On August 26, 2026, National Labor Relations Board General Counsel Crystal S. Carey issued Memorandum GC 26-04, “Further Guidance Regarding General Counsel Priorities,” identifying the Board precedents she has already asked, or intends to ask, the Board to reconsider. For employers, the memo is best read as a roadmap: it signals where the General Counsel’s office will be pushing to unwind previous Board law, and where employers currently defending unfair labor practice charges may want to preserve arguments for later review.
Background: A Backlog-First General Counsel
GC Memo 26-04 opens not with precedent, but with process. General Counsel Carey frames her top priority as case processing, stating that the Agency has completed investigation of more than 9,247 cases that were pending as of January 7, 2026, a reduction of over 50 percent in the backlog she inherited. Notably, the guidance reiterates that GC Carey has not issued a mandatory submission memorandum requiring regions to route cases involving these issues through the Division of Advice before proceeding. Instead, regions are instructed to continue investigating and, where warranted, prosecuting these cases under existing Board law, while litigating the General Counsel’s disfavored-precedent arguments as the cases arise.
This is a meaningfully different posture than the mandatory-submission approach favored by some of Carey’s predecessors, and employers should not assume it will persist indefinitely. In fact, the memo describes the current approach as adequate “for the time being,” leaving open the possibility that a more centralized, mandatory-review process could follow if backlog reduction slows or if the General Counsel wants tighter control over how these theories are litigated in the field.
Positions Already Taken
The General Counsel further outlined areas where she has already committed her office to argue against current Board precedent in pending litigation. With respect to severance and employment agreements, the General Counsel has already submitted a brief in Valley Radiology, P.A. (10-CA-324512), asking the Board to reverse its holding that employers violate the NLRA by offering severance agreements with broad provisions that are said to restrict employee’s statutory rights.
In Amazon (31-CA-317349, 31-CA-319781, 31-CA-320596) the General Counsel has requested the Board overturn Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024), that restricted the ability of an administrative law judge to approve consent orders over the objection of the General Counsel.
When discussing the work rules standard , the General Counsel has requested the Board move away from its perspective of an economically dependent employee when analyzing employer handbooks and policies. The GC wants the Board to overturn Stericycle, 372 NLRB No. 113 (2023), returning to prior case law that gave employers more leeway in crafting workplace rules. See Boeing Co. (2017), which was later refined in LA Specialty Produce Co. (2019).
Captive Audience Meetings
In a motion to withdraw exceptions in UPS Supply Chain Solutions, Inc. (32-CA-295913, 32-CA-297314), the General Counsel is encouraging the Board to reverse Amazon.com Services LLC., 373 NLRB No. 136 (2024) and return to the longstanding captive-audience standard from Babcock & Wilcox, 77 NLRB No. 577 (1948), which had permitted mandatory employer meetings addressing unionization.
Predictions About the Impact of Unionization
In the same UPS Supply Chain Solutions, Inc. (32-CA-295913, 32-CA-297314) filing, the General Counsel stated she does not share her predecessor’s views expressed in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024) and will instead urge the Board to reinstate the more employer-favorable Tri-Cast, Inc., 274 NLRB No. 377 (1985) standard governing employer predictions about the effects of unionization on the relationship between employees and their employer.
Dress Codes
In Starbucks Corporation (13-CA-322871, 13-CA-327142), the General Counsel argues against application of the Tesla, Inc., 371 NLRB No. 131 (2022) dress code standard and asks the Board to reinstate the Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019) standard which makes it easier for an employer to craft and enforce a dress code.
Waiver of the Right to Bargain
In HPC Industrial Group, LLC. (07-CA-308650), the General Counsel has taken the position that Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024) should be overturned, and intends to urge a return to the MV Transportation, Inc., 368 NLRB No. 66 (2019) ”contract coverage” standard, which made it easier for employers to make unilateral workplace changes.
Precedents Under Future Consideration
The memo separately flags several additional precedents the General Counsel intends to challenge if and when an appropriate vehicle arises. Because litigation on these issues has not yet been finalized, employers facing charges implicating these theories should watch closely for developments, as the General Counsel’s positions here remain fluid:
Bargaining Orders (Cemex)
The General Counsel intends to challenge the Board’s bargaining-order framework from Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), enfd., 2026 WL 1079297 (9th Cir. 2026), which requires an employer receiving a union recognition demand to either bargain or promptly file its own election petition, and which authorizes bargaining orders as a remedy for certain unfair labor practices committed during that period. The memo argues Cemex conflicts with the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) and advocates reinstating the pre-Cemex Linden Lumber Div., Summer & Co., 190 NLRB 718 (1971) framework, under which an employer generally has no obligation to bargain based on a card-based showing of majority support absent a Board-certified election.
Pre-Change Bargaining Obligations
The General Counsel intends to challenge Wendt Corporation, 372 NLRB No. 135 (2023) and Tecnocap, LLC, 372 NLRB No. 136 (2023), criticizing those decisions for requiring parties to bargain over changes even where longstanding past practice already addressed the issue, which she argues slows down labor negotiations unnecessarily.
Union Dues and Objector Fees
The General Counsel intends to argue for overturning the UFCW Local 700 (Kroger Limited Partnership), 361 NLRB 420 (2014), vacated, 825 F.3d 778 (D.C. Cir. 2016) standard requiring unions to disclose the percentage of full dues owed only after an employee objects to membership, contending it exceeds the rationale of California Saw & Knife Works, 320 NLRB 224 (1995), enfd. sub nom., Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998) and Communication Workers of America v. Beck, 487 U.S. 735 (1988).
Protected Concerted Activity
The General Counsel intends to urge the Board to revisit Miller Plastic Products, Inc., 372 NLRB No. 134 (2023), vacated in part, 141 4th Cir. 492 (3d Cir. 2025) and Lion Elastomers, LLC, describing Lion Elastomers, LLC, II 372 NLRB No. 83, (2023), vacated and remanded, 108 F.4th 252 (5th Cir. 2024) as protecting employee conduct that is only tenuously connected to rights under the Act. In Lion Elastomers the NLRB made it more difficult for an employer to discipline workers who use offensive or angry language if they were also engaging in protected union or concerted activities. Lion Elastomers is currently pending remand before the Board following the Fifth Circuit’s vacatur, so employers should expect this issue to develop relatively soon.
Dues Checkoff After Contract Expiration
The General Counsel intends to challenge Valley Hospital Medical Center, Inc., 371 NLRB No. 160, (2022), enfd., 93 F.4th 1120 (9th Cir. 2024) and urge a return to the 1962 Bethlehem Steel, 136 NLRB 1500 (1962) standard, under which an employer’s obligation to check off union dues ends when the collective-bargaining agreement’s checkoff provision expires, regardless of any pending decertification effort or blocking charge.
Expanded Remedies (Thryv)
The General Counsel intends to ask the Board to reconsider Thryv, Inc., 372 NLRB No. 22 (2022), vacated in part, 102 F.4th 727 (5th Cir. 2024), the 2022 decision that expanded standard Board remedies to include compensation for all direct or foreseeable pecuniary harms flowing from an unfair labor practice. The memo notes that Thryv remedies have not yet been tested in a compliance proceeding and have repeatedly been rejected by reviewing courts, including a partial vacatur by the Fifth Circuit.
Why This Matters for Employers
Several practical takeaways stand out for employers navigating the current enforcement environment.
First, the absence of a mandatory submission requirement means these arguments are already live in regional offices nationwide, not confined to a small set of test cases awaiting formal review. Any employer litigating an unfair labor practice charge touching on severance agreements, captive audience meetings, dress codes, work rules, consent orders, or successor bargaining obligations should expect the assigned region to advance the General Counsel’s disfavored-precedent position as a matter of course.
The memo is candid that the list is not exhaustive. Employers should not assume that an issue’s absence from GC Memo 26-04 means it is off the table, particularly given the General Counsel’s own caveat that the memo may be reissued as additional positions are finalized.
Several of the flagged precedents are already facing headwinds in the courts independent of the General Counsel’s advocacy. Lion Elastomers, Thryv, and Miller Plastic Products have each been vacated in whole or in part by federal courts of appeals, and Cemex is under direct challenge as inconsistent with Supreme Court precedent. Employers should track both the Board-level developments the General Counsel is pursuing and the parallel appellate litigation, since a circuit court ruling could resolve some of these questions before the Board acts.
Finally, this memo arrives against a broader backdrop of continued NLRB instability. As we previously reported, the Eighth Circuit’s recent decision declining to rehear its ruling upholding Minnesota’s captive-audience meeting ban illustrates how quickly the legal landscape for employer communications about unionization is shifting at both the state and federal level, even as the Board itself works through quorum and funding disruptions that have limited its ability to issue decisions. Employers should treat GC Memo 26-04 as one input among several and continue monitoring both Board precedent and state-law developments affecting workplace communications and union organizing.
Employers with pending unfair labor practice matters implicating any of the precedents discussed above should consult with their Husch Blackwell attorney about preserving arguments and anticipating how regional offices are likely to approach these issues going forward.
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