NLRB Union Election Petition Employer Response

The situation

Derek, 52, owns Cascade Distribution Services, a warehouse and fulfillment company in Columbus, Ohio with 68 employees. On a Tuesday morning in April 2026, Derek's office manager hands him a stack of papers just delivered by certified mail from the NLRB: a Notice of Representation Hearing. The Teamsters have filed a petition to represent 51 of his warehouse workers.

The notice schedules a pre-election hearing in 8 days. Derek has until the day BEFORE the hearing, 7 days, to file a "Statement of Position."

(a) His lead warehouse supervisors are probably EXCLUDED from the union. Four of Derek's "lead workers", employees who direct daily workflow, approve overtime, and can recommend discipline for attendance violations, may qualify as statutory supervisors under NLRA § 2(11). If they're supervisors, they can't be in the union AND their vote in any election could be challenged. The Statement of Position is where Derek preserves this argument.

(b) Two of his dispatch coordinators are probably "confidential employees." Derek's dispatch coordinators have access to the company's labor cost modeling spreadsheets, which Derek uses to determine pay rates before collective bargaining. Confidential employees who assist in labor relations functions are excluded from bargaining units. Again, must be raised in the Statement of Position or waived.

(c) The Teamsters' proposed unit is overbroad. The petition includes Derek's two "quality control inspectors", dedicated employees who perform specialized sampling and measurement work distinct from warehouse labor. Under NLRB community-of-interest analysis, they may be more appropriate in a separate unit or excluded. Must be raised in the Statement of Position.

(d) Missing the Statement of Position deadline = waiving every argument. Under the 2023 Election Rules, any issue not raised in the Statement of Position is permanently waived, Derek can't raise supervisory exclusions for the first time at the hearing or on appeal.

An Ogletree Deakins attorney quoted Derek $8,500 for "representation through the election." A union election typically takes 3-4 weeks from petition to vote. Derek needs the Statement of Position in 7 days.

Who receives this

SMB employers (20-300 employees) in logistics, warehousing, distribution, food service, manufacturing, healthcare support, and hospitality receiving NLRB union election petitions. Primary audience: employers in states with elevated union organizing activity (OH, PA, MI, IL, WA, NY, CA) receiving RC petitions from Teamsters, UFCW, SEIU, UAW, or IBEW. Secondary audience: HR directors at companies with distributed workforce who need to quickly audit which employees might qualify as statutory supervisors when a petition covers a subset of the workforce.

Why the agency will not advise you

The NLRB Regional Office is the neutral arbiter, it literally cannot advise the employer respondent on how to identify supervisors, structure unit appropriateness arguments, or craft its Statement of Position. The union has an experienced organizer and often union-side legal counsel. Labor management law firms (Ogletree, Jackson Lewis, Littler, Fisher Phillips) serve this market but at $5k-$20k per matter, sized for employers with 200+ employees. Small employers with 20-60 workers face the same tight 7-day deadline with no affordable starting framework.

Key facts, with sources

• Union election petitions filed with the NLRB reached 3,286 in FY2024 (up 27% from FY2023, and more than double FY2021's 1,638 petitions). In FY2025, filings declined to approximately 2,100 RC petitions, still representing a historically elevated rate compared to the pre-2021 baseline. Under the NLRB's 2023 Election Rules (effective April 2023), the timeline was significantly accelerated: hearings must be scheduled within 8 days of petition filing, and the employer's Statement of Position is due the day before the hearing, meaning employers typically have 7 or fewer days from receipt of the petition to file their Statement of Position. Employers who fail to raise an issue in the Statement of Position waive that issue for the entire proceeding. Source: Union Petitions Filed with NLRB Double Since FY 2021, Up 27% Since FY 2023 — NLRB · Three Takeaways From the NLRB's FY 2025 Petition Statistics — Ogletree · NLRB Representation Case-Procedures Fact Sheet
• The Statement of Position (NLRB Form 505) is the employer's first and most critical filing in a union election proceeding. It must identify every jurisdictional issue, every unit appropriateness issue (inclusion/exclusion of specific job classifications), and every objection to the proposed election, issues not raised in the Statement of Position are WAIVED. The most commonly contested issues are: (1) supervisory status under NLRA § 2(11), employees with genuine authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to recommend such actions, are not employees under the NLRA and cannot be included in the bargaining unit; (2) confidential employees, employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations are excluded from the unit; (3) jurisdictional thresholds, NLRB has established dollar-volume thresholds by industry; the agency will not assert jurisdiction below those thresholds. NLRB Regional Office staff are neutral and cannot advise employers on how to identify supervisors, structure unit appropriateness arguments, or determine whether they meet jurisdictional thresholds. Source: The Main Steps in the Representation Case Process — NLRB · NLRB Election Procedures — Wikipedia
• Labor and employment attorneys charge $5,000-$20,000 per union election matter, covering the Statement of Position, pre-election hearing representation, and post-election objections. The market is dominated by large national law firms (Ogletree Deakins, Jackson Lewis, Littler Mendelson, Fisher Phillips) whose typical clients are mid-size to large employers. Small employers (20-100 employees) receiving union election petitions face the same accelerated 7-day Statement of Position deadline as large employers, but have no affordable guidance on how to identify supervisory exclusions, assert unit appropriateness arguments, or preserve issues for appeal. Source: Conduct Elections — National Labor Relations Board · NLRB Union Election Petitions Jump 27% in FY2024 — Law360

When to bring in a professional

Self-serve responses fit routine cases: clear facts, amounts a business can absorb, and a deadline still ahead of you. Bring in a licensed professional when the amount at stake is large relative to their fee, the facts are genuinely disputed, criminal exposure is possible, or the deadline has already passed. A short paid consultation to sanity-check your plan is often worth it even when you handle the filing yourself.

All sources for this guide

1. Union Petitions Filed with NLRB Double Since FY 2021, Up 27% Since FY 2023 — NLRB
2. Three Takeaways From the NLRB's FY 2025 Petition Statistics — Ogletree
3. NLRB Representation Case-Procedures Fact Sheet
4. The Main Steps in the Representation Case Process — NLRB
5. NLRB Election Procedures — Wikipedia
6. Conduct Elections — National Labor Relations Board
7. NLRB Union Election Petitions Jump 27% in FY2024 — Law360