Allied Medical Transport, Inc. is a Florida paratransit company that had its ride ticket punched by the National Labor Relations Board’s General Counsel after firing two employees who had been undergoing union organizing activities. The 11th Circuit granted the NLRB’s petition for enforcement of its determination that Allied violated the NLRA and must reinstate two of its drivers.
The NLRB had found that Allied had illegally interfered with union activities and retaliated against two of its drivers, Renan Fertil and Yvel Nicolas, by firing them shortly after employees elected to have a union represent them. The Court ordered Allied to reinstate the two drivers with back pay, holding that substantial evidence demonstrated the workers were fired for their roles in unionization efforts.
The timing of the firing was not the only relevant factor in the finding of retaliation, however. Ultimately, it was the disparate treatment of Fertil and Nicolas when compared with the treatment of other drivers in a similar situation before the union organizing activities had started.
In August 2011, Allied conducted an audit of a few of its bus drivers to learn whether the drivers were turning in all of the fares that the paratransit company could charge certain riders. In that first audit, two drivers, Desir and Etienne, had been found short. Allied’s Chief Executive Officer, Wayne Rowe, ordered both to pay the amounts owed. Both drivers initially refused, claiming that they had turned in the money to a supervisor. Allied decided to investigate, allowing both drivers to continue working during the investigation, and allowed one of them to pay the shortage (even though he did not admit guilt). Ultimately Etienne paid the fares to keep his job and, while Rowe referred the Desir investigation to the police, neither was fired.
In October 2011, the Transport Workers Union of America, American Federation of Labor and Congress of Industrial Organizations, filed a petition to represent the employees at Allied. Upon learning of this, Rowe allegedly interrogated employees, instructed them not to elect the union, told employees to come to him with any grievances, said that the union could not help them, and sat in his car outside of a union meeting at a hotel, surveilling the meeting.
Fertil and Nicolas were active union supporters, distributing union flyers, speaking at meetings, wearing union t-shirts under their uniforms and soliciting union cards. The Allied employees voted in December 2011 to have the union represent them.
Soon after the first audit, Allied expanded the audit to all drivers. The audit concluded a few days after the union election in December 2011, and 77 of 120 drivers were shown to have delinquent fares. Rowe and other company officials called in both Fertil and Nicolas, who were alleged to each owe a few hundred dollars in delinquent fares. Each claimed the fare machine did not always work but that they had collected the fares and had remitted them in an envelope with the other fares. Allied suspended both drivers pending an investigation, but in fact, Allied never investigated the validity of Nicolas and Fertil’s explanation, and fired them both – despite Fertil’s offer to pay any fare that Allied could document was missing.
The General Counsel of the NLRB filed a complaint against Allied for three violations of the National Labor Relations Act: illegal interference with protected union activities; unlawful retaliation against Fertil and Nicholas for their union activities, and unlawfully changing its disciplinary policies regarding fare shortages without notifying the union. 29 U.S.C. section 8(a)(1), (3) and (5).
Allied proffered the affirmative defense that it fired Fertil and Nicolas for their theft of fares and would have fired them regardless of their union activities.
Under the Wright Line test, the Board establishes a section 8(a)(3) violation by proving, by a preponderance of the evidence, that the employer’s anti-union animus was a “motivating factor” in its decision to discharge an employee. An employer has an affirmative defense if it proves, by a preponderance of the evidence, that it would have discharged the employee for a legitimate reason regardless of the protected activity.
An Administrative Law Judge found that Allied violated section 8(a)(1) and 8(a)(5). The Board affirmed the findings that the Company had committed several violations of section 8(a)(1) and ruled that Allied had committed an additional violation of section 8(a)(1) by instructing employees to vote against the union, but the Board reversed the other findings. It ruled that Allied retaliated against Nicolas and Fertil in violation of sections 8(a)(3) and (1).
The 11th Circuit granted the NLRB’s petition.
The timing of the discharge in relation to the union activity supported an inference of anti-union motivation. The evidence showed that Allied knew that Fertil and Nicolas supported the union, and it suspended and discharged Fertil and Nicolas only weeks after the workers voted in favor of the union. Further, Rowe expressed anti-union animus when he told Nicolas that electing a union would be futile, threatened and interrogated other employees, and surveilled the union meeting.
Moreover, the Court said that the dissimilar treatment of drivers with fare discrepancies before union organizing activities as compared with treatment of Fertil and Nicolas after the union election weakened Allied’s position.
Finally, the Court found that the fact that Allied suspended Fertil and Nicolas, telling them that they were going to investigate but then did not, and fired them without an investigation, undermined Allied’s purported legitimate reason for discharging Fertil and Nicolas.
The Court was not persuaded by the argument that Desir and Etienne were not similarly situated because Desir and Etienne asserted that they had submitted the fares to their supervisor, an allegation that Allied may have taken more seriously. The Court noted that “[a]lthough the employees’ different explanations may have called for different investigations, that the employees offered different excuses does not explain why some were permitted to work during the investigation and others were suspended pending a promised but nonexistent investigation.”
Allied also argued that it treated Fertil and Nicolas differently from Desir and Etienne because Desir and Etienne had repaid what they owed, but the Court found substantial evidence supporting the Board’s finding that Fertil and Nicolas were not given an opportunity to pay the fare shortage.
The Court held that there was substantial evidence supporting the Board’s conclusion that the employees’ protected activity was a motivating factor for their discharge and that Allied failed to prove that it would have suspended and later discharged Fertil and Nicolas in the absence of their union activities. Allied was ordered to reinstate Fertil and Nicolas with backpay.
The Takeaway: Changes in disciplinary procedures, even if for legitimate purposes, may give rise to an inference of retaliation when the changes occur in the midst of union-organizing activity and are coupled with anti-union activity. The NLRA, and thus the enforcement powers of the NLRB, reach non-unionized employers too. Employers whose employees are conducting a union campaign can keep the acronym “TIME” in mind: don’t Threaten pro-union employees, Interrogate employees about union activities, Monitor their union activities, or Entice or attempt to incentivize anti-union behavior.