A Virginia trucking company whose dispute before the National Labor Relations Board has been watched closely by labor law experts will be required to negotiate a contract with a union even though the rank and file did not vote for representation.
The complicated tangle of events took place at Garten Trucking, a southwest Virginia carrier whose SAFER profile with FMCSA says has 17 power units.
A decision handed down earlier this week by the U.S. Court of Appeals for the Fourth Circuit upheld an earlier decision by an NLRB Administrative Law Judge that ordered Garten to negotiate with the Association of Western Pulp and Paper Workers, which had sought to unionize the company’s work force. Garten’s primary activity was and is hauling inbound and outbound products for a nearby paper mill.
The company had 109 employees at the time of the unionization drive, which meant the union needed to either win an election with at least 55 votes or secure 55 written authorizations in favor of unionization. The latter is a process known in some labor circles as “card check.”
The union obtained 61 cards. But in August 2021, a representation vote found the union on the losing end of a 65-30 outcome.
Conflict before the vote leads to the NLRB action
However, it was what happened prior to the vote that ultimately led to the NLRB decision and affirmation in federal court. The agency, now backed by a federal court of appeals, is that the behavior of Garten management during the card authorization drive and up to the election violated federal laws regarding meddling with the process.
As a result, the NLRB handed down a “Gissel” order, which was affirmed by the appellate court. The term comes out of an NLRB action from 1969 in a case against Gissel Packing Co.
In summing up what the NLRB did, the appellate court said the federal agency had “determined that the effects of Garten’s coercive conduct were so pervasive that employees would be best protected by a Gissel bargaining order, requiring Garten to bargain with the union.”
The appellate court summed up several of the actions taken by Garten management that it said had constituted “coercive conduct.”
The actions included a supervisor bringing an employee into an office to ask who among the employees was leading the push for unionization; a veiled threat by Tommy Garten, a member of the family that owns the company, that a contract with the paper mill would likely not be renewed if a union was in place; and a disciplining of two employees for allegations of improper union activity on the job.
An email to the attorney who represented Garten in the legal action had not been responded to by publication time.
What Gissel says
Citing the wording in the Gissel case, the 4th Circuit said the NLRB can “order an employer to bargain with a union in one of two circumstances: exceptional cases marked by outrageous and pervasive unfair labor practices; and in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes.”
Card check a side issue
The Garten case might have become a test case for the Cemex decision. In 2023, as this summary of the Cemex case from the Fisher Phillips law firms spells out, the NLRB in a case involving more than 350 drivers at Cemex Construction Materials Pacific set new standards for when a company would be required to recognize a union.
One possible avenue for a union to receive that recognition: a majority of card authorizations, as was presented to Garten management before the actual representation vote fell short.
Or as the NLRB described it in a prepared statement released in conjunction with the Cemex decision, “under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file a…petition seeking an election.”
But instead the court ordered negotiations under the Gissel guidelines.
The expectation among lawyers that specialize in labor relations is that the current NLRB, which only reached a level of a full three-person quota in December, will look to overturn Cemex when it gets the opportunity.
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