D.C. Circuit holds NLRB lacked legal authority to impose “successor bar,” suggests other non-statutory “bars” to decertification votes violate National Labor Relations Act

Washington, DC (July 23, 2026) – The National Right to Work Legal Defense Foundation has submitted a letter to the National Labor Relations Board (NLRB), notifying the agency of a new federal appeals court decision that strongly supports the Foundation’s pending petition, submitted last month, asking the Board to scrap a series of non-statutory barriers that trap employees in unwanted union representation.

In a letter to NLRB Executive Secretary Roxanne L. Rothschild, Foundation Vice President and Legal Director William Messenger informed the Board of the U.S. Court of Appeals for the D.C. Circuit’s July 21, 2026, decision in Hospital Menonita de Guayama, Inc. v. NLRB. The court held that the Board’s so-called “successor bar”—a policy that forces the new owner of a business to recognize and bargain with incumbent union officials for up to a year, regardless of whether that union actually has the support of a majority of workers—exceeds the Board’s authority under the National Labor Relations Act (NLRA).

Applying the Supreme Court’s 2024 Loper Bright decision, which ended judicial deference to agencies’ interpretations of their own statutory authority, the D.C. Circuit independently reviewed the successor bar and found it cannot be squared with the law. The court concluded that the rule suspends both employees’ statutory right to freely choose whether to unionize and the requirement that a union actually hold majority support before it can act as workers’ exclusive bargaining agent.

The court further rejected the Board’s argument that broad “industrial peace and stability” policy goals could justify the rule, explaining that such rationales cannot substitute for actual statutory authority: “General concerns for industrial stability cannot save the lawfulness of the successor bar, which is really a rule of union stability that comes at the expense of employee freedom of association and self-organization.”

Ruling Reinforces Foundation’s June 2026 Petition to Eliminate Non-Statutory Election Bars

On June 10, 2026, the Foundation filed a formal rulemaking petition, asking the NLRB to initiate a rulemaking that would finally eliminate the successor bar, along with other NLRB-invented barriers—including the contract bar, recognition bar, settlement bar, and blocking charge policy—that prevent employees from voting to decertify a union that lacks majority support. The Foundation petition also calls for the Board both to abolish its “merger doctrine,” which allows union officials to combine bargaining units in ways that make decertification efforts virtually impossible, and to require incumbent unions to periodically prove majority support, rather than relying indefinitely on the results of a single, often decades-old, vote.

In this week’s letter, the Foundation argued that the D.C. Circuit’s reasoning extends well beyond the successor bar itself, supporting the broader position that none of the Board’s non-statutory election bars can survive scrutiny under the actual text of the NLRA. The Foundation asked the Board to move forward with rulemaking both for the reasons stated in its original June 2026 petition and, now, in light of the D.C. Circuit’s decision.

“This ruling confirms what rank-and-file workers have argued for years: NLRB officials cannot invent rules out of thin air that strip away employees’ fundamental right to decide for themselves whether they want a union,” said National Right to Work Foundation President Mark Mix. “The court’s decision makes clear that vague appeals to so-called ‘industrial stability’ cannot override the plain text of the law Congress actually passed, which guarantees employees a say over their own representation.

“The Board should take this opportunity to immediately act on our rulemaking petition and rid its rulebook of the successor bar, along with the contract bar, recognition bar, settlement bar, blocking charge policy, and merger doctrine—all of which share the same fatal flaw of trampling worker rights,” Mix added. “Every day these non-statutory barriers remain in place is another day workers are denied their legal right to vote out a union that doesn’t have their support.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.