RAV Truck and Trailer Repairs, Inc. v. NLRB ( 2021 )

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
RAV TRUCK AND TRAILER REPAIRS INC., )
AND CONCRETE EXPRESS OF NY, LLC )
)
Petitioner/Cross-Respondent ) Nos. 20-1090 &
) 20-1124
v. )
)
)
NATIONAL LABOR RELATIONS BOARD )
)
Respondent/Cross-Petitioner )
)
JUDGMENT
Before: HENDERSON and TATEL, Circuit Judges,
and EDWARDS, Senior Circuit Judge.
THIS CAUSE came to be heard on a petition filed by RAV Truck and
Trailer Repairs, Inc. (“RAV”) and Concrete Express of New York, LLC to review
an Order of the National Labor Relations Board dated March 3, 2020, in Board
Case No. 02-CA- 220395, reported at 369 NLRB No. 36, and upon a cross-
application filed by the National Labor Relations Board to enforce said Order. The
Court heard argument of the parties and has considered the briefs and agency
record filed in this cause. On May 11, 2021, the Court, being fully advised in the
premises, handed down its opinion enforcing the Board’s remedies, other than the
restoration and bargaining orders, and remanding to the Board the issues of RAV’s
closure and the restoration order so that the Board may address the matters raised
in the Court’s opinion regarding those issues. The Court also directed the Board to
determine whether a unit of mechanics formerly employed at 3773 Merritt Avenue
still exists in a form that makes a bargaining order feasible. In conformity
therewith, it is hereby
ORDERED AND ADJUDGED by the Court that RAV Truck and Trailer
Repairs, Inc. and Concrete Express of New York, LLC, its officers, agents,
successors, and assigns, shall abide by and perform the directions of the Board set
forth in its Order as modified by the Court. (See Attached Order and Appendix).
Judge, United States Court of Appeals
for the District of Columbia Circuit
Judge, United States Court of Appeals
for the District of Columbia Circuit
Judge, United States Court of Appeals
for the District of Columbia Circuit
ENTERED:
2
RAV TRUCK AND TRAILER REPAIRS, INC.
AND CONCRETE EXPRESS OF NEW YORK, LLC
v.
NATIONAL LABOR RELATIONS BOARD
ORDER
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) In any other manner interfering, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Within 14 days from the date of this Order, offer Jorge Alberto Valencia
Medina and Victor Gonzalez full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously
enjoyed.
(b) Make Jorge Alberto Valencia Medina and Victor Gonzalez whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the remedy section
of the Board’s March 3, 2020 decision reported at 369 NLRB No. 36.
(c) Compensate Jorge Alberto Valencia Medina and Victor Gonzalez for the
adverse tax consequences, if any, of receiving a 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 within 3 days thereafter,
notify the employees in writing that this has been done and that the
discharges and/or layoffs will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a
reasonable place designated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel records and reports,
and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at its facilities located at
2279 Hollers Avenue, 3771 Merritt Avenue, and 3773 Merritt Avenue,
Bronx New York, copies of the attached notice marked
“Appendix.” Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where
notices to employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business or
closed the facilities involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any
time since May 15, 2018.
(g) Within 21 days after service by the Region, file with the Regional
Director for Region 2 a sworn certification of a responsible official on a
form provided by the Region attesting to the steps that the Respondent
has taken to comply.
2
APPENDIX
NOTICE TO EMPLOYEES
POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge, lay off, or otherwise discriminate against you for
supporting Teamsters Local 456, International Brotherhood of Teamsters (the
Union) or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
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 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 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 unlawful 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.
RAV TRUCK & TRAILER REPAIRS, INC.
AND CONCRETE EXPRESS OF NY, LLC, A SINGLE EMPLOYER
2
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
RAV TRUCK AND TRAILER REPAIRS INC., )
AND CONCRETE EXPRESS OF NY, LLC )
)
Petitioner/Cross-Respondent ) Nos. 20-1090 &
) 20-1124
v. )
)
)
NATIONAL LABOR RELATIONS BOARD )
)
Respondent/Cross-Petitioner )
CERTIFICATE OF SERVICE
I hereby certify that on May 25, 2021, I electronically filed the foregoing
document with the Clerk of the Court for the United States Court of Appeals for
the District of Columbia Circuit using the appellate CM/ECF system. I further
certify that the foregoing document was served on all parties or their counsel of
record through the appellate CM/ECF system.
/s/ David Habenstreit
David Habenstreit
Assistant General Counsel
National Labor Relations Board
1015 Half St., S.E.
Washington, D.C. 20570
Dated at Washington, D.C.
this 25th day of May 2021