Watch This Space: NLRB General Counsel Identifies Reversal Targets

Employers are advised to watch for significant changes to National Labor Relations Board (NLRB or Board) precedent that could provide them greater flexibility to make and enforce workplace rules, restore prior guidance concerning lawful campaign conduct, and overrule the framework for recognition and bargaining orders set forth in the Cemex decision. Historically, the NLRB has not reversed precedent without at least three votes in support of a change. With the appointment of James Macy on August 17, the stage is set for potential reversals to Biden Board precedent.

Those expectations are bolstered by NLRB General Counsel Crystal S. Carey's August 26 message setting forth her priorities for the remainder of her term in Memorandum GC 26-04, "Further Guidance Regarding General Counsel Priorities." This memorandum identifies more than a dozen Board cases that Carey has asked, or plans to ask, the Board to overrule. 

What the Memorandum Says, and its Importance

There is an established tradition of Board General Counsels issuing memoranda shortly after their appointment identifying their priorities and directing regional offices to submit cases presenting designated issues to NLRB's Division of Advice for review. After taking office on January 7, 2026, General Counsel Carey diverged from that tradition and instead prioritized reducing the large backlog of aging cases awaiting determination. Along with setting forth her objectives for the remainder of her term in GC 26-04, Carey reported that her approach to case processing has reduced open cases by more than half—amounting to around 9,247 cases. The memorandum also varies in approach compared to past memoranda, likely due to the timing of its issuance.

Carey's memorandum is a roadmap for issues she has, or will be, presenting to the Board and seeks changes to what many have characterized as unfriendly to employers. It also directs and informs how regional offices investigate charges, present legal theories, seek remedies to alleged unfair labor practices, and evaluate settlements. Every decision identified in GC 26-04 remains binding unless and until the Board overrules it in a decided case.

What the Memorandum Could Mean, and What It Already Does

In addition to highlighting the need to continue to actively reduce case backlog, the memorandum breaks its analysis into two sections: First, it identifies cases where General Counsel Carey has already taken the position that current law should be changed; second, it identifies issues where she anticipates asking the Board to consider changing current law.

The General Counsel has communicated to regional offices and already taken a position supporting changes in the following areas:

• Employer policies, dress codes, campaign conduct, and captive audience meetings. General Counsel Carey is seeking reversal of McLaren Macomb (offering a severance agreement with non-tailored confidentiality or non-disparagement provisions violates Section 8(a)(1)); Stericycle (a facially neutral work rule can be presumptively unlawful if it tends to chill an economically dependent employee); Tesla (restrictions that interfere with displaying union insignia are presumptively unlawful); Amazon.com Services (mandatory captive-audience meetings are unlawful, displacing 75 years of contrary precedent); and Siren Retail (certain predictions about life under a union are evaluated case by case rather than deemed categorically lawful).
• Bargaining and contract administration. General Counsel Carey is asking the Board to overrule the "clear and unmistakable" waiver standard of Endurance Environmental and return to a contract coverage standard for waivers of the right to bargain in a collective bargaining agreement.

Issues for which the General Counsel anticipates seeking consideration of a change in precedent by the Board include:

• Reversal of the recognition framework and bargaining order standard set forth in Cemex. This case and standard is also on review in courts of appeal, and in one recent June 2026 administrative law judge decision in which review by the Board has been sought.
• Scope of protected activity. The General Counsel is asking the Board to revisit Miller Plastic and Lion Elastomers (expanding the scope of concerted activity and protecting abusive conduct occurring in its course). The General Counsel noted she views Lion Elastomers as "problematic," and that it "has led to the protection of generally prohibitable employee conduct that is tenuously connected with rights protected under the Act."
• Duty to bargain before making unilateral changes to terms and conditions of employment. The General Counsel intends to challenge precedent established in Wendt and Technocap substantially narrowing the past-practice defense to unilateral changes in first contracts and while bargaining successor agreements.
• Obligation to discuss dues/fees post-contract expiration. The General Counsel stated she disagrees with Valley Hospital Medical Center and will urge the Board to return to a prior standard which held the statutory obligation to check off dues ends at expiration of a collective bargaining agreement.
• Timing for disclosure of required fees for non-members. The General Counsel intends to argue that the Board should overturn UFCW Local 700 (Kroger Limited Partnership), which requires disclosure of the percentage of full dues owed to objectors only after an objection is made.
• Reconsideration of novel and unprecedented enhanced remedies. The General Counsel will ask the Board to revisit the enhanced remedies set forth in Thryv, Inc., which authorized consequential damages for all direct or foreseeable pecuniary harm and continues to be challenged in courts of appeal.

Even before the Board acts on these issues, the memorandum will influence regional practice. Read alongside GC 26-03—which encouraged flexible settlements and reserved enhanced remedies for egregious or repeat violations—GC 26-04 signals which theories the General Counsel may decline to pursue or even concede.

What Employers Should Do Now

• Continue to adhere to current Board standards until those standards are revisited by the Board.
• Continue to monitor developments and guidance from the Board and General Counsel.
• Prepare for potential change; however, reversal is not certain and does not always mean restoration of a prior standard. The Board may not adopt the General Counsel's reasoning, and overruling a decision does not automatically revive the rule that it displaced. The Board may instead narrow or distinguish a precedent.
• Continue to monitor parallel state law developments that protect similar rights, particularly regarding captive-audience meetings. At least 13 states now restrict such meetings by statute, including New York, California, Illinois, Connecticut, Minnesota, New Jersey, Oregon, Washington, Rhode Island, and Alaska. Even if the Board changes its standard, these laws may remain in effect, unless successfully challenged or changed.
• Consult with counsel while additional guidance is pending. As the memorandum notes, some of the decisions at issue are, or have been, challenged in Courts of Appeal.
• If facing pending charges, unfair labor practice litigation, or active organizing campaigns, be careful to raise and preserve the arguments identified in GC 26-04 through position statements, hearing records, and exceptions.

This post is provided for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Employers should consult counsel regarding the application of these developments to their particular circumstances.

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Jeff Bosley is a partner DWT's San Francisco office, Peter Finch is a partner in the firm's Seattle office, Lauren Mattice is an associate in our Los Angeles office, and Patrick Wilson is an associate in our Washington, D.C., office. If you have any questions, please contact the authors or another member of DWT's employment services group. To stay informed, sign up for our alerts.