NLRB General Counsel Rescinds Policies Related To Noncompete Agreements, Card Check

National Labor Relations Board (NLRB) Acting General Counsel William Cowen has rescinded several memoranda issued by his Biden administration predecessor. While not legally binding, memos issued by the NLRB’s chief lawyer do provide insight into and guidance regarding the agency’s enforcement priorities, so the rescissions indicate a shift in policy.

Among the nearly one dozen memoranda fully rescinded by Cowen was guidance regarding noncompete agreements. The Biden administration policy had stated that noncompete agreements limit workers’ rights and might infringe on the National Labor Relations Act. Its guidance, therefore, had allowed the NLRB to charge companies that require their employees to sign noncompete agreements with unfair labor practices. With last week’s recission, that stance is no longer the policy of the NLRB.

Cowan also rescinded a memo that had resulted in the partial reinstatement of card check. The Metals Service Center Institute (MSCI) has long opposed card check, which is a method of unionization by which employees indicate their desire to be represented by a union by signing authorization cards instead of through a traditional secret ballot election.

As MSCI’s partners at the Coalition for a Democratic Workplace have argued, “Card check agreements expose workers to coercion, intimidation, and deception” because they “prevent workers from voting for union representation through an NLRB-supervised, secret ballot election, forcing workers to make their decision in front of union organizers and colleagues.” Indeed, “Union intimidation of employees to sign cards is well-documented.” With Cowan’s recission, workers’ rights to secret ballot elections should be restored.

Read more about the Biden-era policies that were rescinded at this link and here.