Rainbow Medical Transportation, LLC

National Labor Relations Board - Board Decisions

May 18, 2017

365 NLRB No. 80 (N.L.R.B. 2017)

365 NLRB No. 80
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.
Rainbow Medical Transportation, LLC and Henleigh
Koyawena. Case 28–CA–166617
May 18, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On December 15, 2016, Administrative Law Judge
Gerald M. Etchingham issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified2 and set forth in full below.

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 preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
In his decision, the judge inadvertently stated that employee Veroni-
ca John was a dispatcher rather than a driver. This inadvertent error has
not affected our disposition of this case.
The judge also stated that wage discussions are inherently concerted.
The judge’s conclusion is in accordance with well-established Board
precedent. See, e.g., Alternative Energy Applications, Inc., 361 NLRB
No. 139, slip op. at 4 fn. 10 (2014); Automatic Screw Products Co., 306
NLRB 1072, 1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992).
Contrary to his colleagues, Chairman Miscimarra rejects the theory
of “inherently” concerted activity for the reasons set forth in his sepa-
rate opinions in Hoodview Vending Co., 362 NLRB No. 81, slip op. at
5–7 (2015) (Member Miscimarra, dissenting), and Alternative Energy
Applications, Inc., 361 NLRB No. 139, slip op. at 7–8 (2014); see also
Component Bar Products, 364 NLRB No. 140, slip op. at 3 & fn. 3
(2016) (Member Miscimarra, concurring in part and dissenting in part).
He agrees, however, with the judge’s finding that Charging Party Ko-
yawena engaged in concerted activity under the standard set forth in
Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988). Additionally, applying the standard set forth in his sepa-
rate opinion in Fresh & Easy Neighborhood Market, 361 NLRB No.
12, slip op. at 17 (2014) (Member Miscimarra, concurring in part and
dissenting in part), Chairman Miscimarra also agrees that Koyawena
engaged in concerted activity for the purpose of mutual aid or protec-
tion.
The judge correctly found that under Wright Line, 251 NLRB 1083
(1980) (subsequent history omitted), the General Counsel satisfies his
initial burden to prove that protected conduct was a motivating factor in
an employer’s adverse employment action by showing protected activi-
ty, the employer’s knowledge of protected activity, and the employer’s
animus against protected activity. The General Counsel is not required
“to make some additional showing of particularized motivating animus
ORDER

towards the employee’s own protected activity or to further demon-
strate some additional, undefined ‘nexus’ between the employee’s
protected activity and the adverse action.” Libertyville Toyota, 360
NLRB 1298, 1301 fn. 10 (2014), enfd. 801 F.3d 767 (7th Cir. 2015).
Chairman Miscimarra disagrees. He notes that in Wright Line itself,
the Board stated that the General Counsel must make “a prima facie
showing sufficient to support the inference that protected conduct was a
‘motivating factor’ in the employer’s decision.” 251 NLRB at 1089.
Accordingly, Chairman Miscimarra believes the General Counsel must
establish a link or nexus between the employee’s protected activity and
the employer’s decision to take the challenged adverse employment
action. See, e.g., Tschiggfrie Properties, Ltd, 365 NLRB No. 34, slip
op. at 1 fn. 1 (2017). Applying this standard here, Chairman Miscimar-
ra finds the General Counsel made the requisite showing.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with our deci-
sions in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), and
Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part
475 F.3d 369 (D.C. Cir. 2007). We shall also substitute a new notice to
conform to the language in the Order as modified.
In the remedy section of his decision, the judge provided that the
Respondent must compensate Koyawena for any search-for-work and
interim employment expenses regardless of whether those expenses
exceed his interim earnings. Chairman Miscimarra recognizes that the
judge’s decision accords with the majority decision in King Soopers,
Inc., 364 NLRB No. 93 (2016). However, for the reasons stated in his
separate opinion in King Soopers, id., slip op. at 12–16, Chairman
Miscimarra would adhere to the Board’s former approach, treating
search-for-work and interim employment expenses as an offset against
interim earnings.
In adopting the judge’s finding that the Respondent promulgated an
overly broad and discriminatory rule prohibiting employees from open-
ly discussing terms and conditions of employment, we note that the
Respondent excepts to the violation solely on credibility grounds. In
these circumstances, we find that the judge’s recommended rescission
remedy is appropriate, and we shall modify the Order and notice ac-
cordingly. See T-Mobile USA, Inc., 365 NLRB No. 15, slip op. at 1 fn.
2 (2017) (rescission remedy warranted where respondent did not except
to judge’s finding that prohibition was a “rule.”); Guardsmark, LLC,
supra.
Unlike his colleagues, Chairman Miscimarra would not modify the
Order to add a paragraph requiring the Respondent to rescind what has
been erroneously characterized by the Regional Director in this and
similar complaints as a “rule,” here one that ostensibly prohibited em-
ployees from discussing issues relating to their trip sheets at bimonthly
staff meetings. Chairman Miscimarra agrees that the Respondent, by
its General Manager Philana Betoney, violated Sec. 8(a)(1) when
Betoney responded affirmatively to employee Veronica John’s sugges-
tion that the Charging Party and other employees voice their concerns
over trip sheets privately with the Respondent rather than publicly at
staff meetings. Chairman Miscimarra further acknowledges that the
Respondent did not file an exception to the judge’s finding that this
violation constituted the unlawful promulgation and maintenance of a
“rule,” instead excepting only to the finding that Betoney made the
statement at issue. However, this one-off affirmation by one of the
Respondent’s agents to an employee’s proposal—even though it violat-
ed the Act—did not constitute the promulgation and maintenance of a
“rule.” See T-Mobile USA, Inc., 365 NLRB No. 15, slip op. at 1–2 fn.
2 (2017), and cases cited therein. For that reason, Chairman Miscimar-
ra believes the Board should not modify the judge’s Order to require
that the Respondent rescind a nonexistent rule. Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The National Labor Relations Board orders that the
Respondent, Rainbow Medical Transportation, LLC,
Holbrook, Arizona, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining an overly broad and
discriminatory work rule prohibiting employees from
openly discussing their terms and conditions of employ-
ment, including issues related to their trip sheets.
(b) Discharging or otherwise discriminating against
employees for engaging in protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, 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) Rescind its overly broad and discriminatory work
rule prohibiting employees from openly discussing their
terms and conditions of employment, including issues
related to their trip sheets.
(b) Within 14 days from the date of this Order, offer
Henleigh Koyawena full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(c) Make Henleigh Koyawena whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in the
remedy section of the judge’s decision, as modified in
this decision.
(d) Compensate Henleigh Koyawena for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file with the Regional Director for Re-
gion 28, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Henleigh Koyawena, and within 3 days thereafter, notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
(f) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Holbrook, Arizona facility copies of the attached no-
tice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, 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. Rea-
sonable 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 facility involved in these proceed-
ings, 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 September 29, 2015.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 18, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

3 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.”
RAINBOW MEDICAL TRANSPORTATION LLC 3
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 promulgate and maintain an overly
broad and discriminatory rule prohibiting open discus-
sions of your terms and conditions of employment, in-
cluding issues related to your trip sheets.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the overly broad and discriminatory
work rule prohibiting you from openly discussing the
terms and conditions of your employment, including is-
sues related to your trip sheets.
WE WILL, within 14 days from the date of the Board’s
Order, offer Henleigh Koyawena full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges he previously en-
joyed.
WE WILL make Henleigh Koyawena whole for any loss
of earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest, and
WE WILL also make Koyawena whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Henleigh Koyawena for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 28, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award 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 discharge of Henleigh Koyawena, and WE WILL, with-
in 3 days thereafter, notify him in writing that this has
been done and that the discharge will not be used against
him in any way.
RAINBOW MEDICAL TRANSPORTATION, LLC
The Board’s decision can be found at
https://www.nlrb.gov/case/28–CA–166617or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Stefanie J. Parker, for the General Counsel.
Ernest Collins, Jr., Esq. (The Collins Law Firm, PLLC), for the
Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. Hen-
leigh Koyawena, an individual (the Charging Party or Hen-
leigh),1 filed the original charge in this case on December 23,
2015.2 The General Counsel issued the complaint on February
29, 2016 (complaint), and the Respondent Rainbow Medical
Transportation LLC (Respondent or Employer) answered the
complaint on March 11, 2016, generally denying the critical
allegations of the complaint.
This case involves the Respondent’s sudden discharge of the
Charging Party on September 29 after discussions were had at a
business meeting of Respondent’s employees between the
Charging Party and his coworkers concerning Respondent’s
processing of daily trip reports which are required for payment
of earned wages and Respondent’s recommendation that such
discussions should be held in private and not in a group meet-
ing setting. The Respondent denies that these employee discus-
sions had anything to do with its discharge of the Charging
Party and that the Charging Party voluntarily resigned from his
position and was not terminated on September 29. Respondent
also denies that Henleigh was engaged in concerted, protected
activity of any kind in September 2015 or that even if he was
engaged in protected, concerted activity; his termination from
employment was not related in any way to any protected, con-
certed activity. This case was tried in Winslow, Arizona, on
April 26, 2016. Closing briefs were submitted by the General

1 CP Henleigh is also referred to as “Henley” and “Mr. Queen” in
the transcript.
2 All dates in 2015 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Counsel and the Respondent on May 31, 2016. On the entire
record,3 including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with an office
and place of business in Holbrook, Arizona, has been engaged
in providing intrastate nonemergency medical transportation
services. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. (Tr. at 9; GC Exhs. 1(c) 1–2, 1(e)
1, and 1(p).)4
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations
Respondent provides intrastate nonemergency medical trans-
portation services and provided services to those Native Ameri-
cans that were under the Indian Healthcare Plan through an
Arizona Medicaid agency known as the Arizona Health Care
Cost Containment Systems (AHCCCS). (Tr. 23.) Respondent
serves and its drivers transport clients located in most of the
Navajo Reservation which is Tube City, Pinon, Chinle, Wind
Rock, Winslow, Holbrook, Dilkon, White Cone, Ganado,
Sanders, Jeddito, Keams Canyon, and also the Hopi Reserva-
tion in Coal Mine, Tuba City, Page, and Kayenta—all in Arizo-
na. (Tr. 27.)
Respondent functions in 2 offices—one in Holbrook, Arizo-
na, to assist with medical transportation services to the Navajo
and Hopi Indian reservations, where biweekly employee and

3 The transcript in this case is somewhat accurate, but I correct the
transcript (Tr). as follows: Tr. 8, line (l.)19: “sails” should be “sales;”
Tr 41, l. 6: “500” should be “800” and “501” should be “801;” Tr. 42, l.
7: “through May” should be “from May;” Tr. 51, l. 23: “Nora Bacoti”
should be “Nora Betoney;” Tr. 54, l. 4: “September 21” should be
“September 29;” Tr. 56, l. 22: “Nora Bacoti” should be “Nora
Betoney;” Tr. 57, l. 13: “Janelle” should be “Shanelle;” Tr. 58, l. 4:
“Sheila Johns” should be “Spring John’s;” Tr. 58, l. 15: “plea” should
be “employee;” Tr. 59, 15: “Mr. Queen” should be “Mr. Henleigh
Koyawena;” Tr. 61, 1. 1 and several other places: “Mr. Queen” should
be “Mr. Henleigh Koyawena;” Tr. 63, l. 14: “I know Allen did make a
few of the complaints. She would” should be “I know Alan did make a
few of the complaints. He would;” Tr. 66, 2–3,etc.: “Access” should be
“AHCCCS;” and throughout the transcript; “Mr. Queen” should be
“Mr. Henleigh Koyawena,” the Charging Party here; Tr. 94, l. 15:
“Sheila Chi” should be “Sheila Chee;” Tr. 161 l. 8: “murder” should be
“murderer;” Tr. 170, l. 14: “how to I print” should be “how do I point;”
Tr. 175 and 176: “Chanel” should be “Shanelle:” Tr. 180, l. 23: “for-
mally” should be “formerly;” Tr. 187, l. 4: “Hobi” should be “Hopi;”
Tr. 193, l. 12: “are included” should be “are not included;” and Tr.
194, l. 11: “Mr. Collins:” should be “Ms. Parker:;”.
4 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for General
Counsel’s exhibit; “GC Br.” for the General Counsel’s brief and
“R. Br.” for the Respondent’s brief. Although I have included several
citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are based not solely on the evidence specifi-
cally cited, but rather on my review and consideration of the entire
record.
management staff meetings occur on Sundays and individual
trip paperwork is submitted to dispatchers for processing, and a
second office in Tempe, Arizona, where the owners would
bring the Respondent’s billing employee/accountant, Shanelle
Jackson (Shanelle) trip sheets every other week after receiving
them on Sundays at the staff meetings. (Tr. 182–183.) Shanelle
bills AHCCCS using the same trip sheets brought to her by the
two owners. (Tr. 183.)
Respondent is owned and managed by Hane Sayed (Hane or
Sayed) and Eltayeb Abdalla (Abdalla or Abe) and at all rele-
vant times was managed by General Manager Philana Betoney
(Betoney) who reported to Respondent’s owners. (Tr. 22, 182.)
Sayed and Abe supervise the Respondent in general including
issues that arise, procedures, payroll, and gener al management.
(Tr. 182.) Betoney directly managed and supervised Respond-
ent’s dispatchers and drivers in 2015 and she was responsible
for hiring, firing, and issuing discipline to Respondent’s em-
ployees during 2015 until she left Respondent on January 8,
2016. (Tr. 22 and 25, 208.)
Drivers were provided Respondent’s vehicles to perform this
work. Respondent has mechanics who work usually Tuesdays–
Thursdays to change vehicles’ oil every 3000 miles and to do
repairs to vehicles on an “as needed” basis. (Tr. 29.) Betoney
or dispatchers would notify Respondent’s owners and the driver
of a vehicle needing repair as to when the vehicle was fixed and
ready for company use again. (Tr. 29–30.)
Drivers set up their own routes for transportation of their
own clients which required that the client be on AHCCCS’
eligibility list. Alternatively, drivers would occasionally receive
calls from Respondent’s dispatchers who would communicate
to the driver the route to pick up a client using Google Maps
which gives the destination, the mileage, and the hours and
minutes estimated for travel, and drivers are required to take the
shortest route. (Tr. 26.)
Respondent’s drivers live in various remote locations and
were scattered on the Navajo and Hopi reservations and drove
their Respondent vehicles home after work. (Tr. 29.) Respond-
ent monitored the vehicles all the time using the vehicle’s GPS
system and a Fleetmatics software program. (Tr. 29.)
The Respondent’s owners each had this software updated to
their cellphones and were alerted any time one of Respondent’s
vehicles started and any time a vehicle would travel over 5
miles over the speed limit. Betoney was also alerted at these
same times with the same software on her cellphone and com-
puter. (Tr. 29.)
In order for a client to be transported by a Respondent driver,
each separate trip would require that the client be preauthorized
and confirmed to be on AHCCCS’ eligibility list by Respond-
ent’s drivers in discussion with the dispatchers who would
check using AHCCCS’ website. (Tr. 27–29.)
AHCCS has an office in Phoenix, Arizona that maintains a
website system that Respondent’s dispatchers would log on to
for such confirmation that AHCCCS maintains its eligible cli-
ents’ first and last names, dates of birth, AHCCCS number, and
which insurance coverage they were enrolled under. (Tr. 27–
28.) Anyone who did not have anything to do with the Indian
Healthcare Plan or whose enrollment with AHCCCS under the
Indian Healthcare Plan had expired were ineligible to be trans-
RAINBOW MEDICAL TRANSPORTATION LLC 5
ported. (Tr. 28.)
Any time that Respondent would receive a phone call for a
transportation ride from a client, Respondent’s dispatchers
would ask the driver who lived closest to the client’s location if
they were available and if they could transport a client. (Tr. 26.)
Otherwise, it was really the driver’s responsibility to recruit in
their community AHCCCS members that they would be trans-
porting to medical appointments, counseling services, and ad-
diction recovery meetings. (Tr. 26–27.) Thus, a driver’s normal
workload at Respondent was comprised of a mix of customers
that the Respondent would either dispatch to them or clients
that they would recruit on their own for non-emergency medi-
cal transportation. (Tr. 27.)
If a dispatcher was involved in any incident where one of
Respondent’s clients voiced a complaint about a driver, the
dispatcher was asked by Betoney to record the client’s message
and forward this to Betoney along with the driver or client’s
phone number and Betoney would follow up by calling the
driver or client that was being transported and get information
from them about exactly what happened. (Tr. 25.)
In addition, each driver’s vehicle was equipped with a GPS
system that generated a Fleetmatic report that showed every
second of where drivers are, how fast they are going, and when
their vehicle turns off. (Tr. 25–26.) This Fleetmatic report was
used to decide discrepancies between the number of miles a
driver believed they were owed for transporting a client and the
actual distance shown driven using GPS. Discrepancies arose
due to the fact that many clients lived at isolated locations on
an Indian reservation that GPS could not specifically identify
using a street address.
Betoney would regularly keep in contact with all of Re-
spondent’s drivers by using her cellphone text messages to
contact them and remind them to drive safely, buckle up, make
sure their passengers are buckled up, obey the traffic laws, and
of anything and everything that came about. (Tr. 38.)
In September 2015, the Respondent’s dispatchers were
Spring John (Spring John), Sheila Chee (Chee), possibly Pilar
Duran (Duran), and possibly one other but not Lucindia Baloo
(Baloo) who was being trained to become a dispatcher in Sep-
tember 2015. (Tr. 23–24.) On average in 2015, Respondent’s
dispatchers had 10–12 drivers each assigned to them because
there were usually 36 drivers when all the vehicles were out.
(Tr. 41–42.)
B. Henleigh’s General Employment with Respondent and Re-
spondent’s Daily Trip Sheets
Henleigh was hired by Respondent as a driver on May 29
and worked continuously until he was terminated on September
29. (Tr. 24, 30, 144 149–150, 155.) Like all of Respondent’s
drivers, Henleigh was paid based on the weekly mileage he
drove at rates of $0.25 per mile for the first 800 miles, $0.30
per mile for miles 801 to 1500, $0.35 per mile for miles 1501 to
2000, and $0.35 per mile for the total amount of weekly mile-
age if he reached 2001 miles and up in a weekly period. (Tr. 41,
76–77; GC Exh. 3 at 10.) Respondent would make an effort to
assist its drivers to reach a minimum weekly mileage of 800
miles by occasionally providing a driving trip for a driver. (Tr.
41.) Another driver, Rhonda Qotswisiwaiwma (Rhonda Q.)
worked with Henleigh at Respondent for more than 9 months
from March 27 through December 31, 2015. (Tr. 131–132.)
Henleigh recruited some new clients and brought some cli-
ents over from his former position as a transport driver with a
competing transport company. (Tr. 145.) In the summer of
2015, Henleigh had approximately 10 clients including 6–7 he
recruited and some from his earlier job. Id.
Henleigh and other drivers were required to submit weekly
mileage using AHCCS’ daily trip sheet. (Tr. 64–67; R. Exh. 1.)
Drivers would hand in their daily trip sheets to Respondent
dispatchers who would process these trip sheets for review and
finalization before they were sent to the AHCCCS for reim-
bursement to Respondent and its drivers. (Tr. 33–34.) Dis-
patchers would receive the completed trip sheets from drivers
and they would enter them into a computer system and review
them for completeness and accuracy and either return them to
drivers for corrections or forward them on to Shanelle in ac-
counting who would prepare bills to AHCCCS using approved
trip sheets. (Tr. 175, 183–184.)
Respondent’s drivers received their paychecks usually on
Sundays at weekly staff meetings attended by drivers, dispatch-
ers, and Respondent management and supervisors. (Tr. 34.)
Employees were also paid through direct bank deposit on pre-
ceding Fridays if they chose that method for biweekly
paychecks. Id.
These driver daily trip sheets were handed in by drivers eve-
ry other Sunday at a staff meeting and they were a common
subject matter discussed at the biweekly Sunday staff meetings
due to their importance to Respondent and its employees and
because there was a high turnover rate for drivers at Respond-
ent at this time. (Tr. 30, 32, 67; R. Exh. 1.) One of the purposes
of the bi-weekly mandatory meetings was for drivers to turn in
their trip sheets. (Tr. 68.) Betoney added that trip sheets were a
common discussion point as AHCCS was frequently changing
the required information on the form that had to be accurate or
else the trip sheet would not be accepted for reimbursement to
the Respondent and its drivers by AHCCS. (Tr. 30–32, 69–70;
R. Exh. 1.) Drivers were frequently reminded how to accurately
fill out a trip sheet because of high driver turnover and because
many of the drivers committed errors in completing their trip
sheets. Accurate trip sheets were necessary so that AHCCCS
would accept them and reimburse Respondent. (Tr. 38–39.)
As a driver, Henleigh’s duties included driving a Respondent
vehicle and using Respondent’s credit card for gas for a variety
of trips where he would pick up a customer and transport the
customer to nonemergency medical appointments or to attend a
meeting for recovering addicts such as an Alcoholics Anony-
mous (AA) meetings off reservation and nearer to a local city.
Most of Henleigh’s clients were people attending AA meetings
and with these clients Henleigh did not have any problems
completing trip sheets requiring HIPAA confidential infor-
mation. (Tr. 170.)
One issue Henleigh and other drivers raised with the Re-
spondent’s owners was that many of the exact addresses of
Henleigh and other drivers’ Navajo and Hopi clients were not
actually on Google Maps used by Respondent and AHCCS to
reimburse drivers for their transportation. (Tr. 186–187.) Re-
spondent’s and AHCCCS’ rules were that a driver was only
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
allowed 10 more miles for a trip for a Navajo or Hopi reserva-
tion client location that was not specifically on Google Maps
yet. (Id.) As a result, many trips for Henleigh and other drivers
involving clients on Navajo and Hopi Indian reservations were
underpaid just because Google Maps did not have the exact
location and a driver could only be paid 10 miles over a Google
Map location—usually a gas station or something else with an
exact address. (Tr. 187.) Henleigh and other drivers complained
about this with Respondent’s owners and Betoney. (Id).
Some other Henleigh clients were medical transport clients
who did not want to disclose information as to why they needed
medical transportation. (Tr. 170.) Henleigh called AHCCS
about these clients and he asked what to do if they did not want
to disclose information that they thought was confidential. Id.
AHCCCS told Henleigh that if his client says the requested
information is confidential “that is as far as it goes” and just put
that in the trip sheet. Id. Henleigh understood that not providing
full information on trip sheets was likely going to get those trip
sheets rejected or declined by AHCCCS. Id. He also under-
stood that when he made a mistake on a trip sheet, the trip sheet
would be returned to him to correct the mistake and that he was
responsible to turn in corrected trip sheets to his dispatcher. (Tr.
173, 183.)
At the Sunday staff meetings, the drivers would turn in their
biweekly trip sheets to dispatchers who would be at their desk
at their computers. (Tr. 35.) The dispatchers would then go to a
log on their computer with each driver’s submitted trip sheets
and the dispatchers would compare the trip sheet information
with each driver’s schedule for the same time period to make
sure that the information from the trip sheets matched the driv-
er’s weekly schedules so that all trips were accounted for. Id.
As the trips were being matched up by the dispatchers, they
would highlight the trip sheets on their computer software and
not the original trip sheets in either a yellow color or a blue
color to let the drivers and Respondent’s management know
which trip sheets had been received and which trip sheets were
completed and which ones needed more information.5 (Tr. 35–
36.)
Betoney would instruct the drivers and dispatchers that the
trip sheets needed to be accurately filled out with no white-outs,
no highlighters as only black pen was allowed to be used and
any mistakes required a redo of the trip sheet because they were
submitted to AHCCCS and AHCCCS had to be able to read
clearly what the information was on each submitted trip sheet.
(Tr. 33). Betoney attempted to resolve trip sheet problems as
quickly as possible, working directly with a driver to meet with
them and trying to correct trip sheets with errors over a few
days to a few weeks. (Tr. 40–41.)
Respondent’s processing manager was Shanelle who worked
in Tempe, Arizona and she was responsible for processing Re-
spondent’s employee payroll and she dealt with processing and
submitting the daily trip sheets to AHCCCS in 2015 for reim-
bursement to Respondent and its employees. (Tr. 33–34, 57.) If
AHCCCS denied a submitted trip sheet, AHCCCS would fax
Respondent back the rejected trip sheets and let Respondent

5 Only the dispatchers highlighted trip sheets. No drivers highlight-
ed their trip sheets. Tr. 35.
know which trip sheets needed to be corrected and management
would inform the dispatchers of trip sheets needing correction
and they notified the drivers to let them know that they needed
to come into Respondent and redo or fix the incorrect trip
sheets. Id.
These trip sheets were constantly revised by Respondent due
to changes coming from AHCCS and included information for
a driver’s trip such as the first and last name of the driver, the
date, the abbreviation of the day of the week as well as the
Arizona license plate of the vehicle, the type of vehicle, the first
and last name of the client or patient, their AHCCCS number,
their date of birth, the reason for their trip, the time of pick up
and drop off, the odometer readings at these points, the physical
location of where the client was picked up and the location of
the medical facility they were dropped off at, and a signature
block for the client/patient and the driver to sign upon exit of
the vehicle. (Tr. 31–32; R. Exh. 1.)
After turning in their biweekly trip sheets at the Sunday staff
meeting, drivers were provided approximately 10–15 trip sheets
for the following pay period. (Tr. 36.) Some drivers would
exceed the 10–15 trips per pay period and they would receive
more trip sheets or they would meet dispatchers in a designated
area or they would drive to the nearest Respondent office to
pick up additional trip sheets and then head back to their desti-
nation. (Tr. 37.)
C. Respondent’s Personnel Policies in 2015
In 2015, Respondent followed a progressive discipline policy
with its employees where there is first a verbal warning fol-
lowed by three write-ups before termination, according to
Betoney. (Tr. 48–49, 81.) Betoney explained that Respondent
“usually will give them [employees] three write-ups before
they’re terminated if they don’t correct the issue that is actually
the disciplinary [problem].” (Tr. 49, 81.) Betoney also ex-
plained that usually before any decision is made to terminate an
employee, she sits down with Respondent’s owners to discuss
the problem employee and she brings in the problem employee
for a group discussion with the owners. (Tr. 81.) Occasionally,
an employee is immediately terminated for serious violations of
Respondent’s policies and procedures such as driving a compa-
ny vehicle while intoxicated, or transporting alcohol or any
kind of substances, or allowing someone else to drive a compa-
ny vehicle. (Tr. 80–81, 91, 189–190.)
In addition, Respondent had written policies formalized in a
10-page handbook that each employee was required to sign
when they started work. (Tr.80; GC Exh. 3.) Employees were
required to sign and date that they received Respondent’s poli-
cy handbook including policies involving Schedules, Vehicle
inspection and maintenance, Picking-Up and Dropping Off
Passengers, Incident and Accidents, Confidentiality and
Boundaries and Appropriateness, Communication, Vehicle
Use, Dress Code, Drug free and Alcohol free Workplace, and a
Three Month Probation Period Agreement. (GC Exh. 3.)
While company cars were to be driven only by Respondent’s
employees and not to be used for private use or other business
use, or to carry passengers for hire or reward, whether financial
or otherwise, a driver could use the car for some personal er-
rands without violating Respondent’s policies.
RAINBOW MEDICAL TRANSPORTATION LLC 7
D. Drivers Complained About Respondent’s Delayed Pro-
cessing of Daily Trip Reports and Related Delayed
Wage Payments
The discussion of daily trip report processing was a common
occurrence at Respondent’s mandatory biweekly Sunday staff
meetings where Respondent distributed paychecks and con-
ducted employee group meetings approximately every other
Sunday. (Tr. 24.) The Respondent’s owners and General Man-
ager Betoney attended these Sunday meetings twice a month
and drivers and dispatchers were required to sign in and out of
the meetings to verify their attendance at these mandatory
meetings. (Tr. 24–25, 184–185.) During two mandatory staff
meetings in June 2015, employees raised concerns about Re-
spondent’s daily trip sheet. (Tr. 30.) Betoney later opined that
usually a majority of drivers complain about delayed payment
on submitted trip sheets at mandatory staff meetings at this time
and that trip sheets were the usual subject of discussion at the
June staff meetings because there were new drivers attending
these meetings. (Tr. 30–31.) In addition, a common driver
complaint involved the ever-changing requirements from
AHCCCS for trip submittals and the lack of response from the
dispatchers about AHCCCS’ approving, denying or a request-
ing more information about a trip concerning transportation or
pre-approved or prior authorizations (P.A.) trips when
AHCCCS would sometimes delay a decision of trip approval or
denial or request more information for 2 weeks to a month ra-
ther than the 72-hour limit the drivers were told by Respondent
that AHCCCS was required to respond. (Tr. 81–83, 87.)
The drivers would work to get AHCCCS’ response to their
trips by going through dispatchers who acted as go-between
drivers and AHCCCS. Id. Many times the drivers, frustrated or
upset by the delay from AHCCCS, would also have to deal
with non-communicative dispatchers like Spring John who
would exacerbate the delay. (Tr. 43–44, 63, 81–83.) Drivers
relied on dispatchers to check on AHCCCS’ responses to sub-
mitted trip sheets. (Tr. 82.) P.A.s for less than 100 miles did not
take long to be approved. (Tr. 176.)
Henleigh developed frustration because the majority of his
trips were transporting clients to addiction counseling meetings
and a lot of those were pending with AHCCCS on average of
four at a time. (Tr. 83–84.) Respondent tried to assist Henleigh
and get these trips approved at AHCCCS but AHCCCS would
commonly ask for more information on what times the meet-
ings were held, what time the client was being picked up, and
the trip sheets had to match all of the required information from
AHCCCS. Id. Henleigh admits that some of his trip sheet prob-
lems were due to his own mistakes in filling out the forms or
having a filled-out form missing a client’s signature. (Tr. 146–
147, 167–168.) In addition, Henleigh understood all along that
neither Henleigh nor Respondent would receive reimbursement
from AHCCCS without a properly completed trip sheet. (Tr.
169.)
Some of Henleigh’s trip sheets contained inaccurate mileage
information and this caused a delay in processing his trip sheet.
(Tr. 84.) Some of the drivers disputed the amount of trip mile-
age that Respondent calculated using Google Maps versus what
the drivers believed was accurate for driving in many remote
locations in Arizona. Id. Sometimes Henleigh would use a
longer route and try to process this longer trip route to avoid
using dirt roads during certain times of the year. (Tr. 85.)
Betoney, a former driver, admits that driving for Respondent
gets frustrating trying to make money and providing for your-
self and these trips do not get processed, they are delayed for
whatever reason, and all you are doing is trying to get paid for
the miles you are driving. (Tr. 86.)
During the two Sunday staff meetings each in July and Au-
gust, trip sheets were again discussed as a common agenda
topic at each of the staff meetings. (Tr. 38.) Henleigh spoke up
at Sunday meetings after he began to transport two clients from
Kings Canyon and his trip sheets’ completion and reimburse-
ment became an issue he raised at Sunday meetings in July or
August 2015. (Tr. 69.)
Henleigh worked with four different dispatchers while work-
ing at Respondent as a driver. (Tr. 87.) Betoney opined that the
first 2 dispatchers that Henleigh worked alongside left Re-
spondent leaving Henleigh to find a new dispatcher. (Tr. 92.)
Specifically, Henleigh explained that he worked first with dis-
patcher Letonia for about a month until the end of June before
Respondent terminated her. (Tr. 150–151, 154–155.)
After Letonia, Henleigh worked a week with Spring John
where he had verbal disagreements with her as his dispatcher
and he occasionally raised his voice in frustration working with
her but never received any verbal warning or write-up. (Tr.
151.)
After a week with Spring John, Henleigh was transferred to
work with dispatcher Rufina Begay6 (Begay) in early July, who
he worked with for almost 2 months before she too was termi-
nated by Respondent. (Tr. 152–155.) After Begay was dis-
charged, Respondent reassigned Spring John to Henleigh again
where they worked together for another week until late August.
(Tr. 98, 152–154.)
Respondent also switched Spring John away from Henleigh
just as it did for Alan because Henleigh also complained that
Spring John would not communicate with him or Spring John
was giving him a hard time. (Tr. 98, 151.) After a second brief
assignment with Spring John, Henleigh was next assigned to
work with dispatcher Chee sometime in September. (Tr. 154–
155.) Betoney also explained that it was Respondent’s policy to
allow drivers to work with other dispatchers if they called in
and their assigned dispatcher was on the phone with someone
else or not in the office that day. (Tr. 93.)
E. The September 2015 Staff Meeting Drivers’
Continued Complaints
1. Complaints regarding dispatcher Spring John and her pro-
cessing trip sheets
By September 2015, Henleigh and three other drivers, Alan
Wallace (Alan), Janelle Laylow (Janelle) and Rhonda Q.,
voiced their complaints about dispatcher Spring John (Spring
John) at a staff meeting attended by Respondent’s owners,
Betoney, other drivers and dispatchers. (Tr. 44, 63, 90, 146,
210.) Alan was the first to speak up and he was later joined by
Henleigh and Rhonda Q. as they complained about missing trip

6 Begay and Henleigh were in a dating relationship at the time of
hearing. Tr. 153.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
sheets and that Spring John did not communicate well and she
delayed the processing of their daily trip reports and how this
delay resulted in delayed payment of the drivers’ paychecks.
(Tr. 42–43, 63, 90, 146–147.)
In particular, the four drivers all chimed in at this September
2015 staff meeting and complained that dispatcher Spring John
lacked professionalism, had difficulty communicating, was
argumentative, and was especially difficult to work with as she
did not return the drivers’ texts to her for ride assignments, she
would misplace her drivers’ trip sheets, and that Spring John
was slow to process their daily trip reports or that she did not
process them correctly, resulting in delayed and disputed pay to
the three drivers. (Tr. 43–44, 63, 146–148.) Spring John admits
that in addition to Henleigh, she also had trouble working with
other drivers at Respondent. (Tr. 128). Respondent switched
Spring John away from another driver other than Henleigh after
he complained about her at a Sunday mandatory staff meeting
to dispatcher Chee and she was also switched away from Hen-
leigh due to complaints. Id.
In contrast, Spring John described working with Henleigh in
August 2015, as Henleigh being very difficult and angry at
times, verbally abusive and profane, and not seeming to under-
stand or learn how to properly complete trip sheets. (Tr. 124–
125.) Spring John also said that she felt threatened by Henleigh
and that she was afraid for her life before he was transferred
over to Chee. (Tr. 125, 199.) I reject this testimony as untrue
and inconsistent with more reliable evidence as Henleigh was
never disciplined or issued any written warning or write-up by
Respondent despite this alleged and questionable testimony
about Henleigh from Spring John. (Tr. 106–107.)
Spring John also admitted, however, that she commonly used
profanities with Betoney at Respondent in 2015 and that, de-
pending on the situation, curse words were commonly used
throughout Respondent’s facility. (Tr. 129–130.)
Henleigh described another problem he encountered with
Spring John in early September 2015 involving his missing trip
sheets. (Tr. 170–171.) Henleigh raised the issue with Abe, Re-
spondent’s owner, who was standing next to Betoney at a Sep-
tember staff meeting and Henleigh asked Abe: “What are you
going to do about the trip sheets that were found in Spring
[John’s] desk? What’s going to happen with that?” Id. Henleigh
further explained that thes e were his missing trip sheets that
Spring John had told him to hand over to a Respondent me-
chanic who was traveling into the Holbrook office for work on
vehicles and the mechanic was directed by Spring John to de-
liver Henleigh’s trip sheets to her. (Tr. 171). These trip sheets
contained multiple clients who Henleigh picked up during the
week. Id.
Henleigh’s lost trip sheets only occurred after he turned them
in and did not involve trips sheets he did not turn in. (Tr. 173.)
All that remained with Henleigh after he turned in his complet-
ed trip sheets were either blank trip sheets or ones previously
returned to him with mistakes and these may have been located
in his company vehicle once it was turned in after he was ter-
minated on September 29. (Tr. 173–174.)
2. Drivers’ complaints about delayed processing of Trip Sheets
and related delayed payment of wages
Also in September 2015, Henleigh and other drivers at Re-
spondent complained about problems communicating with
dispatchers and problems with lost or misplaced daily trip
sheets and delayed processing with daily trip sheets. (Tr. 132,
146–148.) These complaints were voiced by Henleigh to other
drivers, dispatchers, Betoney as the general manager, and to
Henleigh’s coworkers, including fellow driver Rhonda Q. (Tr.
132–133, 146–148.)
Henleigh also mentioned at this meeting that he had not been
paid for some of his trips for quite some time and he was won-
dering where his trips were in Respondent’s processing proce-
dures. (Tr. 133.) Rhonda Q. also followed up on this topic and
raised the issue of where the drivers’ trip sheets go after they
are turned in at a Sunday meeting and how the drivers know
they will be properly paid for their submitted trip sheets. (Tr.
133–134, 140, 148.)
Alan also spoke up at this same Sunday meeting and repeat-
ed the complaints of Henleigh and Rhonda Q. about Respond-
ent’s very disorganized process for its drivers receiving timely
and accurate pay for their turn-in trip sheets. (Tr. 134, 147.)
Rhonda Q. also noticed that other drivers attending this same
meeting also raised concerns about trip sheet processing but did
not speak out in the group because they did not want to be iden-
tified at Respondent. Id.
During this staff meeting, dispatcher Veronica John suggest-
ed to the three complaining drivers that they should discuss
their complaints about daily trip sheet processing in private
with Respondent’s general manager Betoney and not at a Sun-
day staff meeting and Betoney responded to this comment by
saying that she agreed that it would be more appropriate for the
three drivers to discuss the drivers’ complaints in private and
not at a Sunday staff meeting. (Tr. 44, 63–64.) Henleigh did not
want to confine his complaints on behalf of all drivers to a pri-
vate conversation with Betoney as he opined that daily trip
sheet processing affected everyone at Respondent including
drivers and dispatchers.
Also at this time in late September, according to Respond-
ent’s General Manager Betoney, Henleigh and Rhonda Q. were
trying to persuade another driver, Janelle, also from the Hopi
reservation like Henleigh, to go along with them “to complain
to other governmental agencies” and “file certain things” about
Respondent’s mistreatment of its drivers connected to their
misprocessed trip sheets and communication problems with
Respondent’s dispatchers and the delayed payment of drivers’
wages. (Tr. 77–78, 90–91.)
After this meeting, Henleigh and Rhonda Q. took their com-
plaints about delayed or missing trip sheets and Respondent’s
business ethics to the local Hopi Office of the Revenue Com-
mission and Henleigh also reported it to the Hopi Terros Office.
(Tr. 148, 174–175.) The revenue commission is the agency that
issues licenses to companies doing business with the Hopi
Tribe and Henleigh explained that if the revenue commission
receives a certain number of complaints about a business li-
censed to work with Hopi Tribe members, the commission has
a right to revoke that business entity’s license to transport Hopi
Tribe members. (Tr. 149.) Henleigh also explained that the
RAINBOW MEDICAL TRANSPORTATION LLC 9
Hopi Terros Office is the tribal employment office that helps
Hopi Tribe members with complaints they may have against
various employers. Id.
F. Respondent’s September 29 Termination of Henleigh and
Respondent’s Changing Explanations for Henleigh Leaving His
Employment
On September 29, 2015, Henleigh called or texted dispatcher
Chee to complain that some of his trip sheets were missing and
had not been processed and Henleigh believed that Respond-
ent’s dispatchers had lost or misprocessed his trip sheets caus-
ing him a delay in pay. (Tr. 95–96, 150; GC Exh. 2 at 4–5.)
Henleigh did not use any profanities in his talk to Chee that day
but he did have increased aggravation and yelled about his
missing trip sheets from August. (Tr. 101–102, 150.) Chee was
not bothered by Henleigh’s frequent complaining about his trip
sheets as she never had a problem with helping him with his
trip sheets as that was part of her job as dispatcher. (Tr. 96). In
addition, Chee never felt threatened by Henleigh’s behavior
when they worked together at Respondent. (Tr. 103.)
Later on September 29, using the information he received
from Chee about his missing trip sheets, Henleigh next went
directly to Respondent’s in-house manager and accountant
Shanelle Jackson (Jackson) to see if she could determine why
some of Henleigh’s daily trip sheets were not being paid in a
timely manner. (Tr. 155–158, 175). Shanelle told Henleigh that
the dates Henleigh gave her for missing trip sheets were ac-
counted for and that he had been paid for those dates. (Tr. 158.)
Later on September 29, 2015, Betoney telephoned Henleigh
and asked him why he was calling Shanelle for information.
(Tr. 158.) Next, Betoney told Henleigh to come into the office
and sit down with her about his missing trip sheets but Hen-
leigh responded by telling Betoney that he cannot come into the
office at that moment as he was busy working and waiting for a
client’s information so he could transport his client to an ap-
pointment. (Tr. 158, 176–177.) Henleigh had been instructed by
Respondent that the client always comes first so Henleigh was
unable to meet with Betoney on September 29. Id.
Next, Betoney repeated to Henleigh that she needed him to
come in and talk to her about trip sheets and he again told her
that he could not come in because he was busy working. (Tr.
159, 176.)
By late September 2015, Henleigh had complained to Re-
spondent’s owners and General Manager Betoney about Spring
John’s unprofessional conduct and Henleigh believed that
Spring John was responsible for some of his lost trip sheets that
had not been processed. (Tr. 50.) At this time, Betoney tried to
set up a meeting with Henleigh at the Holbrook office with one
of Respondent’s owners, Sayed, so they could try to determine
what happened to Henleigh’s missing trip sheets. Id.
Normally, Henleigh had been cooperative with Betoney and
re-submitted trip sheets when they had been returned to him to
point out errors. (Tr. 73–74.) However, in late September,
Henleigh refused to come into the office and meet with
Betoney to go over the calendar to figure out which trip sheets
he believed were misprocessed or missing. (Tr. 50, 74.)
Betoney communicated to both Respondent’s owners that Hen-
leigh was constantly complaining about his missing trip sheets
and blaming Spring John yet refusing to come into the office
and Betoney believed that “things were getting out of hand with
Henleigh.” (Tr. 50–51, 56–57.) Betoney further explained that
Henleigh did not want to come in and sit down and go over his
calendar with the trips that he did make. Betoney described that
she then thought Henleigh reached a point of frustration where
“his attitude got really ugly” and unprofessional and he became
argumentative about things, about not really wanting to hear
things out or get things corrected or to come in and sit down
with Betoney and Respondent’s owners to see what trip sheets
were missing, which ones were accounted for, his mileage, and
discussing what was going on between the dispatcher and him-
self. (Tr. 51 and 56, 86, 88.)
Betoney also sympathized with Henleigh and understood that
by late September, he was frustrated with trip processing delays
and had become argumentative about things. (Tr. 86, 88.)
Betoney further explained that for Henleigh, he got frustrated
“about probably feeling that he wasn’t being heard or his needs
weren’t being met.” (Id). Also, some of the elderly clients were
not able to understand English and had to use thumbprints to
sign trip sheets or if they were under Altex, their care provider
signed trip sheets for them but drivers were never allowed to
sign for the patients and these all can cause a delay in trip sheet
processing. (Tr. 89.) Nonetheless, Henleigh remained a profita-
ble good driver for Respondent who continued to bring in good
miles for the company and Respondent’s owner, Hane, did not
want Henleigh to leave Respondent in 2015. (Tr. 114, 197–
198.)
Finally on September 29, 2015, Betoney told Henleigh that
he was being let go, that his employment with Respondent was
terminated, and to just leave it, turn in his keys, his phone, and
his gas card, and his company vehicle because of his com-
plaints of improper trip sheet processing and because he was
starting to talk to Betoney in an unprofessional manner similar
to the way that Spring John had spoken to Betoney in late Sep-
tember or early October 2015 as discussed in section II.G. be-
low. (Tr. 51, 77, 144, 149–150, 155,158–159,176–177.)
After terminating Henleigh, Betoney gave him the oppor-
tunity to bring his vehicle into the Holbrook office later that
day or on September 30. Also on September 29, Henleigh left
Abe a voicemail message on his cell phone telling Abe that
Henleigh wanted to be paid in full before he turned in the com-
pany vehicle in his possession.7 (Tr. 165–166, 217–219.)
Henleigh later responded to Betoney’s request and told her
that he was going to leave the vehicle at his residence until he
received his final paycheck and for her to come and pick it up
at his residence on the Hopi reservation later on September 29.
(Tr. 159–160, 163–165.)
On September 30, the next day after Betoney terminated
Henleigh, Respondent completed an Employee Discipline
Warning Notice which provides that Henleigh was apparently

7 Abe also testified that on the telephone message left by Henleigh
on September 29, Henleigh tells Abe “Hey, Abe, I’m not—, I’m quit-
ting.” Tr. 217–218. I reject this testimony as Abe’s misunderstanding of
Henleigh’s message as it is inconsistent with more believable testimony
from Betoney, Chee and Henleigh that he did not quit his job with
Respondent. (Tr. 77, 103, 157, 174.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
terminated a second time for the manner that he turned in his
vehicle when Betoney and her mother unexpectedly arrived
early at Henleigh’s parent’s house where Henleigh lives to
collect his Respondent vehicle and gas card.8 (Tr. 49–53, 59,
166; GC Exh. 2 at 1 and 3.) Betoney admits that Henleigh was
already terminated by Respondent on September 29, the day
before, when she and her mother traveled to his house the next
day to collect the vehicle and gas card. (Tr. 51–54, 59; GC Exh.
2 at 1–3.)
Henleigh thought Betoney would come collect the company
vehicle and gas card at his parents’ residence on September 29
when Betoney terminated him but, instead, Betoney and her
mother arrived at 7 a.m. on September 30 unannounced and
uninvited. (Tr.161–165.) Henleigh felt threatened by Betoney’s
presence at his parents’ house as he had heard a rumor that
Betoney had murdered her prior husband and might be capable
of hurting Henleigh or his parents. (Tr. 161.) Henleigh called
the Hopi police to alert them to be on the alert for Betoney
trespassing on Henleigh’s parents’ property. (Tr. 51–54, 59,
122–123, 127–128, 159–165; GC Exh. 2 at 1–3.)
On September 30, after Betoney and her mother arrived at
Henleigh’s parents’ residence on the Hopi reservation at 7 a.m.,
Henleigh swore at Betoney when she arrived and accused her
of being a murderer.9 (Tr. 160–165.) The Hopi police were
also present at this time and asked Henleigh to simply turn over
the company vehicle and gas card to Betoney and her mother so
they could be on their way. (Tr. 164–165.)
Henleigh received his last paycheck 2 days later on October
2, 2015, and he was paid in full for his work through September
29, 2015, the day he was terminated. (Tr. 164–165.)
Spring John and Baloo were promoted to supervisors who
can hire and fire employees at Respondent as of January 8,
2016 when Betoney and three dispatchers left Respondent. (Tr.
208.)
On January 20, 2016, Respondent created a “To Whom it
may Concern” letter (the “January 20 statement”) signed both
by former dispatcher and later supervisor Baloo and former
dispatcher and then supervisor Spring John which provides that
Henleigh called into dispatcher Chee on September 29 and
simply quit his job as a driver for Respondent on September 29,
2015. (Tr. 106–113, 120–121; GC Exh. 2 at 6–7.) Spring John
admits that she did not hear Henleigh call Chee on September
29 to quit but that she purportedly heard this account from Ba-
loo and Chee. (Tr. 122, 124.) Spring John further admitted that
she created the January 20 statement “just in case” she needed
to testify at the April 2016 NLRB hearing in this case. Id. Hane
also testified that he heard from an unknown staff person that
Henleigh had quit. (Tr. 196–197.) In addition, dispatcher Baloo
was never a dispatcher for Henleigh.

8 Betoney’s mother, Nora Betoney or Bacoti, was next in line to be-
come a driver for Respondent and Respondent was assigning Hen-
leigh’s vehicle to Betoney’s mother for her personal and business use.
Nora Betoney went with her daughter Betoney to retrieve Henleigh’s
vehicle. (Tr. 51, 56, and 88.)
9 While Henleigh admits he used profane language directed at
Betoney on September 30, he convincingly denied using the “f***”
word as part of his seasoned word repertoire. (Tr. 167–168.)
At hearing, Henleigh, Betoney and Henleigh’s last dispatcher
Chee all credibly denied that Henleigh quit work with Re-
spondent and Betoney repeated the fact that she terminated
Henleigh on September 29, 2015, because he was unwilling to
cooperate and work out the trip sheets disputes between Hen-
leigh and the dispatchers. (Tr. 77, 103, 157, 174.) In fact, Chee
was asked directly whether Henleigh ever contacted her and
told her that he was quitting and, contrary to the January 20,
2016 statement, Chee said that this never occurred. (Tr. 103.)
Finally, Henleigh confidently explained that he did not quit and
he had clients lined up for the first week of October and that he
had already turned in P.A.s for trips after September 29. (Tr.
174.)
Respondent also argues that Henleigh was terminated for be-
ing a disorganized employee who was combative with dis-
patchers throughout his employment and had to be shifted away
from as many as six dispatchers due to his aggressive manner
and abusive language.
Henleigh was not on probation when he was terminated and
he had never been disciplined or warned for any incident or
received any form of Respondent’s progressive discipline poli-
cy before he was terminated on September 29. There was one
incident late in Henleigh’s employment where Betoney claims
she spoke to Respondent’s owners about Henleigh’s behavior
but Betoney admits that she never confronted Henleigh with
any form of discipline before she terminated him on September
29, 2015. (Tr. 75.) Betoney was unaware of any customer
complaints concerning Henleigh’s behavior or attitude prior to
his termination other than that Respondent’s own trip sheets
asked its clients for information they believed raised privacy
issues or were problematic to clients. (Tr. 55.) Respondent’s
statement of position in this case, General Counsel Exhibit 2,
does not contain any prior discipline issued to Henleigh before
September 30, 2015, after he had already been terminated by
Respondent.
Finally, after Henleigh was terminated on September 29,
2015, Respondent discovered some blank trip sheets or incom-
plete trips sheets stuffed in Henleigh’s company vehicle that
were dated back to June 2015 or contained some client signa-
tures. (Tr. 56–57, 96, 102–103.) Rhonda Q. also credibly testi-
fied that she and Henleigh also found some of Henleigh’s miss-
ing trip sheets in Spring John’s dispatcher drawer and that
Rhonda Q. had not been paid for three of her trips in 2015. (Tr.
135, 140.)
G. Respondent’s Progressive Discipline with Spring John Fol-
lowing Drivers’ September 2015 Complaints of Her as a Dis-
patcher and Other Employee Incidents
Betoney described how after receiving the multiple com-
plaints about Spring John from Alan, Henleigh, and Rhonda Q.
in late September 2015, Betoney disciplined Spring John after
pulling her aside in the office after Spring John had met with
Respondent’s owners. At the follow-up meeting, Betoney ver-
bally warned Spring John that her professionalism needed to be
improved; she needed to work on her communication skills
with the drivers as well as the other staff. (Tr. 44–45.) Betoney
also instructed Spring John that any time that Spring John re-
ceived a text message from one of her drivers, she was to im-
RAINBOW MEDICAL TRANSPORTATION LLC 11
mediately acknowledge receipt of the text so the drivers were
not left wondering if their texts had gone through and Betoney
told Spring John that she was going to write her up for this poor
work performance including poor text responses, bad attitude,
and unprofessional conduct. (Tr. 45.) Spring John then took the
verbal write-up and avoided coming into the office to sit down
and talk to Betoney about the write-up and Betoney “just let it
be.” Id.
Instead, Betoney prepared written write-up and gave the
write-up paperwork to dispatcher Baloo and asked Baloo that if
Spring John came into the office, Baloo would give the write-
up to Spring John to have her read it over and if Spring John
did not agree with the write-up, Baloo was to inform Spring
John that Spring John would not have to sign the writeup. (Tr.
45.)
Spring John apparently waited for Betoney to leave the of-
fice when the write-up was created and then Spring John picked
up the paperwork and Betoney did not confront Spring John
about the write-up until Spring John returned from her vacation
sometime in October. (Tr. 46, 60.) When Betoney finally con-
fronted Spring John about the writeup, Spring John told
Betoney that she did not want to sign the write-up because she
did not feel that she was in the wrong for the way she spoke in
text to Betoney or the drivers. (Tr. 46.) Spring John never
brought the first write-up paperwork back to Betoney. Id.
The following Sunday, Betoney wrote up Spring John a sec-
ond time and Betoney repeated the reasons for the first write-up
and added a new reason for an improper text that Spring John
had sent to Betoney’s work phone. (Tr. 46. etoney and the three
of them called Spring John into a meeting at the office and
Spring John apologized to both of the owners for her inappro-
priate language but Spring John did not apologize to General
Manager Betoney and Spring John never sat down and talked to
Betoney about the write-ups. Id. At the end of the meeting with
the owners, it was agreed that Respondent would ignore the two
writeups of Spring John and move forward without any further
discipline to Spring John. Id.
Next, Betoney explains that these two write-ups and meet-
ings with Spring John did not work to correct her poor perfor-
mance at Respondent but, instead, by November 2015, Spring
John’s poor work performance “seemed to kind of increase on
where she [Spring John] just wanted to kind of do whatever she
wanted to do and leave the office when she wanted to leave the
office” and Spring John acted like she did not have to listen to
Betoney or Respondent’s owners about her poor work perfor-
mance. (Tr. 46–47.) None of the alleged write-ups for Spring
John were produced by Respondent at hearing although they
were the subject of a valid subpoena request from the General
Counsel. (Tr. 58.) In addition, Respondent’s owner Hane ex-
plained that driver Alan, like Henleigh, had a lot of complaints
while driving for Respondent and that numerous drivers, other
than Henleigh, were issued many written disciplinary write-ups
by Respondent but, unlike Henleigh, remained at Respondent
as drivers. (Tr. 210).
Betoney admits that at no time was Respondent considering
terminating Spring John for her continued poor work perfor-
mance. (Tr. 47–48.) Instead, Abe and not Spring John signed
off on the second writeup of Spring John and it went into her
personnel file at Respondent. Id.
Spring John later applied and interviewed for another job and
finally resigned from work at Respondent to work for another
transport company at the end of November 2015. (Tr. 47–48,
120.) At this time, Respondent offered Spring John a position
as a driver at Respondent. (Tr. 48.)
Betoney also described a verbal counseling session she had
with dispatcher Veronica John (no relation to Spring John) just
before October 31, 2015, for her frustrated and unprofessional
behavior to the more than 10 drivers she worked with at Re-
spondent. (Tr. 61–62.) Betoney also opined that Veronica
John’s behavior improved after she was given a verbal counsel-
ing session by Betoney. (Tr. 62–63.)
Rhonda Q. left employment with Respondent in late Decem-
ber 2015, not from the culmination of written or verbal warn-
ings from Respondent’s progressive discipline program, alt-
hough Betoney claimed, without written evidence, that Rhonda
Q. had misused her company vehicle several times including to
attend bingo or go to Walmart. (Tr. 131–132, 138.)
Rhonda Q. explains that she had a client who needed to go to
Walmart. (Tr. 139.) Rhonda Q. also confirmed that Betoney
never confronted her about any alleged personal use of her
company vehicle in 2015 and Rhonda Q. says that Betoney is
not being truthful if she says that she confronted Rhonda Q.
about personal use of the company vehicle. (Tr. 139.) There
were no write-ups produced at trial by Respondent involving
Rhonda Q.
Instead, Rhonda Q. describes an incident leading to her res-
ignation from Respondent in December 2015 due to harassment
from Betoney’s cousin, Marie. (Tr. 135–137, 141–142.) Rhon-
da Q. explained that Marie tailgated her and demanded that
Rhonda Q. turn in her vehicle and key while she was transport-
ing a client. (Tr. 135–137, 141–142.) Rhonda Q. left a message
with Respondent’s owner Abe, but testified that Abe never
returned her call about this incident. (Tr. 137.) Later Rhonda
Q. heard from dispatcher Baloo that “Marie is Philana’s
[Betoney’s] cousin.” (Tr. 136–137.) Rhonda Q. was not given
an exit interview when she left Respondent’s employment in
late 2015. (Tr. 141–142.)
Betoney left her position as general manager of Respondent
on January 8, 2016, to work somewhere else. (Tr. 28.) Spring
John was rehired by Respondent on January 8, 2016 as a dis-
patcher and promoted to supervisor at this time. (Tr. 208.)
On January 21, 2016, Respondent filed its position statement
in this case comprised of Respondent’s Discipline Warning
Notice to Henleigh dated September 30, a handwritten state-
ment from dispatcher Chee dated September 29, and the Janu-
ary 20, 2016 “To Whom It May Concern” letter referenced
above and signed by Baloo and Spring John. (Tr. 106–113; GC
Exh. 2.) Baloo and Spring John were promoted to supervisors
on January 8, 2016, with authority to hire and fire drivers in
2016 before they testified at hearing on April 26, 2016. (Tr.
106–113, 115, 118.)
Analysis
I. CREDIBILITY
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
demeanor, and the weight of the respective evidence, estab-
lished or admitted facts, inherent probabilities and reasonable
inferences that may be drawn from the record as a whole. Dou-
ble D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto-
motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need
not be all-or-nothing propositions—indeed, nothing is more
common in all kinds of judicial decisions than to believe some,
but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB
at 622. My credibility findings are generally incorporated into
the findings of fact set forth above.
Henleigh and Chee testified in direct and forthright manners
and their testimony did not waiver on cross-examination. For
example, Henleigh admitted that he made mistakes as a driver
and did not always submit trip sheets on time. Despite this,
Henleigh was always viewed by both Respondent’s owners as a
good driver who drove good miles and was profitable for Re-
spondent. While everyone used profanities at Respondent, in-
cluding Henleigh, only Spring John complained about his be-
havior though it was the same as her behavior and she was not
terminated. Henleigh worked with two other dispatchers who
were terminated by Respondent; his fourth and final dispatcher,
Chee, credibly testified that Henleigh did not quit his job at
Respondent and he did not use any profanities in his talk to
Chee on September 29 before he was terminated by Betoney
but he did seem frustrated and yelled about his missing trip
sheets from August. (Tr. 101–102, 150.) Chee also was not
bothered by Henleigh’s frequent complaining about his trip
sheets as she never had a problem with helping him with his
trip sheets as that was part of her job as dispatcher. (Tr. 96). In
addition, Chee never felt threatened by Henleigh’s behavior
when they worked together at Respondent. (Tr. 103.)
Respondent’s position that Henleigh quit on his own before
he was terminated is not believable, as Henleigh continued to
submit patient authorizations for the week he supposedly quit
and continued to call dispatch to confirm pickup times for his
customers when he was told that he was terminated by Re-
spondent on September 29 and again on September 30. In addi-
tion, as referenced above, Henleigh, dispatcher Chee, and
Betoney all denied that Henleigh quit Respondent at any time
before Betoney fired him on September 29, 2015.
While I agree with Respondent’s characterization that Hen-
leigh was a disorganized driver who had problems in the time
he worked at Respondent with his submittal of daily trip sheets,
Respondent admits that Henleigh was a good driver and Re-
spondent made a profit off of his work. (Tr. 114, 197–198,
214.) Therefore I reject Respondent’s argument as unsubstanti-
ated by credible evidence that Henleigh was a difficult employ-
ee who acted so belligerent, angry, abusive, threatening, and
profane, that he was terminated by Respondent for this conduct
rather than Henleigh’s protected concerted activity raising the
common issue of delayed trip sheet problems amongst drivers
at September staff meetings. Once again as reported by Re-
spondent’s owner Hane, Henleigh remained a profitable good
driver for Respondent who continued to bring in good miles for
the company and Respondent’s owner, Hane, did not want Hen-
leigh to leave Respondent in 2015. (Tr. 114, 197–198.)
I also reject Respondent’s argument that Henleigh was ter-
minated for his behavior prior to September 30 or on Septem-
ber 30 when he had already been terminated and Respondent
traveled to collect his work vehicle. Respondent failed to pro-
duce any written discipline notices to Henleigh despite its pro-
gressive discipline policy and despite the several warnings and
discipline for similar behavior by Spring John in late 2015. I
reject Betoney’s testimony that before September 30, she issued
and left behind a folder of more than one written discipline
against Henleigh as it was not credible when she mentioned it
at hearing and this is unsubstantiated as no such documents
were produced at hearing. (Tr. 50–51.)
What was particularly telling to me at hearing as it relates to
Respondent’s own management and supervisory witness credi-
bility were the frequent leading questions asked by counsel to
Respondent to all of his witnesses, including significant testi-
mony from General Manager Betoney, Supervisor Baloo, Su-
pervisor Spring John, and Respondent’s owners and chief exec-
utives Sayed and Abe, despite numerous objections by the
General Counsel and admonishments from me to avoid im-
properly having testimony from Respondent’s lawyer rather
than believable testimony from Respondent’s witnesses’ own
personal knowledge. (Tr. 68–73, 80–81, 99, 101, 113, 126–127,
183–186, 188–189, 191–192,198–200, 213.) An occasional
leading question is expected but the wide scope of testimony
elicited from leading questions fashioned as script from Re-
spondent’s legal counsel adds credence to my finding that Re-
spondent’s multiple different explanations as to why Henleigh
no longer works at Respondent is pure pretext and that Re-
spondent’s counsel’s proffered facts through his witnesses’
multiple “yes” or “no” responses are inadmissible as evidence.
See, e.g., H.C. Thomson, 230 NLRB 808, 809 fn. 2 (1977) (an-
swers to leading questions on direct examination not entitled to
credence).
I also reject Respondent’s “To: Whom it may Concern” letter
dated January 20, 2016, prepared not near the time of the al-
leged September 29, 2015 event, but immediately after the
General Counsel started investigating the charge in this case
and Respondent first received notice of the investigation. The
letter was signed by former dispatcher and 2016 supervisor
Baloo and former dispatcher and also 2016 supervisor Spring
John, which provides that Henleigh simply quit his job as a
driver for Respondent at the end of September 2015 (Tr. 106–
118; GC Exh. 2 at 6–7). Both Spring John and Baloo were
promoted to supervisors by Respondent on January 8, 2015 and
created the letter only after a charge had been filed and investi-
gation began in this case and also when Respondent’s fabricat-
ed position that Henleigh quit came into this case. (Tr. 197,
208.) At hearing, former Respondent General Manager
Betoney denied that Henleigh quit work with Respondent and
once again admitted that she terminated Henleigh on September
29, 2015, because he was unwilling to cooperate and work out
the trip sheets disputes between Henleigh and the dispatchers
with her. (Tr. 77, 103.) Also, Henleigh’s dispatcher Chee was
more credible than Baloo and Spring John that Henleigh did not
quit but was terminated by Betoney on September 29, 2015.
(Tr. 103.)
I reject Sayed’s testimony that only Henleigh spoke up and
RAINBOW MEDICAL TRANSPORTATION LLC 13
complained at a September staff meeting and that another driv-
er spoke up to say that because Henleigh was taking a lot of
time at the meeting, he should do this privately on his own
time. (Tr. 185, 191–192.) The credible testimony here is that
Henleigh and other drivers complained at a staff meeting in
September that trip sheets were not being processed properly
and during this staff meeting, dispatcher Veronica John sug-
gested to the three complaining drivers that they should discuss
their complaints about daily trip sheet processing in private
with Respondent’s General Manager Betoney and not at a Sun-
day staff meeting, and Betoney responded to this comment by
saying that she agreed that it would be more appropriate for the
three drivers to discuss the drivers’ complaints in private and
not at a Sunday staff meeting. (Tr. 44, 63–64.) I also reject
Sayed’s testimony as unsubstantiated, vague, and self-serving
that on some unknown date, Respondent paid Henleigh for all
miles that he claimed dispatchers lost even without any submit-
ted trip sheets. (Tr. 188–189). Sayed was believable, however,
when he explained that Henleigh remained a profitable good
driver for Respondent who continued to bring in good miles for
the company and Sayed did not want Henleigh to leave Re-
spondent in 2015. (Tr. 114, 197–198.)
I also reject Sayed’s statements that he instructed Betoney
numerous times to discipline Henleigh with write-ups for
swearing or anything related to alleged bad behavior as no writ-
ten discipline documents were produced in response to the
General Counsel’s subpoena other than the fabricated General
Counsel’s Exhibit 2 at 1–3, which attempts to document
Betoney’s day on September 30 after Henleigh had been termi-
nated and she and her mother showed up unannounced at 7 a.m.
at Henleigh’s parents’ Hopi Reservation property to collect his
vehicle and gas card.
II. THE UNLAWFUL DISCHARGE OF HENLEIGH
A. Henleigh’s Protected Concerted Actions and Respondent’s
Knowledge of Them
Complaint paragraph 4(a) alleges that since about the first
week of September 2015 through about September 30, 2015,
Henleigh engaged in concerted activities with other employees
for the purposes of mutual aid and protection and concertedly
complained to Respondent regarding wages, hours, and work-
ing conditions, by talking to other employees about, and raising
concerns to Respondent about, wages, hours, and working con-
ditions, including Respondent’s processing of employees’ or
drivers’ trip sheets. (GC Exh. 1(c) 2; R. Exh. 1.) Respondent
denies that Henleigh was involved in protected concerted activ-
ity related to his termination. (R. Br. at 1).
To be protected under Section 7 of the Act, employee con-
duct must be both “concerted” and engaged in for the purpose
of “mutual aid or protection.” Fresh & Easy Neighborhood
Market, 361 NLRB No. 12 slip op. at 3 (2014). Whether an
employee’s activity is “concerted” depends on the manner in
which the employee’s actions may be linked to those of his
coworkers. See NLRB v. City Disposal Systems, 465 U.S. 822,
831 (1984); Meyers Industries, 268 NLRB 493, 497 (1984)
(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supple-
mented Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers
II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988). The Supreme Court
has observed, however, that “[t]here is no indication that Con-
gress intended to limit [Section 7] protection to situations in
which an employee’s activity and that of his fellow employees
combine with one another in any particular way.” NLRB v. City
Disposal Systems, 465 U.S. at 835. The concept of “mutual aid
or protection” focuses on the goal of concerted activity; chiefly,
whether the employee or employees involved are seeking to
“improve terms and conditions of employment or otherwise
improve their lot as employees.” Eastex, Inc. v. NLRB, 437 U.S.
556, 565 (1978).
In Meyers I, the Board defined concerted activity as that
which is “engaged in with or on the authority of other employ-
ees, and not solely by and on behalf of the employee himself.”
Meyers I, 268 NLRB at 497. In Meyers II, the Board clarified
that the Meyers I definition of concerted activity includes cases
“where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bring-
ing truly group complaints to the attention of management.”
Meyers II, 281 NLRB at 887. The requirement that, to be con-
certed, activity must be engaged in with the object of initiating
or inducing group action does not disqualify merely prelimi-
nary discussion from protection under Section 7. In this regard,
“inasmuch as almost any concerted activity for mutual aid or
protection has to start with some kind of communication be-
tween individuals, it would come very near to nullifying the
rights of organization and collective bargaining guaranteed by
Section 7 of the Act if such communications are denied protec-
tion because of lack of fruition.” Mushroom Transportation Co.
v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964). In addition, it is
well established that “the activity of a single employee in en-
listing the support of his fellow employees for their mutual aid
and protection is as much ‘concerted activity’ as is ordinary
group activity.” Whittaker Corp., 289 NLRB 933, 933 (1988),
quoting Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d
1357, 1365 (4th Cir. 1969).
It is well established that wage discussions are “inherently
concerted.” Automatic Screw Products Co., 306 NLRB 1072,
1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992). Here,
Henleigh and other drivers raised the issue of Respondent’s
continued delayed processing of drivers’ trip sheets with a re-
sulting delay in the payment of drivers’ wages tied to these trip
sheets and possibly seeking outside assistance with the Hopi
Office of the Revenue Commission or Terros Office to get paid
in a timely manner. These issues were raised in the presence of
other drivers, dispatchers, General Manager Betoney and Re-
spondent’s owners Sayed and Abe two times in September.
Even under Myers II, and its progeny, Henleigh’s conduct with
fellow drivers, Alan and Rhonda Q., at these September staff
meetings would constitute concerted activity. See Transcripts.
44, 63–64, 77–78, 90–91, 132–134, 140, 146–149, 174–175. It
is irrelevant that Henleigh’s coworkers did not expressly join in
his efforts to hasten payment of their delayed wages by going
with Henleigh to the Hopi Revenue Commission or Terros
Office although Janelle informed Betoney of this activity. So-
licited employees do not have to agree with the soliciting em-
ployee or join that employee’s cause in order for the activity to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
be concerted. See Mushroom Transportation, 330 F.2d at 685;
Circle K Corp., 305 NLRB at 933; Whitaker Corp., 289 NLRB
at 934; and El Gran Combo, 284 NLRB at 1117. Further, the
protected, concerted nature of an employee’s complaint to
management is not dependent on the merit of such a complaint.
See Spinoza, Inc., 199 NLRB 525, 525 (1972), enfd. 478 F.2d
1401 (5th Cir. 1973).
Having found that Henleigh’s discussions with his coworkers
at two September staff meetings with Respondent’s manage-
ment were concerted activities based on the totality of the rec-
ord evidence, I now turn to the issue of whether Henleigh’s
concerted activities were engaged in for the purpose of “mutual
aid or protection” under Section 7 of the Act. The Board has
expanded the scope of this provision as follows:
We hold that an employee seeking the assistance or support of
his or her coworkers in raising a sexual harassment complaint
is acting for the purpose of mutual aid or protection. This de-
cision applies equally to cases where, as here, an employee
seeks to raise that complaint directly to the employer, or, as in
Holling Press, to an outside entity.
Fresh & Easy Neighborhood Market, Inc., supra at 7.
In this case, I find that Alan’s, Rhonda Q.’s, and Henleigh’s
staff meeting complaints were for the purpose of mutual aid or
protection under Section 7 of the Act when Henleigh and other
drivers tried to improve conditions at work and complained
about delayed trip sheet processing more than once at Septem-
ber staff meetings in the presence of Respondent management.
In addition, since more than one driver had delayed trip sheets
and paychecks, Respondent through Betoney and its two own-
ers had reason to know that more than a single employee was
involved when Betoney announced in late September a new
Respondent rule prohibiting these open complaints at bi-
monthly staff meetings and directed drivers to complain in
private only and not at any future Sunday staff meeting. (Tr. 44,
63–64.) Again soon thereafter, General Manager Betoney
heard from driver Janelle in late September that Henleigh
sought to continue these staff meeting complaints by bringing
these same drivers’ issues to the attention of the Hopi Revenue
Commission and Terros Office as outside entities for assis-
tance. See Salisbury Hotel, 283 NLRB 685, 687 (1987) (em-
ployee who called Department of Labor regarding her employ-
er’s lunch-hour policy was engaged in concerted activity be-
cause call was a continuation of efforts initiated by group of
employees, even though no evidence employees agreed to act
together, they did agree they had a grievance they should take
up with management).
In sum, I find that both Henleigh’s and other drivers’ com-
plaints about delayed trip sheet processing at a September staff
meeting and Henleigh’s subsequent reporting of this delayed
trip sheet processing to local agencies to improve work condi-
tions for Respondent’s drivers are protected concerted activities
in late September. I further find that Betoney and other Re-
spondent managers had knowledge of these protected concerted
activities before Henleigh was terminated on September 29.
B. Respondent’s Animus
Complaint paragraphs 4, 5, and 6 allege that on about Sep-
tember 29, 2015, Respondent, by Betoney, discharged Henleigh
because Henleigh engaged in protected, concerted activities
regarding wages, working conditions, and terms of employment
to discourage employees from engaging in these or other con-
certed activities in violation of Section 8(a)(1) of the Act.
Inasmuch as this case turns on Respondent’s motive, a
Wright Line analysis is appropriate and I find that the Respond-
ent violated Section 8(a)(1) of the Act when it terminated Hen-
leigh on September 29, 2015. In determining whether an em-
ployee’s discharge is unlawful, the Board applies the mixed
motive analysis set forth in Wright Line, 251 NLRB 1083
(1980), enfd. on other grounds, 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983); Hawaiian
Dredging Construction Co., 362 NLRB No. 10, slip op. at 3
(2015).
Under Wright Line, the General Counsel must demonstrate
by a preponderance of the evidence that the employee’s pro-
tected conduct was a motivating factor in an employer’s ad-
verse action. The General Counsel satisfies her initial burden
by showing (1) the employee’s protected activity; (2) the em-
ployer’s knowledge of that activity; and (3) the employer’s
animus. If the General Counsel meets her initial burden, the
burden shifts to the employer to prove that it would have taken
the adverse action even absent the employee’s protected activi-
ty. See, e.g., Mesker Door, 357 NLRB 591, 592 (2011); Don-
aldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004).
The employer cannot meet its burden merely by showing that
it had a legitimate reason for its action; rather, it must demon-
strate that it would have taken the same action in the absence of
the protected conduct. Bruce Packing Co., 357 NLRB 1084,
1086–1087 (2011); Roure Bertrand Dupont, Inc., 271 NLRB
443, 443 (1984). If the employer’s proffered reasons are pre-
textual—i.e., either false or not actually relied on—the employ-
er fails by definition to show that it would have taken the same
action for those reasons regardless of the protected conduct.
Metropolitan Transportation Services, 351 NLRB 657, 659
(2007); Golden State Foods Corp., 340 NLRB 382, 385 (2003);
Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982).
As set forth in section II.A. above, I find that Henleigh en-
gaged in protected concerted activity and Respondent was well
aware of it. The third element, animus, is readily established by
Respondent’s failure to conduct a reasonable investigation, its
summary discharge of Henleigh, and its shifting explanations
for this discriminatory adverse action.
The timing of events here is also suspect and supports find-
ing animus. The Board has long held that the timing of adverse
action shortly after an employee engaged in protected activity
will support a finding of unlawful motivation. Alternative En-
tertainment, 363 NLRB No. 131, slip op. at 10 (2016); Trader
Horn of New Jersey, Inc., 316 NLRB 194, 198 (1995). Re-
spondent tolerated Henleigh’s alleged bad work behavior with-
out issuing any discipline for almost four months before being
terminated on September 29. Here, Henleigh was terminated
almost immediately after Alan and Henleigh complained to
management about their delayed trip sheet processing and
Betoney discovered that Henleigh was continuing their com-
RAINBOW MEDICAL TRANSPORTATION LLC 15
plaints by repeating them to the Hopi Reservation Revenue
Commission and the Terros Office. Once again, there was no
discipline against Henleigh prior to September 29 and no cus-
tomers had ever complained about his driving and Henleigh
remained a profitable good driver for Respondent who contin-
ued to bring in good miles for the company and owner Sayed
admitted at hearing that he did not want Henleigh to leave Re-
spondent in 2015. (Tr. 114, 197–198.)
Respondent is unable to prove it had a reasonable belief that
Henleigh engaged in such egregious conduct by September 29
to warrant a discharge. This is untrue as Henleigh had not been
disciplined before September 29, Respondent has a progressive
discipline policy, and Henleigh did not commit any act subject
to immediate termination by September 29. When compared to
Spring John’s similar conduct where she received disciplinary
warnings as did other Respondent drivers, Respondent did not
treat Henleigh equally or conduct a thorough investigation of
his alleged bad behavior. Betoney acted unreasonably when she
attempted to conduct an impromptu meeting with Henleigh on
September 29 while he was working and had other customers to
service.
An employer’s failure to conduct a meaningful investigation
and to give the alleged discriminatee an opportunity to explain
demonstrates discriminatory intent. Andronaco, 364 NLRB No.
142 (2016), slip op. at 14, citing inter alia, Ozburn-Hessey
Logistics, LLC v. NLRB, 609 Fed.Appx. 656, 658 (D.C. Cir.
2015), enfg. 357 NLRB 1632 (2011). Also see Sociedad Es-
ponanola de Auxilio Mutuo Y Benefencencia de P.R., 342
NLRB 458, 459–460 (2004), enfd. 414 F.3d 158 (1st Cir.
2005). Therefore, Respondent presented no conclusive evi-
dence that Henleigh was treated similarly to other employees
disciplined for bad behavior. Ozburn-Hessey Logistics, LLC v.
NLRB, 833 F.3d 210, 219 (D.C. Cir. 2016), enfg. 361 NLRB
No. 100 (2014) and 362 NLRB No. 118 (2015) (disparate
treatment discussion).
Shifting defenses or reasons for an employer’s adverse em-
ployment action are persuasive evidence of discriminatory mo-
tive; it also serves as evidence of animus and pretext. Lucky
Cab Co., 360 NLRB No. 43, slip op at 4 (2014); Naomi Knit-
ting Plant, 328 NLRB 1279, 1283 (1999), citing Mastercraft
Casket Co., 289 NLRB 1414, 1420 (1988), enfd. 881 F.2d 542
(8th Cir. 1989). The most believable explanation for termination
at trial was that Betoney fired Henleigh over the telephone on
September 29 which differs from the only form of discipline
that Respondent produced from its records, General Counsel’s
Exhibit 2 at 1–3, which provides that Henleigh was terminated
for his behavior on September 30 when Betoney arrived unan-
nounced and surprised Henleigh and his parents at their resi-
dence on the Hopi Reservation. These reasons also differ from
yet another—Respondent’s supervisors’ January 20, 2016
statement that Henleigh was not terminated by Respondent but
he instead quit on September 29. City Stationery, Inc., 340
NLRB 523, 524 (2003). These shifts in explanation are evi-
dence of an unlawful motivation.
The General Counsel has met her burden, and the burden
shifts to Respondent. The employer cannot meet its burden
merely by showing that it had a legitimate reason for its action;
rather, it must demonstrate that it would have taken the same
action in the absence of the protected conduct. Bruce Packing
Co., 357 NLRB 1084, 1086–1087 (2011); JCR Hotel, Inc. v.
NLRB, 342 F.3d 837, 841 (8th Cir. 2003). If the employer’s
proffered reasons are pretextual (i.e., either false or not actually
relied on), the employer fails to show that it would have taken
the same action for those reasons regardless of the protected
conduct. Metropolitan Transportation Services, 351 NLRB
657, 659 (2007). An employer fails to meet its rebuttal burden
when the evidence shows that it tolerated an employee’s short-
comings until the employee engaged in protected activity.
Global Recruiters of Winfield, 363 NLRB No. 68 (2015) (Hi-
rozawa, concurrence), citing Diversified Bank Installations, 324
NLRB 457, 476 (1997). The trier of fact may not only reject a
witness story, but also determine that the truth is the complete
opposite. Boothwyn Fire Co. No. 1, 363 NLRB No. 191, slip
op. at 7 (2016).
As previously noted, I reject Respondent’s only written dis-
cipline of Henleigh produced at hearing as being illogical – the
September 30 discharge of Henleigh for using profane language
when Betoney and her mother unexpectedly showed up at Hen-
leigh’s parents’ house on Hopi Reservation land to collect Hen-
leigh’s company car and gas card. This alleged discipline oc-
curred after Henleigh had been purportedly terminated by
Betoney on September 29 so it is ineffective and pretext.10 Re-
spondent also falsely contends that Henleigh quit and was not
discharged when it created the untrue and unsubstantiated Jan-
uary 20, 2016 statement alleging that Henleigh quit on Septem-
ber 29 and had promoted the two alleged authors of the state-
ment to supervisor status. This too is pretext.
As referenced above, Henleigh had not been disciplined at
all before September 29, though he was always disorganized as
a driver yet profitable to Respondent. Henleigh’s behavior at
Respondent may have warranted progressive discipline like
other employees including Spring John who received warnings
in October and November 2015 and allowed to improve but
Respondent rushed to discharge Henleigh soon after his pro-
tected concerted activities without affording him the same pro-
gressive discipline and fabricating the reasons he no longer
worked at Respondent. When compared to how Respondent
treated Spring John and other drivers who made mistakes, the
evidence strongly supports an inference of discriminatory moti-
vation. Embassy Vacation Resorts, 340 NLRB 846, 848 (2003),
rev. denied 2004 WL 210675 (D.C. Cir. 2004) (inference of
unlawful motive drawn from inconsistencies between the prof-
fered reasons for disciplining employer’s other actions, dispar-
ate treatment of employees with similar work records or offens-
es, deviations from past practice, or proximity of discipline to

10 Respondent did not argue that Henleigh engaged in conduct on
September 30 that was so egregious as to lose protection under the Act,
and thus waived any defenses on that basis. I find that under the cir-
cumstances here where Henleigh had been terminated the day before
and Betoney arrived unannounced at 7 a.m. to pick up his company car
and gas card, his behavior was reasonable for an unlawfully discharged
employee. See Fund for the Public Interest, 360 NLRB No. 110, slip
op. at 1 (2014); Hawaii Tribune-Herald, 356 NLRB No. 63, slip op. at
2 (2011), enfd. 677 F.3d 1241 (2012) (Unlawfully discharged employ-
ees may act with some vehemence to an unlawful discharge and often
say unkind things about their former employers).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
union activity).
Moreover, even were these reasons not pretext, they would
not satisfy Respondent’s Wright Line burden. Substantively, the
main proffered reason for Henleigh’s discharge is his being
disorganized and making frequent complaints about delayed
trip sheet processing despite his sloppy trip sheet preparation.
Respondent owner Sayed or Hane credibly testified that Hen-
leigh remained a profitable good driver for Respondent who
continued to bring in good miles for the company and Re-
spondent’s owner Hane did not want Henleigh to leave Re-
spondent in 2015. (Tr. 114, 197–198.) It was not Henleigh’s
undisciplined disorganized behavior, use of profanities, or any-
thing approaching a legitimate reason but, instead, Henleigh
raising issues of improper delayed trip sheet processing at Sep-
tember staff meetings with other drivers and especially Hen-
leigh’s communicated intention to complain to the Hopi Reser-
vation Revenue Commission and Terros Office that resulted in
his quit termination by Betoney for Respondent on September
29. In view of the evidence here, the record does not support a
finding that Respondent satisfied its defense burden. See, e.g.,
Bally’s Atlantic City, 355 NLRB 1319, 1321 (2010) (when
there is a strong showing of unlawful motivation, the respond-
ent’s defense burden is substantial).
Accordingly, the evidence does not establish that the Re-
spondent would have discharged Henleigh based solely on his
undisciplined behavior as a driver even in the absence of Hen-
leigh’s protected concerted activities. Stated differently, be-
cause of the pretexts referenced above, Respondent does not
prove that it would have terminated Henleigh regardless of his
protected concerted activities. Therefore, I find that Henleigh’s
discharge was motivated by his protected concerted activities in
violation of his rights under Section 8(a)(1) of the Act.
III. RESPONDENT’S OVERBROAD RULE PROHIBITING OPEN
DISCUSSIONS AMONGST EMPLOYEES AT STAFF MEETING OF
PROTECTED CONCERTED ACTIVITIES
In addition, complaint paragraphs 4(b) and 5 and 6 further al-
lege that about the first week of September 2015, Respondent,
by Betoney, by oral announcement in a staff meeting at Re-
spondent’s facility, promulgated and since then has maintained
an overly broad and discriminatory rule prohibiting employees
from discussing their terms and conditions of employment and
engaging in protected concerted activities in violation of Sec-
tion 8(a)(1) of the Act. Specifically, during a September Sun-
day staff meeting, dispatcher Veronica John suggested to three
complaining drivers, Henleigh, Alan, and Rhonda Q., that they
should discuss their complaints about daily trip sheet pro-
cessing in private with Respondent’s General Manager Betoney
and not at a Sunday staff meeting and Betoney responded to
this comment by saying that she agreed that it would be more
appropriate for the three drivers to discuss the drivers’ com-
plaints in private and not at a Sunday staff meeting. (Tr. 44, 63–
64.)
The General Counsel has the burden to prove that a rule or
policy violates the Act. In determining whether a work rule
violates Section 8(a)(1), the appropriate inquiry is whether the
questioned rule would reasonably tend to chill employees in the
exercise of their Section 7 rights. Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999);
Hills & Dales General Hospital, 360 NLRB No. 70, slip op. at
5 (2014).
As the Board stated in its T-Mobile USA, Inc. decision, 363
NLRB No. 171, slip op. at 1–2 (2016), applicable here when
analyzing an employer’s work rule:
The consolidated complaint alleges that numerous provisions
in written work rules and policies applicable to the Respond-
ent’s employees are unlawful. An employer violates Section
8(a)(1) of the Act if it maintains workplace rules that would
reasonably tend to chill employees in the exercise of their Sec-
tion 7 rights. See Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The analytical
framework for assessing whether maintenance of rules violates
the Act is set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004). Under Lutheran Heritage, a work rule is
unlawful if “the rule explicitly restricts activities protected by
Section 7.”Id. at 646 (emphasis in original). Id. at 647.
As stated above, under Lutheran Heritage Village-Livonia,
343 NLRB supra at 647, an employer violates Section 8(a)(1)
when it maintains a work rule that explicitly restricts activities
protected by Section 7. Here, the disputed rule explicitly pro-
hibits employees from having open discussions at staff meet-
ings of the terms and conditions of employment, thereby pre-
venting the open discussion of complaints about Respondent’s
delayed processing of drivers’ daily trip sheets caused by testy
or uncooperative dispatchers and further causing a delay in
payment of wages. I further find that this rule is a violation of
Section 8(a)(1) of the Act because it explicitly restricts protect-
ed activities. See Automatic Screw Products Co., 306 NLRB
1072 (1992) (Respondent violated Section 8(a)(1) by promul-
gating and maintaining rule prohibiting employees from dis-
cussing their salaries and also disciplining an employee for
violating that rule); see also Lockheed Martin Astronautics, 330
NLRB 422 (2000) (Discussion of working conditions prohibit-
ed).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By promulgating and maintaining an overly broad and
discriminatory rule prohibiting employees from open discus-
sion of the terms and conditions of employment and engaging
in protected concerted activities, Respondent, through Betoney,
violated Section 8(a)(1) of the Act.
3. By discharging employee Henleigh Koyawena because of
his protected concerted activities for his complaining about
delayed trip sheet processing at Sunday staff meetings with
other drivers combined with his communication these same
drivers’ complaints to the Hopi Revenue Commission and Ter-
ros Office to report Respondent’s delayed processing of driv-
ers’ trip sheets and other terms and conditions of employment,
the Respondent violated Section 8(a)(1) of the Act and inter-
fered with, restrained, and coerced Henleigh Koyawena in the
exercise of the rights guaranteed in Section 7 of the Act.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
RAINBOW MEDICAL TRANSPORTATION LLC 17
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that they must cease and desist such
practices and take certain affirmative action designed to effec-
tuate the policies of the Act.
Specifically, having concluded that the Respondent is re-
sponsible for the unlawful discharge of employee Henleigh
Koyawena, the Respondent must offer him immediate rein-
statement to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his sen-
iority or any other rights and privileges previously enjoyed. I
also order that Respondent make Koyawena whole, with inter-
est, for any loss of earnings and other benefits he may have
suffered as a result of the discrimination against him. Backpay
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 pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Also, Respondent must compensate Koyawena for his search-
for-work and interim employment expenses regardless of
whether those expenses exceed her interim earnings. King
Soopers, Inc., 364 No. 93, slip op. at 9 (2016). Search-for-work
and interim employment expenses shall be calculated separately
from taxable net backpay, 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 addition, the Respondent shall compensate Ko-
yawena for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social
Security Administration allocating the backpay award to the
appropriate calendar quarters. Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10 (2014). The Respondent shall
also be required to expunge from its files any and all references
to the discharge, and to notify Koyawena in writing that this
has been done and that the discharge will not be used against
him in any way. The Respondent shall also post the notice in
accord with J. Picini Flooring, 356 NLRB 11 (2010).
Respondent shall also rescind or revise its unlawful rules as
set forth above. I will also order that Respondent post a notice
in the usual manner, including electronically to the extent man-
dated in J. Picini Flooring, 356 NLRB 11, 15–16 (2010). In
accordance with J. Picini Flooring, the question as to whether
an electronic notice is appropriate should be resolved at the
compliance phase. Id. at 13.
On these findings of fact, conclusions of law, and upon the
entire record, pursuant to Section 10(c) of the Act, I hereby
issue the following recommended11
ORDER
The Respondent, Rainbow Medical Transportation, LLC, in
Holbrook and Tempe, Arizona, its officers, agents, successors,
and assigns, shall

11 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.
1. Cease and desist from
(a) Unlawfully promulgating and maintaining an overly
broad and discriminatory rule prohibiting employees from open
discussion of their terms and conditions of employment and
engaging in protected concerted activities;
(b) Unlawfully discharging or otherwise discriminating
against Respondent’s employees because they openly discuss
Respondent’s delayed processing of drivers’ trip sheets and any
other terms and conditions of employment; and
(c)) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed 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 employ-
ee Henleigh Koyawena immediate and full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make employee Henleigh Koyawena whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against him, as set forth in the remedy section of
this decision.
(c) Compensate employee Henleigh Koyawena for the ad-
verse tax consequences, if any, of receiving a lump-sum back-
pay award, and submit the appropriate report to the Social Se-
curity Administration so that when backpay is paid to Ko-
yawena, it will be allocated to the appropriate calendar quarters.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter, notify employee Koyawena in writing that this
has been done and that the loss of employment will not be used
against him in any way.
(e) 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.
(f) Within 14 days from the date of this order, post at its fa-
cilities in and around Holbrook or Tempe, Arizona, copies of
the attached notice marked “Appendix.”12 Copies of the notice,
on forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized representa-
tive, shall also be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In addition to physical posting of paper notices, notices

12 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
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. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility 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 September 29, 2015.
(g) Within 21 days after service by the Region, file with the
Regional Director 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.
Dated: Washington, D.C., December 15, 2016.
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 do anything to prevent you from exercising the
above rights.
YOU HAVE THE RIGHT to freely bring issues and complaints to
us on behalf of yourself and other employees regarding your
working conditions, including concerns about our processing of
employees’ trip sheets, and
WE WILL NOT do anything to interfere with the exercise of
that right.
WE WILL NOT tell you that you should only raise issues about
your working conditions in private.
WE WILL NOT fire employees because they exercise their right
to bring issues and complaints to us on behalf of themselves
and other employees regarding their work conditions.
WE WILL NOT discharge you because you engage in activities
or make statements to other employees to the effect that you
will go to the Hopi Reservation Revenue Commission or the
Terros Office for assistance for any delayed processing of a trip
sheet or delayed payment of a paycheck.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the Act.
WE WILL offer Henleigh Koyawena immediate and full rein-
statement to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his sen-
iority or any other rights and/or privileges he previously en-
joyed.
WE WILL pay and make Henleigh Koyawena whole for the
wages and other benefits he lost as a result of his discharge.
WE WILL compensate Henleigh Koyawena for the adverse
tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods of longer than a year.
WE WILL file a report with the Social Security Administra-
tion allocating backpay for Henleigh Koyawena to the appro-
priate quarters.
WE WILL expunge and physically remove from our files all
references to the September 30, 2015 discharge of Henleigh
Koyawena, notify him, in writing, that such action has been
accomplished, and that the expunged material will not be used
as a basis for any future personnel action against him or made
reference to in any response to any inquiry from any employer,
prospective employer, employment agency, unemployment
insurance office, or reference-seeker.
RAINBOW MEDICAL TRANSPORTATION, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28–CA–166617 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.