New NLRB initiatives signal shifting enforcement priorities under GC Carey

The National Labor Relations Board (NLRB, or Board) regained its quorum of three members on January 7, 2026, with the swearing-in of James Murphy and Scott Mayer, after being unable to establish precedent for approximately one year following President Trump’s removal of Gwynne Wilcox from the Board. This marked the end of a lengthy adjudicative standstill. With the restoration of a quorum on the Board and General Counsel (GC) Crystal Carey’s stated positions in guidance memoranda, the current Board will likely exercise its authority to overturn significant precedent established during the Biden administration.

Changes in Board membership

The NLRB currently has four members:

• Chairman James Murphy (Republican; term expires in December 2027)
• Member Scott Mayer (Republican; term expires in December 2029)
• Member James Macy (Republican; term expires in August 2030)
• Member David Prouty (Democrat; term expires in August 2031)

Notably, the Board gained a 3-1 Republican majority in August 2026 when the US Senate confirmed James Macy. With three Republican votes, the Board has expressed its intent to revisit law developed under the Biden administration.

In addition, on March 24, 2025, President Trump nominated Crystal Carey (Republican), a former management-side labor attorney, for a four-year term as GC of the NLRB. The Senate confirmed the nomination on December 18, 2025, and Carey was sworn in on January 7, 2026. As GC of the NLRB, Carey is responsible for investigating and prosecuting unfair labor practice (ULP) charges, supervising the NLRB’s field offices in the processing of cases, and setting enforcement priorities. Importantly, the GC of the NLRB has unreviewable discretion to decline to prosecute ULP charges.

New initiatives

The initiatives presented by GC Carey thus far reflect the Board’s plan to prioritize efficient resolution of cases and challenge Biden-era Board precedents. On August 26, 2026, the Office of the General Counsel (OGC) released Memorandum GC 26-04, “Further Guidance Regarding General Counsel Priorities,” which lays out a summary of positions GC Carey has communicated to all regions, as well as anticipated positions she intends to formally present to the Board for consideration once she identifies an appropriate vehicle, including where a case that would have been an appropriate vehicle settles. Indeed, GC Carey announced therein that she intends “to challenge several other precedents, if the opportunity arises[.]”

Impact

Once the Board regained its quorum in January, members Murphy and Mayer began attaching footnotes to Board decisions naming Biden-era precedents to be revisited once a third Republican vote exists. Because the NLRB traditionally does not overturn precedent absent three affirmative votes, several of these precedents have not yet been challenged or overruled and will remain binding until the Board issues a superseding decision. The footnotes signaled that the Republican Board members intended to challenge Biden-era precedents once the Board obtained a Republican majority, and Member Macy’s confirmation in August 2026 provided the third vote needed to act on these intentions. Memorandum GC 26-04 confirms that those signals are now being carried out, and that the Board will continue targeting Board law established under the Biden administration.

To date, GC Carey has communicated to all regional offices guidance related to various prior cases flagged by Board members in footnotes of decisions, including the following:

• Amazon.com Servs. LLC, 373 NLRB No. 136 (2024) (holding that requiring employees to attend mandatory meetings on unionization under threat of discipline or discharge violates Section 8(a)(1) of the National Labor Relations Act (NLRA))
• Stericycle, Inc., 372 NLRB No. 113 (2023) (implementing a burden-shifting test under which a rule that has a “reasonable tendency to chill employees from exercising their Section 7 rights” is presumptively unlawful)
• McLaren Macomb, 372 NLRB No. 58 (2023) (holding that simply offering a severance agreement with broad provisions that would require an employee to waive Section 7 rights violates Section 8(a)(1) of the NLRA, regardless of whether the employee signs it)
• Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024) (discussing consent order procedures)
• Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024) (applying the clear and unmistakable waiver test to waivers of the right to bargain)

GC Carey also provided guidance on a 2024 Board decision, which held that employer campaign statements must be judged on a case-by-case basis and are lawful only if carefully phrased, based on objective fact, and conveying demonstrably probable consequences beyond the employer’s control.

In addition, GC Carey declared her intention to challenge other decisions, such as Thryv, Inc., 372 NLRB No. 22 (2022) (significantly expanding the Board’s make-whole authority by holding that employees must be compensated for “all direct and foreseeable pecuniary harms” caused by a violation), the most frequently flagged precedent by the reconstituted Board. She also plans to revisit the following:

• Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (2023) (holding that when a union requests recognition based on majority support, an employer must either recognize and bargain with the union or promptly file a representation management (RM) petition seeking an NLRB-conducted election, and that the petition will be dismissed and the Board will order the employer to recognize and bargain if the employer commits ULPs that undermine the election process)
• Valley Hospital Medical Center, Inc., 371 NLRB No. 160 (2022) (holding that a dues checkoff survives contract expiration)
• Lion Elastomers, LLC, 372 NLRB No. 83 (2023) (restoring the prior “setting-specific” approach to evaluating misconduct, under which different standards apply to conduct toward management in the workplace, social media posts and employee conversations, and picket-line conduct)

Notably, GC Carey’s list of anticipated positions “is not all inclusive of [her] positions, current or future,” and thus may be updated and reissued as arguments are finalized.

These new initiatives demonstrate that the current Board has different enforcement priorities than the Biden-era Board, and as the landscape continues to change, Memorandum GC 26-04 makes one thing clear: the Board intends to revisit Biden administration decisions as opportunities present themselves.

Next steps

Employers have a unique opportunity to reassess their labor-relations strategies and NLRA compliance in light of the changing landscape. At the outset, employers should continue to adhere to Biden-era rulings that remain good law and prepare to respond quickly as the law shifts. In the meantime, employers can be more assertive in developing labor strategies. More specifically, employers should expect the NLRB to pursue each of its stated objectives and should leverage the Board’s signals by using the anticipated positions articulated in Memorandum GC 26-04 to guide their strategic thinking.

If you have any questions regarding this alert, please contact your McDermott Will & Schulte lawyer or one of the authors.