NLRB General Counsel Issues Updated Case Handling Guidance

The US National Labor Relations Board (NLRB or Board) Office of the General Counsel has issued new case handling guidance, reinforcing and clarifying prior directives on unfair labor practice investigations, settlements, and evidentiary procedures. 

NLRB General Counsel Crystal S. Carey on February 27, 2026 released Memorandum GC 26-03 based on her comprehensive review of case handling practices at the NLRB’s regional offices.[1] The memorandum responds to questions regarding the continued effect of prior guidance, clarifies expectations for settlement agreements and remedies, and provides updates on investigative procedures for unfair labor practice cases. Employers with pending charges or complaints before the NLRB should immediately consider whether the guidance impacts their defense or settlement strategy.

SUMMARY OF UPDATED GUIDANCE

Prior Acting General Counsel Guidance Still in Effect

The general counsel’s memorandum confirms that previous directives issued by her predecessor, former Acting General Counsel William Cowen, remain in effect.  Those directives include the rescission of prior General Counsel Jennifer Abruzzo memoranda and the implementation of an agency-wide docketing protocol aimed at the more efficient processing of unfair labor practice charges given the severe backlog of cases that grew after the Biden Administration.

The memorandum also confirms that the general counsel will not seek to have the Board revisit certain case law deemed a priority under prior administrations, including Ex-Cell-O Corp., 185 NLRB 107 (1970) (relating to the imposition of monetary remedies for an employer’s refusal to bargain), Care One at New Milford, 369 NLRB No. 109 (2020) (relating to an employer’s right, upon commencement of a collective bargaining relationship, to discipline employees not yet covered by a collective bargaining agreement), and Caesars Entertainment, 368 NLRB No. 143 (2019) (relating to an employer’s right to restrict employees from using the employer’s equipment, including IT resources, for Section 7 purposes).

Encouraging Settlements Over Litigation

In an effort to “ensure[] that settlements remain focused on lawful and practical resolutions,” the memorandum directs NLRB regional offices to approve informal Board settlements (reached with the Board prior to issuance of a complaint) and withdrawal requests based on non-Board settlements (reached between the parties without the Board’s direct involvement) as long as the terms of those settlements are lawful.

The memorandum also reins in the recent Board practice of including in settlements, or seeking in complaints, “enhanced” remedies, such as notice readings, apology letters, or nationwide notice postings—remedies that made settlements more difficult to reach. Such remedies “should not be routinely included in settlement agreements or complaints,” except to address “egregious and recidivist situations.”   

A More Pragmatic Approach to ‘Unlawful Rule’ Claims Over Employer Handbooks, Policies & Agreements

With respect to unfair labor practice allegations based on an employer’s work rules, the memorandum shifts the focus to rules that “present clear, facial violations—such as outright bans on discussing wages among employees.”

Citing the Board’s limited resources that can be depleted with a focus on “facial” challenges to common handbook and policy language that has no material impact on actual employees or their Section 7 activities, the memorandum states that the NLRB regional offices should seek “prompt” resolution—through either settlement or remediation—of allegations “based solely on the maintenance of potentially unlawful rules” where there is no allegation that the rule had any impact on employees.

The memorandum also calls on the regional offices to evaluate rules “within the framework of the charged party’s industry and consider any legitimate business justifications provided.”   

Streamlined Protocols for Initial Investigations of Charges

The memorandum reaffirms the latest docketing protocol for charges, under which a party filing an unfair labor practice charge must present evidence to support their allegations within two weeks of filing the charge, and that evidence must, at minimum, “suggest[] a prima facie case” before the charged party is asked to respond.

In addition, letters requesting evidence from a charged party must provide adequate information for the charged party to respond and request only the documents necessary for the regional office to make a determination on the merits of the case. Finally, requests for a charged party’s position on whether Section 10(j) injunctive relief is appropriate should be limited. 

KEY TAKEAWAYS & RECOMMENDATIONS FOR EMPLOYERS

Emphasis on Settlement

The general counsel’s emphasis on settlement over litigation may expedite case processing, giving employers more flexibility to proactively settle cases without “enhanced,” overly burdensome remedies. The general counsel’s approach signals that employers can be aggressive—both in seeking settlement and negotiating settlement terms—and that outreach to the Office of the General Counsel may prove fruitful if the regional office is a barrier to reasonable settlement terms.

Targeting Rule Maintenance Allegations

The shift away from pursuing cases based solely on the maintenance of potentially unlawful rules (absent evidence of enforcement or impact) may result in fewer investigations of technical violations and a greater focus on rules that present clear, unjustifiable restrictions. Employers should continue to review workplace policies for facial violations—including rules that specifically restrict Section 7 activities—and consider targeted modifications where appropriate. When responding to charges relating to rules that do not clearly or obviously restrict employees’ statutory rights, employers should ensure that the investigation is narrowly tailored and does not venture beyond the rule at issue.

In addition, employers charged with maintaining unlawful rules can consider modifying or rescinding those rules, in which case the memorandum directs regional offices to dismiss the charge or request that it be withdrawn. Employers should review any pending charges with counsel to determine whether this is a viable path forward.  

Pending Cases Subject to Further Review

In addition to active “maintenance of unlawful rule” cases, the general counsel makes clear that she is “actively reviewing pending matters” that seek enhanced remedies or contain allegations relating to conduct deemed lawful by Ex-Cell-O Corp., 185 NLRB 107 (1970), Care One at New Milford, 369 NLRB No. 109 (2020), and Caesars Entertainment, 368 NLRB No. 143 (2019).

Employers should review their matters, including opposing briefs or motions currently before an administrative law judge or the Board, to determine whether dismissal of some or all allegations may be warranted based on this updated guidance.