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

National Labor Relations Board - Administrative Judge Opinions

Jul 15, 2019

02-CA-220395 (N.L.R.B. Jul. 15, 2019)

JD(NY)-12-19
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
RAV TRUCK & TRAILER REPAIRS, INC.
AND CONCRETE EXPRESS OF NY, LLC,
A SINGLE EMPLOYER
and Case 02–CA–220395
TEAMSTERS LOCAL 456, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Jamie Rucker, Esq. and Rachel F. Feinberg, Esq., for the General Counsel.
Aaron T. Tulencik, Esq. (Mason Law Fir Co., L.P.A.), for the Respondent.
Bryan T. Arnault, Esq. (Blitman & King, LLP), for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
BENJAMIN W. GREEN, Administrative Law Judge. This case was tried before me in New
York, New York, on October 15, November 27 and 28, 2018.1 The General Counsel alleges that
the Respondent, RAV Truck & Trailer Repairs, Inc. (RAV) and Concrete Express of NY, LLC
(Concrete Express), as a single employer, violated Section 8(a)(3) and (1) of the Act by
discharging Jorge Alberto Valensia Medina,2 laying off Victor Gonzalez, and closing RAV’s
business operation because employees engaged in union activity. The General Counsel also
alleges that the Respondent violated Section 8(a)(1) of the Act by threatening employees with
arrest/deportation and business closure because they supported the Union, Teamsters Local
456, International Brotherhood Teamsters. The General Counsel seeks a bargaining order as
part of the remedy of these alleged violations.
For reasons discussed below, I find that the Respondent unlawfully discharging Jorge,
laid off Gonzalez, and closed RAV. I also find that a bargaining order is appropriate. I do not
find and will dismiss allegations that the Respondent committed independent violations of
Section 8(a)(1).
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the posthearing briefs that were filed by the General Counsel and the
Respondent, I make these

1 All dates refer to 2018 unless indicated otherwise.
2 Herein, I refer to Jorge Alberto Valensia Medina and his uncle, Rafael Valencia, by their first
names in order to avoid confusion between them.
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FINDINGS OF FACT3
JURISDICTION
At all material times, the Respondent, RAV and Concrete Express, as a single employer,
has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union has been a labor organization within the meaning of Section 2(5) of the
Act. Accordingly, I find that this dispute affects commerce and that the Board has jurisdiction
over this case, pursuant to Section 10(a) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
Background
Trentini is the sole owner and officer of Concrete Express and RAV. He has owned a
number of other companies since he went into business for himself in 1984. Before 1984,
Trentini and Rafael Valencia, uncle of discriminatee Jorge, worked for the same company.
Rafael has been employed by Trentini owned companies since 1984. Trentini estimated that he
has hired about 50 employees over the course of his career as a small business owner.
Trentini testified that he understood I-9 forms to be forms that are used by employers to
establish whether an applicant for employment is authorized to work in the United States.4 The
Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the identity and
employment eligibility status of any person hired by having that employee complete an I-9 form
and present certain documents (described in the I-9 form) that can verify his/her legal status to
work in the country. An employer can be assessed civil and criminal penalties for knowingly
employing undocumented workers. 8 U.S.C. 1324a.
Trentini testified that RAV asked newly hired employees for their social security numbers
and driver’s licenses, if they had one. During his time as a business owner, Trentini has not
required applicants to submit documents establishing identify and employment authorization as
set forth in I-9 forms. As indicated in the I-9 form, a driver’s license can establish identity, but
does not establish employment authorization (which requires additional documentation, such as
a social security card).
Concrete Express
Since opening in 2006, Concrete Express has been engaged in the manufacture,
wholesale, and retail sale of concrete from its principal place of business at 2279 Hollers

3 My factual findings are based in part on credibility determinations and, in this decision, I have
credited some but not all of the testimony of certain witnesses. Credibility findings need not be all-
or-nothing propositions and, indeed, it is common in judicial proceedings to believe some, but not all,
of a witness’s testimony. Daikichi Sushi, 335 NLRB 622 (2001). A credibility determination may rely
on a variety of factors, including the context of the testimony, the witness’ demeanor, the weight of
the respective evidence, established or admitted facts, inherent probabilities, and reasonable
inferences that may be drawn from the record as a whole. Double D Construction Group, 339 NLRB
303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 10 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003).
4 A copy of the I-9 form can be accessed online at https://www.uscis.gov/i-9.
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Avenue, Bronx, New York (Hollers Avenue). Concrete Express also has access to 2277 Hollers
Avenue and some adjacent public property it rents from the City of New York. Trentini
estimated that the entire property Concrete Express has access to is 85 by 100 feet.
Concrete Express uses square mobile mixer cement trucks to deliver and mix concrete
at remote customer locations. Trucks are loaded with the component materials (sand, gravel,
water) and use an auger to mix the concrete. The trucks leave to the delivery site from Hollers
Avenue, but are parked overnight at 3771 Merritt Avenue, Bronx, New York (3771 Merritt
Avenue).5 About 15 cement trucks are housed at 3771 Merritt Avenue. Trentini testified that he
purchased six new trucks for Concrete Express in 2016 and began operating those trucks on a
staggered basis as they were received and registered. Of the new trucks, the first was
registered on October 4, 2016 and last two were registered on September 6, 2017. Concrete
Express only operates the new trucks. The old trucks are no longer registered.
Concrete Express has employed a variable number of drivers at different times. In April,
Concrete Express employed seven drivers. As of the hearing, Concrete Express employed four
drivers and was operating five of the new trucks on a regular basis with Trentini sometimes
driving the fifth truck himself. The sixth truck is used as a spare.
Rafael testified that he is employed by Concrete Express as a mechanic and yardman
at Hollers Avenue. Trentini also performs mechanical repair work on Concrete Express trucks.
Rafael testified that he spends 25 hours working as a mechanic and 20 hours working as a
yardman. Rafael described his yardman work as using a machine to load trucks (loaders) with
materials such as sand and gravel, and doing whatever else needs to be done in the yard.
Rafael performs repairs on the loaders and the forklift.
Jorge testified that he was hired by Concrete Express in 2015 and worked as a
mechanic at Hollers Avenue performing such tasks as changing hoses, changing lights, and
changing auger blades on the cement trucks. Further, when Rafael was not at work, Jorge
repaired the loaders, helped load materials on the trucks, leveled sand on the top of the trucks
with a shovel, and sprayed down the yard with water. Jorge received his assignments from
Rafael and Trentini. According to Trentini, Jorge was hired to assist Rafael.
Trentini’s sister-in-law, Diane Denti, is employed by Concrete Express and works in the
office at Hollers Avenue. Trentini testified that Denti maintains the personnel files and is
responsible for personnel decisions, such as hiring and firing. Trentini initially denied he was
involved in the recent discharge of two drivers (one for theft of concrete and one for failing a
drug test). However, upon cross-examination, Trentini reluctantly disclosed that he investigated
the theft of concrete and advised the drug testing company that Concrete Express was opting to
discharge the driver who failed the drug test.
I take administrative notice of certain facts associated with the representation case,
Concrete Express of NY, LLC, 02-RC-218783. The Union filed the petition in that case on April
19 and an election was conducted on May 10 among Concrete Express employees in the
following unit:

5 I take administrative notice that Hollers Avenue and 3771 Merritt Avenue are less than 0.5
miles apart based upon directions obtained from Google Maps. See Bud Antle, Inc., 359 NLRB
1257, 1258, fn. 3 (2013) reaffd. 361 NLRB 873 (2014).
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All full-time and regular part-time drivers and mechanics employed by the
Employer at 2279 Hollers Avenue, Bronx, New York, but excluding all clerical
employees, guards, managers, professional employees and supervisors as
defined by the Section 2(11) of the Act.
The tally of ballots shows that four employees voted in favor of representation and three
employees opposed representation with one determinative challenged ballot. The sole
challenge was to the ballot of Rafael, which was challenged by the Union on the ground that he
is not a mechanic and, therefore, not a bargaining unit employee.
RAV
Trentini opened RAV, a truck repair business, in 2015. Trentini did all the hiring, firing,
and disciplining of RAV employees. Trentini also assigned work to mechanics. Trentini testified
that, in 2017, he hired an individual named Rudy (last name unknown) to perform certain
administrative work. RAV hired Gonzalez as a mechanic in August 2016.
RAV’s operation was originally located at 38 Edison Avenue, Mount Vernon, New York
(Edison Avenue), which it rented from a nearby company called Petrillo. Edison Avenue is a
4,000 square foot four-bay garage with an 8,000 square foot fenced-in area outside. According
to Trentini, the outdoor area was large enough to store about 15 trucks. RAV was certified by
the New York State Department of Motor Vehicles as a registered repair shop and Edison
Avenue was listed as RAV’s address on the “official business certificate.” RAV’s last lease at
Edison Avenue was scheduled to end on December 31, but the lease included an early
termination provision upon 30 days written notice by either party.
At trial, RAV produced an undated and unsigned 2017 federal tax return which lists the
company’s taxable income as a loss of $274,370.6 The tax return includes Form 1125-A for
“Cost of Goods Sold.” These costs do not include any expense for the cost of labor, but do
include an itemized cost for “subcontractors” of $215,807. Trentini testified that RAV did not use
subcontractors. Trentini generally denied knowing anything about RAV’s financial accounting
and how his accountant arrived at the figures in the tax return. And although Trentini claimed, “I
know my numbers,” he subsequently admitted he was not particularly familiar with RAV’s costs
because, in his words, “I’m not in there.” (Tr. 214) Thus, Trentini was not familiar with the
monthly payroll or the costs of goods. Trentini testified, “I don’t follow numbers. . . . I’m
lackadaisical when it comes to stuff like that; I got too many things on my mind.” (Tr. 214)
RAV performed repairs on trucks owned by various companies, including Concrete
Express and Petrillo. Trentini admitted that, during the winter months, RAV reserved one of the
four bays in the garage for cleaning Concrete Express trucks. RAV invoices for the repair of
Concrete Express trucks were entered into evidence. Those invoices were stamped, “paid.”
Trentini testified that his brother-in-law, George Denti, was employed by RAV for about 4 or 5

6 I conditionally admitted RAV’s 2017 tax return as a business record over the General
Counsel’s objection, with the qualification that the return be replaced with one that was signed and
dated. See Armstrong v. Curves International, Inc., 2017 WL 5256997, at *4 (W.D. Tex. Nov. 2,
2017) (tax returns, signed by the taxpayer under penalty of perjury, and filed with the taxing authority
under risk of criminal charges if fraudulent, have an inherent indicia of reliability and trustworthiness,
and qualify as business records under FRE 803(6)). However, the Respondent did not replace the
unsigned tax return with a signed tax return.
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months when the company initially opened and that George7 prepared some invoices. Then,
after Rudy was hired in 2017, he prepared invoices. Trentini testified that Rudy decided
whether to prepare invoices for work on Concrete Express trucks. Trentini also admitted he did
not know what repairs Rudy recorded for invoices to Concrete Express since he (Trentini) did
not spend much time at Merritt Avenue.
The record contains 14 RAV invoices to Concrete Express during the period May 16,
2016 to November 28, 2016 (perhaps the invoices prepared by George). There is a gap in the
invoices from November 2016 to June 2017. The record contains another 19 RAV invoices to
Concrete Express during the period June 26, 2017 to November 20, 2017 (perhaps the invoices
prepared by Rudy). When asked about the absence of RAV invoices to Concrete Express after
November 20, 2017, Trentini testified, “It's a shop that handles it. I'm not in the shop all the
time. I'm not always told what's done all the time.” (Tr. 257) Trentini admitted that RAV
repaired Concrete Express trucks from November 2017 to May.
Trentini initially testified, quite decisively and in detail, that Concrete Express paid the
invoices from RAV by check. Trentini was subsequently questioned regarding the
Respondent’s failure to produce such checks in response to the Union’s subpoena duces
tecum.8 Extensive discussion among counsel ensued as to whether I should draw an adverse
inference that the invoices were not paid because the checks were not produced. Although
Trentini was identified as the Respondent’s custodian of records, he denied knowledge of the
documents the Respondent produced and did not produce in response to the subpoenas.
Respondent’s counsel represented that he did not consider that the checks might be documents
responsive to the subpoenas and assumed responsibility for the oversite. Toward the end of
the Respondent’s case, I offered Respondent’s counsel an opportunity to testify and provide an
explanation on the record for the failure to produce the missing checks. Respondent’s counsel
asked for and was granted 5 minutes off the record to speak with Trentini.
After the break, Trentini was called back to the stand and asked how Concrete Express
paid for RAV services. Trentini testified that Concrete Express paid RAV for services rendered
by reducing funds owed on a loan Concrete Express extended to RAV when it opened in 2015.
According to Trentini, these transactions would have been recorded by Concrete Express’s
accountant. Trentini testified that there was no written agreement between the two companies
reflecting the terms of the loan and he did not know the amount of the initial loan. Trentini
estimated that RAV still owed Concrete Express $12,000 to $15,000. However, under
Schedule L for “other Current Liabilities” of RAV’s 2017 unsigned tax return, an amount of
$20,000 is listed as “due to Concrete Express.” This tax return also reflects that $20,000 was
due to Concrete Express at the start of the 2017 tax year and remained $20,000 at the end of
the tax year. Meanwhile, RAV invoices reflect that significant work was performed by RAV on
Concrete Express trucks in 2017. Further, the Respondent was unable to produce any
documents showing an actual accounting write down of the loans in response to Union
subpoenas which requested such information. Ultimately, Trentini’s testimony deteriorated and
became extremely confused on the subject. At one point, Trentini testified, “there’s checks that
are for loans and there’s checks that are for repairs. So I don’t know how the accountant

7 George Denti is referred to by his first name to avoid confusion with his wife, Diane Denti.
8 The Union entered into evidence subpoenas duces tecum it served on RAV and Concrete
Express. Request number 26 of each subpoena sought, “True copies of any documents or
communications reflecting the transfer of funds between Concrete Express and RAV, including but
not limited to the amount(s) involved, reason(s) for, and date(s) of transfer of funds.” (CP Exh. 1-2)
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arrived at the numbers. I gave them a check for repairs, I also gave him checks for loans.”9 (Tr.
310)
Gonzalez performed mechanical repairs on trucks owned by Concrete Express and
other companies. Gonzalez received his assignments from Trentini and Rudy. The tasks that
Gonzalez performed included changing oil and changing the auger blades for mixing concrete.
According to Gonzalez, Trentini told him RAV was repairing new Concrete Trucks even though
they were under warranty because the dealership took too long to repair them.
In addition to working at Edison Avenue, if Concrete Express had a problem starting a
truck, Gonzalez went to Hollers Avenue to start it. Gonzalez testified that this happened two to
four times per week. Trentini testified that Rudy probably did not prepare invoices for this type
of work because it only took about 15 minutes to jump start a vehicle. According to Trentini, an
invoice would not be prepared unless a vehicle was taken to RAV’s repair shop. However, as
discussed above, Trentini did not evince a firm understanding or knowledge of when and how
RAV’s Concrete Express invoices were prepared. When asked what other services RAV
provided to Concrete Express free of charge, Trentini answered, “I don't know. It's just
whatever Rudy made up an invoice or he didn't. And I don't know. I'm not -- I don't spend all my
time in the shop so they -- whatever they did, they did.” (Tr. 261)
Jorge testified that he was permanently transferred from Concrete Express at Hollers
Avenue to RAV at Edison Avenue in late 2017. According to Jorge, he worked at Edison
Avenue as a mechanic performing work on Concrete Express trucks and trucks owned by other
companies, including Petrillo. Jorge estimated that, at Edison Avenue, he worked on Concrete
Express trucks about 2 hours a day and other trucks the rest of the time. Jorge also testified
that he would sometimes go to Hollers Avenue to “review and check out” the Concrete Express
trucks. (Tr. 115)
Trentini denied that Jorge was permanently transferred to RAV at Edison Avenue in
2017. Rather, according to Trentini, Jorge was temporarily assigned to Edison Avenue to work
on Concrete Express trucks during the winter months of 2017. Trentini claimed that Concrete
Express trucks, which were new, did not require much repair work and RAV mechanics did not
work on such trucks unless they had nothing else to do. However, Trentini admitted he was not
familiar with all of RAV’s work because, in his words, “I don’t spend too much time there. I, you
know, I just go there. Everything okay, and I leave. I don’t spend too much time there. . . . It ran
itself.” (Tr. 181)

9 Trentini’s testimony on this subject was not credible. As noted above, RAV’s 2017 tax return
contradicts his claim that RAV paid Concrete Express by reducing the amount owned on a loan.
Although, as discussed below, the unsigned tax return is not reliable as a business record to be
used by the Respondent to establish losses, it is useful as the nonhearsay admission of an opposing
party. FRE 801(d)(2). Aside from the tax return, if RAV’s accountant had reduced the loan from
Concrete Express by amounts reflecting the cost of RAV repair work, there would be accounting
records which should have been produced in response to the Union’s subpoenas. I grant the
General Counsel’s request for an adverse inference and find that Concrete Express did not pay the
RAV invoices. See Essex Valley Visiting Nurses Assn., 356 NLRB 146 (2010) three-member panel
affg 352 NLRB 427, 442 (2008) (judge refused to credit employer’s witness that rent was paid and,
instead, inferred it was not paid where the employer failed to produce substantiating subpoenaed
documents). I not only discredit Trentini on this point, but find his overall credibility diminished by a
willingness to reverse his testimony as the defense required.
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In February, Petrillo terminated RAV’s lease at Edison Avenue. At the time, according
to Trentini, RAV had outstanding work on only two Petrillo trucks - a road sweeper and a tractor
dump trailer. Trentini claims he decided to go out of business after RAV completed its work on
these two vehicles. According to Trentini, he notified his customers that RAV was going out of
business and laid Rudy off.10 Trentini further testified that he gave Gonzalez a list of prospective
employers and advised him, “we were losing the lease, that we have to move to another
location, just to finish the work and then, you know, start looking for work.”11 (Tr. 170)
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.
RAV entered into a new lease, dated March 23, for 600 square feet of garage space and
one garage door at 3773 Merritt Avenue, Bronx, New York (3773 Merritt Avenue). Although the
new space has a different postal address than 3771 Merritt Avenue (used by Concrete Express
to house trucks), 3771 Merritt Avenue and 3773 Merritt Avenue are one building with a single
open internal space. Trentini estimated that the entire building is 7,500 or 8,000 square feet.
The property has no area for outdoor parking. Trentini appeared to testify that RAV used the
entire space at Merritt Avenue (3771 and 3773) for repairs of the Petrillo trailer, but his
testimony was unclear on the subject. The lease for 3773 Merritt Avenue states that it is a
“[w]arehouse space for the repair of commercial vehicles to finish remaining repairs from
previous location. No repairs to be done prior to April 1, 2018 due to the interior sewer lines
being broken.” (R Exh. 6) The lease was month to month with a minimum rent for the term of
March 1 to May 31.
Gonzalez testified that he was transferred by RAV from Edison Avenue to Merritt
Avenue in early 2018. According to Gonzalez, at Merritt Avenue, he continued working on
various trucks, including trucks owned by Concrete Express, Petrillo, RCA, Greenpatch and
others. Following his transfer, Gonzalez did not notice any change in the type or amount of
work he previously performed at Edison Avenue. Among his duties, Gonzalez continued to go
to Hollers Avenue to start trucks two to four times per week.
Jorge testified that he was transferred by RAV from Edison Avenue to Merritt Avenue in
about January or February, but was unsure of the date and admitted it could have been as late
as April. Jorge also testified that his workload reduced a bit when he moved to Merritt Avenue.
According to Jorge, at Merritt Avenue, he worked on Concrete Express trucks, a sweeper, and a
truck. The sweeper needed a new engine and the truck needed new electrical cables. Jorge
testified that he also swept and cleaned the space at Merritt Avenue. Jorge estimated that, the
week before he was terminated, he spent about 30 minutes sweeping per day.
Trentini denied that Jorge was permanently transferred to RAV at Merritt Avenue until
May, about a week and a half before he (Jorge) was discharged. However, Trentini also
testified that Jorge worked on third-party Petrillo and RCA trucks before he was transferred
(work performed by RAV, not Concrete Express). Trentini generally denied that RAV, at Merritt
Avenue, worked on trucks other than the two Petrillo vehicles which still had repairs to complete
from Edison Avenue. Trentini did admit that, at Merritt Avenue, RAV mechanics repaired
Concrete Express trucks. Particularly, according to Trentini, Gonzalez and Jorge repaired the

10 Although Trentini claims that Rudy was laid off in about February, it is noteworthy that RAV
issued no invoices (prepared by Rudy) to Concrete Express after November 20, 2017. Trentini
testified that RAV continued performing work on Concrete Express trucks through May.
11 Gonzalez testified that Trentini gave him a list of prospective employers on the date he was
laid off, May 21, and not before. I credit Gonzalez in this regard.
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old trucks to get them ready for sale. Trentini has sold two of the old trucks.
Jorge was paid by Concrete Express through the first week of May. Jorge’s last paystub
from Concrete Express reflects that it covered the payroll period April 30 to May 6. While Jorge
was paid by Concrete Express, he routinely worked overtime in excess of 40 hours per week.
Jorge was first paid by RAV for the payroll period May 7-13. That week, Jorge worked an
equivalent amount of overtime (8 hours) as he had in prior payroll periods with Concrete
Express. As discussed below, Jorge was discharged on May 14 (the first day of the next payroll
period).
Gonzalez was always paid by RAV and, like Jorge, regularly accumulated overtime in
excess of 40 hours per week. During his last two full weeks of work, Gonzalez accrued 9.5
hours of overtime (May 7-13) and 3.75 hours of overtime (May 14-20).
Union Activity
In about February or March, Gonzalez spoke to Concrete Express drivers, who pick up
their trucks at 3771 Merritt Avenue, about the Union. The drivers told Gonzalez he would
receive better benefits with the Union. Around the same time, Gonzalez spoke to Union
representatives Tony and Dominick. Tony and Dominick told Gonzalez they could get him good
benefits if he joined the Union and he should keep in touch with the Concrete Express drivers.
On May 14, at about 12 or 12:30 p.m., Tony called Gonzalez at work and asked him to
come outside. Gonzalez was on his break and came outside to meet with the Union
representatives and an interpreter. They told Gonzalez he needed to sign an authorization card
to obtain Union membership. The Union representatives then gave Gonzalez two cards.
Gonzalez went back inside and gave Jorge one of the authorization cards. Gonzalez and Jorge
filled out, signed, and dated their respective cards. Gonzalez then went back outside and gave
the two cards to Tony.
Later that day, the Union filed with the Board and emailed Trentini a petition to represent
the mechanics of RAV Trucking Corporation (RAV Trucking). RAV Trucking is not Respondent
RAV, but a different company owned by Trentini. Although this petition named RAV Trucking as
the employer, the address of the employer was listed as 3771 Merritt Avenue and the unit was
described as “All full-time and regular part mechanics employed by the Employer.” (GC Exh. 7)
RAV Trucking does not employ mechanics or operate at Merritt Avenue.
On May 21, the Union filed a new petition for the same mechanics unit, but correctly
named RAV as the employer. The Union emailed the petition to the Respondent at 4:57 p.m.
On May 22, the Union filed a third petition for the same mechanics unit, but named RAV
and RAV Trucking as a single or joint employer. The Union emailed the petition to the
Respondent at 2:22 p.m.
Discharge of RAV Mechanics and RAV Closure
Trentini testified that, on some date prior to May 15, the owner of a nearby Metro Tire
Shop, Frankie, told him, “there were rumor[s] that ICE was in the area checking businesses.”
Trentini added, “they’ve been in the area before, they just happened to be around at that time,
too.” (Tr. 294)
Jorge testified that he had arguments with Rafael because Rafael threatened to call ICE
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(presumably, to have Jorge deported). The record does not clearly indicate when these
arguments occurred. Trentini testified that Jorge and Rafael were having arguments prior to
Jorge being moved to RAV on a full-time basis in advance of Jorge’s anticipated separation.
Trentini explained that he did not want “Jorge in retaliation that he may go after his uncle for the
firing. So we moved him over to . . . [RAV] to separate the two, and then kind of lay him off later
on.” (Tr. 253-254)
Trentini testified that he suspected Jorge did not have documentation authorizing him to
work in the United States. According to Trentini, “There might have been a suspicion, but we
didn't bother it. I mean . . . he's working, let him work. We never got any kickbacks from the
IRS about social security number of anything like that. Usually, if there's a discrepancy they
would let you know when you did the payrolls and stuff, and we didn't have that.” (Tr. 296)
When asked what his suspicion was based on, Trentini testified, “Rafael saying that -- they had
been into an argument about it if he went back to Mexico or the ICE is going to send him back to
Mexico, he doesn't have a visa here.” (Tr. 296) It is not clear when Trentini developed a
suspicion that Jorge was unauthorized to work in the United States. According to Trentini, “it’s
been heard. It’s been around.”12 (Tr. 247)
On May 15, Trentini, with his daughter Alexis Trentini and an interpreter, spoke to
Gonzalez and Jorge. The interpreter was someone from a nearby tire repair shop (not Frankie).
Gonzalez testified that Trentini said, “ICE agents . . . were going to find the different business to
see who had documentation.” (Tr. 78-79) Trentini asked Gonzalez and Jorge whether they had
documentation authorizing them to work in the United States. Gonzalez said he did and Jorge
said he did not. According to Jorge, Trentini said “he couldn't give me more work because
Immigration was checking immigration documentations.” (Tr. 104)
After Gonzalez provided his initial testimony about this conversation, he was asked
by the General Counsel, “did Mr. Trentini say anything about what would happen if ICE
showed up and somebody didn’t have the correct papers?” Gonzalez answered, “That he
was going to close down the shop, the business.” (Tr. 78.-79) However, Jorge did not
corroborate Gonzalez in this regard when the General Counsel specifically asked whether
“Trentini or the interpreter said anything about what would happen if immigration authorities
came?” Jorge responded, “No. They only told me that he didn’t want any problems.” [Tr.
104-105] Trentini’s description of this exchange, as follows, was similar to Jorge’s (Tr. 246):
I heard from his uncle that his papers were not legal. I heard that from Victor, his
papers were not legal. So rather than get everybody in trouble, I approached
him, I said, listen, you got, you know, your papers up to date and stuff? And he
says no. I said, I can't have you here anymore, because ICE is in the area
checking businesses. And we don't want a problem, and he doesn't want a
problem. He doesn't want to get deported.
Alexis gave Jorge a letter to sign which stated that he was resigning. Trentini described
this document as a “termination letter.” Jorge refused to sign the letter. When asked whether
the letter was prepared in advance, Trentini testified, “We heard about it before, but we had
made up the letter and just to go there and see if they had their papers. If they didn’t, they

12 Trentini initially testified that he developed this suspicion in March. However, during his
testimony, he repeatedly confused March and May. In an event, Trentini did not testify clearly as to
the timing and it was my impression that he did not recall exactly when he began suspecting Jorge
was undocumented.
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would have to that afternoon with the letter. . . . Because we knew they’re in the area, so let’s
have something prepared in case there’s an issue.” (Tr. 296)
On May 21, at about 2:30 or 3 p.m., Trentini called Gonzalez and said, “he was going to
close down the business because there was no work for [him].” (Tr. 79) Gonzalez went to
speak to Trentini in person about 10 minutes later and Trentini confirmed that Gonzalez was
being laid off because there was no more work. Gonzalez testified that Trentini told him he
should look for a new job and gave him the names of five prospective employers. Trentini
testified that Gonzalez was discharged because RAV “was no longer in business. No more
work to be done.” (Tr. 58)
As noted above, on May 21, the Union filed the second of three petitions which corrected
the name of the employer. The Union emailed the petition to Trentini on May 21, at 4:57 p.m.
On May 31, RAV filed a statement of position in case 02-RC-220701, which stated, in
part, as follows (GC Exh. 3):
Further, the Union is seeking only to represent Mechanics. The Mechanic job
classification is only in RAV Truck & Trailer Repairs Inc. There is only one person
employed in the bargaining unit of Mechanic. Before this petition was filed, there
was another Mechanic who was employed but he was terminated/quit because
he was an illegal alien and the Company, upon discovery of this fact was by law
required to terminate him. He is not eligible to vote and he cannot sign a card
and he cannot be counted as an employee.
. . .
Further, as noted above, there is only one mechanic on the payroll and the NLRB does
not certify a bargaining unit of one.
. . .
Finally, the final issue is the remaining Mechanic who is working for RAV Truck and
Trailer Repair. He 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. Therefore, the Company only has his verbal representation that he
is lawful and may not be.
By email the same day, May 31, at 1:43 p.m., Respondent’s counsel stated as follows
with regard to the closing of RAV (GC Exh. 6):
RAV Truck and Trailer will be shutting its doors. We will not go to the hearing tomorrow.
It is now officially out of business.
There are no longer any Mechanical positions available for RAV Truck and Trailer, and
since the former two and now one employee were the only people working there, there
are no longer any employees at RAV Truck and Trailer as of today. They are
permanently laid off.
We will notify the one Mechanic on layoff that we have closed RAV Truck and Trailer.
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ANALYSIS
Single Employer
The General Counsel contends that RAV and Concrete Express constitute a single
employer. I agree.
In determining whether two nominally separate entities are so integrated as to constitute
a single employer, “the Board looks to four factors - common ownership, common management,
interrelation of operations, and common control of labor relations. No single factor is controlling,
and not all need to be present. Rather, single-employer status depends on all the
circumstances, and is characterized by the absence of the arm’s-length relationship found
between unintegrated entities.” Dow Chemical Co., 326 NLRB 288 (1998). Although no single
criterion is controlling, the first factor (common ownership) is generally considered the least
important and the fourth factor (common control of labor relations) is considered the most
important. Mercy Hospital of Buffalo, 336 NLRB 1282, 1284 (2001); Canned Foods, Inc., 332
NLRB 1449 (2000).
Here, regarding the first factor, Trentini owned RAV and Concrete Express.
Although Trentini attempted to down play his involvement in decisions at Concrete
Express, the evidence indicates he was more involved than he sought to admit. Trentini
admittedly hired Rafael. Trentini also conducted the investigation of an employee who was
ultimately discharged for theft of concrete and made the decision to discharge an employee who
failed a drug test. In addition to personnel decisions, Trentini testified that he bought and sold
trucks on behalf of Concrete Express. Further, the person who, according to Trentini, makes
personnel decisions at Concrete Express is his sister-in-law, Denti. The management of the two
operations by family members suggests a close coordination among the two entities. Brisitzky,
323 NLRB 524, 525 (1997); Imco/International Measurement & Control Co., Inc., 304 NLRB
738, 739 (1991). Thus, the record demonstrates common management and common control of
labor relations between RAV and Concrete Express.
The evidence revealed additional integration of the two operations. RAV mechanics
repaired Concrete Express trucks and occasionally came to Hollers Avenue to do so. Trentini
also admits that Jorge was transferred to RAV on, at least, a temporary basis to work on
Concrete Express trucks during the winter months. Further, Trentini admitted that Jorge was,
ultimately, transferred to RAV and put on RAV’s payroll when it was convenient for Concrete
Express to do so.
The most definitive evidence of an integrated relationship between RAV and Concrete
Express is the absence of an arms-length business relationship between them. Rudy and
George prepared invoices and stamped them paid. However, the Respondent failed to produce
subpoenaed records to establish that Concrete Express actually paid RAV for services
rendered. Trentini’s initially testimony that the invoices were paid by check turned on a dime
once it was determined that the Respondent’s failure to produce such subpoenaed checks could
be problematic for the defense. Trentini subsequently testified, in a manner which was not
credible, that the invoices were actually paid by write-downs of a loan instead of by check.
Trentini did not explain why he suddenly changed his testimony. Further, the Respondent did
not produce subpoenaed accounting records of the alleged reductions in the amount of the loan.
The only document produced by the Respondent was an unsigned tax return which indicates
that money extended by Concrete Express to RAV remained the same throughout 2017 even
though RAV, pursuant to its own invoices, did significant work on Concrete Express trucks that
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year.13 Accordingly, I infer that Concrete Express did not pay RAV for work performed, and find
that that the two companies failed to maintain an arms-length business relationship. See Essex
Valley Visiting Nurses Assn., 356 NLRB 146 (2010) three-member panel affg 352 NLRB 427
(2008).
Based upon the foregoing, I find that all four factors of the single-employer analysis favor
a finding that RAV and Concrete Express have been, at all relevant times, a single integrated
enterprise.
Section 8(a)(1)
The General Counsel contends that the Respondent violated Section 8(a)(1) of the Act
by, on May 15, threatening employees with arrest/deportation and closure because of their
union activity. I do not agree and will dismiss these allegations.
The General Counsel cites, among other cases, North Hills Office Services, 346 NLRB
1099, 1102 (2006), for the proposition that “threats involving immigration or deportation can be
particularly coercive” because they place “in jeopardy not only the employees’ jobs and working
conditions, but also their ability to remain in their homes in the United States.” However, the
Board in North Hills found that the alleged threat did not constitute a violation, and explained its
finding as follows:
Here, the Respondent did not make a threat. It represented to employees its view
of what the Union had done and what the Union allegedly planned on doing. The
newsletter did not say that the Respondent had taken or would take any action
regarding employees' immigration status. Because employees would reasonably
understand that the newsletter did not refer to any action within the control of the
Respondent, we find that it was not an unlawful threat. See Smithfield Packing,
supra; Pacific Grain Products, 309 NLRB 690, 691 (1992) (rejecting contention
that union official's statement was threat because union official did not have the
ability to carry out the alleged threat). Consequently, we find that the newsletter
referring to the Union's conduct did not interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. See, e.g., Smithfield Packing,
supra (dismissing allegation that employer threatened employees by saying that
if employees voted the union in, the union would “turn Immigration on the
Latinos” because statement did not involve any action within the control of
employer). Accordingly, we shall dismiss this allegation.
Id. at 1102.
Likewise, Trentini did not say he had taken or would take any action regarding
employees’ immigration status when he spoke to Jorge and Gonzalez on May 15. Trentini did

13 See footnotes 9 and 18, herein, regarding the admissibility and use of RAV’s 2017 tax return.
Further, I do not rely on the representation of Respondent’s counsel regarding his failure to produce
checks as an oversight. First, the representation does not constitute record evidence. After Trentini
failed to demonstrate any knowledge or understanding of the production of subpoenaed records,
Respondent’s counsel was offered and declined an opportunity to testify and explain why certain
documents were not produced. Second, Trentini subsequently disavowed his testimony that Concrete
Express actually paid RAV by check. Third, given that the Respondent introduced the invoices into
evidence, it cannot successfully claim that the failure to produce subpoenaed documents reflecting the
payment of those invoices was a valid oversight.
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not threaten to have employees deported because they engaged in union activity and a
reasonable employee would not interpret Tarentine’s comments as such even though they
occurred the day after Jorge and Gonzalez signed authorization cards. Rather, Trentini was
citing a potential threat to the business (i.e., ICE learning that RAV was employing
undocumented employees) as a reason for discharging Jorge and possibly closing. While I do
find, as discussed below, that Trentini’s explanation for the discharge of Jorge was pretextual
and, as such, evidence of a discriminatory motive, I do not find that it constitutes an
independent violation of Section 8(a)(1) of the Act.
The General Counsel’s reliance on Tito Contractors, Inc., 366 NLRB No. 47 (March 29,
2019) and Sure-Tan, Inc., 234 NLRB 1187 (1978) in support of the argument that the context
(particularly, here, the timing) warrants the finding of a violation also appears misplaced. In Tito
Contractors, the Board found that the employer threatened “employees with immigration related
consequences and discharges for engaging in union activities” by telling them, “in case the
Union will win, ICE will come into the company and they will get us arrested.” 366 NLRB No. 47
slip op. at 2. Unlike Trentini’s remarks, this was a direct threat that the election of a union would
cause employees to be arrested because of their immigration status and far more coercive.
In Sure-Tan, 234 NLRB 1187, 1190 (1978), the employer made the following unlawful
comments:
[A]n hour or two after the election in which the Union was selected, John Surak
approached him and employees Ruiz and Primitivo and said, “no friends, no
amigos,” said “sons of a bitches” and used the word “immigration.” Surak then
stated “Union, why?” and then said “Mexican son of a bitch.” Surak then asked
Robles if he had immigration papers and [employee] Robles answered no. Then
Surak asked if the others had papers and Robles responded he did not know.
Primitivo then told Robles to tell Surak that nobody had papers there and Robles
conveyed that information to John Surak.
Thereafter, the employer constructively discharged five employees (including Robles)
and caused them to be deported by requesting that immigration authorities investigate their
legal status. Thus, the employer’s comments combined overt hostility toward employees’ union
activity (immediately after the election) and questions regarding employees’ immigration status.
The employer’s comments were also followed by its unlawful action in making good on an
implied threat to contact immigration because employees elected a union. Thus, the statements
and circumstances in Sure-Tan were far more coercive as an implied threat of deportation in
retaliation for employees’ union activities than, as here, Trentini’s attempt to explain an adverse
employment action.
Likewise, I do not find that the Respondent unlawfully threatened employees with plant
closure on May 15. According to Gonzalez, Trentini did not indicate that RAV would be closed
because of past or future union activity among his employees, but instead raised the prospect of
closure if ICE appeared and employees did not have papers. Further, with regard to this
isolated testimony, I do not credit Gonzalez. I generally found Gonzalez to be a credible
witness and I do not believe his testimony was intentionally false. However, I question the
accuracy of his recollection that Trentini said he would close the business if ICE arrived.
Gonzalez had to be led to this answer after providing his initial account of the May 15
conversation, and he was not corroborated by Jorge. The General Counsel specifically asked
Jorge whether “Trentini or the interpreter said anything about what would happen if
immigration authorities came?” and he answered, “No. They only told me that he didn’t
want any problems.” Meanwhile, Trentini’s testimony was consistent with Jorge’s testimony.
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Accordingly, I do not find that the Respondent violated Section 8(a)(1) of the Act by threatening
employees with plant closure because of their union activity.
Section 8(a)(3) and (1)
The General Counsel contends that the Respondents violated Section 8(a)(3) and (1) of
the Act by discharging Jorge, laying off Gonzalez, and closing RAV. I agree.
Discharge of Jorge Gonzalez
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982), “the General Counsel must prove that antiunion animus was a
substantial or motivating factor in the employment action. If the General Counsel makes the
required initial showing, the burden then shifts to the employer to prove by a preponderance of
the evidence that it would have taken the same action even in the absence of employee union
activity.” Baptistas Bakery, Inc., 352 NLRB 547, 549, fn. 6 (2008). The elements of the General
Counsel’s initial burden “are union or protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer. Auto Nation, Inc., 360 NLRB 1298, 1301
(2014). Circumstantial evidence may be used by the General Counsel to meet its burden of
showing employer knowledge and animus. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999);
Montgomery Ward & Co., 316 NLRB 1248, 1253-1254 (1995), enfd. 97 F.3d 1448 (4th Cir.
1996). Such circumstantial evidence may include the timing of alleged discriminatory action,
general knowledge of and animus toward employees’ union activities, failure to follow past
practice, disparate treatment of discriminatees, shifting or irrational explanations for the
treatment of discriminatees, and other contemporaneous unfair labor practices. Kitsap Tenant
Support Services, Inc., 366 NLRB No. 98, slip op. at 14 (May 31, 2018); Novato Healthcare
Center, 365 NLRB No. 137 (Sep. 29, 2017); Lucky Cab Co., 360 NLRB 271, 274 (2014).
While the second step of a Wright Line analysis is necessary in “mixed-motive” cases
where some valid rational contributed to the alleged unlawful action, such an analysis is not
necessary if the respondent’s stated reason for discharging the discriminatee has been rejected
as entirely pretextual. Parkview Lounge, LLC, 366 NLRB No. 71 (Apr. 26, 2018); K-Air Corp.,
360 NLRB 143, 144 (2014).
The evidence indicates that both RAV mechanics signed Union authorization cards on
May 14. That same day, the Union filed a representation petition and emailed a copy to the
Respondent. Although this petition incorrectly named RAV Trucking as the employer, it listed
3771 Merritt Avenue as the address and described a unit of mechanics. RAV Trucking does not
employ mechanics and is not located at Merritt Avenue. Accordingly, the Respondent would
reasonably believe that the Union was seeking to represent the two mechanics employed by
RAV at Merritt Avenue.14 Further, the Respondent would reasonably believe that at least one of
those mechanics signed an authorization card as a showing of interest in support of the petition.
Thus, the employees engaged in union activity which culminated in the filing of a representation
petition, while the Respondent was aware of that petition and had reason to suspect the
employees of signing cards.

14 I do not find it significant that the petition listed the address as 3771 Merritt Avenue instead of
3773 Merritt Avenue. Merritt Avenue (3771 and 3773) is a single garage and the Respondent would
have known that RAV was the only company that employed mechanics in that building.
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The evidence also established that the union activity of employees was a significant
motivating factor in Jorge’s discharge. The timing, in particular, was suspicious. Trentini has
not maintained a practice of verifying the work authorization of employees with the I-9 form and
supporting documentation.15 The Union emailed Trentini the first petition on the afternoon of
May 14 and, the next day, Trentini and Alexis asked the two RAV mechanics whether they had
documentation authorizing them to work in the United States. It is particularly telling of the
Respondent’s unlawful motive that Trentini took no previous action against Jorge even though
he (Trentini) had already been advised that Jorge was undocumented. Rather, Trentini testified
that Jorge was “working, let him work.” The Respondent’s discriminatory intent may also be
gleaned from the fact that Jorge’s termination letter was prepared before he was actually
questioned about and admitted his immigration status. This is powerful evidence that the
Respondent sought to seize upon information it already knew as a pretext for discharging Jorge
because Trentini received a representation petition the previous day.
Trentini was not credible or convincing in his attempt to explain the timing of his May 15
conversation with the RAV mechanics by testifying that the owner of a nearby tire repair
business (Frankie) said there were rumors that ICE was in the area checking businesses for
undocumented workers. Trentini failed to indicate when this conversation with Frankie took
place and, without testifying that the conversation took place close in time to May 15, the
explanation is not exculpatory. Further, this was not the first time Trentini heard about a
possible visit from ICE. Trentini admitted that ICE had “been in the area before.” It is also
undisputed that Rafael threatened to call ICE to have Jorge deported. Trentini testified, “Rafael
. . . had been into an argument about it if [Jorge] went back to Mexico or the ICE is going to
send him back to Mexico, he doesn't have a visa here.” Nevertheless, Trentini waited until he
received the Union’s representation petition to take issue with Jorge’s status upon the pretextual
explanation of some vague rumor on an undisclosed date that ICE was in the area. I find the
evidence of timing and pretext sufficient to establish a prima facie case under Wright Line. See
Concrete Form Walls, Inc., 346 NLRB 831, 835 (2006) (employer “was content to violate the
IRCA and employ workers whom its owner believed were illegal aliens until those workers
decided to vote in a Board-conducted election”).
I further find that the Respondent has not established a Wright Line defense. The
Respondent took the position that Jorge was discharged on May 15 because he admitted he did
not possess documents permitting him to work in the United States. If this had not occurred,
Jorge would have continued working for RAV until, at least, such time as RAV went out of
business (discussed separately below). As discussed above, I have found that RAV
manufactured its new concern about Jorge’s legal status in order to justify his termination in
response to the receipt of a representation petition. Since the Respondent’s actions were
pretextual, it cannot establish a mixed-motive defense. Parkview Lounge, LLC, 366 NLRB No.
71 (Apr. 26, 2018); K-Air Corp., 360 NLRB 143, 144 (2014).

RAV Closure and Discharge of Victor Gonzalez
The General Counsel contends that the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Gonzalez and closing RAV. The General Counsel analyzed the former
as a Wright Line discharge and the latter as a partial closure under Textile Workers v.

15 RAV had a practice of requesting a copy of employee driver’s licenses, if they had one, and a
social security number. However, as reflected on the I-9 form, neither a social security number
(without a social security card) nor a driver’s license will establish employment authorization.
Trentini also admitted that he did not require employment applicants to submit documents
substantiating work authorization as set forth in the I-9 form.
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Darlington Mfg. Co., 380 U.S. 263, 270 (1965). This makes some sense as RAV laid off
Gonzalez on May 21 and took the position in a statement to the Board, on May 31, that it was
still in business. Thus, it can be argued that the layoff and closure should be address
separately with the layoff being analyzed under Wright Line. On the other hand, Trentini laid off
Gonzalez upon the stated reason that he was closing the business because there was no more
work for him. Thus, it could be argued that the layoff and closure should be dealt with together
under Darlington. Accordingly, I address both allegations (layoff and closure) under Darlington
and, in the alternative, the layoff separately under Wright Line. As discussed below, in doing so,
I find that the Respondent unlawfully closed RAV under Darlington and, therefore, its
representation, even if true, that Gonzalez was laid off as a result of the closure, renders the
layoff unlawful as well. However, alternatively, I find that the Respondent’s explanation for
laying off Gonzalez was actually a discriminatory pretext under Wright Line that preceded the
decision to close.
RAV Closure
An employer may cease doing business entirely, even if the decision to do so is based
on antiunion considerations. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 270 (1965).
Further, according to the Supreme Court in Darlington, the partial closure of a business only
violates Section 8(a)(3) and (1) under the following circumstances:
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 275-276.
Therefore, the Supreme Court laid out four factors of an unlawful partial closing with the
first factor being the closure of a plant for antiunion reasons.16 As interpreted by the Board,
“Darlington requires only a finding of foreseeability of the chilling effect rather than evidence of

16 As the General Counsel observed, it is not entirely clear from the case law whether a Wright
Line mixed-motive analysis must be applied to this preliminary factor under Darlington. That is, if the
closure was based on both union and nonunion considerations, can the Respondent establish a
defense by proving that the plant would have closed for legitimate reasons in the absence of
antiunion animus? I do not believe so. In a discharge case, an employee does not suffer any
adverse consequence of a partial discriminatory motive if he/she would have been terminated
anyway for a legitimate reason in the absence of antiunion animus. However, this logic does not
follow in a partial closing analysis under Darlington. Although employees who are laid off as a result
of a mixed-motive partial closing are no worse off if the plant would have closed anyway for
legitimate reasons, we are largely concerned with the coercive effect on remaining employees. The
employees at other plants do not have a hearing record they can scour to determine whether the
closure would have occurred regardless of a partial discriminatory intent. Accordingly, the
nondiscriminatory motive behind a partial closing would not necessarily negate, as it would in a
Wright Line situation, the harm of a plant closing as it pertains to the remaining employees.
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its actual occurrence.” George Lithograph Co., 204 NLRB 431, 431 (1973). However, evidence
of “chill” must still “support two findings. First, the closing must be motivated, at least in part by
a purpose to chill unionism in any of the remaining facilities of the single employer. Second, it
must be found that the employer could reasonably have foreseen such an effect.” Bruce
Duncan Co., Inc., 233 NLRB 1243 (1977).
As in Darlington, my finding that RAV and Concrete Express are single employers
necessarily “satisfy[ies] the elements of ‘interest’ and ‘relationship’ . . ..” Id. at 276.
The General Counsel also established that RAV was closed for antiunion reasons. Just
a week after Trentini received the first petition and the same day he received the second
petition, he told Gonzalez that RAV was going out of business because there was no more work
for him.17 The timing of Trentini’s statement of intent to shutter the business, close in time to the
Union’s filing of representation petitions, suggests a discriminatory intent.
A closer look at the circumstances further suggest that the Respondent’s explanation for
the closure was pretextual. Gonzalez and Jorge credibly testified that there was still work to be
performed when they were separated. Although Jorge testified that his work slowed a bit
toward the end of his employment, both mechanics worked overtime in excess of 40 hours in
their final week. Further, on May 31, Respondent’s counsel submitted a position statement to
Region 2 in case 02-RC-220701 which characterized RAV as a going concern and Gonzalez’s
layoff as temporary. Meanwhile, Trentini did not clearly testify that RAV had finished the work
on the two Petrillo trucks that were left over from Edison Avenue. Based upon demeanor and
the totality of the evidence, I find that the mechanics were credible in their testimony that they
still had significant mechanical work to do at the time of their respective separations.
The Respondent claims that RAV closed because (1) it lost its lease at Edison Avenue,
(2) Merritt Avenue was not a registered repair shop and, otherwise, not suitable to house a
repair operation, (3) the lease for 3773 Merritt Avenue had an ending date of May 31, and (4)
RAV was losing money. In my opinion, these arguments are not compelling. RAV rented 3773
Merritt Avenue for the admitted purpose of performing truck repairs and did, in fact, perform
such work at that location even though it was not a registered repair shop (and, perhaps, had
other short comings for such a purpose). The credible evidence does not establish that RAV
finished the work on the two outstanding Petrillo trucks, much less the other work which
Gonzalez credibly testified he was doing at the time of his layoff. The lease for 3773 Merritt
Avenue required a minimum rent for the period March 1 to May 31, but was month-to-month.
Trentini did not testify that RAV could not continue to rent 3773 Merritt Avenue on a month-to-
month basis and I do not read the lease as requiring RAV to vacate the space on May 31.
Likewise, Trentini did not testify that he was unwilling or unable to rent an alternative location.
In fact, at least initially on May 31, Respondent’s counsel was still describing RAV’s operation
as a going concern. As for RAV’s financial condition, Trentini did not evince a firm
understanding of RAV’s finances, costs, or losses, and the unsigned 2017 tax return is

17 The evidence indicates that the Respondent laid off Gonzalez and made these comments at
about 2:30 or 3 p.m., but did not receive an email from the Union attaching the second petition until
4:57 p.m. Nevertheless, I find it relevant and more than mere coincidence, when considered within
the totality of the circumstances, that the Respondent took action on the same day the Union filed
the corrected petition.
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unreliable hearsay.18 Rather, evidence of Trentini’s sudden decision to close RAV, which was
not winding down, in the context of recently filed representation cases, strongly suggests, and I
find, that the decision was made because he received representation petitions.
The far more difficult issues are whether the Respondent 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. The Board has stated “that
in determining whether a purpose to ‘chill’ existed we would rely on the ‘fair inferences arising
from the totality of the evidence considered in the light of then-existing circumstances.’” George
Lithograph Co., 204 NLRB at 431 quoting decision on remand in Darlington, 165 NLRB 1074,
1083 (1967). The chilling effect on remaining employees can be proved by circumstantial
evidence as direct evidence of the same is rarely available. Darlington, 165 NLRB at 1083.
In George Lithograph, the Board “concluded 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 antiunion motive strengthened the probability of a second antiunion
purpose-i.e., the ‘chilling’ of remaining employees in the exercise of their Section 7 rights.” 204
NLRB 431. While recognizing that proof of the former antiunion motive does not “ipso facto
establish the other, depending on all the facts and circumstances, it would indicate a disposition
toward the other and be sufficient to support a logical inference.” Id.
Additionally, “the Board in determining whether or not the proscribed ‘chilling’ motivation
and its reasonably foreseeable effect can be inferred considers the presence or absence of
several factors including, inter alia, contemporaneous union activity at the employer's remaining
facilities, geographic proximity of the employer's facilities to the closed operation, the likelihood
that employees will learn of the circumstances surrounding the employer's unlawful conduct
through employee interchange or contact, and, of course, representations made by the
employer's officials and supervisors to the other employees.” Bruce Duncan Co., Inc., 233
NLRB 1243 (1977).
The Board’s decisions in partial closing cases under Darlington are instructive. In
Fredman’s Calcasieu Locks Shipyard, Inc., 206 NLRB 399 (1973), the Board adopted a judge’s
finding that night-shift employees were unlawfully laid off for antiunion reasons and, according to
the judge, “the Employer must have foreseen that the layoff of the night shift employees shortly
after they had signed union cards without any explanation to the day shift employees, and after
employees had been told there would be layoffs, would be interpreted by the day-shift

18 I do not rely on RAV’s 2017 tax return for the purpose of determining whether the company
was operating at a loss. As discussed above, I admitted the document into evidence over the
General Counsel’s objection upon the qualification that the unsigned copy which was marked at trial
be replaced by a duly executed tax return. However, the Respondent did not produce a signed or
dated tax return. It was already lenient to allow Trentini to authenticate RAV’s tax return as a
business record given his admitted lack of knowledge of the financial operation and accounting
process, but the utility of the document is fatally undermined where the Respondent could not
produce a signed copy. It raises questions as to how, when, and why the unsigned documented
was created. Under these circumstances, the tax return does not possess the indicia of
trustworthiness that warrant an exception to the hearsay rule under FRE 803(6) or 807. Indeed, it
could be argued that the Respondent’s inability to produce a signed tax return actually works to
contradict, rather than support, any finding that RAV was operating at a loss. FRE 803(7).
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employees as a reprisal against the night shift employees for signing union cards.”19 206 NLRB
at 409. The judge quoted [A.H. Bull Steamship Co.] v. N.L.R.B., 347 U.S. 17, 45 (1954) for the
proposition that “. . . a man is held to intend the foreseeable consequences of his conduct. . . .
Concluding that encouragement or discouragement will result, it is presumed that he intended
such consequence.” Id. Thus, in Fredman’s, the Board effectively determined that the
foreseeable chill that the discriminatory elimination of one shift would have on another shift at
the same facility proved the employer’s motive to accomplish the same.
In other partial closure cases, evidence that chill was intended and foreseeable has
included the suspicious timing of a closing designed to maximize the impact on remaining
employees (e.g., shortly before an election at another plant), comments made by employer
representatives to employees at another plant regarding the closure, and/or coercive statements
in violation of Section 8(a)(1) which, if made to or otherwise learned about by employees at
another plant, suggest antiunion animus and would tend to enhance the chilling effect the
closure could be expected to have on remaining employees. See San Luis Trucking, Inc., 356
NLRB 168 (2010) three-member panel affg 352 NLRB 211 (2008); Chariot Marine Fabricators &
Indus. Corp., 335 NLRB 339 (2001); Purolator Armored, Inc., 268 NLRB 1268 (1984); Midland-
Ross Corp., 239 NLRB 323 (1978); Darlington Manufacturing Co., 165 NLRB 1074 (1967).20
Here, the record lacks certain evidence that is characteristic of other cases in which the
Board found violations. The Respondent received the representation petition for a unit of
Concrete Express employees on April 19 and did not seek to chill those employees by closing
RAV prior to the election at Concrete Express on May 10. The General Counsel also presented
no evidence that Concrete Express employees learned of the circumstances surrounding the
closure of RAV. Likewise, the record contains no evidence that the Respondent 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.
Nevertheless, I have found that the Respondent closed RAV because of the mechanics’
union activity, which “would indicate a disposition toward” and support a “logical inference” that
the Respondent intended to and could reasonable foresee the chill of Section 7 activity among
Concrete Express employees. George Lithograph Co., 204 NLRB 431, 431 (1973). RAV
mechanics were working in the Merritt Avenue garage where Concrete Express drivers picked
up and dropped off their trucks, and those drivers would certainly have noticed that the RAV

19 In Fredman’s, a union was conducting an organizing drive of both the day and night-shift
employees.
20 In at least one case, Spring City Knitting Co., 285 NLRB 426 (1987), distinguishing Midland-
Ross Corp., supra, the Board found no violation where the closure of one plant was not accelerated
in order “to have the maximum impact on the employees at the plant being organized to influence
their vote in the upcoming election” and “there were no unlawful notices posted at the nonunionized
facility referring to the closing of the unionized facility.” The Board dismissed the partial closing
allegation in Spring City Knitting even though the employer in that case committed a number of
unfair labor practices contemporaneously with the closing, including a statement to employees in
one plant that the other plant was closed because those employees voted for a union. Id. at 440. I
do not consider Spring City Knitting dispositive of my ultimate finding as it appears to be an outlier in
that the Board has more often found violations upon far less evidence that chill was intended and
foreseeable. It has been more common for the Board to dismiss partial closing cases where the
record contains no evidence that remaining employees were engaged in Section 7 activity. See e.g.,
Bruce Duncan Co., Inc., 233 NLRB 1243 (1977); Motor Repair, Inc., 168 NLRB 1082 (1968) A.C.
Rochat Co., 1263 NLRB 421 (1967).
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mechanics were separated in the context of an organizing campaign. At the time of RAV’s
closing, Concrete Express was still contesting in postelection proceedings the Union’s 4-3
election victory and had not conceded to union representation of the unit. The Union’s
organizing activity at RAV and Concrete Express, two facilities in close proximity to each other,
suggests that the Concrete Express employees would likely learn of additional circumstances of
RAV’s discriminatory closure through the Union. Although I perceive this case as falling among
the more minimal showings of chill within the evidentiary range of Board findings of unlawful
partial closures, the Board’s decisions in Fredman’s Calcasieu Locks Shipyard, Inc., 206 NLRB
399 (1973), and George Lithograph., Co., 204 NLRB 431 (1973), are generally supportive of a
violation. In light of this case law and the totality of the circumstances, it is reasonable to infer
that the Respondent intended and could reasonably foresee that closing RAV would intimidate
Concrete Express employees and sour them on a representation process which was still
contested and in doubt after the election.
Accordingly, based upon the foregoing, I find that the Respondent violated Section
8(a)(3) and (1) of the Act by closing RAV because of employees’ union activity and because, in
doing so, the Respondent intended and could reasonably foresee that Concrete Express
employees would be chilled in their Section 7 activity.
Gonzalez Discharge – Wright Line Analysis
Having found that the Respondent violated Section 8(a)(3) and (1) of the Act by closing
RAV, and since the Respondent attributes its lay off of Gonzalez to that closure, the
Respondent’s layoff of RAV violates Section 8(a)(3) and (1) of the Act as well. However, the
layoff of Gonzalez can also be viewed independently from the closure, as the General Counsel
has done in its brief, and analyzed under Wright Line. Since the partial closing is a difficult
allegation and subject to exceptions, I also analyze Gonzalez’s layoff below under Wright Line
and find a violation (even if the closing of RAV were ultimately found to be lawful).
On May 31, through counsel in a position to the Board, the Respondent indicated that
Gonzalez was temporarily laid off (presumably, on May 21) because he never presented papers
showing he could lawfully work in the United States. This position is entirely at odds with the
Respondent’s assertion that Gonzalez was laid off because the business was closing for lack of
work. Rather, it suggests that, despite what Trentini told Gonzalez, the Respondent laid off
Gonzalez on May 21 for reasons having nothing to do with a decision to permanently close
(which had not yet been made).
The Respondent’s position with regard to the separation of Gonzalez, as described
above, is even more dubious than the position it took with regard to Jorge (who admitted he was
undocumented). Trentini admits he did not obtain documents from employees under the I-9
process to confirm their authorization to work in the United States. However, once the
representation petitions were filed, RAV explained the temporary layoff of Gonzalez by stating
that it “only has his verbal representation that he is lawful and may not be.” Gonzalez’s layoff
was, also, even farther removed than Jorge’s discharge from the vague and dateless warning
Trentini allegedly received from Frankie regarding the presence of ICE in the neighborhood.
Meanwhile, Trentini’s explanation to Gonzalez on May 21 that he was being laid off
because of a lack of work is belied by Gonzalez’s credible testimony that there was work
available and payroll records showing that Gonzalez was still accumulating overtime
immediately before his layoff. It is also telling that Trentini did not specifically testify that
outstanding work on the two Petrillo vehicles was complete. Further, Trentini admitted that RAV
mechanics were still performing work on Concrete Express trucks through mid-May. Thus, the
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evidence does not substantiate Trentini’s claim, on May 21, that Gonzalez was laid off for lack
of work.
Ultimately, the totality of the circumstances suggest that the Respondent laid off
Gonzalez upon the pretextual explanation that RAV was closing for a lack of work, but did not
initially tell the Board the same thing (in connection with the representation cases) because RAV
was not actually planning to close. Rather, the Respondent described RAV as a going concern
and attributed Gonzalez’s temporary layoff to a concern regarding his immigration status.
However, this explanation was even less convincing than the first and it was quickly abandoned.
It was only at this point that the Respondent decided and represented to the Board that it was
closing RAV effective May 31.
The Respondent’s failure to articulate a clear and consistent explanation of Gonzalez’s
layoff is not particularly surprising since it appears to have been a rushed reaction to the
representation petitions. The Respondent laid off Gonzalez little more than a week after it
received the first representation petition and the same day the Union filed a corrected petition
naming RAV (instead of RAV Trucking) as the employer. Further, I do not credit Trentini’s
testimony that he had been making arrangements to close RAV since February.21 That he may
not have intended to continue the business indefinitely at Merritt Avenue does not mean he
planned to close in May or that he ruled out the possibility of relocating to a different facility. As
indicated above, the evidence does not indicate that RAV was winding down its operation or
was planning to close when Trentini abruptly separated his two mechanics. Accordingly, I find
that RAV made the decision to lay off Gonzalez on May 21 independent of its subsequent
decision to close, and that the General Counsel has established a prima facie case that the
layoff was discriminatory.
The Respondent has no Wright Line mixed-motive defense in this case. As discussed
above, I have found that the Respondent’s stated reason for laying off Gonzalez (i.e., RAV’s
closing due to a lack of work) was pretextual. Further, even if it were true, I have found that the
closure itself was unlawful. Therefore, I find that the Respondent violated Section 8(a)(3) and
(1) of the Act by laying off Gonzalez.
Gissel Bargaining Order
The General Counsel has requested a Gissel bargaining order and I will grant it. In
NLRB v. Gissel Packing Co., the Supreme Court identified two categories of employer
misconduct that warrant imposition of a bargaining order, recently described by the Board in
Bristol Industrial Corp., 366 NLRB No. 101 (June 7, 2018) as follows:
Category I cases are “exceptional” and “marked by ‘outrageous' and ‘pervasive’
unfair labor practices.” Id. at 613. Category II cases are “less extraordinary” and
“marked by less pervasive practices which nonetheless still have the tendency to
undermine majority strength and impede the election processes.” Id. at 614. In
category II cases, the “possibility of erasing the effects of past practices and of
ensuring a fair election . . . by the use of traditional remedies, though present, is
slight and . . . employee sentiment once expressed through cards would, on
balance, be better protected by a bargaining order[.]” Id. at 614-615.

21 In making this finding, I credit Gonzalez’s testimony that Trentini did not tell him RAV was
closing until May and, previously, merely told him (Gonzalez) that they were moving to a larger
space.
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Accord California Gas Transport, Inc., 347 NLRB 1314, 1323 (2006), enfd. 507
F.3d 847 (5th Cir. 2007).
The General Counsel seeks a category II bargaining order upon a demonstration of
majority support (i.e., authorization cards it collected from both mechanics) in an appropriate
unit and the Respondent’s severe unfair labor practices. More specifically, the General Counsel
argues that the unfair labor practices would tend to impede the election process to such an
extent that the best remedy is a bargaining order based on the cards as opposed to an election.
In determining whether to issue a bargaining order, the Board examines “the
seriousness of the violations and their pervasiveness, the size of the unit, the number of
affected employees, the extent of dissemination, and the position of the persons committing the
violations.” Bristol Industrial Corp., 366 NLRB No. 101 (June 7, 2018). Certain “hallmark
violations” have been identified as those that more strongly support the issuance of a Gissel
bargaining order because they are highly coercive of employees’ section 7 rights and can be
expected to have a lasting inhibitive effect on a substantial percentage of the workforce. Milum
Textile Services Co., 357 NLRB 2047, 2055 (2011). Hallmark violations include the discharge
of employees on the basis of union support or activity. See Milum Textile Services, Co., 357
NLRB at 2055 citing Adam Wholesalers, Inc., 322 NLRB 313, 314 (1996) and NLRB v. Jamaica
Towing, Inc., 632 F.2d 208, 212-213 (2d Cir. 1980). The Board has repeatedly held that, even
among hallmark violations, the discharge of an employee because of union activity “is one of the
most flagrant means by which an employer can hope to dissuade employees from selecting a
bargaining representative because no event can have more crippling consequences to the
exercise of Section 7 rights than the loss of work.” Dayton Auto Electric, Inc., 278 NLRB 551,
558-559 (1986) citing Apple Tree Chevrolet, 237 NLRB 867 (1978). The “test for making a
determination as to whether a bargaining order is warranted is an objective test.” Broadmoor
Lumber Co., 227 NLRB 1123, 1138 (1977).
Unit and Majority Support
The Board will only order an employer to bargain with a union as the bargaining
representative of an appropriate unit. A single facility unit is presumptively appropriate and can
only be rebutted upon a showing that the facility has been so effectively merged into a more
comprehensive unit by bargaining history, or is so integrated with another as to negate its
identity. Dixie Belle Mills, Inc., 139 NLRB 629 (1962). The party contesting a single-facility unit
bears a “heavy burden of overcoming the presumption.” Sutter West Bay Hospitals, 357 NLRB
197 (2011).
Here, the Respondent has not contested the appropriateness of the unit as a defense to
the imposition of a bargaining order. Indeed, the Respondent did not seek to include the two
RAV mechanics in the unit of mechanics and drivers at Concrete Express for purposes of the
election in case 02-RC-218783. In any event, there is “no history of collective bargaining on a
broader basis, and no larger grouping of employees is sought . . ..” Pantex Towing Corp., 258
NLRB 837, 846 (1981). The record does contain evidence that RAV mechanics performed
certain work at the Concrete Express facility and interacted with Concrete Express drivers who
housed their trucks at Merritt Avenue. The facilities of RAV and Concrete Express were also in
close proximity to each other. However, RAV operated with a degree of autonomy and separate
supervision. In fact, Trentini testified that RAV “ran itself.” Accordingly, I find that the single
facility unit of mechanics is appropriate. Further, the General Counsel entered into evidence the
union authorization cards of both mechanics who make up the two-person unit. Therefore, the
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record demonstrates that the Union had majority support in an appropriate unit.22
ULPs and Appropriateness of a Bargaining Order
The General Counsel relies largely on Bristol Industrial Corp., 366 NLRB No. 101 (2018)
for its position that a bargaining order should issue. I agree that Bristol Industrial is on point and
controlling.
Here, as in Bristol Industrial, the Respondent committed hallmark violations by unlawfully
separating both employees in a small two-person unit. The two RAV mechanics were notified of
their respective separations by the sole owner and officer of the company. Thus, the employees
cannot hope to receive more favorable treatment going forward from a higher and more
sympathetic authority within the company. Also, as in Bristol Industrial, the traditional remedy of
reinstatement is less likely to “dispel the coercive atmosphere” where “the [employer is] willing
to manufacture a pretextual reason to subsequently discharge them in retaliation for the
protected activity.” Id. slip op. at 3.
It is noteworthy that in Bristol Industrial, the Board stated that the termination of the
entire unit would be grounds alone for issuing a bargaining order “even without considering the
other violations found.” 366 NLRB No. 101, slip op. at 2. Nevertheless, unlike in Bristol
Industrial, the Respondent here took the extraordinary step of unlawfully closing RAV
altogether. Under these circumstances, both eligible voters can be expected to be powerfully
impressed and coerced by the dramatic steps the Respondent was willing to take in order to
avoid union representation of its employees. Accordingly, as in Bristol Industrial, I find that a
bargaining order is a better remedy than an election and will order the same.
CONCLUSIONS OF LAW
1. The Respondent, RAV Truck & Trailer Repairs, Inc. and Concrete express of NY,
LLC, as a single employer, is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Teamsters Local 456, International Brotherhood of Teamsters, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By the following acts and conduct, the Respondent has violated Section 8(a)(3)
and (1) of the Act:
(a) On May 15, the Respondent discharged Jorge Alberto Valensia Medina because
employees sought representation by the Union for purposes of collective bargaining.
(b) On May 21, the Respondent laid off Victor Gonzalez because employees sought
representation by the Union for purposes of collective bargaining.

22 The Respondent did not contend in its brief that Jorge should be denied reinstatement
because of his immigration status or that a single person unit consisting solely of Gonzalez would be
inappropriate. The issue of Jorge’s reinstatement can be addressed in compliance, if necessary.
See Remington Lodging & Hospitality, LLC, 363 NLRB No. 112, fn. 11 (Feb. 12, 2016). However,
since I am ordering the Respondent to restore RAV’s operation as it existed on May 14, this would,
presumably, require the hiring of two mechanics (even if one is not Jorge). Thus, the unit would
remain appropriate.
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(c) On May 31, the Respondent closed RAV because RAV employees sought to be
represented by the Union for purposes of collective bargaining, and the Respondent did so with
the intent and foreseeable effect of chilling the Section 7 activity of remaining employees.
4. The unfair labor practices committed by the Respondent affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Other than the allegations listed above, the unfair labor practices alleged in the
complaint are dismissed.
THE REMEDY
Having found that the Respondent, RAV Truck & Trailer Repairs, Inc. and Concrete
express of NY, LLC, as a single employer, has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent has objected to the traditional restoration remedy for a partial closing
violation upon the grounds that it would suffer substantial economic hardship and be unduly
burdened if ordered to restore RAV’s truck repair operations as it existed in May. See Lear
Siegler, Inc., 295 NLRB 857, 861 (1989). In support of this position, the Respondent asserts
that it would either have to secure a new location that was already a state registered motor
vehicle repair shop or retrofit the Merritt Avenue garage, if the owner of the building is
agreeable, to become a registered repair shop. It seems opportunistic and inequitable for the
Respondent to have admittedly operated an unregistered repair shop in violation of New York
law and subsequently claim it cannot restore the operation because it would violate New York
law to do so. However, even if this were a legally viable defense, it has not been established on
the facts of this case.
Initially, as discussed in the body of this decision, I reject the Respondent’s assertion
that RAV was losing money. Trentini evinced no significant knowledge of RAV’s finances and
the unsigned 2017 tax return is unreliable hearsay.
In addition, the Respondent failed to establish that restoration would involve an undue
economic burden. The Respondent attached to its posthearing brief certain documents
regarding the requirements and process for registering a repair shop under New York Motor
Vehicle Repair Shop Regulations. However, the Respondent cited no specific provision within
those materials to substantiate the claim that the Merritt Avenue garage would require
significant renovation and I cannot independently discern this to be the case. The record also
contains no evidence, and Respondent has offered no estimate, of the cost or availability of
securing a new location. Accordingly, I reject the Respondent’s position that it cannot restore
RAV’s operation without suffering undue economic hardship, and will order restoration.23
The Respondent, having unlawfully discharged Jorge and laid off Gonzalez, must offer
them reinstatement to their former jobs or if those jobs no longer exist, to substantially

23 Nevertheless, “at the compliance stage of the proceedings, the Respondent may introduce
evidence that was not available prior to the unfair labor practice hearing, if any, to demonstrate the
reopening” RAV would be unduly burdensome. San Luis Trucking, Inc., 356 NLRB 168 (2010)
three-member panel affg 352 NLRB 211, fn. 5 (2008).
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equivalent positions without prejudice to their seniority or any other rights or privileges
previously enjoyed. The Respondent shall make Jorge and Gonzalez whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them.
The make whole remedy shall be computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In
accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), the Respondent shall
compensate Jorge and Gonzalez for search-for-work and interim employment expenses
regardless of whether those expenses exceed their interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed
in Kentucky River Medical Center, supra. In accordance with Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014), the Respondent shall compensate Jorge and Gonzalez for
the adverse tax consequences, if any, of receiving lump sum backpay awards, and, in
accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent
shall, within 21 days of the date the amount of backpay is fixed either by agreement or Board
order, file with the Regional Director for Region 2 a report allocating backpay to the appropriate
calendar year for each employee. The Regional Director will then assume responsibility for
transmission of the report to the Social Security Administration at the appropriate time and in the
appropriate manner.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
ORDER
The Respondent, RAV Truck & Trailer Repairs, Inc. and Concrete Express of NY, LLC,
of Bronx, New York, as a single employer, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating against employees for supporting
the Teamsters Local 456, International Brotherhood of Teamsters (Union) or any other union.
(b) Partially closing its business operation because certain 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 activity of remaining employees.
(c) In any other manner interfering, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Jorge Alberto Valensia Medina and
Victor Gonzalez full reinstatement to their former jobs or, if those jobs no longer exist, to

24 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Jorge Alberto Valensia Medina and Victor Gonzalez whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision.
(c) Compensate Jorge Alberto Valensia Medina and Victor Gonzalez for the adverse tax
consequences, if any, of receiving lump-sum backpay awards, and file with the Regional
Director for Region 2 within 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay awards to the appropriate calendar
year for each employee.
(d) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discharge and/or layoff of Jorge Alberto Valensia Medina and Victor Gonzalez, and
within 3 days thereafter, notify the employees in writing that this has been done and that the
discharges and/or layoffs will not be used against them in any way.
(e) Within 14 days from the date of this Order, reopen and restore the business
operation of RAV as it existed on May 14, 2018.
(f) On request, bargain with the Union as the exclusive collective-bargaining
representative of the employees in the following appropriate unit concerning terms and
conditions of employment and, if an understanding is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time mechanics employed by the
Respondent at its facility at 3773 Merritt Avenue, Bronx, NY, excluding all
other employees, including clerical employees, guards, managers,
professional employees, and supervisors as defined by the Act.
(g) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(h) Within 14 days after service by the Region, post at its facilities located at 2279
Hollers Avenue, 3771 Merritt Avenue, and 3773 Merritt Avenue, Bronx New York, copies of the
attached notice marked “Appendix.”25 Copies of the notice, on forms provided by the Regional
Director for Region 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 customarily 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

25 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
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communicates with its employees by such means. Reasonable 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 employees employed by the Respondent at any time since
May 15, 2018.
(i) 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 comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.
Dated: Washington, D.C July 15, 2019

Benjamin W. Green
Administrative Law Judge
JD(NY)-12-19
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 UNDER SECTON 7 OF THE NATIONAL LABOR RELATIONS ACT 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge, lay off, or otherwise discriminate against you for supporting the
Teamsters Local 456, International Brotherhood of Teamsters (Union) or any other union.
WE WILL NOT partially close our business operation because employees sought to be
represented by the Union or any other union for purposes of collective bargaining, and do so
with the intent and foreseeable effect of chilling the union activity of remaining employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, reopen and restore the business operation
of RAV Truck & Trailer Repairs, Inc. as it existed on May 14, 2018.
WE WILL, within 14 days from the date of this Order, offer Jorge Alberto Valencia Medina and
Victor Gonzalez full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Jorge Alberto Valensia Medina and Victor Gonzalez whole for any loss of
earnings and other benefits resulting from their discharges and/or layoffs, less any net interim
earnings, plus interest.
WE WILL compensate Jorge Alberto Valensia Medina and Victor Gonzalez for the adverse tax
consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the
Regional Director for Region 2 within 21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the backpay awards to the appropriate
calendar years.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges and/or layoffs of Jorge Alberto Valensia Medina and Victor Gonzalez, and
WE WILL, within 3 days thereafter, notify them in writing that this has been done and that
the discharges and/or layoffs will not be used against them in any way.
JD(NY)-12-19
WE WILL, on request, bargain with the Union as the exclusive collective-bargaining
representative of our employees in the following appropriate unit concerning terms and
conditions of employment and, if an understanding is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time mechanics employed by the Respondent at its
facility at 3773 Merritt Avenue, Bronx, NY, excluding all other employees,
including clerical employees, guards, managers, professional employees, and
supervisors as defined by the Act.
RAV TRUCK & TRAILER REPAIRS, INC. AND
CONCRETE EXPRESS OF NY, LLC,
A SINGLE EMPLOYER__________________
(Employer)

Dated: _______________ By: ____________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
26 Federal Plaza, Room 3614, New York, NY 10278-0104
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The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-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.
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