March 20, 2023, OGC supplemented Memorandum 21-04 with Memorandum 23-04, “Status Update on Advice Submissions Pursuant to GC Memo 21-04.”

[2] See Babcock & Wilcox, 77 N.L.R.B. 577 (1948).

[3] 29 U.S.C. § 158(c).

[4] See H.R. Rep. No. 510, 80th Cong., 1st Sess. at 45, reprinted in Legislative History at 549, 1947 U.S. Code Cong. Serv. 1135, 1151 (in which the House-Senate conference on H.R. 3020, later enacted as Section 8(c) of the Taft-Hartley Act noted that “[t]he practice which the Board has had in the past of using speeches and publications of employers concerning labor organizations and collective bargaining agreements as evidence, no matter how irrelevant or immaterial, that some later act of the employer had an illegal purpose gave rise to the necessity for this change in the law.”)

[5] See N.C.A.A. v. Alston, 594 U.S. 69 (2021)(holding the N.C.A.A.’s rules restricting certain education-related benefits for student-athletes violated federal antitrust laws).

[6] In Memorandum 23-08, Jennifer Abruzzo held “the proffer, maintenance, and enforcement of a non-compete provision that reasonably tends to chill employees from engaging in Section 7 activity . . . violates [the NLRA] unless the provision is narrowly tailored to special circumstances justifying the infringement on employee rights.”

[7] See, e.g., Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1082 (2d Cir. 1977)(holding “postemployment restraints serve legitimate business purposes” such as “prevent[ing] a departing employee from expropriating his employer’s secrets and clientele”); St. Clair Med., P.C. v. Borgiel, 715 N.W.2d 914, 918 (Mich. Ct. App. 2006)(interpreting a state statute codifying the factors courts must evaluate when determining the validity of non-compete provisions, which included time, scope and duration, and holding the statute “represents a codification of the common-law rule that the enforceability of noncompetition agreements depends on their reasonableness.”)(internal quotations marks omitted).

[8] The Third, Fifth, Sixth, Tenth and Eleventh Circuits adopted the two-prong reasonable cause test, while the Fourth, Seventh, Eighth and Ninth Circuits adopted the more stringent four-factor test. Compare Sharp v. Webco Indus., Inc., 225 F.3d 1130, 1133-1134 (10th Cir. 2000) and Arlook v. Lichtenberg & Co., 952 F.2d 367, 369 (11th Cir. 1992) with Muffley v. Spartan Mining Co., 570 F.3d 534, 543 (4th Cir. 2009); Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 286 (7th Cir. 2001) and Hooks v. Nexstar Broad, Inc., 54 F. 4th 1101, 1106 (9th Cir. 2022). The First and Second Circuits blend both formulations by determining whether injunctive relief is “just and proper” by considering elements of the four-factor test. See, e.g., Pye v. Sullivan Bros. Printers, Inc., 38 F.3d 58, 63 (1st Cir. 1994); Kreisberg v. HealthBridge Mgmt., LLC, 732 F.3d 131, 141 (2d Cir. 2013), cert. denied, 574 U.S. 1066.

[9] See Starbucks Corp. v. McKinney, 144 S.Ct. 1570, 1578 (2024)(holding the four-factor test should be the test applicable to all injunction petitions filed under Section 10(j) of the NLRA, as the reasonable cause prong of the two-factor test was too lenient and based on “a minimally plausible legal theory, while ignoring conflicting law or facts.”)