• Whether offering overly broad severance agreements violates the NLRA ( McLaren Macomb , 372 NLRB No. 58) • Whether employers can hold “captive audience” speeches ( com Services LLC , 373 NLRB N0. 136) • Expanded scope of demands for recognition and issuing of bargaining order remedies ( Cemex Construction Materials Pacific, LLC , 372 NLRB No. 130)
Significantly, the GC Cowen’s memo does not reverse the current application of these recent decisions, but it does indicate the new NLRB may view the rule of labor law differently.
Why Did New NLRB Leadership Do This? Acting GC Cowen’s memo cites the Board’s current caseload as the basis for rescinding the policies. “The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing,” he said. While efficient case management maybe a goal, it seems the new NLRB will have a much different position on critical issues compared to its predecessor. What Happens Next? In light of this memo, employers should expect the new Acting GC to take a different approach to Board law that effects both union and non-union employees. That said, change occurs slowly at the NLRB. This memo is not binding law, and it will take time for the NLRB itself to potentially reverse precedent that was set during the Biden administration. With the Board currently not having a quorum, it could be some time until employers see significant legal changes. But this memo does demonstrate that the Biden era policies are being rejected. What Should Employers Do Now? Acting General Counsel Cowen’s memo sets the stage for a new labor policy under the Trump Labor Board. • Employers should monitor further updates, as a mandatory referral memo is expected soon that will provide guidance on Board decisions that may be overturned. The best way to stay tuned is subscribe to Fisher Phillips’ Insight System to receive the most up-to-date information directly in your inbox. • In the short term, employers that were evaluating or modifying “stay to play” agreements that required employees to pay back certain benefits provided by employers when employees left can now revert to their previous agreements, subject to state law. • Also, as a result of this memo, Regional Board offices will no longer evaluate the legality of non- compete agreements, so employers with such restrictive covenants (or those considering re- establishing such covenants) should consult with counsel to determine your next steps. • From a practical standpoint, employers with matters pending before an NLRB Regional office may see increased efforts to settle. Depending on the matter, this may or may not be a positive
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