NLRB General Counsel Doubles Down: What GC Memo 26-04 Means For Employers Right Now

On August 26, 2026, NLRB General Counsel Crystal S. Carey issued Memorandum GC 26-04, “Further Guidance Regarding General Counsel Priorities.” The memo is her second in as many months and reads like a punch list for reversing the Board’s Biden-era precedent. For employers, the headline is simple: nothing has changed yet, but a lot may be about to.

GC memos do not change the law, they are not Board decisions, and they carry no independent legal force. But they are highly reliable early indicators, and this one is particularly specific. Whether your organization runs non-union, unionized, or organizing-campaign operations, several items in GC Memo 26-04 belong on your radar now.

From Backlog Buster to Policy Bulldozer

The NLRB’s General Counsel is a presidentially appointed, Senate-confirmed official who controls the agency’s prosecutorial function. The office decides which unfair labor practice charges to prosecute, what legal positions to take, and which existing Board precedents to ask the Board to overturn. The General Counsel operates independently of the five-member Board that decides cases.

Carey’s predecessor, Jennifer Abruzzo, was known for sweeping “mandatory submission” memos. Carey took a different approach, making the agency’s historic case backlog her first priority. The strategy appears to be paying off. Carey reports the agency has resolved 9,247 pending cases—a reduction of more than 50 percent.

The timing of this memo is likely no coincidence. It arrives on the heels of the Senate’s confirmation of James Macy as the Board’s third Republican member—sworn in on August 7, 2026—cementing the 3-1 Republican majority necessary to issue the kind of precedent-shifting decisions the GC is now teeing up. That majority will hold through at least December 16, 2027. With the backlog largely cleared and a receptive Board now in place, Carey has room to turn to substance. GC Memo 26-04 is the clearest look yet at what she intends to do.

A Different Playbook: No Mandatory Submissions, More Settlements

One of the more notable features of GC Memo 26-04 is what it does not do. Traditionally, new General Counsels issue a “mandatory submission” memorandum directing Regional Offices to route cases raising priority issues to the Division of Advice in Washington. That mechanism has historically served as the primary pipeline for identifying vehicles to change Board precedent. Carey has deliberately broken from that practice. The memo states explicitly that it “does not require specific cases to be submitted to the Division of Advice.” Carey has attributed the agency’s historic case backlog in large part to her predecessor’s 2021 mandatory submission memo and has opted for a leaner approach that keeps cases moving at the regional level rather than funneling them through Washington.

That choice carries a practical upside for employers: by not bottlenecking cases in the Division of Advice, the GC’s office has been able to encourage settlements and resolve matters more efficiently at the regional level. The approach also does not leave the GC in the dark. Reports indicate that Carey and her team are actively monitoring regional caseloads through the agency’s internal case management system, identifying potential vehicles for precedent changes without waiting for formal submissions. The result is a GC who can communicate her substantive priorities (and signal the direction she intends to take the law) while keeping case processing lean and settlement-oriented.

There is also a subtler dynamic at work. By publicly identifying the precedents she wants overturned while simultaneously directing Regional Offices to keep applying existing law and issuing complaints, Carey has created a powerful settlement incentive. The targeted precedents remain technically good law, but everyone involved—employers, unions, and Regional staff—can read the memo and draw the obvious conclusion: these standards are unlikely to survive once an appropriate case reaches a Republican-majority Board. That calculus changes the economics of litigation. Employers facing charges under precedents the GC has flagged for reversal may be more willing to settle quickly and on favorable terms when the cost of litigation outweighs a remedy that may never be enforced. And if Regional Offices continue to bring cases under targeted precedents only to resolve them on employer-friendly terms, the practical effect could be to neutralize Biden-era rulings at the case-processing level, without the Board ever having to formally overrule them. Carey closed the memo by stating that her “hope is that by providing this guidance in a condensed format, cases involving these issues will be identified, and resolved, more quickly.” That language suggests the settlement dimension is not an unintended side effect but rather may be the design.

GC Memo 26-04: What It Actually Says

The memo splits its targets into two buckets: precedents already being challenged in pending cases, and precedents the GC intends to challenge when a suitable case arises. Regions are instructed to keep investigating and prosecuting under existing Board law while Carey pursues the reversals through litigation.

Positions already being argued in pending cases:

• Severance agreement restrictions. Under current Board law, it is unlawful for an employer to offer a severance agreement containing broad confidentiality or non-disparagement provisions that could chill employees’ exercise of their Section 7 rights, regardless of the circumstances. The GC is arguing to overturn that standard, which could restore employers’ ability to include these common protective provisions in separation and severance agreements.
• Consent-order settlements. A 2024 Board decision limited the discretion of administrative law judges to approve consent-order settlements over the General Counsel’s objection. The GC is seeking to overturn that restriction and restore broader authority for ALJs to approve settlements even without GC sign-off.
• Work rules and handbook policies. The current standard makes facially neutral workplace rules presumptively unlawful if a reasonable employee could interpret them as limiting protected activity. This is a test that has put routine handbook provisions on confidentiality, social media, and civility at risk. The GC is arguing to roll back that standard and return to a more balanced approach that eases pressure on common employer policies.
• Captive-audience meetings and predictions about unionization. In 2024, the Board held that employers may not require employees to attend meetings where the employer shares its views on unionization. The GC is urging a return to the decades-old rule that permitted these mandatory meetings. This is a significant development for any employer that uses employee meetings as part of a communication or union-avoidance strategy. In the same case, the GC has also broken from her predecessor’s position restricting what employers may lawfully tell employees about the potential consequences of unionizing, and is instead pushing for a more permissive standard for employer predictions about the impact of unionization on wages, benefits, or working conditions.
• Dress codes and union insignia. A 2022 Board decision expanded employee protections around wearing union insignia and pins at work, making it harder for employers to enforce uniform and dress code policies without running afoul of Section 7. The GC is arguing to reinstate the prior, more employer-friendly standard that gave companies greater latitude to enforce dress code and logo restrictions.
• Waiver of the right to bargain. In 2024, the Board tightened the standard for determining when a union has waived its right to bargain over employer decisions, moving away from a “contract coverage” approach and requiring a “clear and unmistakable waiver” before an employer could make changes to terms and conditions of employment without additional bargaining. The GC is pushing to reverse that shift and return to the contract-coverage standard, which gives more weight to broad management-rights clauses and provides unionized employers greater unilateral flexibility when administering the contract.

Positions the GC intends to raise when a suitable case arises:

• Bargaining orders without a secret-ballot election. Under a 2023 Board decision, an employer that fails to promptly petition for an election after a union demands recognition or that commits certain unfair labor practices during an organizing campaign can be compelled to recognize and bargain with the union without ever holding a secret-ballot vote. The GC wants to scrap that framework and return to the traditional election-based model, which is generally viewed as more protective of an employer’s right to insist on a secret-ballot election before being required to bargain.
• Duty to bargain before changing existing terms. Two 2023 Board decisions currently require employers to bargain over changes to terms and conditions of employment even where there is longstanding past practice guiding the action. The GC views this as slowing routine contract administration and intends to seek a return to a standard that allows employers more flexibility to act consistently with established practice without triggering a separate bargaining obligation over each individual issue.
• Union dues checkoff after contract expiration. Under a 2022 Board decision, an employer’s obligation to deduct and remit union dues from employee paychecks continues even after the collective bargaining agreement containing the checkoff provision expires. The GC wants to return to the earlier rule under which that obligation ended automatically upon contract expiration—a distinction that is particularly relevant during expired-contract situations, prolonged bargaining, and decertification activity.
• Union objector fee disclosures. Under current Board law, unions need only inform dues objectors of the percentage of full dues they owe without providing detailed breakdowns of how those fees are calculated. The GC intends to argue that unions should be required to provide more detailed disclosure to employees who object to full union membership, going beyond what is currently mandated.
• Protected concerted activity and employee misconduct. Two 2023 Board decisions expanded the shield of protection around employee conduct, including abusive or otherwise objectionable behavior, when it occurs in connection with activity protected under the Act, even where the connection to protected activity is tenuous. The GC has called out these decisions as overreaching and intends to seek standards that give employers more latitude to discipline employees for misconduct that would otherwise be prohibitable, regardless of its loose connection to protected concerted activity.
• Expanded “consequential damages” remedies. A 2022 Board decision expanded the make-whole relief available in unfair labor practice cases to include a broad range of “direct or foreseeable” financial harms beyond traditional back pay, such as medical expenses, credit damage, or other out-of-pocket losses. Multiple federal appeals courts have already rejected or cut back these expanded remedies, and the GC wants the Board to reconsider the standard, which has not yet been fully tested through a compliance proceeding.

Taken together, the list amounts to nearly every significant interpretation of the NLRA issued during the Biden Board’s tenure. If even half of these reversals succeed, the practical rules governing severance agreements, handbook policies, captive audience meetings, dress codes, contract administration, and remedies will look meaningfully different.

What to Expect Going Forward

None of this is law yet. Every precedent on this list remains good law unless and until the Board overrules it, and each underlying case still has to work through briefing, argument, and decision. But with a 3-1 Republican majority now cemented, the Board is positioned to act on the GC’s priorities as appropriate cases reach it, and employers should be prepared for the Board to move quickly. The Board has, on several occasions, issued a flurry of major decisions on or around the Labor Day holiday, and the new majority portends a busy fall. If the first Trump administration’s Board is any indication, employers can likely anticipate favorable, employer-friendly outcomes on many of these issues. In the meantime, employers should treat GC Memo 26-04 as a roadmap for what to watch, not a green light to change existing compliance practices today. Expect this to play out unevenly over months to years. But if your severance agreements, handbook policies, or dress code provisions were revised specifically to comply with Biden-era decisions, it is worth flagging them for a fresh look once the Board rules. And where those issues arise, employers may want to consider with counsel whether to preserve challenges to precedents the GC has identified for reconsideration. Equally important, if your organization is currently facing (or receives) an unfair labor practice charge involving one of the targeted precedents, the settlement calculus may look materially different than it did a year ago, and it is worth discussing resolution strategy with counsel early.

GC Memo 26-04 is the clearest statement yet of where General Counsel Carey wants to take federal labor law. But a GC memo is a litigating position, not a change in law, and every item on the list must survive briefing, argument, and a Board decision before it means anything operationally. Keep complying with existing precedent, flag the provisions that could be affected, and stay close to how these cases develop. Employers should also pay attention to how the GC’s approach to case processing and settlements plays out at the regional level as shifts in the practical landscape may arrive not only through formal Board decisions but through the way cases are resolved on the ground. We will continue to track GC Memo 26-04 and the underlying cases and will update this analysis as rulings come down.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.