NLRB Updates Its Approach to Settlements and Litigation

Employers navigating the National Labor Relations Board (“NLRB”) landscape are seeing a shift toward efficiency and flexibility—both in how unfair labor practice (“ULP”) cases are resolved and how they are litigated. Two recent developments signal this new direction:

1. The Acting General Counsel of the NLRB has authorized broader discretion for Regional Offices to settle ULP charges, moving away from rigid, all-or-nothing remedies that the NLRB has insisted on in recent years.
2. The 2025 edition of the NLRB Administrative Law Judge (“ALJ”) Bench Book introduces updated procedural guidance that better aligns with current litigation practices and evidentiary standards.

These changes signal a strategic move away from prior enforcement approaches and provide employers with new opportunities to resolve matters more efficiently through early settlement or streamlined litigation.

1. Increased Flexibility in ULP Settlements

Recently, the NLRB’s Acting General Counsel, William B. Cowen, issued Memorandum GC 25-06, reshaping how Regional Directors approach ULP settlements. The guidance emphasizes tailored, case-specific resolutions, moving away from prior mandates that required full monetary and non-monetary remedies in nearly all cases.  Regional Directors may now approve settlements without Board-level authorization and even without the charging party’s consent. While make-whole reliefs remain important, the memorandum clarifies that settlements do not need to mirror the relief that would be ordered after full adjudication, particularly where early resolution promotes labor peace. The memo limits previously automatic remedial elements – such as automatic reinstatement, mandatory bargaining orders, or default clauses – to cases involving widespread or egregious misconduct. Instead, Regional Directors are encouraged to evaluate remedies based on factors such as evidentiary strength, litigation risk, and the practical benefits of early resolution.

Key Revisions Employers Should Understand:

• Reduced monetary settlements: Settlements may reflect less than full recovery if justified by the circumstances. While 100% recovery remains ideal, Cowen signaled that settlements falling below that threshold may still be approved, especially if they promote more realistic options for early resolution and efficient case closure.
• Flexibility on default language: The use of default provisions is no longer required in all cases and may be omitted unless justified by aggravating factors, such as repeat violations.
• Use of non-admission clauses: Non-admission language can once again be used in appropriate cases, especially those resolved before trial preparation has begun.
• Narrower interpretation of expanded remedies: While the 2022 Thryv decision broadened the scope of damages in ULP cases, the memo cautions Regions to limit such relief to foreseeable and clearly attributable harms.

This more flexible approach is designed to give Regional Directors the tools to resolve disputes more efficiently and effectively. For employers, the changes offer greater latitude to negotiate resolutions without the burden of excessive remedial demands.

2. 2025 NLRB Bench Book Updates

Complementing the General Counsel’s memo, the NLRB also issued substantive revisions to its 2025 ALJ Bench Book, which is the manual administrative law judges use to guide ULP hearings. These additions improve transparency and consistency in litigation and reflect recent changes to the Federal Rules of Evidence and Board practices.

Practical Implications for Employers:

• Increased Flexibility with Pleadings: ALJs now have greater discretion to allow complaint amendments or real-time procedural adjustments during hearings. Specifically, judges may treat unpled allegations as properly before them only if: (1) the issue was fully and fairly litigated, and (2) the conduct is closely connected to the complaint allegations. If either element is missing—particularly the “closely connected” requirement—a violation cannot be found based on the unpled conduct. 
• Clearer Subpoena and Witness Protocols: Updated rules clarify subpoena enforcement standards, require employers to conduct diligent searches and affirmatively respond when documents are unavailable, and authorize adverse inferences when parties fail to produce evidence or call expected witnesses, such as managers or key personnel.
• Evidence Standards Aligned with Federal Rules: The Bench Book now incorporates the December 2024 amendments to the Federal Rules of Evidence, including updated hearsay and authentication standards, which are critical for document-heavy defenses.

What This Means for Employers

With these changes, the NLRB appears to be encouraging earlier settlements while streamlining the litigation process for those cases that move forward.  Employers should work closely with counsel to evaluate ongoing matters in light of this evolving framework and take advantage of new flexibility to manage risk and resolve disputes efficiently. For assistance, please contact one of Honigman’s Employment and Labor attorneys here.