The NLRB’s Top Prosecutor Puts 13 Labor Precedents in the Crosshairs
The National Labor Relations Board’s (“NLRB”) top prosecutor published a roadmap detailing how she intends to challenge some of the Board’s recent labor policy shifts. In the new memorandum, General Counsel Crystal Carey identifies 13 NLRB decisions she has challenged, or intends to challenge, covering topics like severance agreements, workplace rules, union organizing, bargaining obligations, employee misconduct, dues checkoff, and monetary remedies. The message to employers is significant, but it is not yet a green light to change existing practices.
Memorandum GC 26-04, issued August 26, 2026, separates GC Carey’s agenda into two categories: positions she has already presented in pending cases and precedents she intends to challenge when an appropriate case reaches the Board.
Changes Already Being Pursued
The GC has already asked the Board to reconsider the following areas:
- Severance and employment agreements. Seeking to overturn McLaren Macomb, which restricts employers from offering severance agreements containing broadly worded confidentiality and no disparagement provisions.
- Workplace rules. Challenging Stericycle, under which a facially neutral rule may be unlawful if an employee could reasonably interpret it as discouraging protected activity.
- Captive-audience meetings. Restoring the longstanding rule permitting employers to require employees to attend meetings concerning unionization, subject to the Act’s existing limits on threats and coercion.
- Employer statements about unionization. Returning to Tri-Cast, which gave employers more room to explain how unionization could change the relationship between management and employees.
- Dress codes and union insignia. Under current law, nearly any restriction on employees wearing union buttons, pins, or other insignia is presumed unlawful unless the employer can show “special circumstances,” such as a legitimate safety or customer-service concern. Carey asked the Board to restore a more employer-friendly standard (applied in Wal-Mart Stores) that would give employers greater latitude to enforce neutral uniform policies that limit—but do not completely prohibit—union insignia.
- Contractual waiver and management rights. Seeking a return to the “contract coverage” standard from MV Transportation. That standard generally gives employers more flexibility to act when the collective bargaining agreement broadly covers the subject.
- Consent orders. Seeking to allow employers to resolve unfair labor practice cases through an ALJ consent order over the General Counsel’s objection.
Additional Precedents on the Agenda
The memorandum identifies six more areas that Carey intends to bring before the Board:
- Cemex bargaining orders. The Board’s recent Cemex decision can require an employer to recognize and bargain with a union without a new election when the union initially demonstrated majority support and the employer later commits election-related unfair labor practices.
- Unilateral changes and past practices. Wendt Corporation and Tecnocap limit an employer’s ability to continue certain established practices without first bargaining with the union.
- Union fees charged to objecting employees. Carey intends to revisit the information unions must provide when calculating reduced fees for employees who object to paying for nonrepresentational activities.
- Employee misconduct during protected activity. Miller Plastic Products and Lion Elastomers II currently apply a heightened standard for employee conduct that would ordinarily violate workplace rules—for example, those relating to anti-harassment or bullying—when the conduct occurs in connection with concerted or union activity. Carey’s inclusion of this issue implies a possible return to the standard applied by the Board in General Motors, which used a burden shifting analysis to misconduct regardless of whether it occurred in connection with union or protected activity.
- Dues checkoff after contract expiration. Carey supports restoring the former Bethlehem Steel rule, under which an employer’s duty to deduct union dues generally ends when the collective bargaining agreement containing the checkoff provision expires.
- Expanded monetary remedies. She intends to ask the Board to reconsider Thryv, which authorizes recovery for direct or foreseeable financial harm resulting from an unfair labor practice, potentially extending liability beyond traditional backpay and reinstatement remedies.
What Employers Should Understand
The memorandum is a policy statement and, while it provides insight into the General Counsel’s priorities, it does not constitute a change in the law.
Carey expressly instructed Regional Offices to continue investigating and prosecuting cases under existing Board precedent. Unless and until the Board overrules a decision, employers remain subject to current standards. For example, an employer should not resume mandatory captive-audience meetings merely because Carey wants the Board to reverse the current prohibition. The same caution applies to severance language, workplace rules, dues checkoff, unilateral changes, and discipline involving protected activity.
Still, the memorandum matters now. It tells employers which arguments may receive support from the General Counsel and where the Board may be headed. Employers involved in pending cases should preserve arguments under both existing law and the standards Carey favors. Employers negotiating settlements should also consider whether a disputed precedent could change before the case reaches the Board or a reviewing court.
Employers should continue complying with current precedent while reviewing policies, agreements, bargaining strategies, and pending cases with an eye toward a potentially substantial shift in federal labor law.
Miller Canfield’s Employment and Labor Group represents management in the full range of workplace matters, including union organizing and collective bargaining, labor disputes, employment litigation, workplace policies and compliance, employee benefits, and day-to-day employment counseling. The team advises employers across industries on complex labor and employment issues and represents clients before the NLRB, other government agencies, arbitrators, and courts.
Employers with questions about how the General Counsel’s memorandum may affect existing policies, severance agreements, union relations, bargaining obligations, pending NLRB matters, or other workplace practices should contact their Miller Canfield attorney or one of the authors of this alert.
