In a 2-1 decision (Members Kaplan and Ring in the Majority, with Member Prouty dissenting), the National Labor Relations Board (“NLRB” or “Board”) revisited its 2020 decision in RAV Truck & Trailer Repairs, Inc., 369 NLRB No. 36, reversing the decision in part.  Notably, the Board reversed its earlier order requiring the Company to reopen a facility that was closed due to union animus, citing the passage of time and futility of doing so at this stage.  The Board’s decision on remand demonstrates the impact that an appeal that lasts several years can have on the impact of a remedial order by the NLRB.

Factual Background and Procedural History

In 2020, the Board held that the Company violated the National Labor Relations Act (“NLRA”) by unlawfully discharging one employee and laying off another because of their union involvement.  The Board also found that the Company closed its facility in efforts to prevent union organizing there. As part of its remedy, the NLRB ordered the Company to reopen and restore the closed facility.

The Company appealed to the U.S. Court of Appeals for the District of Columbia.  On appeal, the D.C. Circuit affirmed the Board’s decision that dismissing the employees violated the NLRA, but the Court remanded for further consideration concerning the lawfulness of the Company’s closure of its facility.

The Court also held that “the Board did not properly consider whether its order to restore the RAV auto repair shop would be legally permissible, necessary, or unduly burdensome.”  The Court then criticized the Board’s order requiring the Company to restore the facility, finding that, given these circumstances, the Board’s ruling ordering the Company to “reopen and restore RAV’s business operation as it existed on May 14, 2018” was not “even factually possible.”  The Court noted that the Company’s lease terminated on May 31, 2018, which had no relation to the union organizing activity.

NLRB’s Decision on Remand

On remand—more than 4.5 years after the facility closed—the NLRB held that the Company’s facility closure was unlawful and motivated by the employees’ union organizing activity in violation of long-standing Board precedent. The Board concluded that the “suspicious timing” of the closure immediately after the two layoffs was “strong evidence” of union animus.

However, the Board agreed with the D.C. Circuit that its requirement to reopen the shop would be unduly burdensome, because restoring the facility would require the Company to “either renew its old lease, which ended over 4 years ago, or enter into a new one.” In particular, here, the Board cited the “passage of time,” as well as other factors, which contributed to its finding that its prior restoration and bargaining orders are no longer appropriate.


This decision demonstrates the bounds of the Board’s remedial powers and highlights how it may be strategically advantageous for companies to appeal to the Circuit.  This may be especially true with respect to orders that require parties to restore the status quo in a manner that could be factually difficult to accomplish many years later—like reinstatement, bargaining orders, reopening closed facilities, etc.  In such cases, like RAV Truck, appealing to the Circuit could be an attractive option for employers, as the passage of time could make compliance many years later a futile endeavor.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.