A provider of paratransit services began to question whether its drivers were submitting all of their daily fares. The company conducted an audit, which revealed that some drivers had not remitted all of their fares to the company. The company required those drivers to repay the amounts it had identified as discrepancies.

Two drivers refused to repay the amounts and began supporting a union organizing effort. The company suspended and eventually fired the two employees for failing to explain why their reported fares differed from what the company discovered through the audit. But, the National Labor Relations Board thought the discipline was a ruse and that the company interfered with the employees’ right to form unions and retaliated against them for doing so.

The Eleventh Circuit Court of Appeals agreed because the employees’ pro-union conduct was a “motivating factor” in the company’s actions against the employees. The company violated the law in the following ways:

  • Telling employees that electing a union would be “futile”;
  • Interrogating employees about the activities of the two employees who were fired;
  • Failing to investigate the employees’ explanation about the audit findings;
  • Failing to allow the employees to review the records related to the fare discrepancies; and
  • Treating the two employees differently from other employees by suspending them during the investigation but allowing other employees with fare discrepancies to continue working.

Companies have a right to investigate suspected misconduct and a right to discipline employees for their misconduct. However, companies cannot discriminate against pro-union employees during an investigation or when administering discipline.