Further Guidance Regarding General Counsel Priorities, GC 26-04 (GC Memo)
The NLRB’s General Counsel issued guidance updating the agency’s stated priorities and identifying cases where she has asked, or plans to ask, the Board to reconsider recent precedents. The memo frames its top priority as reducing the backlog of pending cases, reporting that more than 9,000 cases pending as of January 2026 have since been resolved, a reduction of over 50 percent. It states that regions do not need to submit new cases to the Division of Advice on these topics, but should continue investigating and prosecuting them under existing Board law.
The memo lists positions already taken in pending litigation, including arguments to overturn the Board’s approach to severance agreement confidentiality and non-disparagement clauses from McLaren Macomb, to unwind limits on consent orders set in Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, and to revisit the work-rules standard from Stericycle. It also flags positions urging the Board to reverse restrictions on captive audience meetings adopted in Amazon.com Services LLC, to abandon the employer-prediction standard from Siren Retail Corp. d/b/a Starbucks, to reconsider dress code rules under Tesla, Inc., and to overturn the successor-bargaining waiver standard in Endurance Environmental Solutions, LLC.
The memo separately lists precedents the General Counsel intends to challenge if a suitable case arises, including the bargaining-order framework in Cemex Construction Materials Pacific, LLC, the pre-change bargaining obligations set out in Wendt Corporation and Tecnocap, LLC, the union objector-fee notice standard from UFCW Local 700 (Kroger Limited Partnership), the protected-activity standards in Miller Plastic Products, Inc. and Lion Elastomers, LLC, the post-contract dues checkoff obligation from Valley Hospital Medical Center, Inc., and the expanded remedies framework adopted in Thryv, Inc.
Significant Cases Cited
McLaren Macomb, 372 NLRB No. 58 (2023): Held that employers violate the NLRA by offering severance agreements with broad confidentiality and non-disparagement clauses that restrict employees’ statutory rights.
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established a new framework requiring employers to either bargain with a union or file an election petition upon receiving a demand for recognition, with bargaining orders as a remedy for certain unfair labor practices during that period.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board’s standard remedies to include compensation for all direct or foreseeable pecuniary harms resulting from an employer’s unfair labor practices.
Stericycle, 372 NLRB No. 113 (2023): Set a new standard for evaluating whether employer work rules unlawfully interfere with employees’ rights under the Act.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Supreme Court decision authorizing bargaining orders as a remedy where an employer’s unfair labor practices undermine the possibility of a fair election.
Republic National Distributing Company, 375 NLRB No. 30, 16-RD-327720 (Published Board Decision)
A Board panel reversed a Regional Director's dismissal of a decertification petition, finding that the collective-bargaining agreement in place when the petition was filed lacked a clear effective date and therefore could not serve as a contract bar.
The case arose after Teamsters Local Union No. 988 was certified to represent drivers and drivers-helpers at Republic National Distributing Company LLC. The parties finished bargaining in September 2023 and exchanged a draft agreement that unit employees ratified, but the draft's "Term of Agreement" article left a blank space where the effective date should have appeared. Employee Steven Washburn filed a decertification petition on October 12, 2023. Four days later, the Employer and Union signed a final version of the agreement that filled in the effective date as September 17, 2023.
The Regional Director had dismissed the petition, reasoning that the parties reached a binding agreement through signed emails on September 13 and that the agreement contained substantial terms even before the blank was filled in. The Board majority disagreed, explaining that under the contract-bar doctrine, both the effective date and expiration date of an agreement must be apparent from the face of the document itself, without resorting to outside evidence. Because the September 13 draft, the only version in existence when the petition was filed, left the effective date blank, the Union could not meet its burden of proving the agreement had bar quality at that time. The Board noted that while the October 16 signed version did contain a clear effective date, it was executed after the petition was already filed, so it could not retroactively bar the petition. The Board reversed the dismissal and sent the case back to the Regional Director to process the decertification petition.
Member Prouty dissented, arguing that the agreement's wage article tied implementation to the "First Sunday after ratification," and since ratification occurred on September 15, the effective date of September 17 was readily discernible from the document without needing outside evidence. He would have upheld the dismissal and found a valid contract bar.
Significant Cases Cited
Appalachian Shale Products Co., 121 NLRB 1160 (1958): Established that a contract of definite duration with substantial terms, signed before a petition is filed, bars an election for up to three years.
South Mountain Healthcare & Rehabilitation Center, 344 NLRB 375 (2005): Held that both the effective and expiration dates of a contract must be apparent from the face of the agreement, without resort to outside evidence, for it to serve as a bar.
Cooper Tire & Rubber Co., 181 NLRB 509 (1970): Found that effective and termination dates could be reasonably construed from a contract's face where wage increases were tied to specific stated dates.
Georgia Purchasing, Inc., 230 NLRB 1174 (1977): Found a contract bar existed where a union accepted a contract through a signed telegram.
SSM Health Saint Louis University Hospital, 375 NLRB No. 26 (2026): Found that an agreement lacked bar quality where it stated it would be effective from an unfilled placeholder for the ratification date.
Bradley Technologies Inc. / American Eagle Protective Services, 10-RC-390158 (Regional Election Decision)
The Acting Regional Director for NLRB Region 10 has ordered a mail-ballot election for security guards employed by BTI Security and its subcontractor American Eagle Protective Services at federal facilities across Alabama, rejecting an incumbent union's argument that an existing contract should have blocked the vote.
The case arose after the International Union, Security, Police, and Fire Professionals of America petitioned to represent the guards, prompting United Federation LEOS-PBA, the incumbent union under a collective bargaining agreement with the employers, to intervene and argue that its contract automatically renewed and barred an election. At a hearing, the Regional Director first addressed a procedural dispute over whether the incumbent's Statement of Position, which was filed close to the deadline, should be excluded. He found that the Board's rules only require statements of position from employers, not intervenors, and that regional directors have discretion over what evidence to accept from an intervening party. He therefore allowed the incumbent to present its contract bar argument.
On the merits, the Regional Director applied the Board's longstanding contract bar rules, which require a written agreement with substantial employment terms signed before the petition, and which give parties to an expiring contract a 60-day "insulated period" to negotiate a new deal before a rival petition can be filed. He found that a 2024 "Bridge Agreement" between the employer and the incumbent, which extended the original contract's terms until a new agreement was reached, could not serve as a bar because it lacked a fixed end date, citing Lane Aviation Corp. and Pacific Coast Assn. of Pulp & Paper Mfrs. Turning to the underlying 2023 agreement, which had an automatic renewal clause, he found that the employer had timely notified the union of its intent to bargain over changes in May 2025, well before any 60-day renewal window, and that the parties then negotiated substantive changes to terms including discipline, grievances, and seniority through early 2026. Under Deluxe Metal Furniture Co., such notice defeats automatic renewal for contract bar purposes regardless of its form. Because the underlying contract's stated term ended June 30, 2026, and the petition was filed July 7, after that date, the Director concluded no contract bar existed and directed that the election proceed by mail ballot, with ballots to be counted in October 2026.
Significant Cases Cited
Appalachian Shale Products Co., 121 NLRB 1160 (1958): Sets the three requirements for a contract to bar an election: it must be written, contain substantial terms and conditions of employment, and be signed by all parties before the petition is filed.
Deluxe Metal Furniture Co., 121 NLRB 995 (1958): Establishes the 60-day "insulated period" before a contract's expiration and holds that timely notice of a desire to bargain over changes defeats automatic renewal for contract bar purposes, regardless of the notice's form.
Pacific Coast Assn. of Pulp & Paper Mfrs., 121 NLRB 990 (1958): Holds that a contract without a fixed, ascertainable termination date cannot serve as a bar to an election.
Lane Aviation Corp., 211 NLRB 824 (1974): Applied the rule that an agreement of indefinite duration, such as one ending when a new contract is executed, cannot operate as a contract bar.
ALJUD Licensed Home Care Services, 345 NLRB 1089 (2005): Holds that an automatically renewing contract bars a petition unless a timely petition is filed before the insulated period begins.
Northeastern University, 01-CA-329551 (Unpublished Board Decision)
The Board vacated its earlier finding that Northeastern University violated the NLRA by refusing to bargain with a union representing police sergeants, sergeant detectives, and detectives, and dismissed the unfair labor practice complaint against the university.
The case returned to the Board after the United States Court of Appeals for the First Circuit ruled that the university had proven its sergeants and sergeant detectives were supervisors under Section 2(11) of the NLRA, meaning they should have been excluded from the bargaining unit. Because the certified unit improperly included supervisors, the Board concluded the university could not have unlawfully refused to bargain over that unit. The court's supervisory finding is treated as binding for purposes of this proceeding.
The court sent the case back to the Board to decide what should happen to the underlying representation case now that the unit's composition has changed, suggesting options like holding a new election or simply removing the supervisory classifications from the unit. Before deciding, the Board reopened the representation case and is asking the parties to address a wrinkle: the university claims that after the court's ruling, the union's counsel sent an email saying the union does not intend to represent the remaining detectives. The union did not weigh in on that claim, and the Board found the single email insufficient on its own to prove the union has abandoned its representation interest, especially since the union has not withdrawn its election petition.
Rather than ruling on the university's motion to dismiss the representation case outright, the Board issued a formal notice giving the parties until September 9, 2026 to explain why that motion should or should not be granted.
Significant Cases Cited
Northeastern University v. NLRB, 138 F.4th 64 (1st Cir. 2025): The First Circuit held that the university's sergeants and sergeant detectives were statutory supervisors under Section 2(11), making the certified bargaining unit inappropriate, and remanded to the Board for further proceedings.
Beverly California Corp., 970 F.2d 1548 (6th Cir. 1992): Cited for the principle that an employer does not violate Section 8(a)(5) and (1) by refusing to bargain over a unit that is not appropriate.
3 Beall Bros 3, 110 NLRB 685 (1958): Held that a union's bare statement is not enough to establish disclaimer of its representation interest if surrounding circumstances suggest otherwise.