The federal government has tripled down on its finding that a Virginia trucking company broke labor laws while workers were trying to unionize. The issue hinged on one sentence in a message sent to employees.
A panel from the Fourth Circuit Court of Appeals upheld a National Labor Relations Board (NLRB) decision. This ruling found that Covington, Va.-based Garten Trucking unlawfully interfered with a union campaign. The NLRB confirmed an earlier ruling by an administrative law judge.
The case centers on a message that Garten Trucking owner Robert “Dizzy” Garten sent to employees while a case was pending on separate unfair labor practice charges. Questions about the First Amendment were raised. However, there are limits on campaign speech.
In June 2021, two employees worked with the Association of Western Pulp and Paper Workers to unionize over 100 Garten Trucking employees.
After losing a vote 65-30, the union filed unfair labor practice charges against the company. The NLRB issued a formal complaint in June 2022.
While that complaint was pending, the union distributed flyers to workers that read:
Have you received a pay increase? If so, how much of a pay increase have you received since the AWPPW has helped you start a union campaign?
Garten Trucking is currently picking and choosing who they are giving pay increases to.
It is illegal for Garten Trucking to give raises without bargaining with the AWPPW and the AWPPW will not bargain without your input and your voice.
As a member of the AWPPW, everybody gets raises! We want raises for every employee, not just a select few.
When the AWPPW begins bargaining percentage raises for everybody, your wages will be larger because the union was here fighting for you.
The court case has now been completed. All sides now have (35) days to get their legal briefs to the presiding judge. After this period, the judge will then deliberate and make a final decision.
Later that evening, Garten responded to the flyer through an internal message board seen by all employees (emphasis added):
I have been honest with everyone since day 1 and have done everything I can do to try and help all the employees in every area of GT, GT2, Big Island, and the warehouses, and I want you to be the first to know that everything that is in that letter that those worthless pieces of trash put in that paper they handed out is pure horseshit. For them to say they have anything to do with a raise for you all is nothing but a lie. They don’t even get to talk to anyone at the mill. I can’t speak for everyone, but I can say with 100% confidence that I would never let 2 idiots like [Union organizers] Jeff Baker and Miles whatever his name is be in charge of your families [sic] income. I would resign first. As a matter of fact if it wasn’t for them trying to steal money out of your paychecks you would already have your raises.
It was that last sentence that would get Garten Trucking in trouble.
Section 8(a)(1) of the National Labor Relations Act (NLRA) prohibits employers from interfering or coercing employees who are trying to unionize. However, Section 8(c) allows for the expression of views, as long as it contains no threats or promises.
According to the Fourth Circuit, Congress drew a line between persuasive speech and speech that suggests a threat or quid pro quo agreement. Section 8(c) prohibits only the latter. As the court points out, nearly all of Garten’s message was fine.
“Much of Garten’s response was coarse; little of it was decorous,” the court states. “But its brusque and combative tone was still within the bounds of acceptability. For us to conclude otherwise would ignore Section 8(c) and make speech during a union organizing campaign a one-sided affair.”
Garten’s message mostly refuted the union’s claims and argued employees would be better off without the union. The Fourth Circuit panel said this was a “valid position” that employees deserved to hear. However, the last sentence crossed into “impermissible territory.”
The court found tying the employees’ raises to the activities of the union suggests that union efforts have previously impacted wages. Therefore, future attempts to unionize would have a similar effect on wages.
“This was not a general statement that unionizing is bad for business,” the court ruled. “Rather, the NLRB presented substantial evidence that this is the paradigmatic quid pro quo that neither the NLRA nor traditional campaign-speech doctrine protects. The evidence showed that Garten’s speech attempted to secure a particular course of employee action not by mere persuasion, but by intimidation and coercion.” LL
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