At the end of August 2026, National Labor Relations Board (“NLRB” or “Board”) General Counsel Crystal Carey issued a memorandum titled “Further Guidance Regarding General Counsel Priorities” (GC 26-04). The memo outlines her vision for the changes she would like to see during her tenure as the top attorney at the NLRB. By clearly identifying cases and precedents that the General Counsel would like to be revisited and eventually overturned by the Board under her leadership, the memo offers employers of all sizes a roadmap for where federal labor law may be headed. The precedents targeted for reversal span nearly every aspect of labor relations, from workplace rules and severance agreements to union organizing procedures and collective bargaining obligations.
Although GC memoranda are not legally binding, they provide employers useful insight into the NLRB’s enforcement priorities and the employer-favorable standards the General Counsel may seek to restore. This guidance is especially significant now that the Senate has confirmed James Macy as a Board Member, giving the Board a Republican majority with the votes to reverse precedent, particularly decisions issued during the Biden administration.
GC Memo 26-04: The Basics
After highlighting that the Board has completed the investigation of 9,247 pending cases, marking a 50% reduction in pending cases since the General Counsel assumed her role in January, the memo identifies several precedents she would like to see overturned. These include those already under challenge before the Board as well as additional precedents that she will aim to overturn but has not yet formally pursued.
Precedents the General Counsel Is Actively Challenging
- Severance agreements and confidentiality/non-disparagement clauses: In Valley Radiology, P.A., the General Counsel is arguing to overrule McLaren Macomb (2023). This decision made broad confidentiality and non-disparagement provisions in severance agreements presumptively unlawful because they could chill employees’ exercise of Section 7 rights. If the Board agrees, employers will regain more latitude to include standard confidentiality and non-disparagement language in severance and separation agreements without automatically committing an unfair labor practice.
- Work rules and handbook policies: In Honeywell International Inc., 09-CA-327389, the General Counsel is arguing to overturn the standard under Stericycle, 372 NLRB 113 (2023), which makes facially neutral work rules unlawful if a reasonable employee could interpret them to inhibit or “chill” protected activity. This standard effectively placed the burden on employers to justify commonplace handbook policies, and a reversal would allow employers to re-write such provisions without fear of an unfair labor practice charge.
- Captive audience meetings: In a motion to withdraw exceptions in UPS Supply Chain Solutions, Inc., 32-CA-295913, the General Counsel argued for overturning com Services LLC, 373 NLRB 136 (2024), and restoring the rule from Babcock & Wilcox Co., 77 NLRB 577 (1948), which allowed employers to require employees to attend meetings where the employer presents its views on unionization. This is especially important for employers that rely on such meetings as part of a union-avoidance or employee-communication strategy.
- Dress codes: In a supporting brief in Starbucks Corporation, 13-CA-322871, the General Counsel advocated for a return to the pro-management standard set in Wal-Mart Stores, 368 NLRB 24 (2019). This standard grants more power to employers to enforce dress code and uniform policies, such as those limiting the wearing of pins with union insignia, than the current standard under Tesla, Inc., 371 NLRB 131 (2022).
- Waiver of the right to bargain: In 2024, the Board overturned a balanced standard that required evidence of a clear, unmistakable waiver before employers were permitted to make workplace changes without negotiation. The General Counsel noted that Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024), should be overturned and that she intends to urge a return to a “clear and unmistakable waiver” standard more favorable to management prerogatives.
- Statements predicting the impact of unionization: The General Counsel explicitly stated she does not agree with her predecessor’s position under Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), which restricted employer predictions regarding the consequences of unionization. She will urge the Board to reinstate a more permissive standard for employer statements predicting what might happen to wages, benefits, or working conditions if a union is voted in.
- Consent orders: The General Counsel requested reversal of Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024), which limited the Board’s discretion to approve consent orders (settlement mechanisms) over the General Counsel’s objection. A reversal would restore more flexibility for administrative law judges to approve settlements without General Counsel signoff.
Precedents on the General Counsel’s Agenda
- Bargaining orders without an election (Cemex bargaining orders): One of the most controversial developments in federal labor law over the last few years has been the Board’s decision in Cemex Construction Materials Pacific, LLC, 372 NLRB 130 (2023). This decision established that employers could be forced to recognize and bargain with a union without a secret-ballot election if the employer ignores the union’s recognition request or commits an unfair labor practice in the lead-up to an election. Per her memo, the General Counsel would prefer a return to the standard set in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and Linden Lumber Div., Summer & Co., 190 NLRB 718 (1971), which, in her view, is “more consistent with Supreme Court precedent and sound labor policy.” Notably, earlier this year the Ninth Circuit enforced the Cemex decision, and in early September the U.S. Supreme Court again declined to review the Ninth Circuit’s ruling mandating that the construction company bargain with the union.
- Enhanced make-whole remedies: The General Counsel would like the Board to reconsider its decision in Thryv, Inc., 372 NLRB 22 (2022). In Thryv, the Board expanded its available remedies and established that employers that commit unfair labor practices can be liable for “all direct and foreseeable” damages flowing from their violation of the National Labor Relations Act (the “Act”). Additional penalties include a host of consequential damages like medical expenses, missed rent payments, and compensation for a damaged credit rating. The General Counsel wants the Board to revisit this standard, noting that federal courts—including the Third and Fifth Circuits—have repeatedly curtailed the consequential-damages remedy adopted in Thryv, and that the remedy has not yet been tested through a full compliance proceeding.
- Duty to bargain before changing existing terms: The General Counsel intends to challenge Wendt Corporation, 372 NLRB No. 135 (2023), and Tecnocap, LLC, 372 NLRB No. 136 (2023), which require employers to bargain over every single issue before making a change to a term or condition of work—even those with longstanding past practice. The General Counsel argues this standard slows down routine contract administration.
- Union dues checkoff after contract expiration: The General Counsel will target Valley Hospital Medical Center, Inc., 371 NLRB No. 160 (2022), and will urge a return to the prior standard, under which an employer’s obligation to check off union dues ends when its CBA expires.
- Union dues and objector fee disclosures: UFCW Local 700 (Kroger Limited Partnership), 361 NLRB 420 (2014), addressed the procedures by which unions must inform fee-payers of their obligations after objecting to membership. The General Counsel intends to argue that unions should have to disclose more detailed information to dues objectors than what Kroger currently requires.
- Protected concerted activity and workplace conduct: The General Counsel stated that Miller Plastic Products, Inc., 372 NLRB No. 134 (2023), and Lion Elastomers, LLC, II, 372 NLRB No. 83 (2023), have “led to the protection of generally prohibitable employee conduct that is tenuously connected with rights protected under the Act.” Both decisions have already been vacated (at least in part) by federal circuit courts.
Recommended Employer Considerations
Though the General Counsel’s memo signals where federal labor law may be headed, employers should remain mindful of the limits to her authority. General Counsels of the NLRB do not decide cases and have no independent power to overturn Board precedent. The memo does not change the fact that Cemex, Stericycle, and other controversial precedents remain good law until and unless the Board overrules them. While that day may be approaching, employers should continue complying with existing Board law in the interim. Unlike other federal agencies, the Board does not issue new rules through a notice-and-comment rulemaking process. Changes to federal labor law will instead emerge piecemeal as the Board issues decisions that overrule or uphold precedents based on the facts and legal issues presented in each case.
Several states have enacted legislation codifying protections similar to those adopted by the Biden-era Board. For example, Connecticut, Minnesota, Oregon, New York, Illinois, Maine, Alaska, Washington, Hawaii, California, Vermont, and Colorado have enacted state-level captive audience meeting bans. Employers operating in those jurisdictions may remain constrained by state law even after federal standards shift. All employers should also be familiar with their states’ current and pending legislation on confidentiality and non-disparagement provisions in severance agreements, even if the Board overturns McLaren Macomb.
As labor law continues to evolve, employers should maintain compliance with current standards while monitoring the cases and precedents highlighted in the General Counsel’s memo. Broadfield is tracking each of these developments and will provide updates as they progress through the Board.
