Garten Trucking appeal on NLRB order rejected by SCOTUS

The battle between the union and the company–which the Fourth Circuit described as featuring “bitter and lengthy disputes”–goes back to an August 2021 vote where the rank and file in Covington rejected the union by a vote of 65-30. But it didn’t end there.

Fight continues after failed vote

According to a recap of the fight in the Fourth Circuit decision, the union filed “a bevy of unfair labor practice charges” against Garten for actions it took leading up the vote as well as afterward.

The union formally filed those charges with the NLRB, “contending that these violations fatally tainted the election results,” according to the Fourth Circuit summary. 

An administrative law judge (ALJ) heard the case in February 2023 and concluded Garten had engaged in several unfair labor practices:  unlawfully interrogating employees; creating an impression that union activities were under surveillance; threatening closure of the business; and making disciplinary threats.

The ALJ ordered a new election be held, an action known as a Gissel order after a 1969 Supreme Court decision also involving the NLRB that gave the board power to call for a new referendum should it find unfair labor practices may have tainted a vote. 

Garten then filed objections with the NLRB. There is no evidence in the record to suggest the  second election has taken place.

The NLRB in September 2023 affirmed the findings of the ALJ. Garten appealed to the Fourth Circuit. 

What is First Amendment protected?

The NLRB and the appellate court needed to deal with issues of the First Amendment, specifically, what could Garten say that was protected speech and what could it not say because it would be considered unfair coercion?

“There  is a fundamental difference between speech imposing a proper quid pro quo and speech which merely attempts to persuade on the merits, leaving employees free to vote without penalty or reward dangling over their heads,” the appellate court said.

Ultimately, the Fourth  Circuit found a statement by the company management–“as a matter of fact if it wasn’t for the union trying to steal money out of your paychecks you would already have your raises”–as evidence Garten had “crossed the line” between protected and coercive speech.

It upheld the NLRB order for a new vote.

In its now-rejected petition for certiorari, Garten said the process leading up to the election was “fair and untainted.”

“A variety of witnesses called by General Counsel testified that they were free to discuss the Union without fear or pressure, wore union paraphernalia without consequence and never heard management say that there would be adverse consequences if they supported the union.”

The Garten petition also said employees “were not asked to identify who supported the union, questioned about their own union activities or the union activities of others, asked who signed a card, or who attended union meetings.”

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