NLRB-invented “successor bar” blocks employees’ statutory right to vote out union despite 70 percent of workers wanting Teamsters removed

Indianapolis, IN (March 8, 2022) – With free legal aid from the National Right to Work Legal Defense Foundation, Kerry Atkins and his coworkers at the US Brick facility in Mooresville, IN, are fighting a National Labor Relations Board (NLRB) order stifling their right to vote out an unpopular union at the plant. Atkins submitted on March 7 a Request for Review, asking the full NLRB in Washington, DC, to overturn the decision and eliminate a non-statutory NLRB doctrine called the “successor bar” that blocks employees’ right to vote out an unwanted union when management changes hands in a workplace.

Atkins filed a petition in December 2021 requesting that the NLRB hold a vote 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.

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. Employees have a statutory right to hold decertification elections to remove union monopoly “representation” they oppose, but the “successor bar” is found nowhere in the text of the National Labor Relations Act (NLRA), which the NLRB is charged with enforcing. In that statute, the only “bar” to holding a decertification election is if a prior NLRB election was held within the previous year.

According to Atkins’ Request for Review, a Department of Justice antitrust complaint forced the former employer, General Shale, to sell the Mooresville facility before it could complete a transaction with another company. US Brick purchased the Mooresville plant from General Shale in November 2021, and rehired all 33 employees, including Atkins, in the bargaining unit controlled by the Teamsters union.

In addition to Atkins’ submission of the petition for a decertification vote, the NLRB Regional Director’s order mentions that plant management has in its possession a more general petition expressing disaffection with the Teamsters, which bears the signatures of about 70 percent of the employees. Even though the signatures “were verified by the Human Resources Manager against completed I-9 forms,” the Regional Director’s order says “[t]he hearing officer denied questioning and evidence” regarding the disaffection petition.

Atkins’ Request for Review contends that the “successor bar” serves no purpose other than to block the will of rank-and-file employees in favor of 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. It also fails to recognize the Board’s highest calling: to conduct elections when there is a question of representation and to ensure employees are represented by a union of their choosing,” the Request for Review argues.

Foundation staff attorneys have recently aided numerous workers in exercising their right to dispense with union officials they oppose, including by advocating for election policy changes that the NLRB adopted in 2020. The changes prevent union officials from manipulating allegations (also called “blocking charges”) against an employer to stop workers from having a decertification election.

Teamsters union officials in particular have been the target of Foundation-assisted workers who are seeking to shed unions. In just the past year, Rush University maintenance workers in Chicago, Frito-Lay salesmen in Del Rio, TX, Allied Central Coast truckers in Santa Maria, CA, XPO Logistics workers in Cinnaminson, NJ, and Blish-Mize hardware distribution employees in Atchison, KS, all voted to decertify unpopular Teamsters local unions.

“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 President Mark Mix. “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.”

“In this case the fundamental injustice of the ‘successor bar’ is compounded by the fact that one arm of the federal government – the Department of Justice – demanded the sale of this facility, which another federal agency – the NLRB – says should be grounds for blocking workers from ejecting a union they overwhelmingly oppose,” Mix continued. “Foundation attorneys will fight for Mr. Atkins and his coworkers until they can exercise their right to eject this unpopular union.”

Reforms backed by National Right to Work Foundation staff attorneys make it easier for workers nationwide to boot unions they no longer want

Washington, DC (March 3, 2022) – With free legal representation from National Right to Work Legal Defense Foundation staff attorneys, employees in Michigan and Arkansas have freed themselves from unwanted union control in their workplaces.

In votes tallied on March 2, LaRon Matlock and his fellow industrial cleaning workers at PowerVac near Detroit, MI, and Cory Smith and his coworkers at chemical company Evonik-Porocel in Little Rock, AR, successfully voted to remove (or “decertify”) International Union of Operating Engineers (IUOE) Local 324 and Teamsters Local 878 union bosses, respectively.

Foundation staff attorneys provided the workers free representation in exercising their right to hold votes whether to remove the unions. The elections were conducted by the National Labor Relations Board (NLRB).

The NLRB is the federal agency responsible for enforcing federal labor law and adjudicating disputes among unions, private sector employers, and individual employees. Matlock and his PowerVac colleagues booted IUOE officials by a whopping 18-3 margin, while Smith and his coworkers at Evonik-Porocel voted 26-5 to remove Teamsters officials.

For more than a year, workers have been enjoying an easier pathway to exercising their right to remove unwanted union officials. The NLRB in Washington, DC, in July 2020 enacted new rules governing decertification elections which, drawing from comments Foundation attorneys submitted to the agency earlier the same year, now forbid union officials and their lawyers from indefinitely stalling worker-requested votes based on so-called “blocking charges.” Such charges are usually allegations against an employer that are unproven and unrelated to workers’ desire to oust union officials, but were filed simply to delay decertification elections.

Matlock and his Detroit-area coworkers’ ouster of IUOE Local 324 officials is particularly notable as officials of the same union local are viciously fighting a Foundation-backed decertification effort from Rieth-Riley Construction Company employee Rayalan Kent and his coworkers. Kent submitted a petition for a decertification election in August 2020 signed by his colleagues, but IUOE officials tried to avert the vote by levying “blocking charges” against the company.

Even though the Foundation-backed “blocking charge” reforms should have rendered IUOE officials’ stall tactics invalid, an NLRB Regional Director nevertheless blocked the vote at IUOE bosses’ behest. While a Foundation-supported appeal to the NLRB in Washington, DC, is pending in Kent’s case, IUOE officials are still imposing a years-long strike order on Rieth-Riley workers. Multiple workers have charged union officials with illegal dues practices and other malfeasance.

Teamsters officials, who were just dismissed by Smith and his colleagues at Evonik-Porocel, have been frequent targets of Foundation-assisted workers in recent months. In just the past year, Rush University maintenance workers in Chicago, Frito-Lay salesmen in Del Rio, TX, Allied Central Coast truckers in Santa Maria, CA, XPO Logistics workers in Cinnaminson, NJ, and Blish-Mize hardware distribution employees in Atchison, KS, all voted, with Foundation legal assistance, to decertify unpopular Teamsters local unions.

The spurt of worker-led decertifications comes as federal government officials, especially Biden-appointed NLRB General Counsel Jennifer Abruzzo, are pushing to give union officials radically increased power to install themselves in workplaces and remain in power even over worker opposition.

Abruzzo revealed in a memo released shortly after assuming office that she would take steps toward eliminating secret-ballot worker votes as the primary method of certifying a union in favor of “card checks.” The “card check” process lets union officials use intimidation and misinformation to get workers to sign “union cards” that supposedly indicate support for a union. The same memo suggested Abruzzo favors overturning, among other Board precedents, a 2019 decision making it easier for workers to escape union ranks when a clear majority opposes unionization.

“The Foundation is proud to help workers across the country, including Mr. Matlock and Mr. Smith, just get a vote on whether union officials deserve to remain in power at their jobs,” commented National Right to Work Foundation President Mark Mix. “Unfortunately, it is increasingly apparent that the Biden NLRB, and in particular GC Abruzzo, have every intention of reducing the rights of independent-minded workers by making it easier for union bosses to add workers to union ranks while limiting workers’ ability to escape them.”

“The NLRB should not neglect its mandate to protect the free choice rights of workers, and Foundation attorneys will always assist workers in resisting union attempts to undermine those rights,” Mix added.