Employment law guide

NLRB Representation Cases: The Two-Business-Day Posting Duty, the Noon Statement of Position Deadline, and the Section 102.66(d) Preclusion Trap

HR professional reviewing an official notice and compliance checklist at a U.S. workplace

Direct answer. In an NLRB representation case, an employer generally must post the Notice of Petition for Election within two business days after service of the Notice of Hearing. The employer must also file and serve a complete Statement of Position by the deadline in the hearing notice. When the hearing is set to open eight days after service, that deadline is noon on the business day before the hearing. Missing an issue, omitting required unit details, or failing to timely furnish the employee list can limit what the employer may raise or contest at the hearing.

Scope: Employer notice, posting, Statement of Position, employee-list, and evidence duties in RC, RM, and RD representation cases. Confirm the case-specific instructions and deadlines in the Notice of Hearing.

Requirements at a glance

Requirement	Applicability	Timing	Delivery or format	Exceptions or consequences	Controlling authority
Post and distribute the Notice of Petition for Election	Employer in a case where the NLRB serves a Notice of Hearing	Within two business days after service of the Notice of Hearing	Post conspicuously where employees work and customarily receive notices. Distribute electronically if the employer customarily communicates with employees electronically	Maintain until dismissal, withdrawal, or replacement by the Board's Notice of Election. Failure can be grounds to set aside an election if proper, timely objections are filed; estoppel applies where the objecting party caused the failure	29 CFR § 102.63(a)(2)
File and serve the Statement of Position (SOP)	Employer or other party identified as responsible in the Notice of Hearing; requirements vary by RC, RM, and RD case	By the Notice of Hearing deadline. Ordinarily, noon on the business day before the hearing when it opens eight days after service	File with the Regional Director and serve the parties named in the petition. The SOP must be received by the deadline	The Regional Director may set an earlier deadline for a hearing scheduled later than eight days after service, or extend the deadline upon a qualifying request	29 CFR § 102.63(b)
Submit the employer employee list	Employer; the applicable list details depend on the case type and any unit position	Within the SOP filing period	Include full names, work locations, shifts, and job classifications. Alphabetize overall or by department and use a General Counsel-approved electronic format	A certified lack of capacity permits paper format. Failure to timely furnish the required list triggers specified preclusion	29 CFR §§ 102.63(b), 102.66(d)
Respond to issues in another party's SOP	Other parties to the proceeding	On the record after the SOP is received in evidence and before further evidence is introduced	State a response to each issue raised	Failure to place an issue in dispute can preclude raising it later	29 CFR § 102.66(b), (d)

The first eight days: posting and hearing schedule

Section 102.63 generally sets the hearing for a date eight days after service of the Notice of Hearing, excluding intervening federal holidays. If the eighth day falls on a weekend or federal holiday, the hearing is set for the following business day. The Regional Director can postpone the hearing up to two business days for special circumstances, and longer for extraordinary circumstances.

The posting deadline is separate from the hearing date. Within two business days after service, the employer must post the Notice of Petition for Election in conspicuous places, including locations where employees customarily receive notices. If the employer customarily communicates electronically with employees in the petitioned-for unit, it must also distribute the notice electronically.

Keep the notice posted until the petition is dismissed or withdrawn, or until the Board's Notice of Election replaces it. A dated posting log should identify each location and record when the notice went up and came down. For electronic distribution, retain the distribution record and the version of the notice sent.

Failure to post or distribute can be grounds to set aside an election when proper and timely objections are filed under § 102.69(a)(8). A party cannot object to a posting or distribution failure that the party itself caused.

The noon Statement of Position deadline

The deadline in the Notice of Hearing controls. In the standard schedule, where the hearing opens eight days after service, the employer's SOP must be received by the Regional Director and the parties named in the petition by noon on the business day before the hearing. A different schedule or an extension can change the deadline. Calendar the notice's exact date, time, and applicable time zone, then confirm that both filing and service are complete by that deadline.

The employer's SOP addresses the Board's jurisdiction, the proposed unit, challenged voter eligibility, election bars, payroll-period details, election positions, other issues for hearing, and the employer's representative for service. If the employer contests unit appropriateness, it must identify the classifications, locations, or other employee groupings it seeks to add to or exclude from the proposed unit. Case-specific requirements differ, so use the applicable section of § 102.63 and the Notice of Hearing.

The employee list is a separate high-risk component of the submission. It must include full names, work locations, shifts, and job classifications, alphabetized overall or by department, in an electronic format approved by the General Counsel. The employer must certify lack of capacity to produce the list in that format to use paper. The rule's payroll-period reference and any additional or exclusion lists depend on the employer's position and the type of case.

Form NLRB-505, revised 10-24, highlights an operational cutoff: an e-filed SOP submitted on its due date after noon in the time zone of the Region where the petition was filed is not timely. A submission timestamp should therefore be checked against the Regional Office's local time, not merely the employer's location or the computer's displayed time. The form also warns that willful false statements are punishable under 18 U.S.C. § 1001.

Section 102.66(d): the preclusion trap

Section 102.66(d) can restrict a party that fails to raise an issue in a timely SOP or fails to dispute another party's issue in a response on the record. The party may be precluded from raising the issue later, presenting evidence, cross-examining witnesses about it, or arguing it. The stated exception preserves challenges and evidence concerning the Board's statutory jurisdiction. A party can also challenge a voter's eligibility during the election even if that eligibility or inclusion was not contested at the pre-election hearing.

Unit details and the employee list carry specific consequences. If an employer says the proposed unit is inappropriate but does not specify the classifications, locations, or groupings to add or exclude, it is precluded from raising unit-appropriateness issues on that basis. If the employer fails to timely furnish the required employee list, it is precluded from contesting unit appropriateness at any time and from contesting eligibility or inclusion at the pre-election hearing.

Other parties must respond on the record to each issue raised in an SOP. The response is not a substitute for timely, specific positions. A disciplined issue-by-issue review helps confirm that positions are stated, supported, and placed in dispute as required.

Practical implementation: preserve a reviewable evidence file

Separate the legal requirements from the employer's internal evidence controls. The following file structure records what was done, when, and by whom:

Case intake: Notice of Hearing, service date and method, petition, case number, Regional Office, hearing date, named parties, and assigned internal owners.
Posting and distribution: Notice version, post date and time, each conspicuous location, dated photographs or location logs, electronic distribution record where required, and removal or replacement date.
SOP deadline: Calendar entry with due date, noon cutoff, Region time zone, responsible filer, service recipients, and confirmation of actual filing and service.
SOP and employee list: Final signed SOP, supporting documents, employee-list file and format, payroll-period date, alphabetization check, completeness review, and any required capacity certification.
Issue response: A table matching each SOP issue to the responding party, response made on the record, transcript or record reference, and evidence owner.

A checklist can assign a preparer and independent reviewer to each item. Record completion timestamps and retain the final filed and served versions, rather than only a working draft. For related record-control guidance, see the employment notices hub, the audit-trail framework, and notice-record retention guidance.

Service method and proof discipline

NLRB rules do not require Certified Mail for these steps. Under § 102.5, service may be made by personal delivery, registered mail, Certified Mail, regular mail, email where permitted, or other authorized methods. If registered mail or Certified Mail is chosen, the return post office receipt is proof of service; the regulation also recognizes other sufficient proof. Filing and service requirements still apply, and the rule generally calls for simultaneous service and a statement of service identifying the parties, date, manner, and location.

Method flexibility does not remove the need for evidence. Retain the sent email or delivery record, service statement, and applicable receipt. For a related explanation of delivery documentation, see proof of mailing versus proof of notice.

Sources

This article provides general compliance information, not legal advice.