Labor attorneys say two closely watched cases before the National Labor Relations Board involving a relatively small Virginia trucking company may bring about a shift toward a pro-union agenda.
Ironically, any pro-labor precedents that come out of the cases involving Garten Trucking of Covington, Virginia, will spring from an action before the NLRB that actually involved a union losing rather than winning an election to represent workers.
In August 2021, the Association of Western Pulp and Paper Workers lost 30-65 in a vote to organize roughly 100 workers at Garten, which operates more than 30 power units in a relatively limited range within the state. But the defeat kicked off a legal process that has the potential to set new precedents in the Biden administration-controlled NLRB.
What started the legal battle was not the loss but the posting on a communications website called TeamReach by Garten owner Robert Christopher “Dizzy” Garten.
In that post, Garten referred to flyers distributed by the union as “horse s…” and “worthless pieces of trash.”
But a union complaint to the NLRB focused on Garten’s statement that “if it wasn’t for [the union] trying to steal money out of your paychecks, you would already have your raises.”
In the most recent NLRB action on the union complaint, issued in late May, a three-member panel affirmed the decision from December of Administrative Law Judge Geoffrey Carter that Garten had violated federal rules with that talk of raises.
“It is well established that an employer violates [the National Labor Relations Act] when it blames the Union [or employees’ union activity] for the lack of raises,” Carter wrote in the decision later affirmed by the three-member panel. “Robert Garten’s statement to employees here falls squarely under that line of cases, as he communicated to employees that their raises were delayed because of the Union’s efforts to organize employees at the facility.”
The penalties Carter handed down are relatively mild and do not alter the union’s loss.
Garten Trucking must “cease and desist” from telling employees they would have raises if not for their union activities, and “in any like or related manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed them by … the [National Labor Relations] Act.”
Management is also required to post “in conspicuous places” a note that affirms employees’ right to engage in unionization activities. (Attempts to reach Garten for comment were unsuccessful.)
But that did not stop Garten from appealing the decision to the federal judiciary; the company on Thursday submitted its intention to appeal to the U.S. Court of Appeals for the 4th Circuit.
A number of legal blogs have identified the Garten case as having the potential to alter NLRB regulations regarding unionization. But the actions of administrative law judges alone are not enough to make that happen.
Jonathan Spitz, an attorney with the firm of Jackson Lewis who along with colleague Richard Vitarelli raised the importance of the Garten case in a blog post, said a decision by an administrative law judge (ALJ) is not going to set new precedents.
“The ALJ’s decision complied with current Board law, as only the Board can change its precedent, not an ALJ,” Spitz told FreightWaves in an email.
The goals of the NLRB General Counsel
However, General Counsel Jennifer Abruzzo has pushed the NLRB to take several steps that would reverse or set new precedents that would be seen as more pro-union. (She formerly worked for the Communications Workers of America.)
“The General Counsel’s office also cannot change Board law or policy unilaterally,” Spitz said. “It can, however, as the prosecutorial arm of the Board, advance cases and arguments that give the Board opportunities to change the law.”
Abruzzo has done that in briefs filed in connection with the two Garten-related cases before the NLRB.
The potentially more important case that could set a precedent was decided by Administrative Law Judge Charles Muhl in Washington in February 2023. The appeals case file for the Muhl case has had no activity since October but is still considered open.
That case also involved Garten management’s activities leading up to the union vote. According to a brief filed by the NLRB general counsel, Garten “learned of the organizing campaign, and immediately began a campaign to quash employees’ organizing efforts. [Garten] interrogated employees, gave the impression that it was surveilling employees’ union activities, and held captive audience meetings.” At one of those meetings, a closure of one part of the company was threatened if the union was victorious, according to the counsel’s filing.
Muhl’s decision and a subsequent appeal of the decision to the full NLRB are seen as possibly having longer-term impact on NLRB policies than the Carter decision because the remedies he mandated in finding against Garten were more extensive.
The judge ordered the posting of a notice similar to what Carter ordered. But Garten was also ordered to “cease and desist” several activities that have been a target of the NLRB’s Abruzzo.
The cease-and-desist order said Garten could not ban union solicitation of employees in work areas but on nonwork time, “[interrogate] employees about their union activity,” “[create] the impression among its employees that their union activities were under surveillance” or engage in several other anti-union practices.
The three priorities
Aaron Vance, an attorney with Barnes & Thornburg who wrote a piece on the Garten case for the National Law Review, said three “priorities” regarding unionization activities have been identified by Abruzzo which were not addressed in the Muhl decision: “limiting the use of captive audience meetings altogether, which have been long allowed” under NLRB precedent; “expanding employee rights to use employer communications for organizing purposes” (by reinstating an earlier precedent); and overruling another precedent “which would allow for employee conversations concerning unionization and other forms of solicitation while on the clock.”
“While the General Counsel sought to define the law in all of these areas, the items mentioned above are the three remaining items yet to be addressed by the Board,” Vance said in an email to FreightWaves. “These would, again, be major departures from current Board precedent and will have sweeping effects for employers in terms of their responses to union organizing and the work rules they maintain. And, given the General Counsel’s track record before this very favorable Board, she is likely to see success on all three.”
The Muhl decision is under appeal to the full board, and that last filing from October is from Abruzzo’s office.
“After reviewing the General Counsel’s brief and the employer’s brief, the Board is then able to determine whether it will overrule the ALJ’s decision,” Spitz said of the next steps in that case. “If the board overrules the decision, it may adopt the General Counsel’s proposals outlined in her brief, thereby changing precedent that ultimately effectuates her suggested changes to Board law.”
But in the decision by Carter regarding the Garten statement that pay raises would have been given had the unionization effort not taken place, Spitz said that board decision “did not change precedent.”
A “Cemex order” could boost the union
One key decision for the board to make is whether actions of Garten management that have been found to be in violation of NLRB rules would kick off what is referred to as a “Cemex order,” based on an earlier precedent. That could lead to a new election or a move to have workers represented by the union despite the vote.
“Through its Cemex decision, the NLRB held an employer who receives a union’s voluntary recognition request can either recognize the union or file a representation petition within two weeks of the request for the Board to hold an election,” Vance said. “If an employer does neither, and commits an unfair labor violation of the Act following the demand, the Board may move to recognize the union on their behalf and demand the company to bargain with the union.”
Vance added that given the overwhelming negative vote by Garten’s workers against unionization, such an order would be “especially blistering” for Garten.
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