NLRB General Counsel Unveils Roadmap for Rolling Back Biden-Era Precedent
Employers wondering when the current National Labor Relations Board (NLRB or Board) would begin revising some of the most consequential labor-law decisions of the Biden era just got their clearest answer yet: soon, and potentially on a broad front.
On August 26, 2026, NLRB General Counsel (GC) Crystal S. Carey issued Memorandum GC 26-04, titled "Further Guidance Regarding General Counsel Priorities." Rather than beginning her term with a traditional "mandatory submissions" memo identifying precedent she wanted to revisit, GC Carey initially focused on reducing the agency's substantial case backlog, an effort she reports has now reduced the inherited caseload by more than 50%. With that operational work well underway, GC Carey has now turned her attention to substantive labor policy, identifying a significant list of Biden-era Board decisions that she is already challenging or intends to challenge when the opportunity arises.
The memo itself does not change the law, but its timing matters. The Board now has a Republican majority, and Carey has identified both the precedents she wants reconsidered and, in several instances, pending cases in which she is already asking the Board to overturn them.
Where Employers Will Feel it First
If you rewrote severance agreements, overhauled your handbook, or changed how you conduct employee meetings during organizing campaigns, these are areas to watch. The GC is actively arguing positions related to these areas in pending cases, and the Board could rule on them at any time.
Severance Agreements (and other Employment Agreements): The GC is asking the Board to overturn McLaren Macomb, the 2023 decision that sharply restricted confidentiality and non-disparagement provisions in severance agreements. If the Board agrees, employers could regain considerably more flexibility in drafting those provisions.
Employee Handbooks and Work Rules: The GC is targeting Stericycle, which made facially neutral work rules unlawful if employees could reasonably interpret them as restricting protected activity. A reversal could give employers significantly more latitude in drafting and enforcing handbook policies.
Captive Audience Meetings: The GC is supporting a return to the decades-old rule permitting employers to require employees to attend meetings at which management discusses unionization, reversing the Board's 2024 Amazon decision.
What Else is in the Crosshairs?
The memo also takes aim at a broader set of Biden-era precedents—some already in litigation, others waiting for the right vehicle.
Bargaining Orders: The GC intends to challenge Cemex Construction Materials Pacific, LLC, and wants the Board to reaffirm NLRB v. Gissel Packing Co. and reinstate Linden Lumber Div., Summer & Co. A return to Gissel would restore bargaining orders as an extraordinary remedy reserved for the most egregious misconduct, with rerun elections as the default path when things go wrong. Cemex also remains the subject of active appellate litigation, with the employer currently seeking Supreme Court review.
Employers' Duty to Bargain Prior to Changing Terms and Conditions of Employment: The GC intends to challenge Wendt Corporation and Tecnocap, LLC. If the Board agrees, a reversal would give unionized employers significantly more room to continue day-to-day operations when no contract is in force without treating every discretionary decision as a mandatory bargaining subject.
The GC also signaled potential challenges involving union objector fees, dues checkoff after contract expiration, the scope of protected concerted activity, and the Board's expanded consequential-damages remedy under Thryv.
What This Means for Employers
For now, don't start rewriting your handbook or dusting off your old severance agreements. GC Memo 26-04 tells us where the GC wants the law to go; it does not change existing Board precedent.
But employers should pay attention, particularly because several of these issues are already teed up in pending cases and the Board now has the votes to change course.
This is a good time to identify the labor-law changes your organization made in response to Biden-era decisions. Did you revise confidentiality or non-disparagement language in severance agreements? Rewrite handbook policies after Stericycle? Change your approach to employee meetings during organizing campaigns? For unionized employers, did Endurance Environmental affect how you rely on management-rights language when making operational changes? Knowing where you may have changed course will make it much easier to respond if, and likely when, the Board begins reversing them.
We will continue to track developments as the Board takes up these cases and issues decisions. In the meantime, we encourage clients to contact our team to begin identifying areas of impact and developing strategies that can be implemented as soon as new rulings are issued.
For more information on the NLRB General Counsel's priorities and potential challenges to Biden-era labor-law precedent, please contact Nicole Faulkner, Amanda Laufer, Matthew Tews, Grant Mulkey, Anne Marie Buethe, Rebecca Favre or the Stinson LLP contact with whom you regularly work.
