NLRB Signals a More Employer-Favorable Shift on Case-Handling Procedures, Bargaining Orders, and Joint-Employer Liability

The National Labor Relations Board and its General Counsel have recently taken several steps that, taken together, suggest a narrower and more management-focused enforcement posture.  In the span of just a few weeks, the General Counsel issued new case-handling guidance for regional offices, the Sixth Circuit rejected the Board’s use of the Cemex framework as the sole basis for a bargaining order in a pending case, and the Board formally withdrew its 2023 joint-employer rule and restored the 2020 standard.  Each development has practical implications for employers facing unfair labor practice charges, organizing campaigns, or contingent-workforce issues.

1. General Counsel directs regions to take a narrower, more practical approach to unfair labor practice investigations.

On February 27, 2026, NLRB General Counsel Crystal Carey issued Memorandum GC 26-03, which confirms that prior guidance from former Acting General Counsel Cowen remains in effect and signals a continued move away from several initiatives associated with the prior administration. 

The memorandum places a clear premium on efficiency and settlement.  Regional offices are instructed to approve lawful settlements and withdrawal requests more readily, and “enhanced” remedies such as notice readings, apology letters, and nationwide postings are not to be included routinely, but instead reserved for egregious or repeat violations.  The guidance further instructs regions to deprioritize cases based solely on the maintenance of allegedly unlawful rules where there is no enforcement allegation or evidence of actual impact, and to focus instead on present clear, facial violations, such as direct bans on wage discussions.

From a case-management perspective, GC 26-03 is also significant because it tightens evidentiary procedures at the investigative stage.  Charging parties are expected to provide supporting evidence within two weeks of filing a charge, and regions are told not to send evidence requests to charged parties until the region is satisfied that the charging party’s submission suggests a prima facie case.  The memorandum also directs regions to keep requests targeted and proportional, rather than seeking broad categories of material untethered to the allegations at issue.

Why This Matters:  Employers responding to NLRB charges may now have stronger grounds to push back on overbroad investigative demands, to seek early resolution of handbook-rule allegations through remediation, and to negotiate settlements without assuming that enhanced remedies will be a standard feature of the agency’s proposed relief.

2. The Sixth Circuit casts serious doubt on the Board’s current use of the Cemex bargaining-order framework.

A second major development came from the U.S. Court of Appeals for the Sixth Circuit in Brown-Forman Corp. v. NLRB.  The case involved a union organizing campaign in which the Board set aside a failed election after finding that the employer committed unfair labor practices and ordered the employer to recognize and bargain with the union. On review, the court evaluated the Board’s bargaining order, which relied solely on Cemex Construction Materials Pacific, LLC as its basis (See Honigman’s previous client alert on Cemex here).  Under that framework, the Board may issue a bargaining order when a union demonstrates majority support through authorization cards and employer misconduct undermines the election process.

The Sixth Circuit granted the employer’s petition for review, denied the Board’s cross-application for enforcement, and remanded the case, holding that the Cemex standard, as used there, “cannot serve as the basis for a bargaining order” because it was created through an improper exercise of the Board’s adjudicatory authority.  The court reasoned that the Board attempted to establish a broad policy governing bargaining orders through an adjudicative decision rather than through the formal rulemaking procedures required for agency policymaking of general applicability.

The opinion is notable not only for its result, but for the way it frames the issue.  The court contrasted Cemex with the Supreme Court’s decision in NLRB v. Gissel Packing Co., explaining that bargaining orders historically have been treated as an “extraordinary remedy” and traditionally are reserved for situations where employer misconduct makes a fair election or rerun election unlikely.  In the Sixth Circuit’s view, the Board could not rely on Cemex alone as a substitute for that more traditional analysis.  Because the Board expressly declined to apply the Gissel framework and instead relied solely on Cemex, the court concluded that the bargaining order lacked a lawful basis.

This decision does not mean, however, that Cemex disappears nationwide overnight.  The Sixth Circuit’s ruling is binding within that circuit, and the Board may continue to defend Cemex elsewhere unless and until other courts weigh in or the Board itself changes course.  Nevertheless, because Brown-Forman represents the first federal appellate decision to address the legality of the Cemex framework, it signals meaningful judicial scrutiny of the Board’s attempt to expand bargaining-order remedies through adjudication.  Even so, the decision gives employers a substantial new argument against bargaining orders premised solely on Cemex, particularly in cases arising in the Sixth Circuit or in matters that may ultimately be reviewed there.

Why This Matters:  Employers facing organizing campaigns should still treat card-based majority claims and election-period conduct with caution.  But where the Board seeks a bargaining order without undertaking the more traditional Gissel analysis, the Sixth Circuit’s decision provides a meaningful basis to challenge that remedy.

3. The Board formally restores the 2020 joint-employer rule.

On February 27, 2026, the Board published a final rule withdrawing the 2023 joint-employer regulation and replacing the vacated regulatory text with the 2020 rule.  The Board explained that because the Eastern District of Texas vacated the 2023 rule in March 2024 before it ever took effect, the 2020 rule remained the operative standard.  The Board used the interim rulemaking process to quickly conform the regulatory text to the court’s decision while allowing the public an opportunity to submit comments after publication.  The rule became effective immediately on February 27, 2026.

As a practical matter, the restored framework returns the Board to the narrower 2020 standard associated with “substantial direct and immediate control” over essential terms and conditions of employment.  The 2023 rule had adopted a broader approach that would have allowed joint-employer findings based on indirect or reserved control; the 2026 rule eliminates that broader regulatory text and reinstates the earlier standard.  Under the restored framework, merely possessing the contractual authority to influence employment terms, or exerting only indirect influence, is generally insufficient to establish joint-employer status unless the putative employer actually exercises direct and immediate control over those terms.

This is an important development for businesses that rely on staffing firms, subcontractors, franchise relationships, or other multi-entity operational models.  Although joint-employer exposure has not disappeared, the formal return to the 2020 rule should reduce the likelihood that ordinary contractual oversight, brand protections, or generalized operational expectations alone will support a joint-employer finding under the NLRA.

Why This Matters:  Employers should review service agreements and train on-site managers on the limits of “direct and immediate control.”  Although the return to the 2020 rule provides some breathing room, maintaining flexibility in operations is critical in a changing legal landscape.

Bottom line

These three developments point in the same direction: narrower theories of liability, greater resistance to expansive remedies, and a stronger emphasis on procedural discipline and practical case resolution.  For employers, that creates opportunities to reassess NLRB strategy in several areas, including handbook-rule charges, settlement posture, organizing-campaign response, bargaining-order exposure, and contingent-workforce structuring.

In the near term, employers should consider reviewing pending unfair labor practice matters for opportunities to narrow the issues, resolve technical rule-based allegations through remediation, preserve arguments against Cemex-based bargaining orders, and revisit contracts and management practices that could bear on joint-employer status. For assistance, please contact one of Honigman’s Employment and Labor Attorneys here.