D.C. Circuit Strikes Down NLRB Successor Bar: A Win for Employee Free Choice and Statutory Limits on Agency Power

Hospital Menonita de Guayama v. NLRB delivers one of the first post-Loper Bright rebukes of NLRB overreach — and the implications extend far beyond one case.

The court held that the NLRB lacked statutory authority to impose the successor bar, because it blocked employees from exercising their Section 7 right to choose or reject a union and insulated unions from majority-rule requirements under Section 9(a). With Chevron deference gone after Loper Bright, the court independently reviewed the NLRA and concluded the successor bar contradicted the statute itself. (jdsupra.com)

National Right to Work Legal Defense Foundation President Mark Mix:

• 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.
• 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.

On July 21, 2026, the United States Court of Appeals for the D.C. Circuit issued a landmark labor law ruling in Hospital Menonita de Guayama, Inc. v. NLRB, No. 22-1163 — striking down the National Labor Relations Board’s “successor bar” doctrine as inconsistent with the National Labor Relations Act (NLRA). The decision is among the first post-Loper Bright appellate rulings to invalidate an NLRB doctrine on statutory grounds, and it signals a new era of meaningful judicial scrutiny of Board authority.

For NILRR, which has long argued that compulsory unionism enforced through administrative overreach violates both the letter and spirit of the NLRA, the ruling affirms what Congress actually intended when it enacted the nation’s primary labor law.

What Is the Successor Bar — and Why Did It Matter?

When a business is acquired, federal law requires the new employer (the “successor”) to recognize the incumbent union — but only if a majority of the successor’s workforce consists of predecessor employees and those employees support the union. This is the NLRA’s foundational principle: majority rule, freely expressed.

The NLRB’s successor bar doctrine, re-adopted by a divided Board in 2011, added a significant wrinkle: it barred any challenge to the incumbent union’s majority status for up to one year following the acquisition. During this window, the successor employer was legally required to recognize and bargain with the union — regardless of how many workers had withdrawn their support, regardless of whether there was evidence of majority support for union, and regardless of what employees themselves communicated.

In practice, this meant:

• Employees who no longer wanted their union had no legal avenue to act on that preference for up to a year
• Employers who received credible evidence of majority loss of employee support were required by law to ignore it
• The NLRB would not even consider such evidence — the successor bar was an irrebuttable presumption

This was not stability. It was enforced silence.

The Case: Hospital Menonita de Guayama

The ruling arose from events at a Puerto Rico hospital. In 2017, Hospital Menonita de Guayama acquired another hospital where employees in five bargaining units had long been represented by a union. The hospital initially recognized the union — as required — but subsequently received evidence from workers in all five units indicating they no longer wished to be represented. The hospital withdrew recognition.

The NLRB found the hospital had committed unfair labor practices under Sections 8(a)(1) and 8(a)(5) of the NLRA. An administrative law judge refused even to consider the majority-loss evidence. A divided Board panel upheld the ALJ’s findings.

When the case reached the D.C. Circuit, the court initially upheld the Board’s decision — citing Chevron deference and characterizing the successor bar as a “reasonable” construction of the Act. The hospital petitioned the Supreme Court. Before the Court could rule on the merits, it decided Loper Bright Enterprises v. Raimondo (2024), which overruled Chevron. The Supreme Court vacated the D.C. Circuit’s earlier ruling and remanded for reconsideration.

On remand, the D.C. Circuit reached the opposite conclusion.

The Court’s Legal Holdings

The majority opinion, authored by Circuit Judge Rao, held the successor bar “inconsistent with the National Labor Relations Act” on three primary grounds:

1. Conflict with Sections 7 and 9(a). Section 7 of the NLRA gives employees “the unfettered right to choose, or refrain from choosing, a bargaining representative.” Section 9(a) conditions exclusive representative status on majority support. The successor bar violated both provisions by compelling employers to bargain with a union on behalf of employees who had already withdrawn their support — substituting Board decree for employee choice.

2. The Section 9(c)(3) canon. Congress explicitly created one exception to employee free choice in the representation election context: the 12-month bar on new elections following a valid certification election, codified in Section 9(c)(3). The court applied the canon of expressio unius est exclusio alterius — by providing that specific exception, and only that exception, Congress signaled that the Board could not create additional barriers to employee free choice of its own accord.

3. Post-Loper Bright independent review.** Under the former Chevron doctrine, the NLRB’s policy arguments for the successor bar — labor stability, administrative efficiency, reduced litigation — might have been sufficient. Post-Loper Bright, reasonableness is no longer the test. The question is whether the Board had statutory authority. It did not. “Broad policy goals cannot override the Act’s specific protections for employee choice and majority rule,” the National Law Review summarized.

The court granted the hospital’s petition, denied enforcement of the NLRB’s order, and held that the hospital was entitled to present its majority-loss evidence.

What NILRR Has Always Argued

The successor bar is a textbook example of what NILRR has documented for decades: the NLRB expanding its authority well beyond what Congress authorized, using whatever legal scaffolding the moment provides — be it broad statutory language, “policymaking” discretion, or Chevron deference — to entrench compulsory unionism against the demonstrated will of the workers it claims to protect.

The NLRA was designed to protect employee free choice, not incumbent unions. Its foundational guarantee is that union representation is legitimate only when it reflects the authentic, ongoing preference of a majority. The successor bar corroded that guarantee by making union representation automatic regardless of worker sentiment.

This decision restores the statute’s democratic foundation.

The Loper Bright Implications — What Comes Next

The D.C. Circuit’s majority articulated a framework that will shape future Loper Bright challenges to NLRB doctrines. The dividing line:

• Where the NLRA expressly addresses a subject: Board-created doctrines that go beyond the statute’s text are vulnerable.
• Where the NLRA is silent: Board interpretations may face more deference — but are not immune.

Other Board doctrines now potentially subject to challenge include:

• Contract bar — unions protected from decertification during a CBA’s term, beyond what the statute requires
• Blocking charge rules — NLRB procedures that delay decertification elections pending unfair labor practice charges
• Voluntary recognition bar — mandatory bargaining periods after voluntary recognition without an election

We will monitor litigation in each of these areas and will provide analysis as courts apply the Hospital Menonita framework to additional Board doctrines.

Sources used in the production of this report: JD Supra, National Right to Work Legal Defense Foundation, Mondaq