🗞️ Kranton Corporation: NLRB Rules on Unresolved Employee Status
The NLRB Regional Director ruled that a new election can proceed for quality assurance employees who voted under challenge in a prior election but were explicitly neither included nor excluded from the certified bargaining unit, finding no violation of Section 9(c)(3)'s 12-month election bar.
On January 7, 2026, NLRB Acting Regional Director Nora F. McGinley issued a Decision and Direction of Election in Case 08-RC-375771, addressing whether Kraton Corporation's quality assurance employees could vote in a new union election after casting challenged ballots in a September 2025 election. The employer argued that Section 9(c)(3) of the National Labor Relations Act barred the petition because these employees had voted in an election within the preceding 12 months and constituted a "subdivision" of that unit.
The Regional Director rejected this argument, comparing the issue to established Board precedent that the statutory election bar does not apply to employees who were excluded from a prior unit. Critically, the September 2025 Certification of Representative explicitly stated that quality assurance employees were "neither included in nor excluded from the bargaining unit" because the parties had agreed to leave this issue unresolved when the challenged ballots proved non-determinative to the election outcome. While these employees were not formally excluded, the Regional Director found the same principle applied: employees cannot constitute a subdivision of a unit that does not include them.
The decision emphasized that employees cannot constitute a "subdivision" of a unit that does not include them. The Regional Director noted that Section 9(c)(3) was enacted in 1947 to prevent repeated elections after representation was rejected, not to bar elections for employees whose status was deliberately left unresolved. The ruling allowed the representation election procedures to move forward for the 16 quality assurance employees as a separate bargaining unit.
Key Points
- The Issue: Whether employees who voted under challenge but were neither included nor excluded from a certified unit can vote in a new election within 12 months
- The Ruling: Section 9(c)(3) does not bar the election because challenged voters with unresolved status are not a "subdivision" of the certified unit
- Critical Distinction: The certification explicitly stated quality employees were neither included nor excluded from the production/maintenance unit
- Legal Precedent: Board case law permits elections for employees excluded from prior units; Regional Director applied this principle analogously to employees with unresolved status
- Policy Rationale: The election bar was designed to prevent repeated elections after rejection of representation, not to bar elections for employees with unresolved status
- Practical Impact: Parties can leave non-determinative challenged ballots unresolved without creating an election bar for those employees
Primary Source Author: Nora F. McGinley, Acting Regional Director, NLRB Region 08
Primary Source: NLRB Regional Election Decision
Primary Source Link: Regional Election Decision
Supplemental Links
- National Labor Relations Act - Section 9(c)(3)
- NLRB Basic Guide to the National Labor Relations Act
- Federal Register: Representation-Case Procedures (2023)
- NLRB Election Procedures - Wikipedia Overview
- NLRB Election and Post-Election Procedures Guide
- Federal Register: Election Bars Rulemaking (2019)
- NLRB Regional Offices Locator
