RAV Trucking Corporation d/b/a RAV Truck & Trailer Repairs Inc., a Single/Joint Employer

372 NLRB No. 25 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. RAV Truck & Trailer Repairs, Inc. and Concrete Ex- press of NY, LLC, a single employer, and Team- sters Local 456, International Brotherhood of Teamsters. Case 02–CA–220395 December 14, 2022 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS KAPLAN, RING, AND PROUTY This case is on remand from the United States Court of Appeals for the District of Columbia Circuit. On March 3, 2020, the National Labor Relations Board issued a Decision and Order in this proceeding.1 The Board, among other things, adopted the administrative law judge’s findings that the Respondent, RAV Truck and Trailer Repairs, Inc. (RAV) and Concrete Express of NY, LLC (Concrete Express), a single employer, violated Sec- tion 8(a)(3) and (1) of the National Labor Relations Act by discharging one employee and laying off a second em- ployee because they engaged in union activities, and by engaging in an unlawful partial closure under Textile Workers v. Darlington, 380 U.S. 263 (1965), when it closed RAV. The Board ordered the Respondent to cease and desist from the unfair labor practices, offer the two employees reinstatement to their former jobs or substan- tially equivalent positions, make them whole for any loss of earnings and other benefits, bargain with the Union upon request, and reopen and restore RAV’s business op- eration as it existed on May 14, 2018. Subsequently, the Respondent petitioned the D.C. Cir- cuit for review of the Board’s Order, and the Board filed a cross-application for enforcement. On May 11, 2021, the court issued its decision, in which it granted in part and denied in part enforcement of the Board’s Order and re- manded the case for further consideration.2 The court en- forced the Board’s Order with respect to the unlawful dis- charge and layoff violations, including the reinstatement and make-whole remedies, and the broad cease-and-desist order requiring the Respondent to refrain from violating the Act “in any other manner,” but the court remanded the following issues for the Board’s consideration. First, the court remanded for further explanation of the Board’s de- termination that the Respondent violated the Act by 1 369 NLRB No. 36. 2 997 F.3d 314 (D.C. Cir. 2021) (RAV). 3 The court “enforce[d] the Board’s proposed remedies, other than the restoration order and the bargaining order.” Id. at 332. Accordingly, we closing RAV. The court found that the Board’s reasoning did not fully square with the requirements of Darlington, above, and asked for further explanation regarding the ev- identiary gaps identified by the judge and how the unfair labor practices committed by Concrete Express supported “a finding of chilling intent and foreseeability with respect to the [Respondent’s] actions related to RAV.” RAV, 997 F.3d at 328. Second, the court remanded the Board’s or- der that the Respondent reopen and restore RAV’s busi- ness operation as it existed on May 14, 2018. The court questioned whether, even if the Board finds on remand that the Respondent’s closure of RAV violated the Act, “a restoration remedy is appropriate.” Id. at 330. Third, the court asked the Board to determine “on remand whether a unit of mechanics formerly employed by [the Respondent] at 3773 Merritt Avenue still exists, apart from Concrete Express, in a form that makes a bargaining order under the NLRA feasible.” Id. at 329.3 On November 18, 2021, the Board advised the parties that it had accepted the court’s remand and invited the par- ties to file statements of position. The Respondent, Charg- ing Party, and General Counsel filed statements. The Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the entire record, including the parties’ statements of position, in light of the court’s deci- sion, which is the law of the case. We reaffirm, for the reasons explained below, the Board’s conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by closing RAV with the intent to chill union activity at Con- crete Express. However, after considering the concerns raised by the court as well as the passage of time, we find that our prior restoration and bargaining orders are no longer appropriate. I. FACTS As recounted by the court in its opinion, Christopher Trentini is the sole owner and officer of both Concrete Ex- press and RAV, which the parties agree constitute a single employer. Concrete Express manufactures, sells, and de- livers concrete from its principal place of business at 2279 Hollers Avenue, Bronx, New York (Hollers Avenue), which consists mostly 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), which is less than a half mile from Hollers Avenue. RAV performed repairs on trucks owned by various companies, including Concrete Express, from shall not repeat those court-enforced provisions of the Board’s original order here. See Fluor Daniel, Inc., 350 NLRB 702, 702 fn. 5 (2007); Bryan Adair Construction Co., 341 NLRB 247, 247 fn. 4 (2004). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 a leased garage at 38 Edison Avenue, Mount Vernon, New York (Edison Avenue), which had a 4000 square foot, four-bay garage with an 8000 square foot fenced-in out- door area. According to the Respondent, in February 2018,4 the owner of Edison Avenue notified Trentini that RAV’s lease would be terminated. The next month, RAV ob- tained a month-to-month lease with a minimum term of March 1 to May 31 and moved to 3773 Merritt Avenue, Bronx, New York (3773 Merritt). 3771 Merritt, where Concrete Express parks its vehicles, and 3773 Merritt are adjoining addresses with a single open internal space. The entire building is about 7,500 square feet, but the portion of 3773 Merritt that RAV leased consisted of only 600 square feet of garage space and one garage door. After the move, RAV’s employees worked primarily at 3773 Mer- ritt. The Respondent’s lease for 3773 Merritt states that the location is a “[w]arehouse space for the repair of com- mercial vehicles to finish remaining repairs from the pre- vious location.” 3773 Merritt is not registered as the loca- tion of a third-party motor vehicle repair shop under New York law. It also lacks several features required by the New York City code for repair shops, such as sprinklers, fire alarms, standpipes, and oil and water separators. The Respondent employed two mechanics at RAV, Jorge Alberto Valencia Medina and Victor Gonzalez, who repaired vehicles owned by Concrete Express and third parties. At the beginning of March, the Respondent trans- ferred Gonzalez and Valencia from Edison Avenue to 3773 Merritt. Gonzalez denies Trentini told him RAV was losing its lease or closing. Rather, Gonzalez testified that Trentini told him RAV was moving to a larger space. In February or March, Gonzalez heard about Teamsters Local 456, International Brotherhood of Teamsters (the Union) from Concrete Express drivers, who picked up their trucks at 3771 Merritt in the mornings. One driver told him that unionization would result in “better bene- fits.” On May 10, the Board conducted a representation election among Concrete Express employees. On May 14, Gonzalez met with a Union representative who gave him two union authorization cards, which Gonzalez and Va- lencia signed and returned. Later that day, the Union filed with the Board, and emailed Trentini, an election petition seeking to represent the mechanics.5 The following day, Trentini approached Gonzalez and Valencia and said he had heard a rumor that Immigration and Customs Enforcement agents were in the area. Tren- tini asked the two employees if they had papers 4 Unless otherwise noted, dates hereafter are in 2018. authorizing them to work in the United States. Gonzalez responded affirmatively but Valencia said no, and Trentini said he could not give Valencia any more work. Less than a week later, on May 21, Trentini told Gonzalez it was his last day because the Respondent was closing RAV perma- nently for lack of work. A few hours later, the Union filed a second representation petition correctly identifying RAV as the employer. On May 22, the Union filed a third petition, naming RAV and RAV Trucking Corporation as a single/joint employer. On May 31, the Respondent filed a statement of position in the representation case. Later that same day, the Respondent’s counsel informed the Board and the Union via email that RAV was shutting its doors and going out of business. II. ANALYSIS In Darlington, the Supreme Court held that an employer has a right to terminate its business, even if the closing is motivated by antiunion animus, but that “a partial closing is an unfair labor practice under [Section] 8(a)(3) if moti- vated by a purpose to chill unionism in any of the remain- ing plants of the single employer and if the employer may reasonably have foreseen that such closing would likely have that effect.” 380 U.S. at 275, 268. The Court stated a partial closing violates Section 8(a)(3) and (1) of the Act only if the Board finds that the persons exercising control over a plant that is being closed for antiunion reasons “(1) have an interest in another business . . . of sufficient sub- stantiality 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.” Id. at 275–276. In the underlying case, the Board affirmed the judge’s finding that the Respondent unlawfully closed RAV in vi- olation of Section 8(a)(3) and (1) of the Act. The Board stated that in addition to relying on the evidence cited by the judge, it was also relying on the unfair labor practices found in Concrete Express of NY, LLC, Case Nos. 02– CA–220381 et al. (Feb. 28, 2020) (unpublished auto- adopt). The court has asked the Board on remand for fur- ther explanation of its finding “because the Board’s rea- soning does not fully square with the requirements of Dar- lington.” 997 F.3d at 327. The court states that the Board did not address concerns raised by the judge, including whether there was sufficient evidence of chilling intent 5 The petition listed the wrong entity name, “RAV Trucking Corpo- ration,” which is a separate entity owned by Trentini. RAV TRUCK & TRAILER REPAIRS, INC. AND CONCRETE EXPRESS OF NY, LLC 3 and foreseeability. Id. at 328. The court also asks the Board to explain “how the unfair labor practices found in Concrete Express supported a finding of chilling intent and foreseeability with respect to the [Respondent’s] ac- tions related to RAV.” Id. Having reexamined this case in light of Darlington and considerations raised by the court, we reaffirm our conclu- sion that the Respondent violated Section 8(a)(3) and (1) by closing RAV with the purpose of chilling union activity at Concrete Express, and where it reasonably could have been foreseen that this partial closure would have a chilling effect. It is undisputed that RAV and Concrete Express operate as a single employer, which satisfies the “interest” test un- der Darlington. See 380 U.S. at 276. Accordingly, the Respondent violated Section 8(a)(3) and (1) of the Act if it closed RAV for antiunion reasons, and if evidence shows both that the Respondent was motivated to close RAV for the purpose of chilling unionism among the Con- crete Express employees and that the Respondent realisti- cally would have foreseen that the employees at Concrete Express would fear that their business would also be closed if they persisted in organizational activities. We agree with the judge that the Respondent’s closing of RAV was motivated by the employees’ union organiz- ing activity. The suspicious timing of the closure imme- diately after the unlawful discharge of Gonzalez and layoff of Valencia, a week after the filing of a union peti- tion at RAV and less than 2 weeks after the Board con- ducted an election for the same Union at Concrete Ex- press, is strong evidence of anti-union animus. See Sa- hara Reno, 262 NLRB 824, 824–825 (1982) (finding that the employer unlawfully closed a coffee shop due to union activity in part because it decided to close the shop shortly after union activity began), enfd. mem. 722 F.2d 734 (3d Cir. 1983); Real Foods Co., 350 NLRB 309, 313 (2007) (rejecting the employer’s contention that it closed for “le- gitimate business reasons” where it offered “no credible explanation” for formally announcing the closing shortly after union activity began). Further, the Respondent’s pretextual explanations for closing RAV establish animus. See GATX Logistics, Inc., 323 NLRB 328, 335 (1997) (“Where . . . an employer pro- vides inconsistent or shifting reasons for its actions, a rea- sonable inference can be drawn that the reasons proffered are mere pretexts designed to mask an unlawful motive.”), enfd. 160 F.3d 353 (7th Cir. 1998). The Respondent 6 Although Trentini testified that Concrete Express continues to oc- cupy both 3771 and 3773 Merritt, he could not identify a current rental agreement for 3773 Merritt. Rather, Trentini testified that the current argues that it no longer had space for RAV, as the lease for Edison Avenue had been terminated and the lease for 3773 Merritt ended May 31, and that it only moved to 3773 Merritt to finish pending projects. While the Re- spondent is correct that the record shows that RAV moved from Edison Avenue to 3773 Merritt because it lost its Ed- ison Avenue lease, there is no evidence that the move was intended to be temporary. The 3773 Merritt lease con- tained a minimum 3-month term through May 31, and Concrete Express continues to occupy the entire 3771- 3773 Merritt space.6 Thus, unlike Edison Avenue, which the Respondent was forced to vacate because its lease was terminated by a third party, 3771-3773 Merritt Avenue continues to be used as a place of business by the Re- spondent through Concrete Express. Further, the Re- spondent has not shown that work was winding down or that the move to 3773 Merritt was solely to finish pending projects. In fact, at the time of their unlawful discharge and layoff, Valencia and Gonzalez were still performing substantial work on Concrete Express and third-party trucks at 3773 Merritt. The Respondent’s other argument that it shuttered RAV because the leased space at 3773 Merritt was “neither adequate in space nor properly regis- tered” under New York law to accommodate a repair shop is not established by the record. For approximately 2½ months prior to the Union’s petition, Valencia and Gonza- lez performed repairs at 3773 Merritt, and the Respondent did not express any concerns about the registration status of that location. The Respondent specifically told Gonza- lez that it was closing RAV because it had no work for him; it did not mention anything about 3773 Merritt being an unregistered facility. Thus, the Respondent did not care whether the space was properly registered until it wanted to get rid of the Union. Under these circumstances, the timing of the Respondent’s decision to close RAV within weeks of receiving the Union’s election petition, com- bined with the Respondent’s pretextual reasons for clos- ing, show that the Respondent closed RAV in response to union activity. The next factors under Darlington are whether the Re- spondent was “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.” 380 U.S. at 275. In analyzing these factors, the court asks the Board to ad- dress evidentiary concerns raised by the judge and to ex- plain why the Respondent’s unfair labor practices in the lease for 3771 Merritt allows Concrete Express to occupy the entire building space, including 3773 Merritt. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Concrete Express case support a finding of chilling intent and foreseeability. Evidence of “an actual chilling effect” is not required under Darlington. See George Lithograph Co., 204 NLRB 431, 431 (1973) (internal quotation marks omit- ted). Rather, “Darlington requires only a finding of the foreseeability of the chilling effect rather than evidence of its actual occurrence.” Id; see also DeSoto, Inc., 278 NLRB 788, 806 (1986) (“[A]s long as there are facts pre- sent on which to base a fair inference that a partial closing was motivated by an intention to chill unionism, no af- firmative evidence of an actual chilling effect on remain- ing employees is required.”) (internal quotation marks omitted). Because direct evidence of motive is unusual, circumstantial evidence may be utilized to permit infer- ences of “chilling” motivation. See George Lithograph, above at 431 (“[P]roof of the requisite motivation to chill c[an] be provided by something less than the direct evi- dence rarely available in these cases.”) (internal quotation marks omitted). Such circumstantial evidence includes “contemporaneous union activity at the employer’s re- maining facilities, geographic proximity of the employer’s facilities to the closed operation, the likelihood that em- ployees will learn of the circumstances surrounding the employer’s unlawful conduct through employee inter- change or contact, and, of course, representations made by the employer’s officials and supervisors to the other em- ployees.” Bruce Duncan Co., 233 NLRB 1243, 1243 (1977), modified on other grounds 590 F.2d 1304 (4th Cir. 1979). Here, as discussed by the court, the judge noted that the closure of RAV occurred after the election at Concrete Ex- press and that no evidence was presented that Concrete Express employees learned of the circumstances sur- rounding the closure of RAV or that the Respondent dis- cussed RAV’s closure with Concrete Express employees. Nonetheless, the judge ultimately found that the contem- poraneous union activity at Concrete Express, the geo- graphic proximity of Concrete Express to RAV, and the likelihood that Concrete Express employees would learn of the circumstances surrounding the Respondent’s un- lawful conduct supported a finding that the Respondent was motivated by a purpose to chill unionism at Concrete Express and could have reasonably foreseen that closing RAV would have that effect. We agree. RAV and Concrete Express shared a single, contiguous garage space. The employees of RAV and Concrete Ex- press communicated with each other during the workday, as evidenced by the fact that Gonzalez, while employed at RAV, originally heard about the benefits of unionization from a Concrete Express driver. Additionally, the judge in Concrete Express, Case Nos. 02–CA–220381 et al., found that Concrete Express drivers would send text mes- sages to Gonzalez and Valencia when their trucks needed repairs. Given this proximity and evidence of communi- cation between employees of RAV and Concrete Express, it was reasonably foreseeable that Concrete Express driv- ers would become aware of the Respondent’s discrimina- tory closure of RAV. See San Luis Trucking, Inc., 352 NLRB 211, 236 (2008) (San Luis Trucking I) (finding a “strong likelihood” that employees would learn of the un- lawful closure because there was contemporaneous union activity at the two companies and they were located in the same geographic area), reaffirmed and incorporated by reference 356 NLRB 168, 168 (2010), enfd. 479 Fed. Appx. 743 (9th Cir. 2012); Fredeman’s Calcasieu Locks Shipyard, 206 NLRB 399, 409 (1973) (“The Employer must have foreseen that the layoff of the night-shift em- ployees shortly after they had signed union cards without any explanation to the day shift employees, and after em- ployees had been told there would be no layoffs, would be interpreted by the day-shift employees as a reprisal against the night employees for signing union cards.”), enfd. mem. 493 F.2d 663 (5th Cir. 1974). The evidence is even stronger here than in similar cases where the Board has found that geographic proximity increased the likelihood that the employer’s other employees would learn of the closure, as Concrete Express and RAV were not only lo- cated in the same geographic area, but in fact shared the same contiguous open space. Cf.San Luis Trucking I, above at 236 (finding a strong likelihood that employees would learn of a partial closing where the employer’s two facilities were located in the same geographic area of Yuma County, with both having main offices in San Luis, Arizona). Additionally, the judge noted that the Respondent’s clo- sure of RAV occurred after Concrete Express’s union election on May 10, but in finding a violation, he relied on the fact that the closing occurred prior to the resolution of postelection proceedings. We agree with the judge that the fact that the unionization status of the Concrete Ex- press employees was not yet resolved at the time of RAV’s closure weighs towards finding a “chilling” motivation. See George Lithograph, above at 431 (“Thus we con- cluded that on the facts of Darlington, wherein it had been found that the plant was closed because of opposition to the union, the incidence of one such directly causative an- tiunion motive strengthened the probability of a second antiunion purpose—i.e., the ‘chilling’ of remaining em- ployees in the exercise of their Section 7 rights.”); San Luis Trucking I, above at 235–236 (finding chilling effect where employer engaged in a partial closure after a union RAV TRUCK & TRAILER REPAIRS, INC. AND CONCRETE EXPRESS OF NY, LLC 5 election at one business was held, but while objections were still pending). Moreover, because both parties had filed election objections, and a potentially determinative challenged ballot was outstanding,7 it was foreseeable that there would be a second election at Concrete Express, which is what indeed occurred.8 Further, although there is no evidence that the Respond- ent discussed the closure of RAV with Concrete Express employees, it is notable that the Respondent had already attempted to chill the union activity at Concrete Express by committing numerous unfair labor practices in re- sponse to the Union’s organizing drive there, including telling Concrete Express employees that the business would be closed if they elected the Union.9 Given that the Respondent had already unlawfully threatened to close Concrete Express in response to union activity, it was rea- sonably foreseeable that its closure of RAV would lead Concrete Express employees to believe that the Respond- ent was willing to follow through on its threat. See San Luis Trucking I, above at 235 (likelihood that employees would be intimidated by a partial closing heightened by the fact that the employer had already threatened to close facilities in response to union activity). Given these considerations, we agree with the judge that the Respondent was motivated by a purpose to chill un- ionism among its remaining employees when it closed RAV, and that it was reasonably foreseeable that Concrete Express employees would fear that their own jobs would be at risk if they continued in their unionization efforts. We thus reaffirm our conclusion that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by closing RAV. AMENDED REMEDY The court remanded for further consideration the Board’s Order that the Respondent restore RAV as it ex- isted on May 14. The Board typically orders an employer to restore the status quo ante by reestablishing a discrimi- natorily closed operation unless the employer can show that such a remedy would be “unduly burdensome.” See, e.g., International Shipping Agency, Inc., 369 NLRB No. 79, slip op. at 7 (2020) (“Regarding the [r]espondent’s 7 At the time the Respondent closed RAV, the ballot count stood at 8 votes for the Union and 7 against representation, with one unresolved challenged ballot. 8 The Regional Director initially overruled the Respondent’s objec- tions and referred certain Union objections and resolution of the chal- lenged ballot to the judge. After the Board granted the Respondent’s request for review as to certain of its objections, the Board remanded the objections for hearing. The judge in Concrete Express, Case Nos. 02– CA–220381 et al., found that the challenged employee was eligible to vote and that the Union’s objections had merit. Thus, the judge in- structed the Regional Director to count the challenged ballot and to either closures of [its facilities] . . . the Board’s usual practice in such circumstances is to order a return to the status quo ante—that is, to require the employer to restore the opera- tions as they existed before the discrimination, unless the employer can show that such a remedy would be unduly burdensome.”); Merchants Delivery, 267 NLRB 1231, 1233 fn. 4 (1983) (“The Board ordinarily orders a re- spondent to restore the status quo ante by reestablishing a discriminatorily closed operation unless the respondent can show that such a remedy would be ‘unduly burden- some.’”). It is the employer’s burden to demonstrate the affirmative defense of undue hardship, and the employer must, as with any affirmative defense, demonstrate undue hardship by a “preponderance of the evidence.” NLRB v. Transportation Management Corp., 462 U.S. 393, 395 (1983). The Board and courts have found restoration to be unduly burdensome where it imposed a financial bur- den, where the employer’s existing facilities could not ac- commodate the restoration, where restoration would be a bad business decision, and where significant time has passed since the facility was closed. See, e.g., NLRB v. G & T Terminal Packaging Co., 246 F.3d 103 (2d Cir. 2001) (reversing the Board’s restoration order where restoration would require expensive new machinery, the employer was suffering continuous losses, and the employer’s other facility could not accommodate the new machinery that restoration would require); Coronet Foods, Inc. v. NLRB, 158 F.3d 782, 796-797 (4th Cir. 1998) (finding that the employer established that restoration would result in un- due hardship where there was evidence that reopening would “be a bad business decision . . . [and] also place the company at substantial risk”); National Family Opinion, Inc., 246 NLRB 521, 521 (1979) (finding restoration in- appropriate where it would “require either transfer of the entire telephone department and/or the leasing or con- struction of additional space plus the acquisition of equip- ment for that department”); Burroughs Corp., 214 NLRB 571, 571 (1974) (declining to impose restoration remedy where it would “require [the employer] to extend or renew an expiring lease and to move equipment from other plants leaving gaps in those plants”). (1) conduct a rerun election if the challenged employee had voted against representation, or (2) conduct a hearing on the Respondent’s election ob- jections if the Union’s win stood after counting the challenged ballot. The challenged ballot was cast against representation, and the Union lost the rerun election. 9 These unfair labor practices also included threatening employees with discharge if they voted for the Union, interrogating two employees about union activities, impliedly promising an employee a new truck if he refrained from union activities, and retaliating against employees by telling them, hours after the election, that they could no longer park on company premises. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 In remanding the restoration remedy, the court stated: “The Board’s decision fails to properly consider whether its restoration order is legally permissible, feasible, neces- sary, or unduly burdensome, as the law requires.” RAV, 997 F.3d at 330. The court continued that it could not “discern from the record in this case whether restoration is ‘factually possible.’” Id. (citing Douglas Foods Corp. v. NLRB, 251 F.3d 1056, 1064 (D.C. Cir. 2001)). The court noted that as of May 14, the company had no lawful, suitable location in which to house the RAV operation . . . . 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 op- eration within the existing company facilities. RAV, 997 F.3d at 330. The court added, “RAV could not simply be ‘restored’ in existing space. The Board never addressed this consideration, unless we are to as- sume that the Board’s order was meant to require the [Re- spondent] to continue operating unlawfully in substandard space at the 3773 Merritt Avenue location.” Id at 331. In light of the considerations raised by the court, we conclude that the Respondent has established that restor- ing RAV as it was on May 14 would be unduly burden- some. First, RAV does not currently have a lease, and res- toration would thus require that the Respondent either re- new its old lease, which ended over 4 years ago, or enter into a new one. See Burroughs Corp., above at 571 (“A requirement that [the employer] reopen its plant would ap- parently require it to extend or renew an expiring lease and to move equipment from other plants leaving gaps in those plants. In our opinion, such a requirement is excessively burdensome.”). Additionally, even though Concrete Ex- press currently leases the premises, it is undisputed that the Respondent does not have a license to operate a third- party motor vehicle repair shop at 3773 Merritt. Thus, alt- hough the Respondent did not close RAV because 3773 Merritt was not a suitable location for a repair garage, the Board cannot in good faith order restoration at a location 10 Our colleague attempts to distinguish Savoy Laundry, but he over- looks the fact that the two companies here operated as a single enterprise. Accordingly, because repair work on Concrete Express trucks was being performed by employees of both entities, the closure of RAV effectively amounted to a discontinuation of a separate line of business (third-party repair work). Moreover, the dissent’s argument that the Respondent is still in the “repair work business” is unpersuasive. Indeed, it undermines our colleague’s efforts to distinguish Savoy Laundry, which continued to operate a household laundry pick-up service and linen-supply service and therefore could similarly be said to still be in the “laundry business.” If anything, the case for treating third-party repair work as a separate line of business is stronger than was the case in Savoy Laundry for treating that would require the Respondent to operate in contraven- tion of New York law. We disagree with the judge’s as- sertion that the Respondent did not establish it would have to violate New York law in order to restore RAV at 3773 Merritt. The General Counsel does not dispute that 3773 Merritt is unregistered, and the Respondent in its position statement has cited to New York City Administrative Code showing that restoration at 3733 Merritt would re- quire that it install sprinklers, fire alarms, standpipes, and oil and water separators. We agree with the Respondent that these renovations would impose an undue burden. See National Family Opinion, above at 521 (finding res- toration inappropriate where it would “require either transfer of the entire telephone department and/or the leas- ing or construction of additional space plus the acquisition of equipment for that department”). To the extent that the Respondent has other facilities, we agree that those facilities are not suitable locations in which to house RAV. Hollers Avenue does not have en- closed space or room for third-party repairs, and the Re- spondent no longer leases Edison Avenue. See Interna- tional Shipping Agency, 369 NLRB No. 79, slip op. at 7 (finding restoration inappropriate in part because the lease had expired). Further, the judge cites no precedent for the proposition that the Respondent had to offer an estimate on the cost or availability of securing a new location to establish undue hardship by a preponderance of the evi- dence, and we cannot find a case ordering restoration where the Respondent would have to find new property to lease. It is also significant that 4 years have passed since the original date of RAV’s closure. We find such a significant passage of time further weighs against a restoration rem- edy. See NLRB v. Savoy Laundry, Inc., 327 F.2d 370, 372 (2d Cir. 1964) (refusing to enforce a restoration order in part because the employer had not engaged in the business at issue for three years and had suffered a loss of patronage and goodwill);10 International Shipping Agency, above, slip op. at 7 (finding restoration inappropriate in part be- cause the lease had expired and 3.5 and 3 years had passed wholesale shirt service as such. In Savoy Laundry, the court based its finding that a restoration order was unduly burdensome on loss of pat- ronage and good will. Here, not only do similar concerns related to the third-party clientele apply, but resumption of third-party repair work would also require a license from the State of New York that would be unnecessary if the Respondent performs only in-house repairs. See N.Y. Comp. Codes R. & Regs. tit. 15, § 82.3(b)(2) (defining the term “motor vehicle repair shop” to exclude “any person who is solely engaged in the business of repairing the motor vehicles of a single commercial or indus- trial establishment” and clarifying that such persons “do not require reg- istration as a repair shop”). RAV TRUCK & TRAILER REPAIRS, INC. AND CONCRETE EXPRESS OF NY, LLC 7 since the facilities’ closures). We find it inappropriate to order the Respondent to reopen RAV where there is no existing lease, where the Respondent’s remaining facili- ties cannot adequately or lawfully house RAV, and where RAV has not functioned as a business in over four years. Moreover, the restoration order is unnecessary to obtain reemployment for the discriminatees, as the court has en- forced the Board’s reinstatement order. See Burroughs Corp., above at 571 (order requiring employer to offer em- ployees jobs at other plants reduced need for restoration order). And although our dissenting colleague argues that the Respondent has failed to substantiate its undue-hard- ship defense and notes that it will have another chance in compliance to adduce previously unavailable evidence, the Board raised similar arguments before the court of ap- peals. See Brief for NLRB at 51–52, 2021 U.S. D.C. CIR. BRIEFS LEXIS 3245; Supplemental Brief for NLRB, 2021 U.S. D.C. CIR. BRIEFS LEXIS 4202. Given the D.C. Circuit’s criticism of the restoration order, it plainly was not persuaded by these arguments. Under these cir- cumstances, we agree that the Respondent has met its bur- den of showing that it would impose an undue burden to require it to restore RAV. The court lastly asked the Board to determine, on re- mand, “whether a unit of mechanics formerly employed by [the Respondent] at 3773 Merritt Avenue still exists, apart from Concrete Express, in a form that makes a bar- gaining order under the NLRA feasible.” Having found that a restoration remedy is no longer appropriate, we also find that a distinct unit of mechanics formerly employed by the Respondent at 3773 Merritt Avenue does not exist. We thus find that a bargaining order is no longer appropri- ate. We shall issue a supplemental Order in accordance with these findings. ORDER The Respondent, RAV Truck & Trailer Repairs, Inc. and Concrete Express of NY, LLC, a single employer, Bronx, New York, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from 11 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employ- ees by electronic means, the notice must also be posted by such electronic (a) Partially closing its business operation because cer- tain employees sought to be represented by the Union for purposes of collective bargaining and doing so with the intent and foreseeable effect of chilling the Section 7 ac- tivity of remaining employees. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its facilities located at 2779 Hollers Avenue and 3771-3773 Merritt Avenue, Bronx, New York, copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for Re- gion 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since May 15, 2018. (b) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. December 14, 2022 ______________________________________ Marvin E. Kaplan, Member ________________________________________ John F. Ring, Member means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER PROUTY, dissenting in part. I join my colleagues in reaffirming that the Respondent violated Section 8(a)(3) and (1) of the Act by closing RAV with the intent to chill union activity at Concrete Express. However, contrary to the majority, I would find that res- toration, the Board’s standard remedy for unlawful clo- sures, is both feasible and necessary here and that the Re- spondent has not established that such a remedy would be unduly burdensome. The facts in this case are not in dispute. After the ter- mination of its lease at Edison Avenue, RAV obtained a month-to-month lease at 3773 Merritt, a space adjoining 3771 Merritt, where Concrete Express employees park their trucks overnight. On May 14, 2018,1 4 days after a representation election was conducted among Concrete Express employees, the Union filed with the Board, and emailed the Respondent, an election petition seeking to represent RAV’s two mechanics, Gonzalez and Valencia, who had both signed authorization cards. The next day, the Respondent unlawfully discharged Valencia for union activity; less than a week later, the Respondent unlawfully laid off Gonzalez for union activity. On May 31, the Re- spondent’s counsel informed the Board and the Union that RAV was shutting down and going out of business. My colleagues and I agree that the Respondent closed RAV, in violation of Section 8(a)(3) and (1) of the Act, with the intent to chill union activity at Concrete Express. In so finding, we agree that the Respondent’s proffered reasons for closing RAV were pretextual, including that it no longer had space for RAV, that it only moved to 3773 Merritt to finish pending projects, and that 3773 Merritt was not properly registered under New York law. Where we disagree, however, is on the appropriate remedy in light of the court’s remand. The majority finds that the Respondent has established that restoring RAV would be unduly burdensome. First, it argues that RAV does not currently have a lease, and, thus, restoration would require that the Respondent either renew its old lease, which ended over 4 years ago, or enter into a new one. Next, it finds that the Board cannot in good faith order restoration at 3773 Merritt because it 1 All dates hereafter are in 2018. would require the Respondent to operate in contravention of New York law. Finally, the majority argues that pas- sage of time weighs against a restoration remedy. As ex- plained below, I disagree with the majority on all three of these points and would reaffirm the Board’s Order requir- ing the Respondent to restore RAV as it existed on May 14. To begin, although it may be true that RAV does not hold a lease in its own name, it is undisputed that RAV and Concrete Express are operating as a single employer. Trentini testified that the current lease for 3771 Merritt al- lows Concrete Express to occupy the entire approximately 8000 square foot building, including 3773 Merritt. Thus, the Respondent has failed to show that there is no space for RAV within the Respondent’s existing facilities. See RAV, 997 F.3d at 330. Additionally, there is no evidence that the Respondent has altered the 3773 Merritt space or made it unsuitable for RAV to resume its prior operations. Cf. NLRB v. G & T Terminal Packaging Co., 246 F.3d at 121 (restoration unduly burdensome where the employer had dismantled its potato-packaging machine and dis- persed its parts, and where replacing the machine would cost between $130,000 and $150,000); Burroughs Corp., 214 NLRB at 571 (declining to order restoration where the respondent had already shipped some of its equipment to other locations and where restoration would require ship- ping the equipment back); National Family Opinion, Inc., 246 NLRB at 521 (restoration unduly burdensome where it would have “require[d] either transfer of the entire tele- phone department and/or the leasing or construction of ad- ditional space plus the acquisition of equipment for that department”). Further, by agreeing with the Respondent that restora- tion is inappropriate because 3773 Merritt is not a regis- tered repair facility under New York law, the majority re- wards the Respondent’s opportunism. My colleagues and I agree that the Respondent moved RAV’s repair opera- tions to 3773 Merritt with no intention of slowing down its operation and without regard for whether the space was properly registered under New York law. Trentini told Gonzalez that RAV was moving to a larger space; he did not mention RAV closing or that he was concerned about the space’s registration status. Further, Valencia and Gon- zalez were still performing substantial work on Concrete Express and third-party trucks at 3773 Merritt when they were discharged and laid off, respectively. Thus, the Re- spondent had no problem with operating RAV at 3773 Merritt in violation of New York law until employees un- ionized. Nonetheless, the Respondent now claims that it RAV TRUCK & TRAILER REPAIRS, INC. AND CONCRETE EXPRESS OF NY, LLC 9 cannot restore RAV at 3773 Merritt because it would vio- late New York law to do so. The Board should not reward such a brazen ploy. See Ferragon Corp., 318 NLRB 359, 362 fn. 16 (1995) (“We found these reasons pretextual when the [r]espondent offered them as reasons for its clo- sure of the [] operation and we reject them now for the same reasons.”), enforced mem. 88 F.3d 1278 (D.C. Cir. 1996). Of course, I am not suggesting that RAV be ordered to operate unlawfully, but rather that the Respondent has the burden to show that bringing 3773 Merritt into compliance with New York law would be unduly burdensome. The Respondent has failed to do so, and the majority’s specu- lation regarding the costs of retrofitting the building does not substitute for actual evidence that such repairs would cause an undue burden. The Respondent operated RAV out of 3773 Merritt for 2.5 months, and, as far as the record shows, the space is still occupied by the Respondent. Even assuming 3773 Merritt requires significant retrofit- ting, the Respondent does not provide any estimate on how much this would cost. Cf. NLRB v. G & T Terminal Packaging Co., 246 F.3d at 121 (declining to order resto- ration where it would require new machinery estimated to cost between $130,000 and $150,000). The only specific monetary figure mentioned by the Respondent is that “[t]he Board’s Order requires RAV to operate an unregis- tered motor vehicle repair shop in contravention of New York state law which will result in result in civil penalties of $1,000 fines for each violation.” However, the Re- spondent has given no estimate regarding how much it would cost to bring 3773 Merritt into compliance with New York law, as opposed to paying a fine for noncom- pliance. Nor has the Respondent shown that it is suffering financial distress or that restoring RAV would be unprof- itable. Indeed, as noted by the court, “the evidence prof- fered by Petitioner to support its claim that RAV was fac- ing financial difficulties was not strong.” RAV, 997 F.3d at 328. Compare Ferragon Corp., above at 362 fn. 16 (or- dering restoration where the respondent “ha[d] introduced no evidence as to the amounts of such income that it would lose if the [closed] operation were restored and whether those amounts would be significant”) and We Can, Inc., 315 NLRB 170, 174 (1994) (ordering restoration where “[t]he testimony of the [r]espondent's own financial advi- sor . . . fail[ed] to establish that it would be unduly bur- densome to require the restoration of the [closed opera- tion] to its former size”) with International Shipping Agency, 369 NLRB at slip op. at 7 (declining to order res- toration where the employer was under significant finan- cial duress and where restoration would require it to re- store two deeply unprofitable subsidiaries) and Coronet Foods, Inc. v. NLRB, 158 F.3d at 796–797 (declining to order restoration where there was evidence that reopening would be a bad business decision and place the company at substantial risk). Further, if the Respondent had not un- lawfully shut down RAV in violation of the Act, it would have been required to retrofit its facilities to comply with state law anyway. Thus, the Respondent’s argument that doing so now would be unduly burdensome is unavailing. See Ferragon Corp., above at 362 fn. 16 (rejecting the re- spondent’s argument that a restoration remedy requiring it to hire a new manager and support staff would be unduly burdensome because “the [r]espondent took these steps when it started up its [] operation and, but for its unlawful conduct, would not be required to repeat them now”). Additionally, the majority’s reliance on passage of time where there is no proof of the Respondent’s changed cir- cumstances simply rewards the Respondent for delaying its remedial obligations by exhausting administrative pro- cedures. The Respondent did everything in its power to discourage unionization at RAV and Concrete Express, in- cluding taking the drastic step to unlawfully close RAV entirely. It does not serve the purpose of the Act to reward such a flagrant disregard for employee rights merely be- cause time has passed. The cases cited by the majority are distinguishable. In International Shipping Agency, the employer was suffering significant financial duress and had sustained mounting losses, and restoration would have required it to reopen two deeply unprofitable subsidiaries. 369 NLRB at slip op. at 7, 25. Further, it had disassem- bled and disposed of necessary equipment. Id. at slip op. at 25. Here, there is no such evidence that restoration of RAV would be unprofitable or that 3773 Merritt lacks equipment necessary for RAV to operate. In NLRB v. Sa- voy Laundry, Inc., the employer shut down one of three types of services it offered, a wholesale shirt service whereby it picked up shirts from hand laundry and drycleaning establishments and washed and finished the shirts for these wholesale customers. 327 F.2d at 372. The court found that the employer “whatever the reasons . . . ha[d] not engaged in this phase of the laundry business for almost three years” and “since its patronage and good will have undoubtedly been lost in the interim . . . it would be unduly harsh to require the resumption of the division now.” Id. Here, the Respondent closed RAV at a time when it still had substantial repair work on Concrete Ex- press and third-party trucks. Thus, unlike in NLRB v. Sa- voy Laundry, Inc., id., a reinstatement order would not re- quire RAV to reestablish its repair work business, as Con- crete Express continues to operate and there is no evi- dence that it no longer needs repair work done. Further, even assuming RAV lost some of its other third-party re- pair work, the Board has found that loss of clients does not preclude a restoration order. See We Can, Inc., above at DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 175 (“Nor do we find merit to the argument that the loss of clients precludes a restoration order.”). The Respondent has therefore failed to show that the passage of time would prevent RAV from operating successfully.2 Thus, I would order the Respondent to remedy its egre- gious unfair labor practices by requiring it to restore RAV as it existed on May 14 at 3773 Merritt. See We Can, Inc., above at 174-175 (ordering restoration where respondent failed to establish that restoration would be financially burdensome and where the respondent still maintained equipment necessary to operate the business). Because I would order the Respondent to restore RAV, I would also find, contrary to my colleagues, that a distinct unit of me- chanics formerly employed by the Respondent at 3773 Merritt Avenue still exists, and that a bargaining order re- mains appropriate. Accordingly, I dissent in part.3 Dated, Washington, D.C. December 14, 2022 ______________________________________ David M. Prouty, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT partially close our business operation because employees sought to be represented by Team- sters Local 456, International Brotherhood of Teamsters or any other labor organization for purposes of collec- tive bargaining, and do so with the intent and foreseea- ble effect of chilling the union activity of remaining em- ployees. RAV TRUCK & TRAILER REPAIRS, INC. AND CONCRETE EXPRESS OF NY, LLC, A SINGLE EMPLOYER The Board’s decision can be found at www.nlrb.gov/case/02-CA-220395 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. 2 Significantly, even if the Board were to order the Respondent to restore RAV as it existed on May 14, the Respondent would still have an opportunity at the compliance stage to introduce evidence, not available during the hearing, bearing on the appropriateness of the restoration rem- edy. See Greenbrier Rail Services, 364 NLRB 279, 280 (2016); see also Elliott Turbomachinery Co., 320 NLRB 141, 143–144 (1995) (“At the compliance stage of this proceeding, the [r]espondent may introduce ev- idence, if any, that was not available prior to the unfair labor practice hearing, to demonstrate that restoration of the manufacturing operations . . . would be unduly burdensome.”). 3 My colleagues reference the D.C. Circuit’s criticism of the restora- tion order previously entered in this case, but to the extent they suggest that the court is unpersuadable on the issue or that its opinion forecloses imposition of restoration order, I disagree. The court remanded this issue to the Board for justification and explanation of the appropriateness of the restoration remedy, and that is precisely what I have provided. In my view my colleagues got it right the first time and should join me in an- swering the court’s concerns.