Foundation petitions Labor Board to end non-statutory barriers to employees’ decertification rights, require incumbent unions prove majority status
Washington, DC (June 12, 2026) – The National Right to Work Legal Defense Foundation has filed a formal rulemaking petition with the National Labor Relations Board (NLRB) asking the new Board to initiate rulemaking to expand worker free choice and end various non-statutory policies that disenfranchise employees. In doing so, the NLRB would overturn changes made in a 2024 Biden-era rule that expanded the barriers workers face to exercising their legal right to vote out a union that lacks majority support.
The petition requests the agency overturn various NLRB-invented “bars” that deprive workers of their right to decertify incumbent unions that lack majority support. It also calls for the elimination of non-statutory policies used to delay or block worker-requested decertification elections and calls for the NLRB to require union officials to regularly prove worker support or else lose their extraordinary government-granted monopoly bargaining powers.
The series of reforms would bring NLRB rules in line with the actual text of the National Labor Relations Act (NLRA), the law the NLRB is charged with neutrally enforcing. This rulemaking is especially necessary following the Supreme Court’s 2024 Loper Bright decision, which curtailed judicial deference to an administrative agency’s ability to expansively interpret its statutory power.
NLRB-Invented “Election Bars,” “Blocking Charge” Policy, and “Merger Doctrine” Improperly Stifle Employees’ Right to Hold Decertification Votes
As the rulemaking petition points out, Section 9(c) of the NLRA commands that the Board “shall” conduct an election when a question of representation exists outside a one year period following a previous election. This means that the existing non-statutory “election bars,” along with the “blocking charge” policy, improperly nullify employees’ 9(a) right to an election.
The Foundation’s petition calls for the repeal of all of the NLRB’s informal “bars”—none of which are found in the text of the NLRA—that keep employees trapped in union ranks even when a majority want to vote to remove the union. This includes eliminating: (1) the “contract bar,” which disenfranchises workers for up to three years when a union contract is in place; (2) the “recognition bar,” which blocks decertification after union officials gain power without a secret-ballot election through an abuse-prone “card check” process; (3) the “successor bar,” which blocks workers’ right to decertify a union following a change in employer ownership; and (4) the “settlement bar,” which prevents worker-requested elections after the union and employer settle charges without an admission of wrongdoing.
The rulemaking request also asks the Board to overturn the other non-statutory policies that the NLRB currently applies to the detriment of employees’ 9(a) rights. For example, if employees can file their petition at a time when one of the various invented “bars” doesn’t apply, union officials frequently use the NLRB’s blocking charge policy to delay decertification elections from being held. This punishes employees seeking to exercise their legal rights on the basis of unproven allegations made by the union against an employer.
The petition also calls for the elimination of the NLRB’s “merger doctrine,” which lets union bosses merge smaller bargaining units into a massive multi-state and/or multi-employer unit, often comprised of thousands or tens of thousands of workers. This allows union officials to manipulate bargaining units in a way that makes it effectively impossible for workers to even gather the signatures needed to exercise their right to hold a decertification election.
NLRB Should End Presumption that a One-Time Union Organizing Win Warrants Perpetual Power Over Employees
Finally, the petition requests the NLRB update its standard for when union officials are entitled to presumption of majority status by requiring union officials periodically prove a majority of employees support their representation. As the petition notes, “over 90% of private-sector employees who are subject to union representation have never voted on that union representation,” a problem created by the fact that one vote or card check years or decades ago currently authorizes union officials to wield bargaining powers over workers without any further evidence of actual employee support.
To remedy this, the petition proposes that unions must prove majority employee support after certain time periods elapse after an election or recognition. The petition notes “[t]he Board’s ‘one-vote, one-time’ presumption is not required by the Act and so defies democratic norms as to be arbitrary and capricious,” meaning it is fully within the NLRB’s authority to implement such a commonsense change.
“For years, employees have sought to exercise their clear legal right in federal law to vote out incumbent unions they oppose, only for NLRB-invented policies to crush their efforts,” stated National Right to Work Foundation President Mark Mix. “Just as politicians must stand for regular election, union officials should have to regularly prove that they have the support of at least a bare majority of the workers they claim to ‘represent.’
“Especially after the Supreme Court’s Loper Bright decision, the NLRB has a duty to enforce the text of the law, not abrogate employees’ clear rights under the NLRA by perpetuating these non-statutory rules that leave employees trapped in unions that lack majority support,” added Mix. “Acting on this rulemaking petition would not only bring NLRB rules on elections better in line with the text of the law but would also send a powerful message that the new Board majority is prioritizing pro-worker policies by expanding employees’ legal rights to remove incumbent unions that don’t serve workers’ interests.”
