Labor & Employment Law Daily Wrap Up, NLRB NEWS—NLRB general counsel outlines precedent challenges while emphasizing case backlog reduction, (Aug 27, 2026)

By Patricia K. Ruiz, J.D.

The memo details litigation positions on recent board decisions and says no new mandatory advice submissions will be required.

Crystal S. Carey, general counsel of the National Labor Relations Board (NLRB), has issued a memorandum detailing cases in which she has requested or intends to request that the board revisit existing precedent, while reiterating that her primary focus remains reducing the agency's backlog and improving case processing. The memorandum does not require regional offices to submit specific categories of cases to the Division of Advice, instead it directs regions to continue investigating and prosecuting matters under current board law where warranted.

In a related announcement, Carey said the agency is pursuing a "casehandling first" approach intended to deliver prompt resolution of charges and restore what she described as a focus on the fundamentals of administering the National Labor Relations Act (NLRA).

Background and casehandling priorities. In the memo, titled Further Guidance Regarding General Counsel Priorities, Carey said the agency must process cases in a "consistent, efficient, and transparent manner" and that the general counsel's prosecutorial discretion should be exercised responsibly. She stated that her top priorities are reducing the backlog of aged cases and implementing sustainable case-handling practices to prevent future buildups.

According to the memorandum, agency staff have completed investigations in 9,247 cases that were pending as of January 7, 2026, representing what Carey described as more than a 50 percent reduction in cases awaiting determination in regional offices when she took office. Carey said that progress supported her decision not to issue a mandatory submission memorandum and that she intends to continue operating under that approach.

In the accompanying press release, Carey said the agency has begun "a permanent shift back to the fundamentals," with an emphasis on prompt resolution of charges and administering the act in a neutral manner. The release also stated that the memorandum is intended to provide transparency regarding the general counsel's enforcement and legal policy priorities.

Precedents currently being challenged. The memorandum summarizes several positions the general counsel's office has already taken before the board. Those include efforts to overturn or revisit precedents involving severance and employment agreements, consent orders, work rules, captive-audience meetings, predictions about the impact of unionization, dress codes, and standards governing waiver of bargaining rights. Carey cited litigation positions taken in cases involving Amazon, Honeywell International Inc., UPS Supply Chain Solutions, Inc., Starbucks Corporation, and HPC Industrial Group, LLC, among others.

The memorandum states that Carey has argued, or intends to argue, for a return to earlier board standards in several areas, including captive-audience meetings, employer statements concerning unionization, dress-code policies, and bargaining-right waivers. The document identifies the specific cases and filings in which those positions have been advanced.

Additional issues identified for future board consideration. Carey outlined several precedents she intends to challenge if appropriate cases arise. Those areas include bargaining orders under Cemex Construction Materials Pacific, LLC; employers' bargaining obligations before changing terms and conditions of employment; union dues and objector representation fees; standards governing protected concerted activity; employers' obligations concerning dues checkoff following contract expiration; and enhanced remedies established under Thryv, Inc.

The memorandum states that those positions have not yet been formally presented to the board because briefing remains underway, no suitable vehicle has been identified, or potential cases resolved before the issues could be litigated. Carey said the memorandum may be updated and reissued as arguments are finalized.

No new submission requirements. A central feature of the memorandum is what it does not require. Carey stated that the document does not mandate that regional offices submit particular categories of cases to the Division of Advice. Instead, regions are instructed to continue investigating cases and pursuing prosecution where justified under existing board law, while following previously issued guidance regarding settlement and litigation practices.

The press release similarly notes that the memorandum is intended to give regional offices and stakeholders greater clarity about the general counsel's views without making timely case processing unrealistic. The agency said further memoranda and updates may be issued as backlog-reduction efforts and case-handling improvements continue.

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