🗞️ Wilson Paving & Sealcoating Inc: NLRB's "Concrete Evidence" Standard
NLRB dismissed Wilson Paving & Sealcoating petition after employer proved permanent cessation with concrete evidence: property sale, dissolution filing, zero payroll. Standard protects workers from unsubstantiated closure claims.
The National Labor Relations Board (NLRB) has established a demanding standard for dismissing representation petitions based on employer business closure, as demonstrated in the Wilson Paving & Sealcoating Inc. case and the precedent-setting Retro Environmental, Inc. decision. Under Section 9(c)(1) of the National Labor Relations Act, the Board must investigate representation petitions and direct elections when appropriate. However, the Board may dismiss a petition when an election would serve no purpose because the employer's cessation of operations is both imminent and definite.
The legal framework requires employers to provide "concrete evidence" rather than speculation, conditional plans, or future intentions. In Retro Environmental, 364 NLRB No. 70 (2016), the Board established this standard by reversing a Regional Director's dismissal where employers failed to prove cessation was both imminent and definite. The Board emphasized that dismissal based on business closure requires definitive proof such as announcements to employees and the public, employee terminations, property sales, corporate dissolution filings, and other evidence demonstrating that the employer has definitively determined to cease or fundamentally change operations.
In Wilson Paving (Case 13-RC-344206), Regional Director Angie Cowan Hamada applied this standard and found sufficient concrete evidence meeting the requirements: the January 27, 2025 property sale closing, termination of unemployment insurance accounts, zero payroll activity during the entire 2025 season, Articles of Dissolution filed September 9, 2025 with corporate dissolution effective September 29, 2025, and closure of bank accounts. The Regional Director dismissed the petition as proceedings would be wasteful when the employer demonstrably ceased operations and no longer employs unit employees.
This high evidentiary standard serves to protect workers' organizing rights by preventing employers from avoiding union elections through unsubstantiated claims of future closure. The standard balances the Board's obligation to conduct elections with practical considerations when an employer has permanently ceased operations.
Key Points
- High Evidentiary Bar: Dismissal requires concrete evidence of permanent cessation, not conjecture or conditional future plans
- Examples of Concrete Evidence: Property sales, corporate dissolution filings, termination of all employees, closed bank accounts, ceased payroll operations
- Timing Matters: Evidence must show cessation is both imminent and definite, not merely possible or planned
- Protection for Workers: Standard prevents employers from avoiding union elections through unsubstantiated closure claims
- Resource Conservation: Dismissal appropriate only when continuing proceedings would be wasteful because no employees remain
Primary Source Author: National Labor Relations Board (NLRB)
Primary Source: Retro Environmental, Inc./Green JobWorks, LLC, 364 NLRB No. 70 (2016)
Primary Source Link: NLRB Summary - Week of August 15-19, 2016
