Rav Truck & Trailer Repairs, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 11 May 2021
• Docket Number: C/w 20-1124,No. 20-1090,20-1090
• Parties: RAV TRUCK AND TRAILER REPAIRS, INC. and Concrete Express of NY, LLC, Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

997 F.3d 314

RAV TRUCK AND TRAILER REPAIRS, INC. and Concrete Express of NY, LLC, Petitioners

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 20-1090

C/w 20-1124

United States Court of Appeals, District of Columbia Circuit.

Argued February 17, 2021

Decided May 11, 2021

Aaron T. Tulencik, Dublin, OH, 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.

Before: Henderson and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

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 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 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, 85 S.Ct. 994, 13 L.Ed.2d 827 (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) 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.

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.

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...