Previous guidance endorsed prosecuting employers that imposed on employees broadly worded severance agreements with expansive non-disparagement and confidentiality clauses. 

Previous guidance greatly expanded the scope of consequential damages regional offices should seek in Unfair Labor Practices (ULP) proceedings, including pursuing “make-whole” remedies for employees harmed, regardless of whether the employees are identified in a charge.  

Instructed regional offices to seek no less than 100% of the backpay benefits owed in cases that are settled. This required regional offices to include front pay in settlements for cases where a discharged employee waived reinstatement to their former position. 

Advocated for the enforcement and broad adoption of a new framework to protect employees from intrusive or abusive forms of electronic monitoring that interfere with protected activity.  

Directed regional offices to find “stay-or-pay" provisions and employee non-solicit agreements unlawful under the NLRA. 

Expressed General Counsel Abruzzo’s opinion that the use and enforcement of non-compete provisions in employment agreements violated the NLRA. 

Instructed regional offices to seek 10(j) injunctions in federal court against employers to protect employee rights from remedial failure due to the passage of time, despite the four-part test articulated by the Supreme Court in Starbucks v. McKinney. 

Directs regions not to automatically pursue nonmonetary remedies but typically limit them to cases involving widespread egregious, or severe misconduct.  

Requires regions to pursue charges against parties for secretly recording collective bargaining sessions.  

• If you think you may ever need to record a collective bargaining session, you should discuss that with your labor counsel to see if you can pursue a path forward with that. 

 Advises regions that discriminatory hiring cases should be evaluated based on the applicant's genuine interest in being hired.  

Directs regions to no longer contact parties quarterly to inquire about the status of the grievance in deferred cases. Instead, charging parties must e-file deferral status reports twice a year in March and September.  

Advises regions to apply the standard from Starbucks v. McKinney in determining interim injunctive relief. 

The NLRB has challenged both state laws in court on the grounds that they are “preempted” by federal laws.  

NLRB Regions in Fifth Circuit Currently are currently inactive due to SpaceX Decision 

In the first 6 months of 2025, the NLRB oversaw 711 union elections. In 624 of those elections, the union prevailed.  

Since October 1, 2025, the federal government has been shut down. This includes federal agencies such as the NLRB and the Department of Labor. When a new spending bill is signed, NLRB regional offices will need to work through their backlog of pending charges or ongoing cases.  

President Trump’s EO from March directed FMCS to reduce operations to the “minimum presence and function required by law.”  

Approximately 95% of FMCS staff were laid off, reducing the workforce from over 200 to fewer than 20, only 5 of whom are mediators.  

The 2026 budget allocates only $7 million for FMCS, down from a typical budget of $50-55 million, and is intended only for agency closure expenses.  

FMCS services are no longer available. Many employers across the country relied upon FMCS heavily for difficult negotiations. It was a free service for employers. Many of the FMCS mediators were familiar with their assigned regions, which made them extremely helpful in conflict resolution.  

Parties will need to explore paid alternatives to FMCS, including JAMS, AAA, and state-based services. 

For those who have collective bargaining agreements from which your arbitrators are derived from FMCS, you are going to want to communicate with the union about alternative options to include in your contracts going forward.  

• At least look to include language that would indicate that parties will agree to confer should FMCS no longer be able to provide that service. 

In this case, employees were engaged in a strike. The employer notified them that if they did not end the strike, there would be a five-day replacement period where the striking employees would not be allowed to return to work and instead outside contractors would be brought in. The strike was not called off and the employer refused to reinstate employees until the replacement period expired.  

The ALJ issued a decision that the hospital was not obligated to reinstate employees because of the contract that it had put in place for the temporary replacement workers.  

Brookholders LLC employed student workers. They were found to have violated the NLRA on the following grounds:  

• Terminating an employee for discussing concerns about pay with her coworkers 

• Requiring workers to sign an arbitration agreement that prohibited them from filing charges with the NLRB 

• Forbidding employees from forming social media groups without their permission 

The employer maintained a policy that required employees to remain silent about internal sexual harassment complaints and required employees to sign confidentiality agreements when they accused a coworker of sexual harassment.  

The ALJ found that the policy and confidentiality agreement were unlawful under the NLRB’s 2023 Stericycle Inc. Decision.  

ALJ ruled that the employer committed several work rule and union election violations. 

Acting General Counsel, Cohen successfully removed charges regarding illegal restrictions on employees working for other businesses due to rescinding former GC Abruzzo’s memo regarding such limitations.   

Employees have been engaged in strike activities since October 2022.  

ALJ ruled that the employer’s practice of giving out yearly wage increases and merit bonuses was lawful because the employer had established the past practice back in 2016.  

However, the “newspaper of the year” bonuses were a new unilateral practice, and the ALJ determined that the new bonuses violated the NLRA.  

The employer terminated an employee for yelling and causing a disruption after being asked to work overtime. 

NLRB attorney argued that the conduct was protected under the Interboro doctrine, but the ALJ held that the conduct was unprotected because there was no evidence to support that mandatory overtime violated the CBA between the parties.  

The employee complained to management about alleged harassment and retaliation against her and her husband, another employee. After the employer failed to act on the complaint, the employee posted on social media and was terminated.  

The ALJ ruled that the posts were protected activity because they were made while off-duty and only to her immediate connections on the website.  

ALJ ruled that the confidentiality provision in a severance agreement was of “unlimited scope” and lacked any effort to “narrowly tailor” its breadth to preserve ongoing protected discussions.  

The ALJ explained that such a broad provision is expressly barred under McLaren Macomb.  

The employer terminated employees after they stayed in the store after store hours while engaged in an organizing meeting with a union representative.  

ALJ determined that the firings were discriminatory and ordered reinstatement and backpay.  

ALJ ruled that the employer violated the NLRA by installing surveillance cameras without bargaining with the union.  

The employer attempted to assert its management rights clause, but the ALJ responded that the provision didn’t clearly and explicitly mention video or audio monitoring of its employees.