The National Labor Relations Board’s (NLRB”) General Counsel, Crystal Carey, has provided the Agency and employers with a clearer roadmap of where federal labor policy may be headed.
On August 26, 2026, Carey issued Memorandum GC 26-04, identifying Biden-era Board precedents she has already asked the Board to overturn and several more she intends to challenge when the right case presents itself.
This list is significant, but not surprising. It includes: Cemex bargaining orders, Stericycle work rules, captive-audience meetings, management-rights waivers, dues checkoff after contract expiration, protected concerted activity, and Thryv expanded remedies.
The Roadmap:
When Carey took office, she departed from her predecessor Jennifer Abruzzo’s practice of issuing broad mandatory-submission directives identifying cases Regions should send to Washington for review. Instead, Carey prioritized reducing the Agency’s significant case backlog.
That approach appears to be working. Carey’s memorandum reports that the Agency has completed investigations in 9,247 cases pending when she took office, reducing the number awaiting Regional Office determinations by more than 50%.
Now, with a three person GOP majority at the Board, Carey appears to add to her priority list a focus on specific legal issues that she feels need to be reviewed and reconsidered. She is giving employers their clearest indication yet of the substantive changes she wants to pursue, while also making it clear that reducing the backlog – not overturning precedent – remains a top priority.
Among the Most Significant:
- Cemex: Carey intends to challenge the Board’s 2023 Cemex decision and return to the Gissel/Linden Lumber framework governing union demands for recognition and bargaining orders. For now, however, Cemex remains controlling Board law.
- Work Rules: Carey is already arguing for reversal of Stericycle, which made it easier for facially neutral work rules to violate the NLRA.
- Captive-Audience Meetings: Carey wants to overturn Amazon.com Services LLC and restore the longstanding Babcock & Wilcox rule permitting employer to require attendance at meetings discussing unionization. California employers may still need to contend with SB 399 and the ongoing questions surrounding its application and federal preemption.
- Management Rights and Past Practices: Carey wants to restore the MV Transportation “contract coverage” standard for determining whether a collective bargaining agreement (CBA) permits employer action without additional bargaining, thereby abandoning the “clear and unmistakable waiver” test.
- Dues Checkoff: Carey wants to return to the standard under which an employer’s statutory obligation to continue dues checkoff generally ended when the CBA expired.
- Thryv Remedies: Carey intends to seek reconsideration of Thryv and its expansion of monetary remedies for unfair labor practices.
Carey has also taken or anticipates taking positions seeking to reverse Biden-era precedent involving severance agreements, union insignia and dress codes, union objector fees, and employee misconduct occurring in connection with protected concerted activity.
An Important Limit: These are Litigating Positions, Not New Law.
Employers should not overread the Memo. The GC sets the Agency’s enforcement priorities, but she does not decide cases and has no independent authority to overturn Board precedent. Each of these precedents remains good law unless and until the Board itself overrules it – and, on several of these issues, the reviewing courts have already been doing some of that work. In the meantime, the Memo expressly directs Regions to continue investigating, and where justified, prosecuting under existing Board law.
What’s Next?
Carey’s guidance confirms that some of the most consequential decisions of the Biden Board are officially in the crosshairs.
However, until precedent actually changes, employers should continue complying with existing law while evaluating whether pending cases present opportunities to preserve arguments based on the positions Carey has now announced.
CDF Labor Law’s Labor Management Relations team will continue monitoring these cases as Carey’s priorities make their way to the Board.
