“Petitioner discharged [its employee] less than twenty-four hours after the Union filed its first petition. This timing supports an inference of unlawful motive.”
How later courts described this case
- “Petitioner discharged [its employee] less than twenty-four hours after the Union filed its first petition. This timing supports an inference of unlawful motive.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 17, 2021 Decided May 11, 2021
No. 20-1090
RAV TRUCK AND TRAILER REPAIRS, INC. AND CONCRETE
EXPRESS OF NY, LLC,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 20-1124
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Aaron T. Tulencik argued the cause for petitioners. With
him on the briefs was Ronald L. Mason.
Gregoire Sauter, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Peter B. Robb, General Counsel, Alice B. Stock, Deputy
General Counsel, Ruth E. Burdick, Acting Deputy Associate
General Counsel, David Habenstreit, Assistant General
Counsel, and Julie Broido, Supervisory Attorney.
2
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: This case involves a
petition for review filed by RAV Truck and Trailer Repairs,
Inc. (“RAV”) and Concrete Express of New York, LLC
(“Concrete Express”), as a single employer (collectively,
“Petitioner” or the “Company”), challenging a decision and
order issued by the National Labor Relations Board (“Board”).
A complaint was filed with the Board alleging that the
Company had violated sections 8(a)(3) and (1) of the National
Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. § 158(a)(3)
and (1), by discharging one employee, laying off another
employee, and closing RAV because employees engaged in
union activity. Following a hearing before an Administrative
Law Judge (“ALJ”), the Board reviewed the case and issued a
decision and order finding that Petitioner had committed the
unfair labor practices as alleged. The Board ordered Petitioner
to cease and desist from the unfair labor practices; to offer the
separated employees reinstatement to their former jobs or
substantially equivalent positions; to make the separated
employees whole for any loss of earnings or benefits; to
bargain with the Union upon request; and to “reopen and
restore the business operation of [RAV] as it existed on May
14, 2018.” See RAV Truck & Trailer Repairs, Inc., 369
N.L.R.B. No. 36, at 1, 16-17, 2020 WL 1283464, at *1, *3
(Mar. 3, 2020) (“RAV”).
In its petition for review, the Company claims that one
employee was discharged because he lacked proper work
authorization, not because of his pro-union activity. The
Company additionally claims that another employee was laid
3
off and the RAV auto repair shop operation was closed because
of RAV’s financial problems and the loss of its lease, not in
retaliation for or to chill union activities. And Petitioner also
argues that the Board abused its discretion in declining to
reopen the record to include a tax return that allegedly
demonstrated RAV’s financial losses. Finally, Petitioner
argues the Board’s remedial order is impermissibly punitive
and cannot be enforced. The Board cross-petitions for
enforcement of its order.
Substantial evidence supports the Board’s conclusion that
Petitioner committed unfair labor practices by discharging one
employee and laying off another. We therefore deny the
petition for review with respect to those findings and enforce
the Board’s reinstatement and make-whole remedies.
However, we remand the case for further consideration
regarding whether Petitioner committed an unfair labor
practice by closing RAV. In February 2018, the Company’s
lease for the space in which it had housed the RAV auto repair
operation was terminated. The loss of this work location had
nothing to do with any union organizing campaigns. Following
the expiration of the lease, the Company moved RAV to an
unsuitably small, temporary space which the Company used to
finish repairs from the previous location. The Company then
shut down RAV for good. Given this record, “[w]e cannot
decipher . . . how the Board determined” that the closure of
RAV constituted an unfair labor practice. NBCUniversal
Media, LLC v. NLRB, 815 F.3d 821, 823 (D.C. Cir. 2016).
We also remand the Board’s order that Petitioner reopen
and restore RAV’s business operation as it existed on May 14,
2018. The temporary space into which the Company moved
was covered by a month-to-month lease that ended on May 31,
2018. The space was neither adequate in size nor properly
registered under New York law to accommodate a third-party
4
repair shop. The Board did not find that the Company intended
to reopen RAV in a new location. The Board’s decision does
not purport to explain how restoration is even “factually
possible” in these circumstances. Douglas Foods Corp. v.
NLRB, 251 F.3d 1056, 1064 (D.C. Cir. 2001).
On remand, the Board must address two issues. First, as
noted above, the Company lost the lease for the space in which
it had housed RAV, and the termination of the lease had
nothing to do with any union organizing campaigns. How then
can the Board’s determination that the Company closed RAV
for the purpose of chilling union activity be squared with the
clear evidence that the RAV operation was shut down because
of the termination of the Company’s lease for the space in
which RAV was housed? Second, even if the Company’s
closure of RAV foreseeably had chilling effects, see Textile
Workers Union of Am. v. Darlington Mfg. Co., 380 U.S. 263,
275-76 (1965), what legal authority allows the Board to compel
the restoration of a company operation that no longer exists and
for which there is no adequate space to house the operation
within any of the company’s existing facilities? See NLRB v. G
& T Terminal Packaging Co., 246 F.3d 103, 121-22 (2d Cir.
2001) (restoration order held to be unduly burdensome because
company did not have enough space to accommodate the
disputed work operation).
I. BACKGROUND
A. Statutory Background
The NLRA provides that an employer commits an unfair
labor practice if it “discourage[s] membership in any labor
organization” “by discriminat[ing] in regard to hire or tenure
or employment or any term or condition of employment.” 29
U.S.C. § 158(a)(3). An employer who violates section 8(a)(3)
5
also violates section 8(a)(1), which makes it unlawful for an
employer “to interfere with, restrain, or coerce employees in
the exercise of” their statutory rights. See 29 U.S.C. §
158(a)(1); Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 39 (D.C.
Cir. 2020). Section 10(c) of the Act authorizes the Board, upon
finding an unfair labor practice, “to take such affirmative action
. . . as will effectuate the policies of” the Act. 29 U.S.C.
§ 160(c).
B. Factual Background
Christopher Trentini is the sole owner and officer of both
Concrete Express and RAV. The parties agree that the two
entities constitute a single employer for purposes of this case.
Concrete Express manufactures, sells, and delivers
concrete. Its principal place of business is 2279 Hollers
Avenue, Bronx, New York (“Hollers Avenue”). That location
consists primarily of outdoor space for storing sand, gravel, and
other materials. Concrete Express parks its trucks overnight at
3771 Merritt Avenue, Bronx, New York (“3771 Merritt”), less
than half a mile away. Concrete Express’s drivers pick up their
trucks at 3771 Merritt before loading them at Hollers Avenue
and proceeding to delivery sites.
RAV performed repairs on trucks owned by various
companies, including Concrete Express. Until February 2018,
RAV leased a garage at 38 Edison Avenue, Mount Vernon,
New York. That location is a 4,000 square foot four-bay garage
with an 8,000 square foot fenced-in outdoor area. The Edison
Avenue location was listed as RAV’s address on an “official
business certificate” issued by the New York State Department
of Motor Vehicles. Joint Appendix (“J.A.”) 362. That
document certified RAV as a registered public, third-party
repair shop.
6
Petitioner claims that in February 2018, the owner of the
Edison building notified Trentini that RAV’s lease would be
terminated. The next month, RAV moved to 3773 Merritt
Avenue, Bronx, New York (“3773 Merritt”). Although RAV
and Concrete Express had nominally different street addresses
at 3773 and 3771 Merritt Avenue, those addresses constituted
the same building with a single open internal space. The entire
building is approximately 7,500 square feet. However, the
portion of 3773 Merritt that RAV leased consisted of only 600
square feet of garage space and one garage door.
Petitioner’s lease for 3773 Merritt states that the location
is a “[w]arehouse space for the repair of commercial vehicles
to finish remaining repairs from previous location.” J.A. 278.
The lease term was listed as “Month to Month[,] beginning
March 1, 2018 and ending May 31, 2018.” Id. Petitioner claims
that at the time of the move, RAV had only two scheduled
third-party repairs that were not completed. Petitioner also
alleges that 3773 Merritt lacked features required by New York
law for third-party motor vehicle repair shops, such as
sprinklers, fire alarms, standpipes, and oil and water separators.
After the move, RAV’s employees primarily worked at
Merritt Avenue. One RAV employee testified that he would
also visit the Hollers Avenue location to service vehicles two
to four times a week.
1. Union Activities at Concrete Express
On April 19, 2018, Teamsters Local 456, International
Brotherhood of Teamsters (the “Union”) petitioned to
represent a unit of “drivers and mechanics” employed at
Hollers Avenue. J.A. 4. The Board conducted an election on
May 10, 2018.
7
The Board later found, in a related case, that Petitioner
committed several unfair labor practices in response to the
Union’s organizing at Concrete Express. See RAV, 369
N.L.R.B. No. 36, at 1 n.3; see also Concrete Express of NY,
LLC, Case No. 02-CA-220381, 2019 WL 7370429 (N.L.R.B.
Div. Judges Dec. 27, 2019), summarily adopted absent
exceptions, 2020 WL 1182469 (N.L.R.B. Feb. 28, 2020)
(“Concrete Express”). In the week prior to the election,
Trentini threatened three employees with discharge if they
voted for the Union, interrogated two employees about union
activities, impliedly promised an employee a new truck if he
refrained from union activities, and convened a staff meeting
in which his wife Donna, Concrete Express’s financial
manager, told employees that she would close the business if
they elected the Union. Hours after the May 10 election,
Petitioner told employees they were no longer allowed to park
on company premises, which the Board found constituted
unlawful retaliation.
The election resulted in a vote of 4-3 in favor of the Union,
plus one determinative ballot challenged by the Union on the
grounds that the voter was not a bargaining unit employee. The
Board found the challenged ballot admissible and ordered it to
be opened and counted. Because Concrete Express had
committed multiple unfair labor practices between the filing of
the petition and the election, the Board also ordered a rerun
election in the event that a majority of ballots were not cast for
the Union.
2. Union Activities at RAV
Petitioner employed Jorge Alberto Valencia Medina and
Victor Gonzalez as mechanics at RAV. As of March 2018, both
Valencia and Gonzalez were working at 3773 Merritt, and both
8
men repaired vehicles owned by Concrete Express and third
parties. RAV had hired Gonzalez in August 2016. Valencia
was originally on Concrete Express’s payroll but was moved to
RAV’s payroll in May 2018.
Gonzalez heard about the Union from Concrete Express
drivers, who picked up their trucks at 3771 Merritt in the
mornings. A Concrete Express driver told Gonzalez that
unionization would result in “better benefits.” J.A. 125.
On May 14, 2018, Gonzalez met with a Union
representative who gave him two union authorization cards.
Gonzalez and Valencia signed the cards and Gonzalez returned
them to the representative. Later that day, the Union filed with
the Board and emailed Trentini a petition to represent the
mechanics of a company called “RAV Trucking Corporation.”
See J.A. 431. “RAV Trucking Corporation” is a separate entity
owned by Trentini. It does not operate at 3771 Merritt and does
not employ any mechanics. However, the Union’s petition
listed the employer’s address as 3771 Merritt Avenue, the unit
size as 2 employees, and the unit description as “[a]ll full-time
and regular part-time mechanics employed by the Employer.”
Id.
The next day, on May 15, 2018, Trentini approached
Gonzalez and Valencia, together with his daughter Alexis and
an employee from a nearby tire shop who served as an
interpreter. Trentini said he had heard a rumor that Immigration
and Customs Enforcement (“ICE”) agents were in the area and
asked if Gonzalez and Valencia had papers authorizing them to
work in the United States. Gonzalez responded affirmatively,
but Valencia said no. Trentini then said he could not give
Valencia any more work. Alexis asked Valencia to sign a letter
stating he was resigning, but Valencia refused. Trentini
referred to the document as a “termination letter” and
9
acknowledged that it had been prepared in advance of the
meeting. Trentini also admitted that ICE agents had been in the
area before and that he had previously suspected Valencia was
undocumented but took no action. The Union filed an unfair
labor practice charge against Petitioner the next day, citing
Valencia’s discharge.
Less than one week later, on May 21, 2018, Trentini told
Gonzalez it was his last day, because he was closing RAV for
lack of work. However, Gonzalez later testified that his
workload had not changed since RAV moved to 3773 Merritt.
Petitioner’s payroll records indicate that Gonzalez and
Valencia regularly worked overtime in excess of 40 hours a
week, including during payroll periods immediately preceding
their layoff and discharge. A few hours after Gonzalez was laid
off, the Union filed a second representation petition, this time
correctly identifying RAV as the employer of the sought-after
unit.
On May 22, 2018, the Union filed a third petition for the
same mechanics unit, but now named RAV and RAV Trucking
Corporation as a single/joint employer. On May 31, 2018,
Petitioner filed a statement of position in the underlying
representation case. Petitioner asserted that “[b]efore this
petition was filed, there was another Mechanic who was
employed but he was terminated/quit because he was an illegal
alien . . . . [T]he remaining Mechanic . . . advised the Company
he is legal and has his papers. However, he was laid off from
work and has never presented the papers showing he can
lawfully work in the United States.” J.A. 394. Later that same
day, Petitioner’s counsel informed the Board and the Union via
email that RAV “will be shutting its doors. . . . It is now
officially out of business.” J.A. 415.
10
C. Procedural History
The case was tried before an ALJ in October and
November 2018. The Board’s General Counsel argued that
Petitioner violated sections 8(a)(3) and (1) by discharging
Valencia, laying off Gonzalez, and closing RAV in retaliation
for employees’ union activity. The General Counsel also
argued that Petitioner violated section 8(a)(1) by threatening
employees with arrest or deportation and business closure
because they supported the Union.
At the hearing, Trentini claimed he discharged Valencia
due to Valencia’s lack of work authorization and laid off
Gonzalez and closed RAV due to RAV’s financial decline and
loss of lease. But his testimony regarding RAV’s financial
situation was confusing. Trentini denied familiarity with
RAV’s payroll or financial accounting. And he provided
shifting testimony on how Concrete Express paid RAV for
services rendered. The ALJ found that “Trentini’s testimony on
[that] subject was not credible,” and also found “his overall
credibility diminished by a willingness to reverse his testimony
as the defense required.” RAV, 369 N.L.R.B. No. 36, at 5 & n.9.
As evidence of RAV’s financial decline, Petitioner sought
to introduce an undated, unsigned 2017 federal tax return. The
ALJ conditionally admitted the unsigned return as a business
record, requiring Petitioner to replace it with “the actual signed
tax return.” J.A. 210. After the hearing, Petitioner submitted a
different document which was nearly identical to the unsigned
2017 federal tax return, but was signed and dated January 14,
2019 and bore the name of a different tax preparer. The ALJ
found the unsigned 2017 return to be unreliable hearsay and
declined to rely on it as evidence of RAV’s financial situation.
11
In July 2019, the ALJ issued a decision and recommended
order. The ALJ found that RAV and Concrete Express
constituted a single employer. The ALJ dismissed the
allegation that Petitioner violated section 8(a)(1) of the Act by
threatening employees with arrest or deportation and business
closure. However, the ALJ concluded that Petitioner violated
sections 8(a)(3) and (1) of the Act by discharging Valencia,
laying off Gonzalez, and closing RAV.
Regarding RAV’s closure, the ALJ looked to the standards
laid out in Darlington. See 380 U.S. at 275-76. First, the ALJ
found that RAV was closed for antiunion reasons. The ALJ
cited evidence that RAV “was not winding down” and instead
closed “because [Trentini] received representation petitions.”
RAV, 369 N.L.R.B. No. 36, at 12. Next, the ALJ explained that
the “far more difficult issues [were] whether [Petitioner] closed
RAV for the purpose of chilling the union activity of
employees still employed by Concrete Express and whether
such a chilling effect was realistically foreseeable under the
circumstances.” Id. The ALJ acknowledged that “the record
lacks certain evidence that is characteristic” of unlawful partial
closure cases, including “evidence that [Petitioner] discussed
RAV’s closure with Concrete Express employees or engaged
in other unlawful conduct which might have established a
coercive context at Concrete Express more conducive to an
inference of chilling intent and foreseeability.” Id. at 13. The
ALJ nevertheless found RAV’s closure was unlawful, citing
the proximity of RAV and Concrete Express’s workers and the
fact that Petitioner was contesting Concrete Express’s election
results at the time it closed RAV.
The ALJ recommended that the Board order Petitioner,
inter alia, to cease and desist from the unfair labor practices
found; to offer Valencia and Gonzalez reinstatement to their
former jobs or substantially equivalent positions; to make
12
Valencia and Gonzalez whole for any loss of earnings or
benefits; to bargain with the Union upon request; and to
“reopen and restore the business operation of RAV as it existed
on May 14, 2018.” See id. at 16-17. Petitioner argued it could
not restore RAV because it had been “operat[ing] an
unregistered repair shop in violation of New York law” when
it temporarily used the space at 3773 Merritt to finish up some
third-party repairs. See id. at 16. The ALJ dismissed this
argument as “opportunistic and inequitable,” and noted that
Petitioner had not provided evidence that securing a new
location or retrofitting the Merritt location would be unduly
economically burdensome. See id.
Petitioner excepted to several of the ALJ’s conclusions
and filed a motion to reopen the record to include the version
of the 2017 tax return signed and dated January 14, 2019. In
March 2020, the Board adopted the ALJ’s rulings, findings,
and conclusions, and issued a modified version of the ALJ’s
proposed order. The Board stated perfunctorily that its analysis
of RAV’s closure relied on the evidence cited by the ALJ as
well as “the unfair labor practices found in” the Concrete
Express adjudication. Id. at 1 n.2. The Board also denied
Petitioner’s motion to reopen the record.
II. ANALYSIS
A. Standard of Review
“We will uphold a decision of the Board unless it relied
upon findings that are not supported by substantial evidence,
failed to apply the proper legal standard, or departed from its
precedent without providing a reasoned justification for doing
so.” Int’l Longshore & Warehouse Union v. NLRB, 890 F.3d
1100, 1107 (D.C. Cir. 2018) (citation omitted). “The Board’s
findings of fact are ‘conclusive’ if supported by substantial
13
evidence.” Id. (quoting 29 U.S.C. § 160(e)). “That said, while
our review is deferential, we will not rubber stamp Board
decisions, and we will remand where a Board order reflects a
lack of reasoned decisionmaking.” Tramont Mfg., LLC v.
NLRB, 890 F.3d 1114, 1119 (D.C. Cir. 2018) (alterations,
citations, and internal quotation marks omitted).
We review the Board’s denial of a motion to reopen the
record for abuse of discretion. See Reno Hilton Resorts v.
NLRB, 196 F.3d 1275, 1285 n.10 (D.C. Cir. 1999). We will not
overturn the Board’s ruling “unless it clearly appear[s] that the
new evidence would compel or persuade to a contrary result.”
Id. (alteration in original) (citation and internal quotation marks
omitted); see also Napleton, 976 F.3d at 39.
Finally, we will not disturb a remedy ordered by the Board
“unless it can be shown that the order is a patent attempt to
achieve ends other than those which can fairly be said to
effectuate the policies of the Act.” King Soopers, Inc. v. NLRB,
859 F.3d 23, 30 (D.C. Cir. 2017) (quoting Fibreboard Paper
Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964)).
B. Discharge of Valencia
The Board applies the Wright Line burden-shifting
framework “to determine whether an unlawful motive underlay
an adverse action taken by an employer.” See Napleton, 976
F.3d at 40 (citing Wright Line, 251 N.L.R.B. 1083, 1083
(1980)); see also NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,
402-04 (1983) (upholding the Wright Line framework),
abrogated in other part by Dir., Off. of Workers’ Comp.
Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S.
267, 276-78 (1994). Under this framework, “the Board’s
General Counsel must show: (1) that the employee engaged in
protected activity; (2) that the employer knew about that
14
activity; and (3) that the protected activity was a motivating
factor in the employer’s decision to take adverse action.”
DHSC, LLC v. NLRB, 944 F.3d 934, 938 (D.C. Cir. 2019)
(citation and internal quotation marks omitted). The Board may
rely on circumstantial evidence to determine the employer’s
motives. See Great Lakes Chem. Corp. v. NLRB, 967 F.2d 624,
627 (D.C. Cir. 1992). Such circumstantial evidence may
include the timing of alleged discriminatory action, disparate
treatment of employees involved in union activity, and an
employer’s additional contemporaneous violations of the Act.
See Novato Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1101
(D.C. Cir. 2019).
“If the General Counsel meets [this] initial burden, then
‘the burden of persuasion shifts to the [employer] to show that
it would have taken the same action in the absence of the
unlawful motive.’” Napleton, 976 F.3d at 40 (second alteration
in original) (quoting Novato, 916 F.3d at 1101)). “If the Board
concludes . . . that the employer’s purported justifications for
adverse action against an employee are pretextual, then the
employer fails as a matter of law to carry its burden at the
second prong of Wright Line.” Ozburn-Hessey Logistics, LLC
v. NLRB, 833 F.3d 210, 219 (D.C. Cir. 2016) (citing Rood
Trucking Co., 342 N.L.R.B. 895, 898 (2004)).
Given the record in this case, we have no trouble in
concluding that substantial evidence supports the Board’s
finding that Petitioner violated sections 8(a)(3) and (1) by
discharging Valencia. Valencia and Gonzalez indisputably
engaged in protected activity by signing union authorization
cards on May 14, 2018. The Board reasonably concluded that
Petitioner knew about this activity because the Union emailed
a petition to Trentini later that same day, albeit addressed to
“RAV Trucking Corporation” instead of “RAV Truck &
Trailer” and with an address listed as 3771 Merritt, rather than
15
3773 Merritt. Trentini owned both entities and only RAV
employed mechanics. Furthermore, the petition listed the unit
as consisting of two mechanics, and RAV employed two
mechanics at the time. Given the circumstances, the Board
reasonably inferred that Petitioner knew at least one of RAV’s
two mechanics had signed an authorization card.
Substantial evidence also supports the Board’s finding that
Valencia’s pro-union activity was a motivating factor in
Petitioner’s decision to discharge him. Petitioner discharged
Valencia less than twenty-four hours after the Union filed its
first petition. This timing supports an inference of unlawful
motive. See Traction Wholesale Ctr. Co. v. NLRB, 216 F.3d 92,
97, 99 (D.C. Cir. 2000) (finding unlawful motive where
employer discharged employee on same day that union asked
for recognition). Furthermore, Trentini admitted that
Valencia’s termination letter was prepared before he was
questioned about his immigration status. This suggests that
Trentini may have used information he already knew about
Valencia’s status as pretext for discharging Valencia.
Substantial evidence supports the Board’s finding that the
General Counsel satisfied the first prong of the Wright Line
test.
The Board likewise reasonably found that Petitioner’s
proffered reason for discharging Valencia was pretextual.
Petitioner claims it would have discharged Valencia regardless
of union activity because Valencia lacked work authorization.
This claim rests on Trentini’s testimony, which the ALJ and the
Board concluded was of “diminished” credibility. RAV, 369
N.L.R.B. No. 36, at 5 n.9. Petitioner does not challenge the
Board’s credibility determination on appeal.
Trentini claimed he heard a “rumor that ICE was in the
area” from a nearby business owner but did not specify when
16
the conversation took place or provide any other details. See
J.A. 254.1. There is no evidence that Trentini had ever checked
an employee’s work authorization in the past, even though he
testified that ICE agents had “been in the area before.” Id.; see
also J.A. 117 (testifying that he did not require applicants to
submit documents establishing work authorization). Trentini
also admitted that he had heard about Valencia’s
undocumented status prior to May 15, 2018 but had not taken
any action. See J.A. 256 (“There might have been a suspicion,
but we didn’t bother it. I mean, you know, he’s working, let
him work.”). However, Petitioner verified the status of
Gonzalez and Valencia the day after receiving the Union’s first
petition. Substantial evidence supports the Board’s finding that
Petitioner used Valencia’s immigration status as pretext to
discharge him in retaliation for employees seeking union
representation.
The Company’s arguments to the contrary are
unconvincing. Petitioner complains that the Board offers “no
tangible record evidence” that Trentini was aware of Union
activity on May 15, 2018, see Br. of Pet’r at 16, but the law is
clear that the Board may rely on circumstantial evidence. And,
for the reasons explained above, the evidence strongly supports
the Board’s judgment.
C. Layoff of Gonzalez
The Board also adopted the ALJ’s conclusion that
Petitioner violated sections 8(a)(3) and (1) of the Act by laying
off Gonzalez. The Board held that Gonzalez’s layoff was
unlawful under Darlington, because RAV’s closure was
unlawful and Petitioner attributed Gonzalez’s layoff to that
closure. In the alternative, the Board held that Gonzalez’s
layoff was unlawful under Wright Line. Because the case is
being remanded for the Board to reconsider the issue of RAV’s
17
closure, we will only consider the Board’s Wright Line
analysis.
It is clear, under the first stage of Wright Line, that the
Company unlawfully laid off Gonzalez because of Gonzalez
and Valencia’s protected activities. The analysis for Gonzalez
mirrors that of Valencia. Gonzalez “engaged in protected
activity” by signing a union authorization card on May 14,
2018; it is reasonable to infer that Petitioner “knew about that
activity” because of the Union’s May 15, 2018 petition; and
Petitioner laid off Gonzalez a week later, suggesting that “the
protected activity was a motivating factor in the employer’s
decision to take adverse action.” See DHSC, 944 F.3d at 938
(citation omitted); see also Bally’s Park Place, Inc. v. NLRB,
646 F.3d 929, 936 (D.C. Cir. 2011) (finding unlawful motive
where employee’s discharge came only days after manager
observed him at pro-union rally).
At the second stage of the Wright Line analysis, “the
employer fails as a matter of law to carry its burden” if the
Board finds “that the employer’s purported justifications for
adverse action against an employee are pretextual.” Ozburn-
Hessey, 833 F.3d at 219 (citing Rood Trucking Co., 342
N.L.R.B. at 898). An employer’s “shifting explanations for
terminating” an employee “undermine [the employer’s]
nondiscriminatory explanation for that adverse action.” See Ark
Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 105 (D.C. Cir.
2003) (citation omitted). In this case, Petitioner offered
inconsistent reasons for Gonzalez’s layoff. Trentini told
Gonzalez on May 21, 2018 that he was being let go because
RAV was closing due to lack of work. Petitioner then claimed
in a submission to the Board on May 31, 2018 that it laid off
Gonzalez because he “never presented the papers showing he
can lawfully work in the United States.” J.A. 394. But Trentini
admitted that he did not verify employees’ work authorization
18
as a matter of course. Furthermore, Gonzalez told Trentini that
he had work authorization when Trentini asked on May 15,
2018. At the hearing before the ALJ, Petitioner again shifted to
claiming it laid off Gonzalez because it closed RAV.
Substantial evidence supports the Board’s finding that
Gonzalez’s separation was unlawful.
____________
In the next section, we discuss whether the Company’s
closure of RAV was an unfair labor practice under Darlington.
We want to make it clear, however, that even if Petitioner did
not act unlawfully in closing RAV, Petitioner’s challenges to
the Board’s findings that the Company committed unfair labor
practices in its treatment of Gonzalez and Valencia still fail. As
we have explained, the Board properly found that the disputed
discharge and layoff of these employees reflected
impermissible retaliation for their pro-union activities for
which appropriate remedies are due.
D. Closure of RAV
An employer has an absolute right to terminate her or his
entire business, even if the closing is motivated by antiunion
animus. See Darlington, 380 U.S. at 273-74. However, “a
partial closing is an unfair labor practice under § 8(a)(3) if
motivated by a purpose to chill unionism in any of the
remaining plants of the single employer and if the employer
may reasonably have foreseen that such closing would likely
have that effect.” Id. at 275.
In Darlington, the Supreme Court established the
following test regarding partial closures:
19
If the persons exercising control over a plant that is
being closed for antiunion reasons (1) have an interest
in another business, whether or not affiliated with or
engaged in the same line of commercial activity as the
closed plant, of sufficient substantiality to give
promise of their reaping a benefit from the
discouragement of unionization in that business; (2)
act to close their plant with the purpose of producing
such a result; and (3) occupy a relationship to the other
business which makes it realistically foreseeable that
its employees will fear that such business will also be
closed down if they persist in organizational activities,
we think that an unfair labor practice has been made
out.
Id. at 275-76. In this case, the Board adopted the ALJ’s
conclusion that, pursuant to Darlington, Petitioner violated
sections 8(a)(3) and (1) of the Act by closing the RAV portion
of its business.
As we explained in the introduction to this opinion, we are
remanding the Board’s determination for further explanation
because the Board’s reasoning does not fully square with the
requirements of Darlington. It is significant that the ALJ raised
very serious concerns regarding the sufficiency of evidence of
chilling intent and foreseeability. See RAV, 369 N.L.R.B. No.
36, at 13. The ALJ pointed out that “the record lack[ed] certain
evidence that is characteristic of other cases in which the Board
found violations.” Id. In particular, the ALJ noted that the
Company did not close RAV before Concrete Express’s union
election on May 10; the General Counsel did not present
evidence that Concrete Express employees actually learned of
the circumstances surrounding RAV’s closure; and, most
significantly, “the record contain[ed] no evidence that
[Petitioner] discussed RAV’s closure with Concrete Express
20
employees or engaged in other unlawful conduct which might
have established a coercive context at Concrete Express more
conducive to an inference of chilling intent and foreseeability.”
Id. (emphasis added). As a result, the ALJ “perceive[d] [the]
case as falling among the more minimal showings of chill
within the evidentiary range of Board findings of unlawful
partial closures.” Id.
The ALJ nevertheless found that circumstantial evidence
“support[ed] a ‘logical inference’ that [Petitioner] intended to
and could reasonabl[y] foresee the chill of Section 7 activity
among Concrete Express employees.” Id. (quoting George
Lithograph Co., 204 N.L.R.B. 431, 431 (1973)). The ALJ
observed that at the time of RAV’s closure, Petitioner was still
contesting in postelection proceedings the Union’s victory at
Concrete Express; Concrete Express’s drivers picked up and
dropped off their trucks at Merritt Avenue, and so “would
certainly have noticed that the RAV mechanics were separated
in the context of an organizing campaign”; and the same Union
organized Concrete Express’s workers and RAV’s workers, at
facilities that were in close proximity. See id.
The Board never addressed the concerns raised by the
ALJ. Instead, the Board merely stated that, in addition to the
evidence relied upon by the ALJ, it also relied upon evidence
of Petitioner’s actions in the Concrete Express case “as
evidence that [Petitioner’s] closure of [RAV] was motivated by
a purpose of chilling the protected union activity of its
remaining employees at [Concrete Express], and that
[Petitioner] would reasonably have foreseen that this closure
would have a chilling effect.” Id. at 1 n.2. This conclusory
statement is inadequate. The Board did not address the
evidentiary gaps identified by the ALJ. Nor did it explain how
the unfair labor practices found in Concrete Express supported
21
a finding of chilling intent and foreseeability with respect to the
Company’s actions related to RAV.
It is undisputed that the Company lost its lease for the
property at 38 Edison Avenue, Mount Vernon, where RAV had
been housed; the Company moved into temporary space to
finish pending projects, but that space was neither adequate in
size nor properly registered under New York law to
accommodate a third-party repair shop; and the lease for the
temporary location ended on May 31, 2018. It is true the
evidence proffered by Petitioner to support its claim that RAV
was facing financial difficulties was not strong. Nevertheless,
the Company’s evidence regarding the loss of the lease
covering the space at Edison Avenue stands unrefuted by the
General Counsel.
Therefore, the record indicates that the Company closed
the RAV operation because it could not exist without the leased
space, not because of the Union activities. And there is no
evidence that the Company identified a different, suitable
location for the RAV operation. This may explain why the ALJ
saw the “case as falling among the more minimal showings of
chill within the evidentiary range of Board findings of unlawful
partial closures.” RAV, 369 N.L.R.B. No. 36, at 13.
We owe no deference to the Board’s conclusion where, as
here, “the Board fails to adequately explain its reasoning, [or]
where the Board leaves critical gaps in its reasoning.” David
Saxe Prods., LLC v. NLRB, 888 F.3d 1305, 1311 (D.C. Cir.
2018) (alteration in original) (citation omitted). It is possible
that the Board will be able to justify a finding that the Company
committed an unfair labor practice under Darlington when it
closed the RAV portion of the business. This remains to be
seen, however. Without a better explanation from the Board,
we are constrained to remand.
22
E. Motion to Reopen the Record
Petitioner also challenges the Board’s denial of its motion
to reopen the record to include the signed tax return dated
January 14, 2019. The Board did not abuse its discretion in
denying Petitioner’s motion. As the Board explained, “the
document presented in [the Company’s motion to reopen the
record was] not, in fact, the ‘actual signed tax return’ requested
by [the ALJ] at the hearing, but [was] instead a document
signed by [the Company’s] owner on January 14, 2019, and
created by a different paid tax preparer than the document
advanced at the hearing.” RAV, 369 N.L.R.B. No. 36, at 1 n.1.
The Board grants motions to reopen the record only in
“extraordinary circumstances.” See 29 C.F.R. § 102.48(c).
Here, Petitioner failed to demonstrate any “extraordinary
circumstances.”
F. Remedies
The Board’s remedial power is “a broad discretionary one,
subject to limited judicial review.” Fibreboard, 379 U.S. at 216
(citation omitted). “Our essential task as a reviewing court is to
assure ourselves that the Board ‘has considered the factors
which are relevant to its choice of remedy, selected a course
that is remedial rather than punitive, and chosen a remedy
which can fairly be said to effectuate the purposes of the Act.’”
Traction Wholesale Ctr., 216 F.3d at 104 (quoting Caterair
Int’l v. NLRB, 22 F.3d 1114, 1120 (D.C. Cir. 1994)).
Petitioner objects to the portions of the Board’s order
requiring it to offer Valencia and Gonzalez reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions; to make Valencia and
Gonzalez whole for any loss of earnings or benefits; to bargain
23
with the Union upon request; and to reopen and restore RAV’s
business operation as it existed on May 14, 2018.
1. Reinstatement and Make-Whole Remedies for
Valencia and Gonzalez
As explained above, substantial evidence supports the
Board’s conclusion that Petitioner committed unfair labor
practices by discharging Valencia and laying off Gonzalez due
to their protected activity. We therefore have no difficulty
enforcing the reinstatement and make-whole remedies.
Petitioner argues the reinstatement and make-whole remedies
are unduly economically burdensome because Petitioner no
longer performs mechanical work for third parties and there is
insufficient work on Concrete Express’s trucks alone to employ
two mechanics. These challenges can be addressed at
compliance proceedings. See Chevron Mining, Inc. v. NLRB,
684 F.3d 1318, 1330 (D.C. Cir. 2012) (“[I]t is well-established
that ‘compliance proceedings provide the appropriate forum’
to consider objections to the relief ordered.” (first quoting Sure-
Tan, Inc. v. NLRB, 467 U.S. 883, 902 (1984); and then citing
Ark Las Vegas, 334 F.3d at 107)).
Petitioner also objects to a portion of the ALJ’s decision
that speculates that restoration of RAV’s operation would
require Petitioner to hire two mechanics, even if Valencia could
not be rehired due to his immigration status. Because we
remand the restoration remedy, we leave it to the Board to
consider this matter on remand.
2. Bargaining Order Remedy
The Board must determine on remand whether a unit of
mechanics formerly employed by Petitioner at 3773 Merritt
Avenue still exists, apart from Concrete Express, in a form that
24
makes a bargaining order under the NLRA feasible. If the unit
exists as a distinct entity, so as to be amenable to a bargaining
order from the Board, then we find that the Board provided
sufficient justification for the bargaining order.
The Board may issue remedial bargaining orders where an
employer has committed violations that “have the tendency to
undermine majority strength and impede the election
processes.” NLRB v. Gissel Packing Co., 395 U.S. 575, 614
(1969). The Board must balance “(1) the employees’ § 7 rights
[to a representative of their own choosing]; (2) whether other
purposes of the Act override the rights of employees to choose
their bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the Act.”
Garvey Marine, Inc. v. NLRB, 245 F.3d 819, 826-27 (D.C. Cir.
2001) (alteration in original) (citation omitted). As the Board
explained, the first two factors weigh in favor of a bargaining
order here because Valencia and Gonzalez both signed union
authorization cards. As for the third, the Board reasonably
concluded that traditional remedies, such as reinstatement and
backpay, would not adequately remedy Petitioner’s violations.
See Bristol Indus. Corp., 366 N.L.R.B. No. 101, at 3, 2018 WL
2761561, at *2 (June 7, 2018) (“A bargaining order is
particularly appropriate where, as here, an employer has
reacted to the first hint of a union campaign by terminating the
entire bargaining unit.” (citation and internal quotation marks
omitted)). Petitioner’s arguments opposing the bargaining
order – that it had no choice but to fire Valencia and that
Gonzalez was the casualty of an unprofitable business – only
rehash the merits of its case.
3. Restoration Order Remedy
The Board ordered Petitioner to “reopen and restore the
business operation of [RAV] as it existed on May 14, 2018.”
25
RAV, 369 N.L.R.B. No. 36, at 1. We remand this portion of the
Board’s order because the Board’s judgment defies reasoned
decision making. The Board’s decision fails to properly
consider whether its restoration order is legally permissible,
feasible, necessary, or unduly burdensome, as the law requires.
The following considerations cause us to remand this matter to
the Board for further consideration.
First, in part D, we explain why the Board’s decision that
the Company committed an unfair labor practice when it shut
down the RAV operation must be remanded for
reconsideration. If, on remand, the Board finds that the
Company did not commit an unfair labor practice under
Darlington, then, of course, no restoration remedy is due.
Second, if the Board finds that the Company’s closure of
RAV did violate the partial closing rule of Darlington, there is
still a question as to whether a restoration remedy is
appropriate. The principal problem is that the Board’s
restoration order is impossible to comprehend on the record at
hand. We cannot even discern from the record in this case
whether restoration is “factually possible.” Douglas Foods
Corp., 251 F.3d at 1064. The Board’s order requires restoration
of RAV “as it existed on May 14, 2018.” But the Company had
no lawful, suitable location in which to house the RAV
operation on May 14. And the Board has failed to cite any
authority to support the legal legitimacy of an order that
purports to compel a company to “reopen” an operation that no
longer exists due to the loss of a lease and for which there is no
adequate space to house the operation within the existing
company facilities.
Third, a NLRB order requiring a company to restore an
operation pursuant to Darlington typically will be upheld only
when the operation can be accommodated within the
26
company’s existing business and the restoration order is not
unduly burdensome. Decisions rejecting restoration orders:
see, e.g., G & T Terminal Packaging Co., 246 F.3d at 121-22
(holding restoration order to be unduly burdensome because
company did not have enough space to accommodate the
disputed work operation); Coronet Foods, Inc. v. NLRB, 158
F.3d 782, 797 (4th Cir. 1998) (vacating restoration order
because the company could not “simply restor[e] the prior
operation but [rather would] be obliged to create an entirely
restructured department”); Douglas Foods Corp., 251 F.3d at
1064-65 (vacating restoration order where Board gave no
“explanation of its authority to enter such order or [the
company’s] ability to carry it out,” and where order seemed to
require “forced repurchase of independently owned assets”).
Decisions upholding restoration orders: see, e.g., Vico Prods.
Co. v. NLRB, 333 F.3d 198, 213 (D.C. Cir. 2003) (upholding
restoration order where employer continued to occupy closed
facility and had not shown that resuming operations would be
unfeasible); O’Dovero v. NLRB, 193 F.3d 532, 538-539 (D.C.
Cir. 1999) (upholding restoration order where owner testified
that it could reopen closed operations “tomorrow” and the
Board found that reopening would “impose[] no significant
operational costs”). Board decisions: see, e.g., Int’l Shipping
Agency, Inc., 369 N.L.R.B. No. 79, at 7, 2020 WL 2615492, at
*8 (May 20, 2020) (finding restoration order “not appropriate”
because “a return to the status quo ante . . . would be unduly
burdensome”); Chariot Marine Fabricators & Indus. Corp.,
335 N.L.R.B. 339, 357 (2001) (finding restoration order unduly
burdensome in part because employer “would be required to
find and lease new premises, which might prove difficult in
[the] small community” where employer was located); Nat’l
Fam. Op., Inc., 246 N.L.R.B. 521, 521 (1979) (holding that
reestablishment of printing department would be unduly
burdensome where restoration would require either transfer of
entire department or leasing of additional space); Burroughs
27
Corp., 214 N.L.R.B. 571, 571 (1974) (declining to impose
restoration remedy where reopening would require employer
“to extend or renew an expiring lease”); Plastics Transp., Inc.,
193 N.L.R.B. 54, 54, 59 (1971) (adopting restoration order
where employer continued to lease facility and reopening
“would entail no additional financial outlay other than the
institution of some form of supervision”). In this case, the
Board did not properly consider whether its order to restore the
RAV auto repair shop would be legally permissible, necessary,
or unduly burdensome.
Fourth, the Board also failed to address Petitioner’s
compelling and uncontradicted evidence that it had no suitable
space in which to operate the RAV auto repair shop once the
lease for the Edison Avenue location was terminated. Trentini
testified that, in February 2018, RAV lost its lease at Edison
Avenue, which was a registered third-party repair shop. The
Company temporarily leased 3773 Merritt to complete
unfinished work projects, but that lease ended on May 31,
2018. Furthermore, the record indicates that the temporary
space was both undersized and lacked several features required
by New York law for third-party repair shops, such as
sprinklers, fire alarms, standpipes, and oil and water separators.
Petitioner submitted the relevant New York regulations to the
ALJ. The Board’s General Counsel did not rebut this evidence
and the ALJ did not find that Trentini lacked credibility on
these points. Therefore, RAV could not simply be “restored” in
existing Company space. The Board never addressed this
consideration, unless we are to assume that the Board’s order
was meant to require the Company to continue operating
unlawfully in substandard space at the 3773 Merritt Avenue
location. We doubt that is what the Board meant to say.
However, the absence of reasoned decision making makes it
impossible for us to understand the Board’s decision on these
matters.
28
We do not question the validity of restoration orders in
appropriate circumstances, but, as with any remedial order, the
Board must justify its action. See Sullivan Indus. v. NLRB, 957
F.2d 890, 904-05 (D.C. Cir. 1992). The Board has completely
failed to do so in this case.
III. CONCLUSION
For the foregoing reasons, we deny the petition for review
with respect to the Board’s determination that Petitioner
committed unfair labor practices by terminating Valencia and
laying off Gonzalez. We also enforce the Board’s proposed
remedies, other than the restoration order and the bargaining
order. We remand the issues of RAV’s closure and the
restoration order so that the Board may address the matters
raised in this opinion regarding those issues. The Board must
also determine on remand whether a unit of mechanics
formerly employed by Petitioner at 3773 Merritt Avenue still
exists, apart from Concrete Express, in a form that makes a
bargaining order under the NLRA feasible.