NLRB’s General Counsel Highlights Current and Anticipated Precedential Challenges

Key Takeaways:

• On August 26, 2026, Crystal S. Carey, General Counsel of the National Labor Relations Board (“Board” or “NLRB”), issued a Memorandum identifying precedential Board decisions that she has asked, or intends to ask, the Board to reconsider.
• The Memorandum lists seven precedential decisions that GC Carey has already asked the Board to reconsider in pending cases. It identifies six decisions GC Carey intends to ask the Board to overturn if given the opportunity in the future.
• Most of the decisions GC Carey has or intends to challenge are employee-friendly rules issued during the prior administration.
• The Memorandum does not change the law but provides a helpful insight into the priorities of the Board’s current chief prosecutor.  

On August 26, 2026, NLRB General Counsel Crystal S. Carey issued Memorandum GC 26-04, titled “Further Guidance Regarding General Counsel Priorities.” The Memorandum highlights seven Board decisions that GC Carey has recently asked the Board to overturn. The Memorandum also identifies six decisions GC Carey intends to ask the Board to overturn in the future, if given the opportunity. Most of the decisions GC Carey has asked, or intends to ask, the Board to reconsider are employee-friendly decisions made during the prior administration.

The Memorandum indicates GC Carey’s desire to advocate for more employer-friendly rules will not come at the expense of efficiency. GC Carey states that she is not “prioritizing overturning precedent at the expense of case processing,” and reiterates that the agency’s priority is to process cases in a consistent, efficient, and transparent manner. The Memorandum states the agency is succeeding in reducing backlog, having successfully investigated 9,247 cases that were pending when GC took office in January 2026. 

The Memorandum itself does not change the law. However, it does offer insight into how the agency’s chief prosecutor interprets the National Labor Relations Act (“NLRA”). Accordingly, it may identify areas of labor law that could see significant changes in coming years.

The GC’s Current Positions

The Memorandum identifies seven precedential decisions that GC Carey has already asked the Board to overturn in pending cases:

• Severance Agreements (and other Employment Agreements): GC Carey has argued to overturn McLaren Macomb, 372 NLRB No. 58 (2023), which held that employers may not offer severance agreements that require employees to broadly waive their rights under the NLRA.  In Valley Radiology, P.A. v. Leena Mammen,GC Carey requested the Board “overrule McLaren Macomb” and “only find severance agreements, or their proffer, to be unlawful if they contain an explicit waiver of Section 7 rights that is not narrowly tailored.”  If adopted, GC Carey’s position would allow employers to include stricter confidentiality and non-disparagement provisions in severance and settlement agreements.

• Consent Orders: In the Amazon cases, GC Carey has asked the Board to overrule Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024), which held that the Board would no longer accept “consent orders,” where an Administrative Law Judge resolves an unfair labor practice based on terms offered by the respondent, but objected to by the charging party. GC Carey argues the Board should permit approval of a respondent-proffered consent order – even if objected to by the charging party – if the consent order nonetheless meets the four-factor test from Independent Stave.  GC Carey’s proposal would allow the Board to settle cases on terms proposed by a respondent if they are reasonable and serve the public, even if they don’t provide the charging party with their requested remedy.

• Work Rules: GC Carey has asked the Board to overturn Stericycle, 372 NLRB No. 113 (2023), which held that even facially neutral work policies are unlawful if they have a “reasonable tendency to chill employees from exercising their rights.”  In Honeywell International, GC Carey asked the Board to overturn Stericycle and return to a more balanced approach that will only prohibit workplace policies that genuinely unlawfully coerce employees.   

• Captive Audience Meetings: In UPS Supply Chain Solutions, GC Carey encouraged the Board to overturn the rule set forth in Amazon.com Services, LLC, 373 NLRB No. 136 (2024) that an employer violates the Act by requiring employees under threat of discipline to attend meetings in which the employer expresses its views on unionization.  GC Carey advocates returning to the rule set forth in Babcock & Wilcox, 77 NLRB 577, 578 (1948), which, if adopted, would allow employers to express unionization opinions at mandatory meetings so long as employees are not threatened, punished, or promised benefits.

• Predictions on Impact of Unionization: Also in UPS Supply Chain Solutions, GC Carey “urged” the Board to reverse Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024) and return to the rationale set forth in Tri-Cast, 274 NLRB 377 (1985).  If the Board adopts GC Carey’s requested approach, employers will have more latitude to make predictions to employees about the negative consequences of unionization without being deemed to have made an unlawful threat.

• Dress Codes: GC Carey encouraged the Board to overrule Tesla, Inc., 371 NLRB No. 131 (2022), which held that workplace dress codes prohibiting pro-union apparel are presumptively unlawful unless the employer has “special circumstances” justifying the restriction.  She requested the Board return to the standard set forth in Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), which would allow employers to maintain neutral, non-discriminatory dress rules while allowing employees to retain the right to display insignia subject to reasonable size, placement, and presentation limits.

• Waiver of Right to Bargain: GC Carey asked the Board to overrule the standard set forth in Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024), which restored the “clear and unmistakable” waiver standard when evaluating contractual defenses to allegations that the employer changed working conditions of union-represented employees without first giving the union the opportunity to bargain.  GC Carey has requested to return to the standard set in MV Transportation, Inc., 368 NLRB No. 66 (2019), which would make it easier for employers to avoid engaging in collective bargaining over workplace changes.

The GC’s Anticipated Precedential Challenges

The Memorandum identifies six precedential decisions that GC Carey intends to challenge “if the opportunity arises:”

• Bargaining Orders: GC Carey intends to challenge the Board’s decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023).  As explained in Dinsmore’s April 23, 2026 alert, the Board’s Cemex decision authorizes the Board to issue bargaining orders to remedy election interference even in situations where a fair rerun election would be possible, upending several decades of Supreme Court precedent.

• Employers’ Duty to Bargain Prior to Changing Terms and Conditions of Employment: GC Carey intends to challenge the Board’s decisions in Wendt Corporation, 372 NLRB No. 135 (2023), and Tecnocap, LLC, 372 NLRB No. 136 (2023), both of which limit a unionized-employer’s ability to avoid bargaining over changes to employees’ terms and conditions of employment based on “past practice.”  GC Carey contends these holdings “make for slower labor contracts by requiring parties to bargain over every single issue, even for those for which there is longstanding precedent of action.” 

• Union Dues and Objector Representation Fees: GC Carey intends to seek reversal of UFCW Local 700 (Kroger Limited Partnership), 361 NLRB 420 (2014) which, if successful, would require unions to provide more detailed disclosures to dues objectors. 

• Protected Concerted Activity: GC Carey intends to urge the Board to revisit Miller Plastic Products, Inc., 372 NLRB No. 134 (2023) and Lion Elastomers, LLC, ll 372 NLRB No. 83, (2023), which adopted in relevant part a “totality of the circumstances” test for determining whether an employee has engaged in concerted activity.  GC Carey claims the analysis in these cases have “led to the protection of generally prohibitable employee conduct” that is only “tenuously connected” with NLRA rights. 

• Employers’ Obligation to Discuss Dues/Fees Under Security Agreements After the Contract Expires: GC Carey wants to request the Board to reverse the decision in Valley Hospital Medical Center, Inc., 371 NLRB 160 (2022), that employers may not unilaterally stop union dues checkoff after a collective-bargaining agreement expires. 

• Novel and Unprecedented Enhanced Remedies: GC Carey intends to request the Board to reconsider Thryv, Inc., 372 NLRB No. 22 (2022), which expanded monetary remedies for unfair labor practices by requiring compensation of “all direct or foreseeable pecuniary harm” suffered as a result of unfair labor practices. She contends Thryv’s enhanced remedies have repeatedly been struck down by the courts.

Takeaways:

The Memorandum itself does not change Board precedent, bind courts, or create legal rights or defenses.  Although each of GC Carey’s current and anticipated arguments are promising for employers, they must be adopted by the Board to have any legal effect.

However, the Memorandum offers insight into the priorities and opinions of the Board’s chief prosecutor.  To that end, it highlights areas that may see significant changes in the coming years.  It also reaffirms that GC Carey has, and intends to, advocate for the reversal of some of the prior administration’s employee-friendly rules, although not at the sake of efficiency, which she considers paramount.

Employers should monitor the Board’s response to GC Carey’s current and anticipated arguments.  Whether or not the Board adopts some or all of her positions will impact unionized employers, including their ability to promulgate work rules, enforce dress codes, request confidentiality agreements, and otherwise communicate with their union workforce.

Dinsmore will monitor these developments and provide updates as applicable.  If you have questions about the impact of this Memorandum or any other labor-related questions, please reach out to your local Dinsmore labor and employment attorney.