National Right to Work Legal Defense Foundation successor bar Archives - National Right to Work Legal Defense Foundation

10 Aug 2026

New NLRB Majority Asked to End ‘Successor Bar’ Policy Used to Block Employees Seeking Votes to Oust Unwanted Unions

Posted in News Releases

Majority of Senior Living center employees want to remove union, but non-statutory ‘successor bar’ traps them under the SEIU

Washington, DC (August 10, 2026) – Edvard Guay, an employee at Sona Senior Living in Deerfield, Illinois, filed an appeal asking the National Labor Relations Board (NLRB) to overturn the so-called “successor bar,” which is being used to block him and his colleagues from holding a “decertification” election to remove Service Employees International Union (SEIU) Local 73 union bosses from their workplace. The employees’ Request for Review was filed with free legal assistance from National Right to Work Foundation staff attorneys.

The NLRB’s non-statutory successor bar forces a 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 rank-and-file workers. This legal tactic prevents employees from exercising their statutory rights under the National Labor Relations Act (NLRA) to hold elections to remove unwanted unions.

Guay’s request for the NLRB to scrap the successor bar follows the decision of the NLRB Region 13 Director to apply the bar to the Sona Senior Living workers’ case, dismissing their decertification petition to remove SEIU Local 73. A majority of Sona Senior Living employees signed the petition opposing the SEIU’s presence at their workplace.

The Request for Review states that the NLRB should overturn the successor bar because it conflicts with Sections 7 and 9 of the NLRA. Section 7 of the NLRA enshrines workers’ right to refrain from joining a union, and Section 9(c) directs that, when a “question of representation” exists, the Board “shall” conduct an election.

Foundation staff attorneys filed a formal rulemaking petition with the NLRB in June, asking the agency’s Board to overturn its non-statutory “bars,” as the NLRB’s pro-Big Labor policies have no grounds in federal labor law and are designed to disenfranchise workers. Notably, the Board will now have a new Trump-appointed Member, after the Senate confirmed the nomination of James Macy last week.

Last month, the D.C. Circuit Court of Appeals held—echoing the Foundation’s petition—that the NLRB does not possess the authority under the NLRA to stymie a decertification by invoking the successor bar, with the Court further suggesting that the NLRB’s other non-statutory bars are in violation of the NLRA. The Circuit’s decision was informed by the 2024 U.S. Supreme Court Loper Bright decision, which ended judicial deference to agencies’ interpretations of their statutory authority.

“We look to the new Trump NLRB members to finally bring the agency in line with the text of the law Congress charged them with enforcing, starting by ending the Obama-era ‘successor bar’ ruling that was recently rejected by the D.C. Circuit Court of Appeals,” said National Right to Work Foundation President Mark Mix. “This case gives the new Board majority a way to quickly demonstrate that it will prioritize defending workers’ statutory rights, not limiting those rights to protect the power of unwanted union officials.”

23 Jul 2026

Letter to NLRB: Federal Appeals Court Ruling Bolsters Foundation’s Petition to Scrap Invented ‘Bars’ to Removing Incumbent Unions

Posted in News Releases

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.”

12 Jun 2026

National Right to Work Foundation Submits NLRB Rulemaking Petition: Overturn Biden-Era Rule and Expand Worker Free Choice

Posted in News Releases

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.”

22 Dec 2022

Foundation Helps Healthcare Workers Remove Unwanted Unions

Posted in Newsletter Articles

The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2022 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.

Evidence of union boss “serious financial malpractice” exposed as workers seek to vote out SEIU

Nurse Brittany Burgess (front, center) led her fellow Mayo Clinic nurses in decertifying the Minnesota Nurses Association (MNA) union. She’s “extremely grateful” for Foundation support.

DETROIT, MI – Workers across America are increasingly fed up with union bosses’ self-serving so-called “representation.” National Right to Work Foundation legal aid requests are spiking from workers seeking assistance in filing decertification petitions to end union monopoly bargaining control in their workplaces. In 2021 alone, Foundation attorneys provided legal assistance in 54 National Labor Relations Board (NLRB) decertification efforts, which together sought to end union boss control of more than 7,000 workers.

This increased demand has continued in 2022, with healthcare workers in particular seeking the Foundation’s legal aid in exercising their legal right to free themselves from union ranks. In one such ongoing case, Foundation staff attorneys assisted Crystal Harper, an employee at Detroit’s Sinai-Grace Hospital, who along with coworkers battled to oust SEIU Healthcare Michigan union officials.

Harper’s initial petition was rejected after an NLRB regional official dubiously dismissed the petition on the grounds that “Midnight, February 8th” in the union monopoly contract was actually unambiguously a reference to the minute after 11:59 p.m. on May 7. This questionable interpretation of union officials’ sloppily written contract meant that the petition filed on the 8th was actually late under the controversial NLRB-created “contract bar” policy.

Undeterred, that decision was appealed and a second petition for a decertification vote was filed in May after the contract bar had expired and a vote was scheduled. Meanwhile, “substantiated allegations of serious financial malpractice” have come to light involving the SEIU local that were so glaring even SEIU International President Mary Kay Henry couldn’t ignore them, as she was pushed to use the SEIU’s “trusteeship” procedures to oust local officials and take full control of the local.

As a result, in June, Foundation President Mark Mix formally asked the Department of Labor and Department of Justice to investigate the serious allegations of financial and other wrongdoing by SEIU local officials. The letter calling for the federal investigation noted that “any internal SEIU International investigation will be insufficient [given the] long history of union officials attempting to ignore or downplay corruption in their own ranks.”

Foundation Counters Union Legal Tricks to Block Vote

Elsewhere in Michigan, lab technicians at Ascension Providence Rochester Hospital have finally won their effort to be free of unwanted so-called “representation” by union officials of the Office and Professional Employees International Union (OPEIU) Local 40.

During the protracted process, Foundation staff attorneys successfully fought off OPEIU union lawyers’ efforts to block the vote which cited the pending sale of the facility by Ascension to LabCorp as grounds for rejecting the workers’ request for an election. Union lawyers had urged the NLRB regional office to block a vote whether to remove the union on the grounds of an upcoming “cessation of operations” by the employer, a policy previously applied only to certification elections.

In briefs to the NLRB, Foundation staff attorneys countered that union attempts to block the vote were unjustified as a matter of law. Foundation attorneys also noted that the attempt to block the vote was likely a cynical attempt to keep power over the bargaining unit. If the sale ultimately went through, the union would have likely sought to block a decertification vote citing the NLRB-created “successor bar” that insulates union officials from decertification votes after a workplace’s change in ownership.

The Board ultimately rejected the union lawyers’ arguments and scheduled a decertification vote by mail-in ballot. However, rather than go forward with a vote they seemingly knew they were going to lose, OPEIU officials instead disclaimed interest in the unit, finally giving the workers the freedom from unwanted union representation they sought.

Meanwhile in Minnesota, multiple groups of healthcare workers are seeking decertification votes with Foundation legal aid. At the Mayo Clinic Health System in Mankato, Minnesota, approximately 500 nurses filed a petition for a vote to remove the Minnesota Nurses Association (MNA) union, while two separate units of Cuyuna of the lawsuit, Regional Medical Center healthcare workers located at facilities in Crosby, Baxter, Longville, and Breezy Point, Minnesota, filed for decertification votes to free themselves from the SEIU.

Hundreds of Minnesota Nurses Petition to Be Union Free

“I’m extremely grateful to have the free legal assistance of the National Right to Work Foundation in fighting for our right to hold a vote to remove the union,” commented Mayo Clinic Mankato nurse Brittany Burgess. “I can’t wait until the day when we are all finally free of the MNA.”

One likely reason for the increased decertification activity is Foundation-advocated reforms that were adopted by the NLRB in 2020 to curtail union officials’ abuse of so-called “blocking charges,” which they use to delay or block workers from exercising their right to decertify a union. However, with the Biden-appointed NLRB majority recently announcing it was starting rulemaking to overturn those reforms, Foundation staff attorneys are now gearing up to challenge the Biden Board’s attempt to give union bosses more power to trap workers in union ranks they oppose.

“Foundation staff attorneys will continue to assist workers in exercising their rights under federal law to hold decertification elections to remove so-called ‘representation’ opposed by most workers,” commented National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “The Biden NLRB is clearly prioritizing union boss power to the detriment of the rights of rank-and-file workers. Look no further than the fact that just as the Board seeks to expand the ability of union officials to impose unionization on workers through coercive ‘Card Checks’ without even secret-ballot votes, it simultaneously plans to make it easier for union lawyers to block workers from holding votes to remove a union.”

27 Aug 2022

Indiana US Brick Employees Target ‘Successor Bar’ for Demolition

Posted in Newsletter Articles

Over 70 percent of workers want Teamsters gone, but non-statutory policy prevents vote

Though Kerry Atkins and roughly 70 percent of his coworkers want to kick Teamsters bosses from their facility, the “successor bar” and other non-statutory “bars” could block a vote for years.

INDIANAPOLIS, IN – National Right to Work Foundation staff attorneys have made big strides in recent years for independent-minded workers who want to exercise their right to vote unpopular unions out of their workplaces.

The National Labor Relations Board’s (NLRB) adoption in 2020 of Foundation-backed reforms to the decertification process have made it significantly less difficult for workers to exercise their rights. But, there’s much more work to be done to eliminate contrived, union boss-friendly NLRB policies that stifle worker rights just so unwanted unions can stay entrenched.

Enter Kerry Atkins and his coworkers at US Brick in Mooresville, Indiana. With free Foundation legal aid they are fighting an NLRB policy called the “successor bar” that arbitrarily blocks employees’ right to vote out an unwanted union when management changes hands in a workplace.

Atkins filed a petition signed by his colleagues in December 2021, asking the NLRB to hold a vote on whether to decertify Teamsters Local 135 union officials. NLRB Regional Director Patricia Nachand ruled on February 9 that US Brick’s recent acquisition of the plant triggered the so-called “successor bar” and rendered the employee petition invalid.

NLRB-Invented Policy Traps Workers in Union They Strongly Oppose

Nachand blocked the vote even though, according to her own order, plant management has in its possession a parallel petition expressing disaffection with the Teamsters, which bears the signatures of about 70 percent of the employees.

The “successor bar” is a non-statutory policy invented by NLRB appointees that immunizes union officials from being voted out by employees for up to a year after management changes as a result of a sale, merger, or acquisition.

The National Labor Relations Act (NLRA), the federal law the NLRB is charged with enforcing, explicitly states that employees have a right to remove union monopoly “representation” they oppose. The “successor bar,” however, is found nowhere in the NLRA’s text.

The only “bar” to employees requesting a decertification election that is mentioned in the NLRA is a one-year restriction after employees certify a union in a secret-ballot vote. That the “successor bar” — which isn’t even in the NLRA — can stave off attempts to vote out a union for up to four years when combined with a “contract bar” makes it especially offensive to workers’ rights.

To make matters even worse, two different federal agencies — the NLRB and the Department of Justice — effectively worked together to impose the “successor bar” on Atkins and his coworkers. The Department of Justice in an antitrust complaint forced the former owner of the Mooresville brick facility to sell it to US Brick. The NLRB now says that event should be grounds for blocking the employees from ejecting a union they overwhelmingly oppose.

‘Successor Bar’ Disregards Desires and Experiences of Workers, Brief Says

Atkins’ Foundation attorneys have filed a Request for Review of Nachand’s order with the NLRB in Washington, D.C. It contends that the “successor bar” serves no purpose other than to block the will of rank-and-file employees, entrenching union bosses who ought to be accountable to the employees.

“The successor bar undermines the NLRA’s core purpose of employee free choice by disregarding employees’ actual desires and past experiences with their union representative,” the Request for Review argues.

Restriction Shows How NLRB-Invented Policies Stifle Individual Rights

“The NLRB-invented ‘successor bar’ is just one example of how the Board neglects its mandate to protect the rights of individual workers, including those opposed to forced union affiliation, just to protect union boss power,” observed National Right to Work Foundation Vice President Patrick Semmens. “The ‘successor bar’ not only overrides the statutory right of workers to vote out unions they oppose, but does so at the very moment when workers are most likely to reevaluate their union status: the turnover of the old management that perhaps was the reason for unionization in the first place.”

4 Jul 2022

Full Foundation Action May/June 2022 Newsletter Now Online

Posted in Blog

All articles from the May/June issue of Foundation Action are available on the website.

In this issue:

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