The majority of NLRB elections are conducted on the employer’s premises. This practice has historically applied to both the initial election and any subsequent rerun elections.  However, in a recent decision, 2 Sisters Food Group, Inc., the NLRB suggested that it may be appropriate to conduct rerun elections offsite in certain circumstances.

Today, the NLRB’s Associate General Counsel issued Operations Memo OM 12-50 which discusses the 2 Sisters case and the factors that Regional Directors should consider when evaluating whether to conduct a rerun election on the employer’s premises or offsite. The four factors discussed in the memo are:

  1. The Petitioner’s objection to holding the rerun election on the Employer’s premises,  the Employer’s request that it be held there, and the grounds therefore.
  2. The extent and nature of the Employer’s prior unlawful and objectionable conduct and whether the Petitioner makes a request to proceed despite the fact that the compliance  period relating to the prior unlawful conduct has not yet closed.
  3. The advantages available to the Employer over other parties to the proceeding if the election is conducted on Employer owned or controlled premises.
  4. Any alternative sites proposed by the Petitioner, as well as other readily available sites.

Where there is a dispute over the location of the rerun election, the Regional Director must issue a written decision explaining the basis for the determination. The Board reviews challenges to the Regional Director’s decision regarding the location of the election using an abuse of discretion standard.

2 Sisters and today’s OM memo suggest that the NLRB is moving toward conducting an increasing number of rerun (and possibly initial) elections offsite. Employers facing a rerun election should be prepared to make their case to the Regional Director that the election should be held onsite while establishing a record for a possible appeal to the Board. We will continue to monitor this issue and report on it.

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.