The National Labor Relations Board has declined to review a Regional Director’s Decision and Direction of Election that required a construction company to hold a union representation election. The company, Raimore Construction, had argued that the petition should be dismissed because it intended to terminate the steel work performed by the workers in the prospective voting unit.  

Raimore noted that it had not bid on a steel project since July 1, 2021, and had turned down several projects in the 18 months before the Regional Director’s Decision. At the hearing, the company President testified that he remained committed to getting out of steel work and projected that by November 2022 he would no longer employ the steel workers in the unit.

However, the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Union argued that the employer’s decision to halt steel work was not definite because the company had flip-flopped on halting steel work for several years. The union also pointed to an email from the President that said “as it stands now” regarding halting steel work.

“Imminent cessation”

An employer can get a union representation petition dismissed if it can prove an “imminent cessation of work” in the prospective voting unit. The burden of proving “imminent cessation” is on the employer. Raimore argued that the Board should follow a 1992 decision in which it dismissed a representation petition because the employer’s operations were scheduled to terminate in one month. On the other hand, the union cited a 2016 Board decision holding that construction projects scheduled to end soon do not satisfy the employer’s burden of proving imminent cessation and saying that “unpredictability and projects of limited duration are typical in the construction industry.”

The Regional Director who had ordered the Raimore election in November 2022 said, “The Board requires concrete evidence, such as announcements of business closure to the public and the employees, termination of employees, or other evidence that the employer has definitively determined the sale, cessation, or fundamental change in the nature of its operations.” Despite the company’s testimony, the Regional Director found that the election “would serve a useful purpose because it is undisputed that the Employer was working on three steel projects at the time of the hearing, it had secured future work that includes some steel work within the scope of the petitioned-for unit, and it will continue to bid on small steel projects or construction projects that include steel work within the scope of the petitioned-for unit.”

Union wins again . . . and again

The election took place on December 6, 2022, and the Union won. And now, the NLRB has declined to review the Regional Director’s decision, agreeing that the company failed to show that the cessation of operations was definite and imminent. Member Marvin Kaplan, the only remaining Trump appointee on the Board, disagreed, saying the company took numerous steps to wind down its steel division work and did not bid on future projects. Member Kaplan also disagreed with the majority on the importance of the President’s use of “as it stands now.”

Conclusion

Raimore Construction provides employers and counsel with a harsh reminder that the employer’s burden in getting a representation petition dismissed based on cessation of operations remains high. The employer’s evidence should clearly show that the cessation of operations is both definite and imminent.