Eleventh Circuit concludes NLRB order to reinstate employees is not moot just because reinstatement is difficult

NLRB v. Allied Medical Transport, Inc., No. 14-15033 (11th Cir. Oct. 13, 2015)

SHORT:

In NLRB v. Allied Medical Transport, Inc., the Eleventh Circuit granted the National Labor Relations Board’s petition for enforcement, concluding that substantial evidence supported the Board’s order that Allied illegally interfered with its employees’ union activities and unlawfully retaliated against employees. In doing so, the Court concluded that the petition was not moot simply because reinstatement of the employees would be difficult, and that substantial evidence supported a conclusion by the Board that the employees’ decision to support the union was the motivating factor in Allied’s termination decision given the evidence of animus and proximity of time.

LONG:

In NLRB v. Allied Medical Transport, Inc., the Eleventh Circuit granted the National Labor Relations Board’s (NLRB) petition for enforcement, regarding its order that Allied illegally interfered with its employees’ union activities and unlawfully retaliated against employees.  In making its decision, the Eleventh Circuit was faced with two issues in the petition for enforcement: (1) “whether substantial evidence supports an order of the National Labor Relations Board,” and (2) “whether that order is moot.” As background, employees at Allied elected a union to represent them. At the time the employees sought union representation, Allied interrogated the employees about their involvement with union activities, and told employees not to elect a union. Instead, two employees, Renan Fertil and Yvel Nicolas, campaigned for union election – including soliciting union cards, distributing flyers, donning union-t-shirts, and speaking at union meetings.  After the election, Allied suspended and discharged Fertil and Nicolas, under the guise that the employees’ were unable to verify certain deposits and/or had fare delinquencies. The NLRB’s General Counsel filed a complaint against Allied, concluding that the company illegally interfered with union activities, and unlawfully terminated the two employees. The Board order the company to refrain from future violations of the National Labor Relations Act, and reinstate the two employees with backpay. An administrative law judge concluded that Allied violated section 8(a)(1) of the NLRA by engaging in surveillance of the union, and creating the impression of surveillance, informing employees that a union could not help them, interrogating employees about the union and protected concerted activities, soliciting grievances to discourage union campaign, and threatening to replace the employees if they elected a union. The Board affirmed the findings and ordered Allied to remedy the violations, concluding also that Allied retaliated against Fertil and Nicolas, contrary to section 8(a)(3), by treating similarly situated employees differently. The Board applied for enforcement of the order.

In granting the petition to enforce the order, the Eleventh Circuit dismissed Allied’s arguments that the order was moot because it was impossible to reinstate the employees. Instead, the court noted that an enforcement application is not moot because the employer has difficulty complying with the order. The Eleventh Circuit also dismissed Allied’s challenge that the reasons for Fertil and Nicolas’ termination was retaliatory by pointing to the timing of the adverse action in relation to union activity – which was only weeks after the election of the union. Additionally, the Court concluded that animus existed when Allied’s management told the employees that the election of a union would be “futile,” and threatened other employees for union activities.