Labor & Employment Law Daily Wrap Up, DOL NEWS—OLMS says first elections in newly formed unions are not subject to LMRDA election safeguards, (Sep 9, 2026)

By WK Editorial Staff

“Because Title IV does not apply to the initial selection of officers in a newly formed labor organization... a complainant cannot file a protest under Title IV because the underlying process is not covered by the Act’s election provisions in the first place.”

The U.S. Department of Labor's Office of Labor-Management Standards (OLMS) said in an advisory opinion issued recently that the initial selection of officers by a newly formed labor organization is generally not subject to the election requirements contained in Title IV of the Labor-Management Reporting and Disclosure Act, even when members raise concerns about how those first elections are conducted.

In the letter, the OLMS Director, Elisabeth Messenger, noted that the response was intended to supplement a previous letter sent to the recipient by the San Francisco-Seattle District Office regarding their complaint. The district office in that letter noted that the complainant had not yet pursued internal remedies and that the initial selection of officers by newly formed or merged labor organizations was not subject to Title IV (29 C.F.R. § 452.14). Messenger explained, “We write to clarify that because the initial selection of officers is not covered by Title IV, OLMS cannot accept a complaint under that title, and the question of internal exhaustion is not applicable in your case.”

Covered by Title IV? The opinion addressed a request for guidance concerning three related questions: (1) whether Title IV protections apply to first elections conducted by newly formed unions, (2) whether union members must satisfy the statute's internal-exhaustion requirement when no internal remedies exist, and (3) whether elections held before adoption of union bylaws must comply with Title IV's safeguards. According to the agency, all three questions turn on the same threshold issue: whether the election in question is covered by Title IV.

Initial selection not covered. The agency concluded that the initial selection of officers in a newly formed or merged labor organization is not covered by Title IV. The opinion points to a longstanding Labor Department regulation stating that the initial selection of the officers who constitute the governing body of a newly formed labor organization is not subject to the title's election requirements. Those requirements, the opinion explains, apply instead to regular, recurring officer elections that take place after the organization has been established.

Title IV contains many of the election protections commonly associated with union officer elections, including requirements governing secret-ballot voting, nomination procedures, election notices, voting rights, and related safeguards. OLMS said those provisions govern periodic elections conducted during the normal course of a union's operations, rather than the organization's initial formation.

In discussing the issue, OLMS acknowledged concerns raised by the requester regarding the possibility that a first election could be conducted using procedures that would not be permitted in later elections. The agency said it recognized that the interpretation leaves members without access to certain Title IV protections, including the secretary of labor's election-complaint and supervision authorities. Nevertheless, it said the statutory text and the department's regulations support the conclusion that the title does not apply to a newly formed union's initial selection of officers.

Limited exemption. The opinion emphasized that the exemption is limited and does not place newly formed unions outside the scope of the LMRDA more broadly. The agency noted that labor organizations remain subject to other provisions of the law, including Title II reporting requirements. Under Section 201(a), unions must adopt a constitution and bylaws and file those documents, along with an initial Form LM-1 report, within 90 days of becoming subject to the act. The filing must include information describing how officers were selected.

The department also observed that union members may have rights under Title I of the LMRDA, often referred to as the union members' bill of rights. According to the opinion, those provisions, which include protections related to equal participation in union affairs, may be enforceable through private civil actions even where Title IV does not apply.

Exhaustion not relevant. Addressing the requester's second question, OLMS explained that Section 402(a)'s exhaustion requirement applies only in the context of elections covered by Title IV. That provision generally requires a union member to pursue available internal union remedies before the secretary may investigate an election complaint. The agency said the requirement reflects Congress's intent to give unions the opportunity to address alleged election violations internally before federal intervention occurs.

Because the initial selection of officers in a newly formed labor organization is not governed by Title IV, however, the opinion states that a member cannot bring a Title IV election protest regarding that process in the first place. As a result, the exhaustion requirement is not relevant to such initial officer selections.

The opinion nevertheless outlined how exhaustion would operate once a union begins conducting Title IV-covered elections. Members must generally use the protest or appeal procedures established by the union. If no specific election-protest procedure exists, members should utilize whatever grievance, protest, or appeal mechanisms are available under the union's governing documents. If no suitable procedure exists, a member should submit a written protest to union officers within a reasonable period after the election or after discovering the alleged violation. The member may then file a complaint with OLMS after receiving a final decision or after three months have elapsed without one, subject to the statute's filing deadlines.

Elections prior to bylaws adoption. The agency reached a similar conclusion regarding elections conducted before a union adopts bylaws. It said that because Title IV does not govern the initial selection of officers in a newly formed labor organization, the election need not comply with Sections 401(c) and 401(e), which contain requirements concerning adequate election safeguards and member nomination and voting rights. According to the opinion, that conclusion remains the same even if bylaws had already been adopted at the time the officers were selected.

Once a labor organization moves beyond its initial formation and begins holding regular officer elections, however, those elections must fully comply with Title IV. The opinion noted that unions must follow both the statute's requirements and their own governing rules to the extent those rules are consistent with the LMRDA. Future elections covered by Title IV would also be subject to Section 402(a)'s exhaustion requirement before a complaint could be pursued with OLMS.

Finally, OLMS said it is reviewing the reporting compliance of the labor organization involved in the request, including whether it satisfied Title II requirements to file an initial Form LM-1 report and provide its constitution and bylaws within the required timeframe.

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