NLRB Union Election Petition Employer Statement of Position

The situation

Maria, 54, owns a 40-employee food distribution warehouse in Charlotte, North Carolina. Yesterday, she received notice from the NLRB's Winston-Salem Regional Office: a union (Teamsters Local 71) filed a petition for a union election covering her warehouse workers.

Maria has 7 calendar days to file a Statement of Position with the NLRB Regional Office.

The Statement of Position must address: (1) whether Maria agrees with the proposed bargaining unit description (all full-time and regular part-time warehouse employees, the union wants to include her 6 "lead" workers who she considers supervisors); (2) which employees she contends should be excluded from the voting unit; (3) whether she agrees to an election date and location; (4) any other issues she intends to raise. Any issue she fails to raise in the Statement of Position is waived, she cannot raise it at the pre-election hearing.

The pre-election hearing is scheduled for 14 days from now. The election must be held within 40 days of the petition filing.

Maria called two labor attorneys. Jackson Lewis said they could take the matter for a $7,500 retainer. Fisher Phillips said $6,500 and they'd need her to come in by tomorrow. She doesn't have those funds available on a 7-day notice.

What Maria needs to know: The 6 "leads" may qualify as supervisors under NLRA §2(11), they assign work, direct other workers, and have authority to discipline. If Maria excludes them from the bargaining unit in her Statement of Position, and the NLRB agrees, the election unit is smaller. She also needs to confirm the payroll period for the voter eligibility date and prepare for the Excelsior list submission within 2 days of the Direction of Election.

Who receives this

Small employers (20–200 employees) who have received NLRB union election petitions and must file a Statement of Position within 7 calendar days. Primary industries: warehousing and distribution, food service, retail, healthcare support workers, manufacturing, building services. Companies that lack in-house labor counsel and cannot immediately access a specialized labor law firm.

Why the agency will not advise you

NLRB Regional Office staff cannot advise the employer on how to structure its Statement of Position, the Regional Office receives and adjudicates the Statement. The NLRB's own website explains the employer's procedural obligations but provides no drafting guidance for the employer's substantive positions. Labor law firms are the only current option, at $5,000–$20,000 with a compressed mobilization window.

Key facts, with sources

• Under NLRB's 2023 Election Rule (effective April 25, 2023), when a union files an election petition, the employer has only 7 calendar days to file its Statement of Position with the NLRB Regional Office, stating its position on the proposed bargaining unit, employee eligibility, and election logistics. Failure to raise a position in the Statement of Position waives the employer's right to contest that issue at the pre-election hearing. Within 2 days after the NLRB's Direction of Election, the employer must produce an Excelsior list (voter eligibility list in alphabetical order). Approximately 2,500–3,500 NLRB election petitions are filed annually. Small employers (under 100 employees) are the most vulnerable to the compressed timeline, they lack in-house labor counsel. Source: Election Procedures Under 2023 Election Rule — NLRB.gov · NLRB 2023 Election Rule — Federal Register Final Rule · The NLRB's New Election Rules: What Employers Need to Know — Fisher Phillips
• The NLRB Statement of Position is one of the most consequential documents an employer files in the union election process: any issue not raised in the Statement of Position is waived at the pre-election hearing. The Statement must address: (1) whether the employer agrees or disagrees with the petitioned bargaining unit description; (2) which employees the employer contends should be excluded as supervisors (§2(11) NLRA), managers, confidential employees, or guards; (3) whether the employer agrees to an election, and if so the election logistics; (4) any other issues the employer intends to raise at hearing. Labor attorneys at firms like Jackson Lewis, Fisher Phillips, and Littler Mendelson charge $5,000–$20,000 for representation through Statement of Position and pre-election hearing. NLRB Regional Office staff, who receive and adjudicate Statements of Position, cannot advise the employer on how to draft its position. Source: Statement of Position Requirements Under NLRB 2023 Election Rule — Jackson Lewis · NLRB Union Election Timeline Employer Guide — Littler Mendelson

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. Election Procedures Under 2023 Election Rule — NLRB.gov
2. NLRB 2023 Election Rule — Federal Register Final Rule
3. The NLRB's New Election Rules: What Employers Need to Know — Fisher Phillips
4. Statement of Position Requirements Under NLRB 2023 Election Rule — Jackson Lewis
5. NLRB Union Election Timeline Employer Guide — Littler Mendelson