NLRB General Counsel Targets Stericycle, Other Biden-Era Precedents

National Labor Relations Board General Counsel Crystal S. Carey has identified a series of major labor-law precedents she wants the Board to reconsider, while emphasizing that her immediate priority remains reducing the agency’s case backlog.

In an Aug. 26 memorandum, Carey said she has deliberately avoided requiring regional offices to send specified categories of cases to the Division of Advice. Instead, regions should continue investigating and prosecuting cases under existing Board law while potential vehicles for changing precedent make their way through the agency.

Carey said the approach has helped the NLRB complete investigations in 9,247 cases that were pending when she took office, reducing by more than 50% the number of cases awaiting determinations in regional offices.

For employers, however, the memo also provides a roadmap of significant changes Carey hopes to make to recent NLRB precedent.

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Perhaps the most consequential involves employer work rules. Carey is arguing in Honeywell International Inc. that the Board should overturn its 2023 Stericycle decision.

Under Stericycle, an employer’s workplace rule can be illegal if employees could reasonably read it as discouraging them from exercising their labor rights — even if the rule does not specifically mention unions or protected activity. For example, a broadly worded rule telling employees not to make negative comments about the company could potentially discourage workers from discussing pay or working conditions with one another. The employer can defend the rule by showing that it serves an important business need and that there isn’t a narrower way to write it without interfering with employees’ rights.

A reversal could therefore significantly alter how employers draft and defend handbook policies covering workplace conduct, confidentiality, social media and other employee behavior. 

Carey is also asking the Board to overturn McLaren Macomb, the 2023 decision that held employers may violate the National Labor Relations Act (NLRA) merely by offering employees severance agreements containing overly broad confidentiality and nondisparagement provisions.

Another target is the Board’s 2024 Amazon decision prohibiting mandatory “captive-audience” meetings. That ruling overturned precedent dating to 1948 and held that employers generally cannot require workers to attend meetings concerning unionization under threat of discipline. Carey wants the Board to restore the previous standard, under which employers generally could require workers to attend meetings where management presented its views on unionization. 

Carey also intends to challenge Cemex, which reshaped the union-recognition process. Under Cemex, an employer presented with a union demand for recognition based on majority support must recognize the union or promptly seek an election. If the employer commits unfair labor practices requiring the election to be set aside, the Board may issue a bargaining order rather than rerun the election. Carey said the Board should instead return to earlier Supreme Court and NLRB precedent.

Finally, Carey plans to seek reconsideration of Thryv, which expanded the Board’s standard make-whole remedy to include employees’ direct or foreseeable financial harms caused by unfair labor practices. Carey noted that the remedy has faced repeated court challenges and said it should be reconsidered.

The memo does not itself change any of these standards. For now, regional offices have been instructed to continue applying existing Board law. But it offers employers a clear indication of where NLRB doctrine may be headed as Carey brings challenges before the Board.