NLRB General Counsel Issues New Guidance Prioritizing Settlement Over Litigation

NLRB General Counsel Crystal S. Carey released Memorandum GC 26-03 on February 27, 2026, following a comprehensive review of case handling practices at the agency's regional offices. The guidance, which legal news services summarized publicly on March 10, directs those offices to prioritize settlements over litigation, tighten controls on evidence requests, and pull back from pursuing cases built solely on allegedly unlawful workplace rules when there is no proof those rules were ever enforced or affected employees.

The memo's clearest operational instruction concerns settlement: regional offices are directed to approve lawful settlements even where allegations remain unresolved. Enhanced remedies, including public notice readings, apology letters, and nationwide postings, should no longer be sought routinely and are to be reserved for egregious or repeat violations. For employers currently facing NLRB charges, the shift is immediate. "Employers with pending charges or complaints before the NLRB should immediately consider whether the guidance impacts their defense or settlement strategy," according to analysis from Morgan Lewis.

GC 26-03 also draws a clear line on precedent. The Office of the General Counsel will not seek Board reconsideration of three specific decisions previously identified as priorities under prior administrations: Ex-Cell-O Corp., 185 NLRB 107 (1970), which concerns monetary remedies for an employer's refusal to bargain; Care One at New Milford, 369 NLRB No. 109 (2020), which addresses an employer's right to discipline employees not yet covered by a collective bargaining agreement upon commencement of that relationship; and Caesars Entertainment, 368 NLRB No. 143 (2019), which covers an employer's right to restrict employees from using company equipment, including IT resources, for Section 7 purposes. The agency is actively reviewing pending cases to withdraw allegations that were aimed at overturning those decisions.

The new guidance also confirms that directives issued by former Acting General Counsel Cowen remain in effect, including rescissions of seven prior memoranda. Those rescissions cover guidance on seeking remedial relief in settlement agreements (GC 25-06), surreptitious recordings of collective bargaining sessions (GC 25-07), investigating salting cases (GC 25-08), referring cases to the National Mediation Board (GC 25-09), deferring unfair labor practice cases (GC 25-10), and GC 25-05, as well as the implementation of the Agency-Wide Docketing Protocol under GC 26-01.

For McDonald's and other large employers with ongoing or potential NLRB exposure, GC 26-03 reshapes the calculus on when to fight and when to settle. Cases resting on contested workplace policies, particularly those where no employee was demonstrably affected, face a narrower path to full litigation under this framework. Regional offices are now instructed to seek settlement or dismissal in those cases, especially when an employer agrees to remediate the challenged rule, reducing the leverage that a pending charge once provided.