Last Friday, the National Labor Relations Board (NLRB) General Counsel Crystal Carey issued her second directive memorandum since taking office in January. In Memo GC 26-03, Carey emphasizes efficiency, restraint, and practical resolution over aggressive expansion of liability. The memo confirms former Acting GC William Cowen’s prior guidance remains in effect, instructs regions to prioritize settlement, curtails routine pursuit of “enhanced” remedies, and narrows enforcement focus on handbooks that plainly violate the law. Per Carey’s guidance, cases involving potentially unlawful policies – without evidence of enforcement or actual impact on employees – are not an efficient use of the Agency’s already limited resources. This memo indicates an anticipated shift in the NLRB’s approach under the Trump administration.

The memo highlights the following key points:
Settlements Are Strongly Encouraged: NLRB regional offices are now expected to approve informal settlements or allow withdrawal of requests when parties agree to lawful terms, regardless of the allegations. This aligns with the fact that the Board has limited resources, and it would be difficult to investigate and prosecute the backlogged cases and all the new charges the Board is likely to see over the remaining ten months of the year.Enhanced Remedies Reserved for Egregious Matters: Enhanced remedies (e.g., reading notices to employees, apology letters, or nationwide postings) will not be standard, as they are intended for serious or repeated violations.Potentially Unlawful Rules Are Not Worthy of Prosecution: When examining workplace rules, regional offices will now prioritize those that clearly violate the law. For example, outright bans on discussing wages, which also violates California law. Each rule will be evaluated based on the industry and any legitimate business reasons offered. Rules should not be challenged or enforced just because they are vague. Only rules that impose obvious, unjustified restrictions will be targeted.Evidentiary Protocols: A charging party must now submit supporting evidence within two weeks of filing. Additional evidence is only required if the board agent requests it. At the recent ABA Developing Labor Law Subcommittee Meeting, former Acting GC William Cowan spoke and indicated that a request for additional evidence from the charging party will be standard practice. The charged party will not receive a formal request for evidence letter (“EAJA letter”) until the charging party establishes a prima facie case. That said, the charged party may voluntarily provide information to help the agent reach a dismissal, settlement, or merit decision. Section 10(j) injunctive relief will only be pursued when necessary.
Takeaways for California Employers:
Act early on settlements: Consider settlement discussions promptly, in line with the NLRB’s updated guidance.Review workplace rules: Ensure rules do not clearly violate the law, such as bans on union organizing and discussing wages or other protected topics.Document legitimate business reasons: If certain rules are needed for operational needs and efficiency, record the justification in the context of your industry.Be prepared for court orders: Employers may face immediate Section 10(j) injunctions to stop unfair labor practices, even though they are issued only when necessary.Organize records proactively: Gather and maintain relevant documentation in anticipation of evidence requests. Employers may also voluntarily submit information to assist with a resolution.

Note: This memo applies only to pending matters/complaints before the Board and any briefs/motions currently before Administrative Law Judge or the Board, not past matters.

For advice on how to respond to a complaint or EAJA letter and when to submit additional evidence to support a prompt resolution or decision before the NLRB, contact Tashayla Billington or Mark S. Spring in CDF’s Traditional Labor Law Practice Group.