05/19/2025: New GC Memo on Remedial Relief Required for Settlement Agreements
Another Regional Election Decision rejecting constitutional challenges.
Seeking Remedial Relief in Settlement Agreements and Formal Compliance Cases, GC 25-06 (GC Memo)
In GC 25-05, the Acting NLRB General Counsel William B. Cowen rescinded a long list of guidance issued by the prior General Counsel, Jennifer Abruzzo (NLRB Edge summary of GC 25-05, list of rescinded memos). Some of the memos that were rescinded pertained to how much remedial relief Regions should insist upon when processing unfair labor practice cases. Because the rescissions were made without much elaboration, they created some uncertainty about what kinds of terms Regions can agree to in settlement negotiations.
GC 25-06 aims to reduce that uncertainty by providing affirmative guidance on the question. It does so in five main areas:
Default language. Settlement agreements often contain language stating that if the charged party does not follow the agreement (“defaults”), then they will be automatically determined to have committed the prior unfair labor practice that gave rise to the settlement. This ensures that the NLRB does not have to litigate that issue and moves the case more quickly to the compliance stage of the process. But insisting on default language might also make it harder to settle cases. GC 25-05 states that Regions (a) are encouraged to include default language in proposed settlement agreements “where appropriate” and (b) should not typically reject a settlement solely because the employer or union objects to default language, but that (c) cases involving “a recidivist violator, an installment arrangement, liquidated damages, or other similar circumstances may warrant including default language.”
Non-admissions clauses. Charged parties often want to include a clause stating that they do not admit to having done the underlying unfair labor practice. GC 25-05 states that these are permitted in settlements reached in early stages of an investigation and shortly after a merit determination. It states they are not appropriate for recidivists or in notice postings.
Unilateral settlements. Regional directors can approve unilateral settlements, i.e. settlements where the charged party and the Region agree over the objections of the charging party without getting authorization from the General Counsel.
Make-whole relief. In cases involving monetary damages, Regions are permitted to accept less than 100 percent of what is owed, but they are required to get “authorization from the Division of Operations-Management prior to approving a Settlement Agreement that provides for less than 80 percent of the relief reasonably anticipated to be recoverable after full litigation.” When deciding whether to require less than 100 percent of what is owed, Regions are asked to consider (a) “the nature of the violations alleged,” (b) “the weight of the evidence,” (c) “the inherent risks of litigation,” and (d) “the extent to which a prompt resolution of a contentious dispute will promote labor peace.”
Foreseeable damages. In its Thryv decision, the Board held that charged parties are responsible for “all direct or foreseeable pecuniary harms” that were suffered a result of their unfair labor practice. This memo clarifies that “foreseeable” will be defined as “losses indirectly caused by an unfair labor practice where the causal link between the loss and the unfair labor practice is sufficiently clear.” This language comes from the dissent in Thryv.
Unrelated to this memo, it is worth noting that it remains reasonably likely that Thryv does not survive the Supreme Court’s SEC v. Jarkesy decision, which stated that jury trials are required for non-equitable remedies that go beyond restoring the status quo.
TRANSDEV Services, Inc. d/b/a South Coast Transit Management, 01-RC-358638 (Regional Election Decision)
In a May 16, 2025 decision, NLRB Regional Director Laura A. Sacks ordered a self-determination election for approximately 35 unrepresented employees at Transdev Services, a transportation services provider in Fall River and New Bedford, Massachusetts. The election will determine whether these employees will join an existing bargaining unit of about 160 operators, technicians, and maintenance workers already represented by Fall River Local Union Number 174 and Amalgamated Transit Union Local 1037.
The petitioned-for group includes ticket agents, call center employees, customer service employees, operations supervisors, garage foremen, procurement officers, and parts managers. The employer opposed the petition, arguing these employees do not share a community of interest with the existing bargaining unit and that some qualify as supervisors, managers, professionals, or confidential employees.
Significantly, the employer also challenged the Regional Director's authority to process the petition, arguing that the NLRB lacked authority to act because it had only two Senate-confirmed members following the January 27, 2025 removal of Board Member Gwynne Wilcox, leaving it without the three-member quorum required by the Supreme Court's 2010 New Process Steel decision.
The Regional Director rejected this argument, citing established precedent that Regional Directors retain delegated authority to process representation cases even when the Board lacks a quorum. She cited NLRB regulations, specifically 29 CFR 102.182, which explicitly states that "representation cases may continue to be processed" despite a lack of Board quorum. The Regional Director also cited multiple circuit court decisions upholding this position.
After the employer declined to participate further in the hearing, the Regional Director conducted a community of interest analysis to determine if the petitioned-for employees should be added to the existing unit. She examined eight factors: departmental organization, common supervision, skills and training, job functions, functional integration, frequency of contact, interchange, and terms and conditions of employment.
Finding that seven of the eight factors favored inclusion (with only interchange weighing against), the Regional Director concluded the petitioned-for employees share a sufficient community of interest with the existing unit. She directed a self-determination election where these employees would vote on whether to join the existing bargaining unit.
The elections were scheduled for June 4-5, 2025, with eligible voters including all petitioned-for employees employed during the payroll period ending May 4, 2025.
Significant Cases Cited
New Process Steel, LP v. NLRB, 560 US 674 (2010): Established that the Board must have at least three members to exercise its powers.
UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015): Held Regional Directors retain authority to conduct representation proceedings despite the absence of a Board quorum.
Brentwood Assisted Living Community, 355 NLRB No. 149 (2010): Affirmed Regional Directors properly exercise delegated authority even when the Board lacks a quorum.
Loper Bright Enterprises v. Raimondo, 603 US 369 (2024): Cited by employer but distinguished by Regional Director as not affecting precedent regarding Regional Directors' authority.
United Operations, Inc., 338 NLRB 123 (2002): Established the traditional community of interest test factors applied in the decision.