NLRB General Counsel Issues Roadmap for Reversing Biden-Era Labor Decisions: What Employers Need to Know

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Introduction

On August 26, 2026, National Labor Relations Board (“NLRB” or “Board”) General Counsel Crystal S. Carey issued Memorandum GC 26-04, titled “Further Guidance Regarding General Counsel Priorities.” The memo identifies thirteen Biden-era Board decisions that the General Counsel has either already asked the Board to overturn or intends to challenge in the near future.

With the NLRB now operating under a 3-1 Republican majority (following the confirmation and seating of three Trump-appointed Board members), this is a significant development. The Board now potentially has the votes to reverse these recent precedents. Although the memo does not itself change current law, it provides a roadmap for the direction of the NLRB’s enforcement policy and signals which more employer-favorable legal standards may soon be restored. The decisions targeted for reversal touch nearly every aspect of labor relations—from workplace rules and severance agreements to union organizing procedures and collective bargaining obligations.

Summary of Key Directives

The General Counsel’s memo is organized into two categories: (1) positions already taken through filed briefs, and (2) anticipated positions the General Counsel intends to present to the Board. Below is a summary of the major Biden-era precedents targeted for reversal.

Positions Already Taken (Briefs Filed)

Severance Agreements — McLaren Macomb (2023). The GC argues that the Board should overturn McLaren Macomb, 372 NLRB No. 58 (2023), which held that broad confidentiality and non-disparagement provisions in severance agreements are presumptively unlawful because they could chill employees’ exercise of Section 7 rights. The GC’s position would restore the prior standard under which such provisions were generally permissible unless applied coercively.

Work Rules — Stericycle (2023). The GC is challenging Stericycle, Inc., 372 NLRB No. 113 (2023), which adopted a standard under which facially neutral workplace rules are presumptively unlawful if they have a “reasonable tendency” to chill Section 7 activity. This standard effectively placed the burden on employers to justify commonplace handbook policies. The GC seeks to restore the prior Boeing Co. framework, which balanced employee rights against legitimate business justifications.

Captive Audience Meetings — Amazon.com Services (2024). The GC encourages the Board to reverse Amazon.com Services LLC, 373 NLRB No. 136 (2024), which found that mandatory employee meetings during which employers express views on unionization (“captive audience” meetings) violate Section 8(a)(1). The GC seeks a return to the longstanding Babcock & Wilcox standard (1948), under which such meetings were lawful provided the employer’s speech contained no threat of reprisal or promise of benefit consistent with Section 8(c) of the NLRA.

Predictions on Impact of Unionization — Siren Retail/Starbucks (2024). The GC has stated she does not share her predecessor’s view on Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), which restricted employer predictions regarding the consequences of unionization. The GC will argue to reinstate the prior standard, which gave employers broader latitude to make predictions based on objective facts.

Dress Codes — Tesla (2022). The GC argues against application of Tesla, Inc., 371 NLRB No. 131 (2022), and requests the Board reinstate prior case law, which permitted employer dress code enforcement without per se liability for restricting union insignia.

Waiver of Right to Bargain — Endurance Environmental Solutions (2024). The GC has noted that Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024), should be overturned, and intends to urge a return to a standard that which applies a “clear and unmistakable waiver” standard more favorable to management prerogatives.

Consent Orders — Metro Health (2024). The GC requests reversal of Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024), which limited the Board’s discretion to approve consent orders over the GC’s objection.

Anticipated Positions (Not Yet Formally Briefed)

Bargaining Orders — Cemex (2023). The GC intends to challenge Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), which allows the Board to issue bargaining orders—requiring an employer to recognize and bargain with a union—without a secret-ballot election if the employer commits unfair labor practices that undermine the election process. The GC states that Cemex is “contrary to Supreme Court precedent and sound labor policy.” She advocates returning to the traditional standards. Notably, the Ninth Circuit enforced the Cemex decision earlier this year.

Duty to Bargain Before Changing Terms — Wendt/Tecnocap (2023). The GC intends to challenge Wendt Corporation, 372 NLRB No. 135 (2023), and Tecnocap, LLC, 372 NLRB No. 136 (2023), which require employers to bargain over every single issue before making a change—even those with longstanding past practice. The GC argues this standard unnecessarily slows contract negotiations and seeks its reversal.

Protected Concerted Activity — Miller Plastic & Lion Elastomers (2023). The GC intends to revisit Miller Plastic Products, Inc., 372 NLRB No. 134 (2023), and Lion Elastomers, LLC, II, 372 NLRB No. 83 (2023). The GC states that these decisions have “led to the protection of generally prohibitable employee conduct that is tenuously connected with rights protected under the Act.” Both decisions have already been vacated (at least in part) by federal circuit courts.

Dues Checkoff After Contract Expiration — Valley Hospital (2022). The GC disagrees with Valley Hospital Medical Center, Inc., 371 NLRB No. 160 (2022), and will urge a return to the prior standard, under which an employer’s obligation to check off union dues ends when its collective-bargaining agreement expires.

Enhanced Remedies — Thryv (2022). The GC intends to challenge Thryv, Inc., 372 NLRB No. 22 (2022), which expanded remedies available to the Board in unfair labor practice cases. The GC notes that these remedies have “repeatedly been struck down by the courts.” The Fifth Circuit vacated the Thryv decision, in part, in 2024.

Union Dues and Objector Fees — UFCW Local 700/Kroger (2014). The GC intends to overturn UFCW Local 700 (Kroger Limited Partnership), 361 NLRB 420 (2014), which addressed the procedures by which unions must inform fee-payers of their obligations after objecting to membership.

Practical Implications for Employers

Again, GC Memo 26-04 does not itself change current Board law. However, it does represent a strong signal of where labor policy may be heading under the 3-1 Republican Board majority. Here is what employers and employees should understand:

• The law is in transition. Until the Board actually issues decisions overruling these precedents, the Biden-era standards technically remain “Board law.” The GC’s memo expressly instructs NLRB Regional Offices to continue prosecuting cases under current standards. Employers should not assume that these policies have already been reversed.
• Changes will come case by case. The Board does not issue new rules through notice-and-comment rulemaking in the same way other agencies do. Instead, it overrules precedent through deciding individual cases that present the right facts and legal issues. The pace of change will depend on when these specific legal issues arise in individual cases.
• Employer-friendly outcomes are likely but not guaranteed. Although the Board has a 3-1 Republican majority, some Biden-era decisions have been enforced by federal appellate courts (e.g., Cemex was enforced by the Ninth Circuit in 2026, and Valley Hospital was enforced by the same court in 2024). Courts may push back on abrupt reversals that lack sufficient justification.
• State law may fill the gap. Several states have already enacted legislation that codifies protections similar to the Biden-era Board decisions. For example, Connecticut, Minnesota, Oregon, New York, Illinois, Maine, Alaska, Washington, Hawaii, California, Vermont, and Colorado have enacted state-level captive audience meeting bans. Employers operating in those jurisdictions may remain constrained by state law even after federal standards shift.

Conclusion and Recommended Next Steps

GC Memo 26-04 does not change the law today, but it provides the clearest signal yet of where NLRB enforcement is going. Employers who position themselves strategically now—by reviewing their policies, preparing updated language, and understanding the evolving legal landscape—will be best prepared to take advantage of the anticipated changes while avoiding missteps during the interim.