Dive Brief:
- A 4th Circuit U.S. Court of Appeals decision last week took issue with how Virginia carrier Garten Trucking dealt with employees seeking to form a union.
- A September 2022 post by Garten on an internal message board was acceptable under the law — except for a final sentence that read, “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,” a three-judge panel wrote.
- “In textually linking employees’ raises to the activities of the Union, Garten improperly implied that union efforts had previously impacted wages and that future organizing activity would have the same negative effect,” the court said.
Dive Insight:
The decision by the circuit, which covers Virginia, West Virginia, the Carolinas and Maryland, informs businesses how courts could handle similar cases.
The circuit court weighed in on what it finds acceptable and unacceptable for businesses to discuss regarding a unionization effort.
“[W]e emphasize that employers are constitutionally and statutorily entitled to give their noncoercive opinion on union activities, especially in the midst of organizing campaigns, and that such unfettered exchange advances the democratic values of our nation’s labor systems,” the court wrote.
Through that lens, the court denied Garten’s appeal, which sought to challenge a National Labor Relations Board order from May 2024. That order commanded Garten to refrain from telling employees they didn’t receive raises because of their union activities.
While Garten’s rough response to a union flyer was permissible, the last line in the message overstepped what Garten was allowed to say in advocating against the union activities, the circuit court found.
“There is a fundamental difference between speech imposing an improper 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 court said.
Employees lost an election to unionize in August 2021 by a vote of 65-30. Unionizers said the process was tainted and alleged Garten violated labor law.
In September 2023, the NLRB also ordered Garten to bargain with the labor organization Association of Western Pulp and Paper Workers without a repeat election.
An attorney for Garten didn’t immediately return a message seeking comment.
