How Not to Fire a Union Organizer

19 October 2015 Labor & Employment Law Perspectives Blog
Authors: Kevin E. Hyde

The best reminders often come from the most obvious situations. In a case decided by the Eleventh Circuit Court of Appeals on October 13, the employer laid down a clear path to remind employers what not to do.

Allied Medical Transport, a provider of paratransit services to residents of Broward County, Florida, became skeptical of whether its drivers were submitting all of the daily fares. So, the company decided to conduct an audit. The initial audit revealed that some drivers had in fact not remitted all of their fares. Accordingly, Allied required those drivers to repay the amounts identified as discrepancies.

However, two drivers refused to repay the amounts. Those two employees were dissatisfied with how Allied reacted to their refusal and began cooperating with and supporting an (ultimately successful) union organizing effort. Allied suspended and eventually fired the two employees, ostensibly for failing to provide credible explanations of why their reported fares differed from what was discovered in the audit. The National Labor Relations Board (NLRB) saw things differently, however. It filed a complaint and ultimately determined that Allied interfered with the employees’ right to form a union, retaliated against the employees for doing so, and changed its disciplinary policies without informing the union.

The recent court decision affirmed the NLRB’s findings and concluded that the employer’s conduct violated the employees’ rights under the National Labor Relations Act. According to the court, the company violated the law because the employees’ pro-union conduct was a “motivating factor” in the employer’s actions against the employees.

So what did the employer do wrong? In deciding for the NLRB and against the company, the court provided a tidy checklist of things not to do. In other words, Allied violated the law by taking the following steps:

  • Suspending the employees (who were known to be union supporters) only weeks after the vote to elect a union
  • Telling the employees that electing a union would be “futile”
  • Threatening and interrogating other employees about the activities of the two employees who were fired
  • Failing to investigate the employees’ explanation about the fare differential or even informing them that the explanation would not be investigated
  • Failing to allow the employees to review the records related to the alleged fare discrepancies
  • Sitting in the parking lot to observe the employees going into a restaurant where an organizing meeting was being held
  • Failing to explain why other employees with fare discrepancies were not investigated or disciplined
  • Suspending the employees during the investigation but allowing other employees with fare discrepancies to continue working while those discrepancies were investigated
  • Failing to give the terminated employees a reasonable opportunity to repay the alleged fare discrepancies

The employer’s actions started out okay. Looking to see whether drivers were turning in all money collected is perfectly reasonable. But the reasonable start turned into a textbook demonstration of methods to demonstrate anti-union animus.

In that respect, it was easy for the court to find the employer violated the employees’ rights. The case should remind employers to be careful of any action that creates the appearance of treating employees differently because of suspected or real union activity. In other words, even when discipline is otherwise perfectly legitimate, it must be applied to all violators, not just those who have engaged in or supported union organizing activity.

Use the checklist above and apply its principles to your specific workplace to avoid claims of illegal anti-union activity.

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