Nat'l Labor Relations Bd. v. Allied Med. Transp., Inc.
| Decision Date | 13 October 2015 |
| Docket Number | No. 14–15033.,14–15033. |
| Citation | 805 F.3d 1000 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALLIED MEDICAL TRANSPORT, INC., Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Linda Dreeben, Jared David Cantor, Margaret J. Diaz, Kira Dellinger Vol, National Labor Relations Board, Washington, DC, for Petitioner.
Lydia B. Cannizzo, Cannizzo & Chamberlin, PA, Cooper City, FL, for Respondent.
Petition for Enforcement of an Order of the National Labor Relations Board.
Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
This petition for enforcement presents two issues: whether substantial evidence supports an order of the National Labor Relations Board and whether that order is moot. After employees at Allied Medical Transport, Inc., elected a union to represent them, Allied suspended and later discharged Renan Fertil and Yvel Nicolas, two of the employees who supported the campaign to elect a union. The General Counsel for the Board then filed a complaint against Allied. The Board found that Allied illegally interfered with its employees' union activities, 29 U.S.C. § 158(a)(1), and unlawfully retaliated against Fertil and Nicolas, id. § 158(a)(3). The Board ordered Allied to refrain from future violations of the National Labor Relations Act, id. § 151 et seq., and to reinstate Fertil and Nicolas with backpay. Because substantial evidence supports the findings of the Board and the petition for enforcement is not moot, we grant the petition for enforcement.
Allied contracted with Broward County to provide paratransit services to individuals in the county. The county provided Allied with daily manifests of passenger transportation routes that specified which passengers were required to pay a $3.50 fare. When the drivers finished their daily routes, they deposited the fares into collection machines, which printed receipts. The drivers then stapled the receipts to their manifests and returned them to the company.
In August 2011, Allied conducted a limited audit comparing the daily manifests and the receipts of several drivers. The initial audit revealed that several drivers had not remitted all of their fares. Wayne Rowe, Allied's chief executive officer, reported the discrepancies to the drivers and required them to pay the amounts owed.
Two of the drivers, Jude Desir and Andrys Etienne, initially refused to pay Allied on the ground that they had remitted all of their collected fares to a supervisor. On October 21, 2011, Rowe told Desir and Etienne that he would investigate and that, if their explanation could not be verified, they would be responsible for paying any fares they owed. He did not discipline or suspend either employee during the investigation. Although Etienne insisted that he had deposited all of his fares, he later paid the missing amounts to keep his job. Rowe referred the investigation of Desir to the police, but Desir continued working for Allied.
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. Rowe interrogated employees about their union activities, instructed employees not to elect the union, told employees that the union could not help them, and encouraged employees to come to him with any grievance. When the union held a meeting at a hotel near one of Allied's locations, employees observed Rowe parked near the entrance.
Renan Fertil and Yvel Nicolas supported electing the union. Fertil and Nicolas solicited union cards, distributed union flyers, wore union T-shirts under their uniforms, and spoke at union meetings. Nicolas also served as an election observer. On December 2, 2011, the employees voted to have the union represent them.
Soon after the first audit, Allied started an audit of all of its employees' fare records from March to December 2011. Allied concluded that second audit several days after the union election. The second audit revealed that 77 of the approximately 120 drivers at Allied had fare delinquencies.
On December 13, 2011, Rowe called Nicolas to inform him that he had a fare delinquency. Nicolas explained that the fare collection machine often would not work and, in that event, he would place the fares in an envelope and deposit the envelope through a separate slot in the machine, described as similar to a mail slot.
This alternative process did not produce a receipt. Nicolas told Rowe that he could verify the deposits by comparing the manifests to the amounts written on the front of the envelopes. Rowe responded that he could not verify the deposits that way and that he would further investigate the matter. Two weeks later, company officials met with Nicolas. They informed him that his delinquency totaled $226.50 plus interest and instructed him to pay Allied that amount. Nicolas again insisted that he had deposited all of the fares and requested copies of his manifests, but he nevertheless offered to pay the amounts to avoid suspension. Allied suspended Nicolas pending the outcome of the investigation.
On December 21, 2011, Rowe and other company officials spoke with Fertil and informed him that he owed $433 in delinquent fares, plus interest. Fertil asserted the same explanation as Nicolas, and he agreed to pay any amounts that Rowe could substantiate with documentation. The company officials provided Fertil with the manifest from December 14, 2011, which disclosed a $7 shortage, and he agreed to pay that amount. Rowe told Fertil he would investigate the matter further. Allied suspended Fertil pending the outcome of the investigation.
Allied never investigated the validity of Nicolas and Fertil's explanation. Allied instead referred the matter to the local police department, which filed no charges against either employee. Allied fired Nicolas and Fertil. Allied later agreed to stop pursuing fare delinquencies against other employees pending negotiations with the union.
The General Counsel of the National Labor Relations Board filed a complaint against Allied for three violations of the National Labor Relations Act. First, the General Counsel alleged that Allied violated section 8(a)(1), which prohibits illegal interference with protected union activities. 29 U.S.C. § 158(a)(1). Second, the General Counsel alleged that Allied illegally retaliated against Nicolas and Fertil for their union activities, in violation of sections 8(a)(1) and (3). Id. § 158(a)(1), (3). Third, the General Counsel alleged that Allied violated sections 8(a)(1) and (5) by unlawfully changing its disciplinary policies regarding fare shortages without notifying the union. Id. § 158(a)(1), (5).
An administrative law judge ruled that Allied violated section 8(a)(1) by engaging in surveillance of the union and creating the impression of surveillance; telling employees that it would be futile to select a union; interrogating employees about their union and other protected concerted activities; soliciting grievances to discourage the union campaign; soliciting employees to campaign against the union; promising employees benefits to discourage the union campaign; and threatening to replace employees with part-time drivers if they elected a union to represent them. The administrative law judge ruled that Allied did not illegally retaliate against Nicolas and Fertil. He stated that, “even if an invidious motivation might have played some role in Fertil's and Nicolas'[s] personnel actions, [Allied] would have nevertheless taken the same actions against them for permissible reasons,” theft of passengers' fares. The administrative law judge ruled that Allied unlawfully changed its disciplinary policies without notifying the union, in violation of section 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 Board explained that Allied failed to prove that it would have discharged Fertil and Nicolas in the absence of their union activities because Allied failed to conduct its promised investigation of Fertil's and Nicolas's explanations for the missing fares and treated two otherwise similarly situated individuals, Desir and Etienne, differently. One member of the Board dissented as to the ruling on the retaliation charge on the ground that Allied would have suspended and discharged Fertil and Nicolas regardless of their union activities. The Board ruled that there was insufficient evidence to support the ruling that Allied violated sections 8(a)(5) and (1) by unilaterally changing its disciplinary policies about fare shortages.
The Board ordered Allied to remedy its violations of the Act. The order required Allied to, among other things, cease “[c]reating the impression that it is engaged in surveillance of its employees' union ... activities”; “[s]uspending, discharging, or otherwise discriminating against employees because of their support for and activities on behalf of [unions]”; and “interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by ... the Act.” Allied Med. Transp., 360 N.L.R.B. No. 142, at 6 (July 2, 2014). The order required Allied to post copies of a notice stating the requirements of the order in areas where its employees would see them. It also required Allied to offer Fertil and Nicolas “full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions” and to make Fertil and Nicolas “whole for any loss of earnings and other benefits suffered as a result of the discrimination against them.” Id. The Board applied for enforcement of its order.
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