Lucky 13 for Employers? NLRB GC Carey’s Recently Released Priorities List

Takeaways

• NLRB General Counsel Crystal Carey’s 08.26.26 memo identifies seven Biden-era precedents for which she has already sought change and another six she intends to challenge when an appropriate case arises. 
• With a new 3-1 Republican NLRB majority in place, potential shifts may be expected along Carey’s priorities.
• Existing Board precedent remains controlling unless and until the Board changes it.

Related links

• GC Memorandum 26-04: Further Guidance Regarding General Counsel Priorities
• The Year Ahead 2026: Agencies Are Off and Running
• NLRB Overhaul: Setting Stage for Employers, Trump Removes Board Member Wilcox, Fires GC Abruzzo

Article

National Labor Relations Board General Counsel (GC) Crystal Carey has given employers the clearest picture to date of the Biden-era Board precedent she wants reconsidered.

Issued Aug. 26, 2026, GC Memorandum 26-04, “Further Guidance Regarding General Counsel Priorities,” identifies seven areas in which Carey has already taken positions seeking changes in Board law and six additional areas she intends to challenge when an appropriate case arises.

The timing is particularly significant. James Macy was sworn in as the Board’s third Republican member on Aug. 7, 2026, cementing a 3-1 Republican majority through at least Dec. 16, 2027. Thus, the GC’s priorities give employers a clearer sense of where Board law may shift as the GC challenges, and the Board reconsiders, precedents in appropriate cases.

GC’s Substantive Priorities Take Shape

The GC memorandum builds on changes that began before Carey took office. In 2025, Acting GC William Cowen rescinded numerous memoranda that former GC Jennifer Abruzzo had issued, including guidance on non-competes, electronic monitoring, expanded remedies, injunctive relief, and union organizing and recognition procedures.

When Carey took office in January 2026, she declined to issue the traditional memorandum identifying cases that Regions must submit to the Division of Advice. Instead, she emphasized reducing the agency’s case backlog and improving case processing. That focus led to the completion of investigations in 9,247 pending cases and a more than 50% reduction in cases awaiting determination in Regional Offices. She followed with guidance encouraging settlements, limiting routine pursuit of enhanced remedies, and focusing investigations.

At the same time, GC Carey began signaling her substantive positions through pending cases and Advice memoranda, including support for returning to prior Board standards governing captive audience meetings, employer statements about unionization, neutral dress codes, and certain employment agreement provisions. GC 26-04 brings these and other priorities together publicly.

The memorandum makes clear, however, that it “does not require specific cases to be submitted to the Division of Advice.” Traditionally, submissions to the Division of Advice served as the main mechanism through which the GC learned of cases raising issues she wanted to address. Without mandatory submissions, it is unclear how the office will identify and prioritize these cases, potentially delaying precedent changes.

Board Precedents Targeted for Reconsideration

GC Carey identified several significant areas in which she has already challenged existing Board precedent:

1. Severance and employment agreements: Reconsidering restrictions on confidentiality and non-disparagement provisions.
2. Consent orders: Reconsidering the Board’s standard for resolving cases through consent orders.
3. Workplace rules: Returning to a standard that gives greater weight to employers’ legitimate business interests when evaluating facially neutral rules.
4. Captive audience meetings: Restoring the standard permitting employers to require attendance at meetings concerning unionization.
5. Employer predictions about unionization: Returning to the standard governing employer predictions about the effects of unionization.
6. Dress codes: Restoring the approach to neutral, nondiscriminatory dress and appearance policies.
7. Waiver of right to bargain: Returning to the contract-coverage standard for determining whether an employer may act without additional bargaining.

The GC also outlined additional areas she intends to challenge when an appropriate case arises:

1. Bargaining orders: Reconsidering requiring an employer to recognize and bargain with a union without an election.
2. Unilateral changes: Revisiting employers’ bargaining obligations before changing the terms and conditions of employment.
3. Union dues and fees: Revisiting requirements concerning fees charged to employees who object to union membership.
4. Protected concerted activity: Revisiting standards governing employee conduct connected to protected activity.
5. Dues checkoff: Reconsidering whether dues-checkoff obligations continue after a collective bargaining agreement expires.
6. Expanded remedies: Reconsidering the availability of consequential make-whole remedies.

Many of these changes were anticipated with the new administration, and the GC has now consolidated the specific positions she has taken or intends to present to a Republican-majority Board.

What Employers Can Expect

GC 26-04 does not itself change the law. Regions will continue to investigate and, where appropriate, prosecute cases under existing Board precedent while the GC looks for opportunities to present these issues to the Board.

Employers should continue to follow existing Board law but may want to consider with counsel whether to preserve challenges to precedents the GC has identified for reconsideration when those issues arise. With a 3-1 Republican majority in place, the Board can act on the GC’s positions developed over the past several months. The pace of change will depend on when appropriate cases reach the Board, but employers now have greater insight into where the law may shift.

Contact a Jackson Lewis attorney with questions on the Board and other developments.