The General Counsel of the National Labor Relations Board has issued updated guidance (Memorandum GC 26-03) on the handling of unfair labor practice matters, with an emphasis on continuity of existing policy, efficient case resolution, and more focused investigative practices.
The memorandum confirms that guidance previously issued by former Acting General Counsel Cowen remains in effect and that prior rescissions – such as General Counsel Memoranda (GC 25-05); Seeking Remedial Relief in Settlement Agreements (GC 25-06); Surreptitious Recordings of Collective-Bargaining Sessions (GC 25-07); Guidance for Investigating Salting Cases (GC 25-08); Guidance for Referring Cases to the National Mediation Board (GC 25-09); Guidance for Deferring Unfair Labor Practice Cases (GC 25-10); and the implementation of the Agency-Wide Docketing Protocol (GC 26-01) – remain rescinded. The Office of the General Counsel will no longer seek to have the Board revisit specific, previously identified decisions, and is reviewing pending cases to withdraw allegations aimed at overturning that precedent.
The guidance further underscores the agency’s preference for resolving matters through settlement rather than litigation where lawful and appropriate. Regional NLRB offices are directed to approve settlements when the parties agree to permissible terms and to reserve “enhanced” remedies – such as public notice readings, apology letters, or nationwide postings – for egregious or repeat violations. This approach is intended to promote practical, proportionate outcomes and to streamline case processing.
With respect to workplace rules, the General Counsel cautions against cases based solely on potentially unlawful rules or handbook policies without evidence of enforcement or actual impact. Regions are instructed to prioritize rules that present clear, facial restrictions on employees’ rights – such as categorical bans on discussing wages – while taking into account the employer’s industry and any legitimate business justifications. Regions are also cautioned against sustaining allegations based on vague or ambiguous language, and instead are directed to apply a more nuanced, context-specific assessment.
Finally, the memorandum clarifies expectations regarding evidentiary submissions and investigatory procedures. Charging parties are expected to be prepared to provide supporting evidence within two weeks of filing a charge. Board agents should seek information from the charged party only after determining that the charging party’s evidence, if credited, establishes a prima facie case. Document requests should be concise, relevant, and narrowly tailored to the issues in dispute, avoiding broad requests such as entire handbooks when only a specific rule is at issue. Regions are also encouraged to accommodate reasonable extensions of time and to limit inquiries regarding potential Section 10(j) injunctive relief to circumstances where the initial evidentiary showing indicates that such relief may genuinely be warranted.
Employer Takeaway
For employers, this guidance signals the NLRB’s continued focus on early, practical resolution of disputes and a more targeted approach to challenging workplace policies. Employers should review existing workplace rules related to employee discussions of wages and working conditions to ensure compliance and clarity.
If you have questions about this guidance or its potential impact on your workplace policies, please contact attorney Susanna Fultz or any member of Barley Snyder’s Labor Law Practice Team.
