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.
