On August 26, 2026, National Labor Relations Board (NLRB) General Counsel Crystal S. Carey released Memorandum GC 26-04, “Further Guidance Regarding General Counsel Priorities.” The memo provides important insight into the general counsel’s enforcement and litigation priorities and identifies several recent NLRB decisions that her office intends to challenge.
The memorandum does not mandate submission of any case categories to the Division of Advice. Instead, Carey has identified specific legal positions on arguments her office intends to advance.
Key Precedents Challenged by the General Counsel
GC 26-04 identifies a number of significant NLRB decisions and doctrines that Carey has challenged and intends to challenge. Several of these issues have substantial practical implications for employers. For a full list of what the general counsel has requested or intends to request that the board revisit, see the memorandum.
1. Severance Agreements (and Other Employment Agreements)
The general counsel is arguing to overrule McLaren Macomb in an answering brief in Valley Radiology, P.A. (10-CA-324512).
In McLaren, the board held that employers may not offer employees severance agreements that require employees to broadly waive their rights under the National Labor Relations Act (NLRA). The case at issue involved severance agreements that prohibited employees from making statements that could disparage the employer and from disclosing the terms of the agreement itself.
A reversal could provide employers with greater flexibility when drafting and enforcing separation and severance agreements.
2. Work Rules
The general counsel is arguing to overturn Stericycle in Honeywell International Inc. (09-CA-327389).
In Stericycle, the board adopted a legal standard for evaluating employer work rules challenged as facially unlawful under Section 8(a)(1) of the NLRA. It held that a work rule is illegal if it has a reasonable tendency to chill employees from exercising their rights. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the rule cannot be more narrowly tailored.
A reversal could provide employers with greater flexibility when drafting and enforcing policies.
3. Captive Audience Meetings
The general counsel is encouraging the board to reverse Amazon.com Services LLC, and return to the long-standing “captive audience” standard set in Babcock & Wilcox, in a motion to withdraw exceptions in UPS Supply Chain Solutions, Inc. (32-CA-295913, 32-CA-297314).
In Amazon.com, the board held that an employer violates the NLRA by requiring employees under threat of discipline or discharge to attend meetings in which the employer expresses its views on unionization. An employer can lawfully hold such meetings if workers are provided with reasonable advance notice of the subject of the meeting, that attendance is voluntary with no adverse consequences for failure to attend, and that no attendance records of the meeting will be kept.
A return to the Babcock & Wilcox standard would allow employers to potentially require employees to attend meetings where management explains its position on unionization, rather than relying solely on voluntary attendance.
4. Bargaining Orders
The general counsel has indicated that she intends to challenge the board’s 2023 decision in Cemex Construction Materials Pacific, LLC.
Under Cemex, the board announced a new framework for determining when employers were required to bargain with unions without a representation election. An employer presented with a union demand for recognition based on majority support must either recognize and bargain with the union or promptly file an Representation Management (RM) petition seeking an election. If the employer commits any unfair labor practices that require the election to be set aside, the petition will be dismissed, and the board will order the employer to recognize and bargain with the union.
The general counsel has signaled an interest in returning to the framework associated with NLRB v. Gissel Packing Co. and reinstate Linden Lumber Div., Summer & Co. A return would increase the threshold for imposing bargaining orders and potentially make secret-ballot elections more central to the union recognition process.
5. Novel and Unprecedented Enhanced Remedies
The general counsel has indicated that she intends to request the board reconsider Thryv, Inc.
In Thryv, the board expanded its make-whole remedy to include all of a worker’s direct or foreseeable pecuniary harm caused by unfair labor practices. The general counsel has noted that the case and the remedies have faced repeated challenges by the courts.
A change in this area could affect the potential financial exposure associated with unfair labor practice proceedings.
What Does This Mean for Employers?
GC 26-04 does not overturn any board precedent. The general counsel does not have authority to unilaterally change board law. Instead, the general counsel controls the prosecution of unfair labor practice cases and represents the prosecutorial position of the agency.
Employers should continue to comply with existing NLRB precedents while closely monitoring NLRB decisions, court decisions, and subsequent guidance from the general counsel.
Bradley’s Labor & Employment Practice Group regularly advises employers on compliance with NLRB precedents, including with respect to severance agreements, employee handbooks, responding to unfair labor practice charges, and organizing campaigns. Employers with questions about the general counsel’s memo or how any of these decisions could impact their policies or agreements should seek the guidance of experienced counsel.