Trump-appointed NLRB Acting General Counsel William Cowen just gave us a glimpse into the future with a memorandum rescinding thirty NLRB memos, indicating that this administration is set on dismantling workers’ rights as we know them today. In this post, we’ll discuss three key points in Cowen’s memo.
NLRB General Counsel memorandums aren’t legally binding, but they do act as a roadmap for how the NLRB is likely to handle cases based on the current GC’s interpretation of the law. It’s common for a new General Counsel to rescind some memos of their predecessor upon taking office. What they choose to rescind is a strong indicator of what’s to come.
Spoiler alert–it doesn’t look good for workers, but no surprises there.
Three Key Points From Cowen’s Memo
Cowen’s memo rescinds previous ones related to three important NLRB decisions, a strong indicator that the new GC aims to overturn these cases:
Make-whole remedies for victims of unfair labor practices
In the NLRB’s 2022 Thryv decision, the Board ruled that workers who are the victims of unfair labor practices should be compensated for “all direct or foreseeable pecuniary harms” related to the unfair labor practice. This decision paved the way for fired workers to be compensated not just for back pay, but also for things like utility disconnection fees, relocation costs, bank overdraft fees, or medical costs incurred as a result of losing employer-sponsored coverage.
The new standard for bargaining orders
The NLRB’s 2023 Cemex decision changed the standard for bargaining orders, making it easier for unions to show that the employer’s election conduct tainted the election process to the extent that the employer is obligated to bargain with the union regardless of the election results. Trader Joe’s United was among the first unions to file for a Cemex bargaining order. The union showed a majority of support going into a 2023 election at a NYC Trader Joe’s, but after a classic union-busting campaign from TJ’s, the election was a tie vote–a loss for the union. TJU’s Cemex case is still pending.
The prohibition on captive audience meetings
In 2024’s Amazon.com Services decision, the Board ruled that it is unlawful for employers to require workers to attend mandatory anti-union meetings, commonly referred to as “captive audience meetings.” (Side note: this decision did not deter Amazon from holding captives leading up to the recent union election in North Carolina). Captives are a classic union-busting tool. Employers conduct these meetings in about 90% of union drives. Studies show that the more workers are exposed to them, the less likely they are to vote union yes.
Cowen’s memo just underscores what we already knew–we’re entering uncharted territory when it comes to workers’ rights and organizing. From Trump suspending the Board in a quorum-less limbo, to SpaceX filing lawsuits arguing that the NLRB is unconstitutional, to the push to nationalize right-to-work law, we can’t be sure what the future of organizing looks like.
There’s only one thing we know for sure: workers have always found a way to organize, one way or another, and we will continue to do so even as the legal landscape around us changes.
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In Solidarity,
The Labor Force
Sources: https://www.nlrbedge.com/p/acting-general-counsel-rescinds-long