Navigating the complexities of resolving unfair labor practice charges before the National Labor Relations Board (NLRB) just got a clearer — and in some ways, more flexible — framework. On May 16, 2025, Acting General Counsel William B. Cowen issued Memorandum GC 25-06, which relaxes the requirements that the NLRB's Regional Offices must include in settlements of unfair labor practice charges. The Acting General Counsel's Memorandum emphasizes the need for a more pragmatic approach to resolving unfair labor practice charges and confers broader discretion on the Regional Offices in discerning the appropriate remedial remedy that should be sought in each case.
The Memorandum represents a significant departure from the approach mandated by the prior administration, which prioritized achieving "full remedies" in settlement agreements, inclusive of back pay, front pay, consequential damages, extensive posting requirements, and inclusion of mandatory default language. The Memorandum underscores that while make-whole relief for employees whose Section 7 rights have (allegedly) been violated remains a priority, this pursuit should not overshadow the goal of achieving prompt and fair resolutions of unfair labor practice charges. The Memorandum emphasizes the critical role that settlements play in actualizing the objectives of the National Labor Relations Act, and cautions that "if [the Board] attempt[s] to accomplish everything, we risk accomplishing nothing."
To this end, the Memorandum issued a number of directives aimed at facilitating the settlement of pending unfair labor practice charges.
- Non-Monetary Remedies: Regions may still pursue non-monetary remedies (like job placement services, letters of apology, and expanded posting requirements), but should reserve the same for cases involving "widespread, egregious, or severe misconduct."
- Default Language: Default language is no longer required in every settlement agreement. Regions are encouraged to include default language in initial drafts, but, absent unique circumstances (like recidivist violators), default language should not stand in the way of settlement.
- Non-Admission Clauses: Regions will once again consider including non-admission language in settlement agreements – particularly when settlement can be reached an early stage before the Region has engaged in substantial trial preparation.
- Unilateral Settlements: Regional Directors are authorized to approve unilateral settlement agreements (i.e., settlements where the Charging Party does not consent) without having to seek prior authorization from the NLRB Division of Advice.
- Make-Whole Relief: Regional Directors are approved to enter settlement agreements that provide for less than 100% of the amount that could be recovered if the Region prevailed on all allegations in a hearing before an Administrative Law Judge. Settlements less than 80% of the available relief will normally require approval of the NLRB Division of Operations-Management.
The Memorandum also addressed the NLRB's decision in Thryv, Inc., 372 NLRB No. 22 (2022), where the NLRB broadened the scope of remedies for unfair labor practices to include "direct or foreseeable pecuniary harms." The Memorandum cautioned against an expansive reading of Thryv, Inc. when negotiating settlements, and encouraged Regions to focus on addressing foreseeable harms that are "clearly caused" by the alleged unfair labor practice.
In conclusion, the Memorandum is welcome news for employers facing unfair labor practice charges. Under the prior administration, the concessions required by the various Regions as conditions for settlement (e.g., default language, full remedial relief, etc.) frequently forced employers to litigate charges that they may have otherwise resolved. The relaxed settlement requirements will afford employers better options and greater flexibility in achieving resolution of unfair labor practice charges short of litigating charges through a hearing before an Administrative Law Judge and beyond. Employers also may see faster processing times for pending unfair labor practice charges. By implementing the changes prescribed in the Memorandum, the Regional Offices will be able to settle unfair labor practice charges more efficiently, which should help reduce some of the NLRB's current case backlog.
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