01/22/2026: Union Election Futile Due to Imminent Closing of Business
Contract bar to decertification only applies if CBA is fully executed before petition is filed.
There are two regional election decisions in today’s roundup.
SolarMovil PR LLC, 12-RC-376109 (Regional Election Decision)
The NLRB Regional Director for Region 12 dismissed a representation petition filed by Laborers’ International Union Local 55 seeking to represent solar installation workers employed by SolarMovil PR LLC at a solar farm construction project in Guayama, Puerto Rico. The decision turns on whether the employer’s cessation of operations was sufficiently imminent and definite to make holding an election futile.
SolarMovil was formed in August 2025 as a subcontractor to install solar panel anchoring components at the Jobos solar project. The company’s contract with 5B PR specified a completion date of November 9, 2025, with an option to extend if needed. The scope of work included installing 2,400 CHS piles and 16,000 Platipus anchors for approximately 800 solar panels. Employees were informed at hiring that their positions were temporary with a six-week duration.
The union filed its petition on December 2, 2025. At the December 11 hearing, SolarMovil’s field supervisor testified that 82 percent of contracted work had been completed, the contract had been extended to January 2026 due to weather and equipment delays, and all employees would be laid off upon project completion. Production reports showed the company had installed 48 percent of required anchors by October 28, consistent with the supervisor’s completion estimate.
The union argued the petition should not be dismissed because SolarMovil had not filed dissolution paperwork with Puerto Rico and had posted social media content about recruiting workers. The Regional Director found this evidence insufficient to establish ongoing operations beyond the Jobos project, noting the social media post was undated and likely related to the current project.
Applying established Board precedent, the Regional Director concluded SolarMovil met its burden of proving cessation was imminent and definite. The Board applies a narrow exception to its statutory mandate to hold elections when conducting one would serve no useful purpose. This requires concrete evidence that operations will terminate within three to four months, considering factors including the timeline to cessation, steps taken to effectuate closure, and employee notification.
The Director found the evidence satisfied these requirements: the contract specified a defined scope of work with a completion date, employees were notified of temporary status at hiring and informed of the January extension, substantial progress toward completion was documented, and no evidence suggested additional work in Puerto Rico. The Director distinguished the union’s arguments about corporate dissolution and social media posts, finding they did not rebut the evidence that the petitioned-for unit’s employment would end in January 2026.
Significant Cases Cited
Retro Environmental, Inc./Green Jobworks, LLC, 364 NLRB 922 (2016): Established that the Board will dismiss election petitions when cessation of operations is imminent, but will not dismiss based on conjecture, uncertainty, or conditional evidence about future operations.
Hughes Aircraft Company, 308 NLRB 82 (1992): Held that elimination of unit work within 90 days based on executed subcontracting agreements and employee notification established imminent cessation justifying petition dismissal.
Davey McKee Corp., 308 NLRB 839 (1992): Affirmed that where circumstances establish operations will terminate within three to four months, no useful purpose is served by directing an election.
Martin Marietta Aluminum, 214 NLRB 646 (1974): Found that announcement of plant closure approximately four and a half months after petition filing justified dismissal.
Canterbury of Puerto Rico, Inc., 225 NLRB 309 (1976): Established that the burden of proving imminent cessation requires concrete evidence and that announced cessation can be contradicted by inconsistent employer actions.
Premier Beverage Company, LLC, Dba Breakthru Beverage Florida, 12-RD-374423 (Regional Election Decision)
An NLRB Regional Director ordered a decertification election for Breakthru Beverage Florida drivers after determining that a collective bargaining agreement with the International Brotherhood of Teamsters was not executed before the petition was filed and therefore could not bar the election.
Tim Zulinke filed a decertification petition on October 24, 2025, during a federal government shutdown. The Union moved to dismiss, arguing procedural defects including improper service and that a contract executed on November 5, 2025, should bar the election.
The Regional Director rejected the procedural challenges, finding the petitioner made good faith service efforts and the Union had full opportunity to participate in hearings. On the contract bar issue, the Director found that while parties reached tentative agreement on October 24 with Union official Jeff Padellaro signing that day, the employer did not sign until November 5—after petition filing. Email exchanges showed ongoing dispute about the contract’s effective date through early November, with execution contingent on finalizing separate amnesty agreements not completed until after October 24.
Applying Appalachian Shale Products and Deluxe Metal Furniture, the Director concluded contracts must be fully executed before petition filing to serve as a bar. The tentative agreement initiated on October 24 was insufficient because both parties had not signed, material terms including the effective date remained disputed, and execution was contingent on other agreements. The Director distinguished Television Station WVTV, where parties simultaneously initialed the agreement together.
Significant Cases Cited
Appalachian Shale Products Co., 121 NLRB 1160 (1958): Establishes that contracts must be reduced to writing and signed by all parties before petition filing to serve as contract bar; implementation of terms alone is insufficient without signed contract.
Deluxe Metal Furniture Co., 121 NLRB 995 (1958): Holds that petition filed on same day contract is executed will be barred if contract is effective immediately or retroactively, but contract executed before petition filing will not bar petition if filed before contract’s effective date.
Television Station WVTV, 250 NLRB 198 (1980): Establishes that initials of all parties can satisfy signature requirement for contract bar if they demonstrate full agreement on substantial terms and conditions of employment.
Campbell Soup Co., 111 NLRB 234 (1955): Establishes general rule that bargaining unit in which decertification election is held must be coextensive with certified or recognized unit.
Roosevelt Memorial Park, Inc., 187 NLRB 517 (1970): Establishes that party asserting contract bar existence bears burden of proof that contract bar exists.