Elite Ambulance Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 23, 2015

31-CA-122353 (N.L.R.B. Dec. 23, 2015)

JD–(SF)–53–15
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
ELITE AMBULANCE INC.
and 31-CA-122353
31-CA-122364
31-CA-128944
31-CA-131430

INTERNATIONAL ASSOCIATION OF EMTS
AND PARAMEDICS (IAEP)/NAGE/SEIU LOCAL 5000
Roufeda E. Elgamil, Esq.,
for the General Counsel.
Linda Mouzon, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Dickie Montemayor, Administrative Law Judge. The International Association of
EMTs and Paramedics (IAEP)/Nage/SEIU Local 5000 (the Union) filed charges which were
consolidated in a complaint issued by the General Counsel on April 29, 2015, alleging violations
by Elite Ambulance Inc. (Respondent) of Sections 8(a)(3) and (1) of the National Labor
Relations Act, as amended (the Act). Respondent filed an answer. Pursuant to notice, the case
was set for trial on December 14, 2015, in Los Angeles, California. Prior to the trial date, on
December 3, 2015, a pretrial conference was scheduled in the matter. Respondent failed and/or
refused to participate in the conference. The matter convened for trial on December 14, 2015,
2014. Respondent failed and/or refused to appear. Prior to the scheduled trial, General Counsel
served a subpoena duces tecum on Respondent. (GC Exh. 9.) Respondent failed to comply with
subpoena.
THE ADVERSE INFERENCE
As a result of Respondent’s failure to comply with the subpoena, I invoked the adverse
inference rule against Respondent. As noted by the court in Int'l Union, United Auto., Aerospace
JD–(SF)–53–15
2
& Agr. Implement Workers of Am. (UAW) v. N. L. R. B., 459 F.2d 1329, 1335-36 (D.C. Cir.
1972),
[T]he Board's complex gyrations might lead the unwary to conclude that the
adverse inference rule is one of those intricate gems of the common law which is
riddled with nonsensical exceptions, encrusted with gloss upon gloss, and
surrounded by an arcane lore last fully explicated in a three-volume treatise
published in the late 19th century. In fact, however, the rule is disappointingly 5
free of mystery and mumbo-jumbo. Indeed, it is more a product of common sense
than of the common law. Simply stated, the rule provides that when a party has
relevant evidence within his control which he fails to produce, that failure gives
rise to an inference that the evidence is unfavorable to him. As Professor
Wigmore has said:“[T]he failure to bring before the tribunal some circumstance, 10
document, or witness, when either the party himself or his opponent claims that
the facts would thereby be elucidated, serves to indicate, as the most natural
inference, that the party fears to do so, and this fear is some evidence that the
circumstance or document or witness, if brought, would have exposed facts
unfavorable to the party. These inferences, to be sure, cannot fairly be made 15
except upon certain conditions; and they are also always open to explanation by
circumstances which make some other hypothesis a more natural one than the
party's fear of exposure. But the propriety of such inference in general is not
doubted.” Although this rule can be traced as far back as 1722 when it was
applied in the famous case of the chimney sweep's jewel, it has been utilized in 20
scores of modern cases as well. See, e. g., Interstate Circuit, Inc. v. United States,
306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610 (1939) (“The production of
weak evidence when strong is available can lead only to the conclusion that the
strong would have been adverse.”); United States v. Roberson, 5 Cir., 233 F.2d
517, 519 (1956) (“Unquestionably the failure of a defendant in a civil case to 25
testify or offer other evidence within his ability to produce and which would
explain or rebut a case made by the other side, may, in a proper case, be
considered as a circumstance against him and may raise a presumption that the
evidence would not be favorable to his position.”); Tendler v. Jaffe, 92
U.S.App.D.C. 2, 7, 203 F.2d 14, 19 (1953) (“[T]he omission by a party to produce 30
relevant and important evidence of which he has knowledge, and which is
peculiarly within his control, raises the presumption that if produced the evidence
would be unfavorable to his cause.”).
The invocation of the adverse inference rule in this case carried with it both the
presumption that had the Respondent produced the information sought by the General Counsel it 35
would have reflected unfavorably on Respondent’s position and secondly, I struck those parts of
Respondent’s answer that related to the same subject matter of the documents sought by General
Counsel. See Equipment Trucking Co., 336 NLRB 277 (2001). The presumption that
information sought would have reflected unfavorably upon Respondent is sufficient in and of
itself to warrant an unfavorable decision against Respondent. See McAllister Towing & 40
Transportation, 341 NLRB 394 (2004); Carpenters Local 405, 328 NLRB 788 (1999); ADF
Inc., 355 NLRB No. 14 (2010).
JD–(SF)–53–15
3
Moreover, in as much as the subpoena sought information relating to each of those
factual paragraphs which were denied by Respondent (paragraphs 2(b), 3, 5, 6, 7, 8, and 9) and
each of those denials were stricken from the answer as a consequence of the adverse inference,
the factual allegations upon which the complaint rests stand uncontested in light of Respondent’s
failure and/or refusal to appear at trial. Thus, a decision unfavorable to Respondent is also 5
separately warranted on these grounds. See KB In & Out, Inc., d/b/a Century Car Wash &
Carwash Workers Org. Comm. of the United Steel, Paper & Forestry, Rubber, Mfg., Energy,
Allied-Indus. & Serv. Workers Int'l Union, Afl-Cio, 2014 WL 1871299 (2014). See also, Transp.
Solutions, Inc. & Gen. Teamsters, Chauffeurs & Helpers Local 249 a/w Int'l Bhd. of Teamsters,
355 NLRB 136 (2010), TNT Logistics N. Am., Inc. & Int'l Union, United Auto., Aerospace & 10
Agric. Implement Workers of Am., UAW Region 2-b, & Its Local 101, 344 NLRB 489 (2005).
Upon the entire record, I make the following
FINDINGS OF FACT
15
I. JURISDICTION
Respondent is a corporation engaged in the business of providing inter-facility ambulance
services to customers located in Southern California, where it annually purchased and received at
its Los Angeles Facility goods valued in excess of $50,000 directly from points outside the State 20
of California. I find, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of
Section 2(5) of the Act.1
II. ALLEGED UNFAIR LABOR PRACTICES25
1. At all material times, the following individuals held the positions set forth opposite their
respective names and have been supervisors of Respondent within the meaning of Section 2(11)
of the Act and/or agents of Respondent within the meaning of Section 2(13) of the Act:
30
Boris Khukrov – Owner/Manager2
Kris Thomas – Operations Manager
2. About December 20, 2013, Respondent, by Boris Khukhrov, at approximately 8:45 p.m. on
the sidewalk in front of the Respondent’s facility, threatened union representatives with violence, 35
in the presence of employees.
3. About December 20, 2013, Respondent, by Boris Khukhrov, in the second floor conference
room at Respondent’s facility, told employees that there would not be a union at its facility, and

1 Although in its answer Respondent asserted that the Board lacked jurisdiction over the matter,
however in its Stipulated Election Agreement dated November 26, 2013, Respondent in fact admitted that
it was an employer engaged in commerce within the meaning of 2(6) and (7) of the Act. See (GC Exh. 3).
2 Although Khukrov’s official title is not known, it is clear from the evidence presented at trial that he
acted as a manager with both the actual and apparent authority to hire and fire employees and in fact both
hired and disciplined employee Stacy Ardon.
JD–(SF)–53–15
4
informed its employees that it would be futile for them to select the Union as their bargaining
representative.
4. About May 6, 2013, Respondent by Kris Thomas, in the manager’s office facility, made a
coercive statement telling employees that they would not receive a pay raise due to their support5
and activities on behalf of and in the presence of the Union.
5. About November 2013 and continuing Respondent decreased or withdrew benefits of its
employees by failing to provide employees annual pay increases associated with their yearly
performance evaluations. Respondent engaged in the conduct described above because the 10
employees of Respondent formed, joined, assisted the Union and engaged in concerted activities,
and to discourage employees from engaging in these activities.
CONCLUSIONS OF LAW
15
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. By the acts and conduct described above, Respondent has interfered with, restrained,
and/or coerced employees in the exercise of their rights guaranteed in Section 7 of the
Act in violation of Section 8(a) of the Act, 20
3. Respondent violated Section 8(a)(3) and (1) of the Act by discriminating in regard to
the hire, tenure, or terms and conditions of its employees, thereby discouraging
membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act.
25
4. The unfair labor practices found above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
30
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The General Counsel, in addition to the standard remedy for 8(a)(1) and (3) cases, 35
requests that the Respondent be required to read the notice to the employees at a meeting held on
worktime. As noted above, the complaint alleged and I found that Respondent through
Khukhrov threatened a union representative with violence. (A cell phone video recording
documenting the threats appears in the record at GC Exh. 7.) In view of the openly violent and
threatening language and conduct exhibited by Respondent, in addition to posting a notice that 40
assures its employees that it will respect their rights under the Act, the notice shall also be read to
employees during working time. Reading the notice to the employees in the presence of a
responsible management official serves as a minimal acknowledgement of the obligations that
have been imposed by law and provides employees with some assurance that their rights under
the Act will be respected into the future. Whitesell Corp., 357 NLRB No. 97, slip op. at 6, 45
(2011). By reading to the employees assembled for that purpose only on company time will
enable the employees to fully perceive that the Respondent and its managers are bound by the
JD–(SF)–53–15
5
requirements of the Act. Federated Logistics, 340 NLRB 255, 258 (2003). Accordingly, the
Respondent shall be required to hold a meeting or meetings scheduled to ensure the widest
possible attendance on each shift at which a responsible management officials Khukrov and
Thomas will read the notice. The notice shall be read in the presence of a Board agent or, at the
Respondent's option, a Board agent will read the notice in the presence of the responsible 5
management officials of the Respondent. The reading will take place at a time when Respondent
would customarily hold meetings and must be completed within 14 days after service by the
Region of the Board’s Order. The date and times of the reading must be approved by the
Regional Director. The announcement of the meeting will be in the same manner that
Respondent normally announces meetings and must be approved by the Regional Director. 10
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
15
ORDER
The Company, Elite Ambulance, Inc., their officers, agents, successors, and assigns, shall
1. Cease and desist from20
(a) Telling employees that it would be futile for them to opt for union representation.
(b) Threatening union representatives with violence in the presence of employees.
25
(c) Telling employees that it cannot pay annual increases because of
INTERNATIONAL ASSOCIATION OF EMTS AND PARAMEDICS (IAEP)/NAGE/SEIU
LOCAL 5000, the Union.
(d) Withholding and continuing to withhold annual pay increases associated with 30
their yearly performance reviews from its employees because they engaged in union activities,
and to discourage employees from engaging in union activities.
(e) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.35
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, make whole all employees
who would have received wage increases linked to their performance evaluations who were not 40
granted wage increases from November 2013 through the present.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
(b) Preserve and, on request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to determine the amounts due
under the terms of this Order.
5
(c) Within 14 days after service by the Region
facility in Los Angeles, California, copies of the attached notice marked “Appendix.” Copies of
the notice, on forms provided by the Regional Director for Region 31 after being signed by the
Company’s authorized representative, shall be posted by the Company and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are 10
customarily posted. Reasonable steps shall be taken by the Company to ensure that the notices
are not altered, defaced, or covered by any other material. In addition to physical posting of
paper notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Compa
communicates with its employees by such means. In the event that, during the pendency of these 15
proceedings, the Company has gone out of business or closed the facility involved in these
proceedings, the Company shall duplicate and mail, at
current employees and former employees employed by the Company at any time since
November 1, 2013.
20
(d) Within 14 days after service by the Region of the Board’s Order, hold a meeting
or meetings, scheduled to ensure the widest possible attendance, at which the attached notice is
to be read to the employees by Boris Khukrov in the presence of a Board agent or, at the
Respondent’s option, by a Board agent in the presence of responsible management officials,
including, but not limited to, Boris Khukrov and Kris Thomas.25
(e) 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 Company has taken to comply.
30
Dated, Washington, D.C. December 23, 2015

35

4 If this Order is enforced by a judgment of the United States court of appeals, the words in the notice
reading, “posted by Order of the National Labor Relations Board Shall read
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
6
of the Board’s Order, post at its
ny customarily
its own expense, a copy of the notice to all
4
___________________
Dickie Montemayor
Administrative Law Judge
, “Posted Pursuant to a
JD–(SF)–53–15
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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT threaten union representatives with violence in the presence of employees.
WE WILL NOT tell you that a union cannot help you if it wins the election.
WE WILL NOT tell you that we cannot pay wage increases because of INTERNATIONAL
ASSOCIATION OF EMTS AND PARAMEDICS (IAEP)/NAGE/SEIU LOCAL 5000 or any
other labor organization.
WE WILL NOT withhold and continue to withhold wage increases, linked to your performance
evaluations, from you because you engaged in union activities, and to discourage you from
engaging in union activities.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL make whole all employees who would have received wage increases linked to their
performance evaluations who were not granted wage increases from November 2013 through the
present.
Elite Ambulance Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7351, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-122353 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235-7424.