NLRB and DOL Memos Could Curb Enforcement in Nintendo Union Disputes

NLRB General Counsel Crystal Carey issued General Counsel Memorandum 26‑03 on Feb. 27, 2026, directing NLRB Regional Offices to narrow enforcement of workplace‑rule cases and to prioritize “cases where the challenged rule is facially unlawful.” Proskauer Rose labor bloggers Michael J. Lebowich and Joshua S. Fox summarized the memo’s instruction that regions be “less aggressive in policing alleged violations of Board law with respect to workplace rules” and to weigh industry context and business justifications before invalidating rules.

Carey’s memo uses the phrase “clear, facial violation[]” and gives the example of “outright bans on discussing wages among employees – an unquestionable violation of the Act,” signaling that obvious, categorical prohibitions remain high priority. The Proskauer and LaborRelationsUpdate excerpts note the memo tells Regional Offices to refrain from finding a rule unlawful based solely on vagueness or ambiguity and to consider whether a rule had any “actual” impact on employees; the Proskauer excerpt truncates the line recommending settlements “requiring only modification or” where there is no evidence the rule was enforced.

Shortly before GC 26‑03, Department of Labor Solicitor Jonathan Berry issued a memorandum to the DOL’s Office of the Solicitor instructing agency attorneys “not to prioritize allegations of labor violations occurring in union workplaces,” according to the reporting Proskauer and LaborRelationsUpdate cite. Bloomberg Law reported the Berry memorandum “was issued internally meaning copies of the memorandum have not been made available to the public,” so the exact text and scope remain opaque to outside observers.

National Law Review, in a March 03, 2026 commentary, places GC 26‑03 in the tradition of incoming general counsels rescinding predecessor guidance and resetting field priorities: “It has become tradition that with a change in GC, the new GC rescinds some of the predecessor GC’s guidance memorandum.” The National Law Review argues GC Memo 26‑03 “reverts to long‑standing NLRB practice endorsing a more flexible approach to settlement” and contrasts it with prior policy that “required employers to provide full remedies for alleged ULPs as a condition of any ULP case settlement, essentially requiring employer capitulation rather than compromise.”

For employers and union organizers at Nintendo, the pair of memoranda could materially change what remedies are on the table. The National Law Review lists remedies that should be reserved for exceptional cases—“nationwide notice postings, reading of settlement notices by a management official to assembled employees and apology letters,” remedies it says were “aggressively sought by former GC Abruzzo.” Taken together with Berry’s internal guidance directing deprioritization of union‑workplace allegations, GC 26‑03 could reduce the frequency of sweeping settlement terms in disputes involving unionized Nintendo staff.

Because the Berry memo remains reported as internal and portions of the Proskauer excerpt truncate settlement language, the practical effect will depend on whether the DOL releases the memo and on how quickly NLRB Regional Offices adopt the narrower case‑processing approach Carey set out. Observers tracking union disputes at Nintendo should watch for changes in regional charging and settlement patterns as the new guidance filters into field practice.