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

National Labor Relations Board - Board Decisions

Mar 3, 2020

369 N.L.R.B. 36 (N.L.R.B. 2020)

369 NLRB No. 36
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
RAV Truck & Trailer Repairs, Inc. and Concrete
Express of NY, LLC, a single employer and
Teamsters Local 456, International Brotherhood
of Teamsters. Case 02–CA–220395
March 3, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On July 15, 2019, Administrative Law Judge Benjamin
W. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and Charging Party each filed an answering
brief, and the Respondent filed reply briefs.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
On August 26, 2019, the Respondent filed a “Motion to Reopen the
Record and Remand Matter To ALJ Benjamin Green.” The motion
requested that the Board reopen the record to accept into evidence a
document purporting to be a signed 2017 tax return for RAV Truck and
Trailer Repairs, Inc., to remand the case to Judge Green for considera-
tion of this evidence, and to suspend the briefing schedule until the
Board ruled on this motion. The General Counsel and Charging Party
filed oppositions, and the Respondent filed a reply. On August 29,
2019, the Executive Secretary denied the Respondent’s motion to the
extent that it sought to stay the briefing schedule.
We deny the Respondent’s “Motion to Reopen the Record and Re-
mand Matter to ALJ Benjamin Green.” In doing so, we find that the
document presented in the Respondent’s August 26, 2019 motion is
not, in fact, the “actual signed tax return” requested by Judge Green at
the hearing, but is instead a document signed by the Respondent’s
owner on January 14, 2019, and created by a different paid tax preparer
than the document advanced at the hearing. For these reasons, we find
that the judge did not err in declining to consider the document as evi-
dence in his decision.
2 We adopt the judge’s conclusion that the Respondent violated Sec.
8(a)(3) and (1) by engaging in an unlawful partial closure of its busi-
ness under Textile Workers v. Darlington, 380 U.S. 263 (1965). In
addition to the evidence relied upon by the judge we also rely upon the
unfair labor practices found in Concrete Express of NY, LLC, Case Nos.
02–CA–220381 et al. (Feb. 28, 2020) (unpublished auto-adopt), as
evidence that the Respondent’s closure of RAV Truck and Trailer
Repairs, Inc. was motivated by a purpose of chilling the protected un-
ion activity of its remaining employees at Concrete Express of NY,
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, RAV
Truck & Trailer Repairs, Inc. and Concrete Express of
NY, LLC, a single employer, Bronx, New York, its of-
ficers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(e).
“(e) Within a reasonable time, reopen and restore the
business operation of RAV Truck and Trailer Repairs as
it existed on May 14, 2018.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. March 3, 2020

LLC, and that the Respondent would reasonably have foreseen that this
closure would have a chilling effect.
3 With respect to the Respondent’s exceptions to the judge’s issu-
ance of a reinstatement and backpay remedy, we note that evidence of a
discriminatee’s immigration status may properly be considered at the
compliance stage of the proceedings. See Tuv Taam Corp., 340 NLRB
756, 760–761 (2003).
We agree with the judge that a broad cease-and-desist order is war-
ranted here, but the judge omitted the necessary justification of that
remedy from his decision. See Hickmott Foods, 242 NLRB 1357, 1357
(1979) (stating that “each case will be analyzed to determine the nature
and extent of the violations committed by a respondent so that the
Board may tailor an appropriate order”). Because RAV Truck and
Trailer Repairs, Inc. and Concrete Express of NY, LLC constitute a
single employer, it is appropriate, in assessing the nature and extent of
the violations committed, to consider both this case and Concrete Ex-
press of NY, LLC, 02–CA–220381 et al., supra. In this case, we have
concluded that RAV and Concrete Express, a single employer, violated
Sec. 8(a)(3) of the Act by discharging one employee and laying off a
second for their union activities, and later closing RAV with the pur-
pose and foreseeable effect of chilling union activity among the em-
ployees of Concrete Express. In 02–CA–220381 et al., we have adopt-
ed Judge Green’s findings and conclusions that Concrete Express vio-
lated Sec. 8(a)(1) by threatening employees with discharge if they did
not vote against the Union, threatening to close Concrete Express if
employees elected the Union, interrogating employees regarding their
union activities, and soliciting employee grievances and impliedly
promising to remedy them, and Sec. 8(a)(3) by changing employees’
parking privileges because employees engaged in union activities. We
find that these violations warrant a broad order under either prong of
the Hickmott standard. See Hickmott Foods, supra (holding that a
broad order is warranted “when a respondent is shown to have a pro-
clivity to violate the Act or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disregard for the em-
ployees’ fundamental statutory rights”). We do, however, modify the
judge’s recommended Order in one respect. The judge included lan-
guage that would require the Respondent to reopen and restore its truck
and trailer repair operation within 14 days from the date the Order
issues. We believe a 14-day time limit to reopen and restore a business
is unrealistic. We will omit that time limit and instead require the
Respondent to reopen and restore the business within a reasonable time.
We shall substitute a new notice that reflects this change and to con-
form to the violations found and to the Board’s standard remedial lan-
guage.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, lay off, or otherwise discrim-
inate against you for supporting Teamsters Local 456,
International Brotherhood of Teamsters (the Union) or
any other labor organization.
WE WILL NOT partially close our business operation
because employees sought to be represented by the Un-
ion or any other labor organization for purposes of col-
lective bargaining, and do so with the intent and foresee-
able effect of chilling the union activity of remaining
employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within a reasonable time, 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 the Board’s
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 oth-
er rights or privileges previously enjoyed.
WE WILL make Jorge Alberto Valencia 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, and WE WILL
also make them whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Jorge Alberto Valencia 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 the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and/or layoffs of Jorge Alberto Valencia
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.
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 under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time mechanics em-
ployed by the Respondent at its facility at 3773 Merritt
Avenue, Bronx, NY, excluding all other employees, in-
cluding clerical employees, guards, managers, profes-
sional employees, and supervisors as defined by the
Act.
RAV TRUCK & TRAILER REPAIRS, INC. AND
CONCRETE EXPRESS OF NY, LLC, A SINGLE
EMPLOYER
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-220395 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
RAV TRUCK & TRAILER REPAIRS, INC. 3
Jamie Rucker, Esq. and Rachel F. Feinberg, Esq., for the Gen-
eral Counsel.
Aaron T. Tulencik, Esq. (Mason Law Fir Co., L.P.A.), for the
Respondent.
Bryan T. Arnault, Esq. (Blitman & King, LLP), for the Charg-
ing 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 dis-
charging Jorge Alberto Valencia Medina,2 laying off Victor
Gonzalez, and closing RAV’s business operation because em-
ployees 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 Coun-
sel seeks a bargaining order as part of the remedy of these al-
leged violations.
For reasons discussed below, I find that the Respondent un-
lawfully 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 de-
meanor of the witnesses, and after considering the posthearing
briefs that were filed by the General Counsel and the Respond-
ent, I make these

1 All dates refer to 2018 unless indicated otherwise.
2 Herein, I refer to Jorge Alberto Valencia Medina and his uncle,
Rafael Valencia, by their first names in order to avoid confusion be-
tween them.
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 jurisdic-
tion 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 identi-
ty, 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

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 be-
lieve 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
in the manufacture, wholesale, and retail sale of concrete from
its principal place of business at 2279 Hollers 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 Ave-
nue).5 About 15 cement trucks are housed at 3771 Merritt Ave-
nue. 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 per-
forms 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 assign-
ments from Rafael and Trentini. According to Trentini, Jorge
was hired to assist Rafael.
Trentini’s sister-in-law, Diane Denti, is employed by Con-
crete Express and works in the office at Hollers Avenue. Tren-
tini testified that Denti maintains the personnel files and is re-
sponsible 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 reluc-

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).
tantly 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:
All full-time and regular part-time drivers and mechanics em-
ployed 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 Sec-
tion 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 em-
ployees. 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 Ave-
nue, Mount Vernon, New York (Edison Avenue), which it rent-
ed 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 fed-
eral 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 “sub-
contractors” of $215,807. Trentini testified that RAV did not
use subcontractors. Trentini generally denied knowing any-
thing about RAV’s financial accounting and how his account-

6 I conditionally admitted RAV’s 2017 tax return as a business rec-
ord 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 trust-
worthiness, and qualify as business records under FRE 803(6)). How-
ever, the Respondent did not replace the unsigned tax return with a
signed tax return.
RAV TRUCK & TRAILER REPAIRS, INC. 5
ant arrived at the figures in the tax return. And although Tren-
tini 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 lackadaisi-
cal 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 compa-
nies, including Concrete Express and Petrillo. Trentini admit-
ted 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 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 Con-
crete 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 (per-
haps the invoices prepared by George). There is a gap in the
invoices from November 2016 to June 2017. The record con-
tains another 19 RAV invoices to Concrete Express during the
period June 26, 2017, to November 20, 2017 (perhaps the in-
voices 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 Ex-
press trucks from November 2017 to May.
Trentini initially testified, quite decisively and in detail, that
Concrete Express paid the invoices from RAV by check. Tren-
tini was subsequently questioned regarding the Respondent’s
failure to produce such checks in response to the Union’s sub-
poena duces tecum.8 Extensive discussion among counsel en-
sued 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 Re-
spondent produced and did not produce in response to the sub-
poenas. Respondent’s counsel represented that he did not con-
sider 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 coun-
sel an opportunity to testify and provide an explanation on the

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.)
record for the failure to produce the missing checks. Respond-
ent’s counsel asked for and was granted 5 minutes off the rec-
ord 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 agree-
ment between the two companies reflecting the terms of the
loan and he did not know the amount of the initial loan. Tren-
tini estimated that RAV still owed Concrete Express $12,000 to
$15,000. However, under Schedule L for “other Current Lia-
bilities” 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 doc-
uments showing an actual accounting write down of the loans
in response to Union subpoenas which requested such infor-
mation. Ultimately, Trentini’s testimony deteriorated and be-
came 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 ar-
rived 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 Ex-
press 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

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 pro-
duce substantiating subpoenaed documents). I not only discredit Tren-
tini on this point, but find his overall credibility diminished by a will-
ingness to reverse his testimony as the defense required.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
not prepare invoices for this type of work because it only took
about 15 minutes to jump start a vehicle. According to Tren-
tini, 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 pre-
pared. When asked what other services RAV provided to Con-
crete 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 Ex-
press trucks about 2 hours a day and other trucks the rest of the
time. Jorge also testified that he would sometimes go to Hol-
lers 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)
In February, Petrillo terminated RAV’s lease at Edison Ave-
nue. 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. Accord-
ing 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 ad-
vised 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

10 Although Trentini claims that Rudy was laid off in about Febru-
ary, 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 em-
ployers on the date he was laid off, May 21, and not before. I credit
Gonzalez in this regard.
the new space has a different postal address than 3771 Merritt
Avenue (used by Concrete Express to house trucks), 3771 Mer-
ritt Avenue and 3773 Merritt Avenue are one building with a
single open internal space. Trentini estimated that the entire
building is 7500 or 8000 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 sub-
ject. 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 Edi-
son 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 testi-
fied that Jorge worked on third-party Petrillo and RCA trucks
before he was transferred (work performed by RAV, not Con-
crete 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. Tren-
tini did admit that, at Merritt Avenue, RAV mechanics repaired
Concrete Express trucks. Particularly, according to Trentini,
Gonzalez and Jorge repaired the 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 over-
time 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
RAV TRUCK & TRAILER REPAIRS, INC. 7
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 Ave-
nue, 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 Respond-
ent RAV, but a different company owned by Trentini. Alt-
hough 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 me-
chanics employed by the Employer.” (GC Exh. 7) RAV
Trucking does not employ mechanics or operate at Merritt Av-
enue.
On May 21, the Union filed a new petition for the same me-
chanics 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 me-
chanics unit but named RAV and RAV Trucking as a single or
joint employer. The Union emailed the petition to the Re-
spondent 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 hap-
pened to be around at that time, too.” (Tr. 294.)
Jorge testified that he had arguments with Rafael because
Rafael threatened to call ICE (presumably, to have Jorge de-
ported). The record does not clearly indicate when these argu-
ments 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. Tren-
tini 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 docu-
mentation authorizing him to work in the United States. Ac-
cording 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 sus-
picion 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 Tren-
tini 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 go-
ing to find the different business to see who had documenta-
tion.” (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. Ac-
cording to Jorge, Trentini said “he couldn't give me more work
because Immigration was checking immigration documenta-
tions.” (Tr. 104.)
After Gonzalez provided his initial testimony about this con-
versation, he was asked by the General Counsel, “did Mr. Tren-
tini say anything about what would happen if ICE showed up
and somebody didn’t have the correct papers?” Gonzalez an-
swered, “That he was going to close down the shop, the busi-
ness.” (Tr. 78–79.) However, Jorge did not corroborate Gonza-
lez 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 re-
sponded, “No. They only told me that he didn’t want any prob-
lems.” [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 re-
signing. 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
would have to that afternoon with the letter. . . . Because we
knew they’re in the area, so let’s have something prepared in

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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 pro-
spective employers. Trentini testified that Gonzalez was dis-
charged 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 Com-
pany, upon discovery of this fact was by law required to ter-
minate 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 Mechan-
ic 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 show-
ing he can lawfully work in the United States.
Therefore, the Company only has his verbal rep-
resentation 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.
ANALYSIS
Single Employer
The General Counsel contends that RAV and Concrete Ex-
press 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 manage-
ment, 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 cir-
cumstances, 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 person-
nel 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 con-
trol of labor relations between RAV and Concrete Express.
The evidence revealed additional integration of the two op-
erations. 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, ulti-
mately, 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 Re-
spondent 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 Re-
spondent’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 actual-
ly paid by write-downs of a loan instead of by check. Trentini
did not explain why he suddenly changed his testimony. Fur-
RAV TRUCK & TRAILER REPAIRS, INC. 9
ther, 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 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 Con-
crete Express have been, at all relevant times, a single integrat-
ed 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 employ-
ees 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 proposi-
tion 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.” Howev-
er, 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 re-
garding 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, su-
pra; Pacific Grain Products, 309 NLRB 690, 691 (1992) (re-
jecting 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 re-
ferring 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

13 See fns. 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 of-
fered and declined an opportunity to testify and explain why certain
documents were not produced. Second, Trentini subsequently disa-
vowed 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 sub-
poenaed documents reflecting the payment of those invoices was a
valid oversight.
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 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. Ra-
ther, Trentini was citing a potential threat to the business (i.e.,
ICE learning that RAV was employing undocumented employ-
ees) 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 (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 ap-
pears misplaced. In Tito Contractors, the Board found that the
employer threatened “employees with immigration related con-
sequences 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 arrest-
ed 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 se-
lected, 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 [employ-
ee] 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 em-
ployees (including Robles) and caused them to be deported by
requesting that immigration authorities investigate their legal
status. Thus, the employer’s comments combined overt hostili-
ty toward employees’ union activity (immediately after the
election) and questions regarding employees’ immigration sta-
tus. The employer’s comments were also followed by its un-
lawful 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 coer-
cive as an implied threat of deportation in retaliation for em-
ployees’ union activities than, as here, Trentini’s attempt to
explain an adverse employment action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Likewise, I do not find that the Respondent unlawfully
threatened employees with plant closure on May 15. Accord-
ing to Gonzalez, Trentini did not indicate that RAV would be
closed because of past or future union activity among his em-
ployees, but instead raised the prospect of closure if ICE ap-
peared and employees did not have papers. Further, with re-
gard to this isolated testimony, I do not credit Gonzalez. I gen-
erally found Gonzalez to be a credible witness and I do not
believe his testimony was intentionally false. However, I ques-
tion 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 con-
versation, and he was not corroborated by Jorge. The General
Counsel specifically asked Jorge whether “Trentini or the inter-
preter 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 tes-
timony was consistent with Jorge’s testimony. 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 Valencia
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), “the Gen-
eral Counsel must prove that antiunion animus was a substan-
tial or motivating factor in the employment action. If the Gen-
eral 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 ac-
tivity, 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 dis-
criminatory action, general knowledge of and animus toward
employees’ union activities, failure to follow past practice,
disparate treatment of discriminatees, shifting or irrational ex-
planations for the treatment of discriminatees, and other con-
temporaneous unfair labor practices. Kitsap Tenant Support
Services, Inc., 366 NLRB No. 98, slip op. at 14 (2018); Novato
Healthcare Center, 365 NLRB No. 137 (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 discrimi-
natee has been rejected as entirely pretextual. Parkview
Lounge, LLC, 366 NLRB No. 71 (2018); K-Air Corp., 360
NLRB 143, 144 (2014).
The evidence indicates that both RAV mechanics signed Un-
ion authorization cards on May 14. That same day, the Union
filed a representation petition and emailed a copy to the Re-
spondent. 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 Ave-
nue. 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 Respond-
ent would reasonably believe that at least one of those mechan-
ics signed an authorization card as a showing of interest in sup-
port of the petition. Thus, the employees engaged in union
activity which culminated in the filing of a representation peti-
tion, while the Respondent was aware of that petition and had
reason to suspect the employees of signing cards.
The evidence also established that the union activity of em-
ployees was a significant motivating factor in Jorge’s dis-
charge. 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 previ-
ous 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 Re-
spondent’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 ex-
plain the timing of his May 15 conversation with the RAV me-
chanics by testifying that the owner of a nearby tire repair busi-
ness (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

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.
15 RAV had a practice of requesting a copy of employee driver’s li-
censes, 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 employ-
ment applicants to submit documents substantiating work authorization
as set forth in the I-9 form.
RAV TRUCK & TRAILER REPAIRS, INC. 11
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 argu-
ment about it if [Jorge] went back to Mexico or the ICE is go-
ing 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 re-
sponse 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 (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. 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 unlaw-
fully closed RAV under Darlington and, therefore, its represen-
tation, even if true, that Gonzalez was laid off as a result of the
closure, renders the layoff unlawful as well. However, alterna-
tively, 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 suffi-
cient 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 prac-
tice has been made out.
Id. at 275–276.
Therefore, the Supreme Court laid out four factors of an un-
lawful 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 its actual occurrence.”
George Lithograph Co., 204 NLRB 431, 431 (1973). Howev-
er, 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 Ex-
press 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

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 con-
sequence 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 analy-
sis 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 dis-
criminatory 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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 discrimi-
natory intent.
A closer look at the circumstances further suggest that the
Respondent’s explanation for the closure was pretextual. Gon-
zalez 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 submit-
ted 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 cred-
ible 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 regis-
tered 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 opin-
ion, 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 out-
standing Petrillo trucks, much less the other work which Gon-
zalez 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. Tren-
tini 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 una-
ble to rent an alternative location. In fact, at least initially on
May 31, Respondent’s counsel was still describing RAV’s op-
eration as a going concern. As for RAV’s financial condition,
Trentini did not evince a firm understanding of RAV’s financ-
es, costs, or losses, and the unsigned 2017 tax return is unrelia-
ble hearsay.18 Rather, evidence of Trentini’s sudden decision to

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.
18 I do not rely on RAV’s 2017 tax return for the purpose of deter-
mining whether the company was operating at a loss. As discussed
above, I admitted the document into evidence over the General Coun-
sel’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
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 Litho-
graph 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 evi-
dence as direct evidence of the same is rarely available. Dar-
lington, 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, de-
pending on all the facts and circumstances, it would indicate a
disposition toward the other and be sufficient to support a logi-
cal 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 sev-
eral factors including, inter alia, contemporaneous union activi-
ty at the employer's remaining facilities, geographic proximity
of the employer's facilities to the closed operation, the likeli-
hood that employees will learn of the circumstances surround-
ing the employer's unlawful conduct through employee inter-
change or contact, and, of course, representations made by the
employer's officials and supervisors to the other employees.”
Bruce Duncan Co., Inc., 233 NLRB 1243 (1977).
The Board’s decisions in partial closing cases under Darling-
ton are instructive. In Fredman’s Calcasieu Locks Shipyard,
Inc., 206 NLRB 399 (1973), the Board adopted a judge’s find-
ing that night-shift employees were unlawfully laid off for anti-
union reasons and, according to the judge, “the Employer must
have foreseen that the layoff of the night shift employees short-
ly 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
employees as a reprisal against the night shift employees for

and accounting process, but the utility of the document is fatally un-
dermined 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 pos-
sess 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).
RAV TRUCK & TRAILER REPAIRS, INC. 13
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 foresee-
able consequences of his conduct. . . . Concluding that encour-
agement 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 ac-
complish the same.
In other partial closure cases, evidence that chill was intend-
ed and foreseeable has included the suspicious timing of a clos-
ing 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 viola-
tion 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 Re-
spondent received the representation petition for a unit of Con-
crete Express employees on April 19 and did not seek to chill
those employees by closing RAV prior to the election at Con-
crete 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 coer-
cive context at Concrete Express more conducive to an infer-

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 orga-
nized 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 contemporane-
ously 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 in-
tended 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., 233 NLRB 1243 (1977); Motor Repair, Inc., 168
NLRB 1082 (1968), A.C. Rochat Co., 1263 NLRB 421 (1967).
ence of chilling intent and foreseeability.
Nevertheless, I have found that the Respondent closed RAV
because of the mechanics’ union activity, which “would indi-
cate 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 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 Con-
crete 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 clo-
sures, the Board’s decisions in Fredman’s Calcasieu Locks
Shipyard, Inc., 206 NLRB 399 (1973), and George Litho-
graph., Co., 204 NLRB 431 (1973), are generally supportive of
a violation. In light of this case law and the totality of the cir-
cumstances, it is reasonable to infer that the Respondent in-
tended 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 Re-
spondent 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 fore-
see 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 Respond-
ent’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’ 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
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 un-
documented). 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’ 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 accumulat-
ing 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 evidence
does not substantiate Trentini’s claim, on May 21, that Gonza-
lez 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 represen-
tation 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 repre-
sented to the Board that it was closing RAV effective May 31.
The Respondent’s failure to articulate a clear and consistent
explanation of Gonzalez’ layoff is not particularly surprising
since it appears to have been a rushed reaction to the represen-
tation 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 arrange-
ments 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 ab-
ruptly separated his two mechanics. Accordingly, I find that
RAV made the decision to lay off Gonzalez on May 21 inde-
pendent of its subsequent decision to close, and that the General
Counsel has established a prima facie case that the layoff was
discriminatory.

21 In making this finding, I credit Gonzalez’ 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.
The Respondent has no Wright Line mixed-motive defense
in this case. As discussed above, I have found that the Re-
spondent’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
(2018), as follows:
Category I cases are “exceptional” and “marked by ‘outra-
geous' and ‘pervasive’ unfair labor practices.” Id. at 613. Cat-
egory 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 pro-
cesses.” Id. at 614. In category II cases, the “possibility of
erasing the effects of past practices and of ensuring a fair elec-
tion . . . 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. 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 spe-
cifically, the General Counsel argues that the unfair labor prac-
tices would tend to impede the election process to such an ex-
tent 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 em-
ployees, the extent of dissemination, and the position of the
persons committing the violations.” Bristol Industrial Corp.,
366 NLRB No. 101 (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 last-
ing inhibitive effect on a substantial percentage of the work-
force. Milum Textile Services Co., 357 NLRB 2047, 2055
(2011). Hallmark violations include the discharge of employ-
ees 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 Tow-
ing, Inc., 632 F.2d 208, 212–213 (2d Cir. 1980). The Board has
repeatedly held that, even among hallmark violations, the dis-
charge of an employee because of union activity “is one of the
most flagrant means by which an employer can hope to dis-
suade employees from selecting a bargaining representative
because no event can have more crippling consequences to the
RAV TRUCK & TRAILER REPAIRS, INC. 15
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 un-
ion 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 Mer-
ritt 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. Fur-
ther, the General Counsel entered into evidence the union au-
thorization cards of both mechanics who make up the two-
person unit. Therefore, the 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 bar-
gaining 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 noti-
fied of their respective separations by the sole owner and of-
ficer of the company. Thus, the employees cannot hope to

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 neces-
sary. See Remington Lodging & Hospitality, LLC, 363 NLRB No. 112
fn. 11 (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.
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 [em-
ployer is] willing to manufacture a pretextual reason to subse-
quently 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 alto-
gether. Under these circumstances, both eligible voters can be
expected to be powerfully impressed and coerced by the dra-
matic steps the Respondent was willing to take in order to avoid
union representation of its employees. Accordingly, as in Bris-
tol 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 em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Teamsters Local 456, International Brother-
hood 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
Valencia Medina because employees sought representation by
the Union for purposes of collective bargaining.
(b) On May 21, the Respondent laid off Victor Gonzalez be-
cause employees sought representation by the Union for pur-
poses of collective bargaining.
(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 bur-
dened if ordered to restore RAV’s truck repair operations as it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
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 restora-
tion would involve an undue economic burden. The Respond-
ent attached to its posthearing brief certain documents regard-
ing 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 inde-
pendently 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 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 inter-
im employment expenses regardless of whether those expenses
exceed their interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxa-
ble 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

23 Nevertheless, “at the compliance stage of the proceedings, the Re-
spondent 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).
101 (2014), the Respondent shall compensate Jorge and Gonza-
lez 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 fore-
seeable 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Jorge
Alberto Valencia Medina and Victor Gonzalez full reinstate-
ment 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.
(b) Make Jorge Alberto Valencia Medina and Victor Gonza-
lez 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 Valencia 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 Valencia Medina and Victor Gonzalez, and with-
in 3 days thereafter, notify the employees in writing that this

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
RAV TRUCK & TRAILER REPAIRS, INC. 17
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) request, bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the un-
derstanding 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 em-
ployees, guards, managers, professional employees, and su-
pervisors as defined by the Act.
(g) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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 at-
tached 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 con-
secutive 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 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 no-
tice 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 re-
sponsible 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 inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. July 15, 2019

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge, lay off, or otherwise discriminate
against you for supporting the Teamsters Local 456, Interna-
tional 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, re-
strain, 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 rein-
statement 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 Valencia Medina and Victor
Gonzalez whole for any loss of earnings and other benefits
resulting from their discharges and/or layoffs, less any net in-
terim earnings, plus interest.
WE WILL compensate Jorge Alberto Valencia 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 or-
der, 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 Valencia Medina and Victor Gonza-
lez, and WE WILL, within 3 days thereafter, notify them in writ-
ing that this has been done and that the discharges and/or
layoffs will not be used against them in any way.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
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 em-
ployees, guards, managers, professional employees, and su-
pervisors as defined by the Act.
RAV TRUCK & TRAILER REPAIRS, INC. AND
CONCRETE EXPRESS OF NY, LLC, A SINGLE
EMPLOYER
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.