NLRB General Counsel Releases Road Map for Potential Rollback of Biden-Era Labor Precedent

On August 26, Crystal S. Carey, General Counsel of the National Labor Relations Board (NLRB or the Board), issued a memorandum identifying numerous Board decisions she has challenged, or intends to challenge, for reconsideration. The timing is significant because it comes shortly after the NLRB regained a more industry-friendly majority, creating the possibility that several Biden-era labor decisions may be overturned. According to the memorandum, General Counsel Carey has already urged the Board to reconsider several decisions affecting employers and labor relations.

Among the most noteworthy targets are:

• Severance Agreements. General Counsel Carey is seeking reconsideration of McLaren Macomb, 372 NLRB No. 58 (2023), the Board’s 2023 decision restricting confidentiality and nondisparagement provisions commonly included in severance agreements.
• Workplace Policies and Handbooks. The memorandum identifies Stericycle, 372 NLRB No. 113 (2023), as another decision that should be overturned. That case adopted a more employee-friendly framework for evaluating workplace policies and handbook provisions.
• Mandatory Employer Meetings Regarding Unionization. General Counsel Carey has asked the Board to reverse its decision in Amazon.com Services LLC, 373 NLRB No. 136 (2024), which restricted so-called captive-audience meetings, and instead return to the long-standing standard permitting employers to require attendance at meetings addressing unionization.
• Bargaining Orders. The memorandum also signals an intent to challenge Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (2023), the Board’s landmark 2023 decision that lowered the threshold for bargaining orders following unfair labor practices during union-organizing campaigns. General Counsel Carey described Cemex as contrary to Supreme Court precedent and “sound labor policy.” Cemex is perhaps the most significant pro-union initiative the NLRB has undertaken in the past 50 years.

The memorandum identifies several additional precedents that may be subject to future challenge. These include decisions addressing employer predictions regarding unionization, dress code policies, waiver of bargaining rights, dues-checkoff obligations following the expiration of collective bargaining agreements, protected concerted activity, and enhanced remedies available in unfair labor practice proceedings.

The memorandum alone does not change the law. Regional offices have been instructed to continue investigating and litigating cases under current Board precedent unless and until the Board adopts different standards. However, it gives employers a useful preview of the issues the Board may revisit in the coming months.

Employers should continue to follow existing NLRB precedent while monitoring developments before the Board. Should the Board revisit these issues, employers may need to reevaluate handbook policies, severance agreements, union-organizing campaign strategies, and other labor relations practices. Steptoe & Johnson’s Labor & Employment attorneys are closely tracking these developments and are available to assist employers in navigating evolving labor law requirements and related labor relations matters.