Petition for Writ of Certiorari — Garten Trucking LC, Petitioner v. National Labor Relations Board, et al.
Supreme Court briefJul 16, 2026
Ask Donna
What actually matters in this document.
Text
No. 26In the
Supreme Court of the United States
GARTEN TRUCKING LC,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
Agnis C. Chakravorty
King F. Tower
Counsel of Record
Woods Rogers Vandeventer
Black PLC
10 South Jefferson Street,
Suite 1800
Roanoke, VA 24011
(540) 983-7600
king.tower@woodsrogers.com
Attorneys for Garten Trucking LC
132304
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Under this Court’s holding in NLRB v. Gissel Packing
Co., 395 U.S. 575, 614 (1969), the National Labor Relations
Board (NLRB) may impose the extraordinary remedy
of a bargaining order if it establishes by “substantial”
evidence that: “(1) the union once had majority status, (2)
the employer committed unfair labor practices that caused
majority status to dissipate, (3) the possibility of erasing
the effects of past practices to ensure a fair election
through traditional remedies is slight, and (4) employees’
sentiments expressed in union cards would be better
protected by a bargaining order than a new election.” Id.
(holding that bargaining orders -- now known as Gissel
orders -- are available only when traditional remedies
are insufficient to make possible a “fair and reliable
election”). The Circuit Courts of Appeal have consistently
held that they will not enforce the NLRB’s imposition of
a bargaining order without making specific and detailed
findings about the factors relevant to this legal standard,
such as the likelihood of recurring misconduct, the
residual impact of unfair labor practices, considering
whether that effect has been or will be dissipated by the
passage of time, and the efficacy of ordinary remedies.
The question presented is:
When the NLRB reverses its own Administrative Law
Judge and finds that a bargaining order is appropriate,
does the reviewing Circuit Court show excessive deference
to the NLRB inconsistent with Loper Bright Enterprises
v. Raimondo, 603 U.S. 369, 387-88, 393 n.4 (2024), by
failing to require findings supporting the use of the
extraordinary power of a bargaining order remedy?
ii
PARTIES TO THE PROCEEDING
Petitioner is Garten Trucking LC. It was Petitioner/
Cross-Respondent below.
Respondents are the National Labor Relations Board
and the Association of Western Pulp and Paper Workers.
They were Respondent/Cross-Petitioner and Intervenor
below, respectively.
iii
CORPORATE DISCLOSURE STATEMENT
Garten Trucking LC is not a publicly held corporation,
and it has no parent corporation. No publicly held company
owns ten percent or more of the stock of Garten Trucking
LC.
iv
STATEMENT OF RELATED PROCEEDINGS
The following proceedings are directly related to this
case within the meaning of Rule 14.1(b)(iii):
• Garten Trucking LC v. Nat’l Lab. Rels. Bd.
(Association of Western Pulp and Paper
Workers, Intervenor), No. 24-1973; Nat’l Lab.
Rels. Bd. v. Garten Trucking LC, No. 24-2102
(4th Cir.) petition for rehearing en banc denied
on April 17, 2026.
• Garten Trucking LC v. Nat’l Lab. Rels. Bd.
(Association of Western Pulp and Paper
Workers, Intervenor), No. 24-1973; Nat’l Lab.
Rels. Bd. v. Garten Trucking LC, No. 24-2102
(4th Cir.) judgment entered February 18, 2026.
• Garten Trucking LC and Association of
Western Pulp and Paper Workers, 373 NLRB
No. 94 (N.L.R.B.) National Labor Relations
Board decision and order issued September
17, 2024, incorporating with noted modification
Administrative Law Judge’s decision issued
February 17, 2023.
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii
CORPORATE DISCLOSURE STATEMENT . . . . . . iii
STATEMENT OF RELATED PROCEEDINGS . . . . . iv
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2
A. Procedural Background . . . . . . . . . . . . . . . . . . . . 2
B. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 2
C. Board Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. Fourth Circuit Proceedings . . . . . . . . . . . . . . . . . 6
vi
Table of Contents
Page
REASONS FOR GRANTING THE PETITION . . . . . 6
1.
The Board Failed to Identify Evidence of
Dissipation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.
The Board Failed to Support Its Contention
that the Possibility of a Fair Election is
“Slight” or that a Bargaining Order would
Best Protect Employee Choice . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
vii
TABLE OF APPENDICES
Page
APPENDIX A – OPINION OF THE UNITED
STAT ES COU RT OF A PPEA LS FOR
T H E F OU R T H C I R C U I T, F I L E D
FEBRUARY 18, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . 1a
A PPEN DI X B – J U D GM EN T OF T H E
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT, FILED
FEBRUARY 18, 2026 . . . . . . . . . . . . . . . . . . . . . . . . 21a
APPENDIX C – ORDER OF THE NATIONAL
LA BOR RELATIONS BOA RD, FILED
DECEMBER 12, 2024 . . . . . . . . . . . . . . . . . . . . . . . 23a
APPENDIX D – DECISION AND ORDER OF
THE NATIONAL LA BOR RELATIONS
BOARD, FILED SEPTEMBER 17, 2024 . . . . . . . 27a
A P P EN DI X E – DE C I S ION OF T H E
A D M I N I S T R A T I V E L AW J U D G E ,
NATIONAL LABOR RELATIONS BOARD,
FILED FEBRUARY 17, 2023 . . . . . . . . . . . . . . . . . 64a
APPENDIX F – ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT, FILED APRIL 17, 2026 . . . 163a
APPENDIX G – STATUTORY PROVISIONS
INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165a
viii
TABLE OF CITED AUTHORITIES
Cases
Page
Be–Lo Stores v. NLRB,
126 F.3d 268 (4th Cir. 1997) . . . . . . . 7, 8, 10, 12, 13, 15
Cemex Constr. Materials Pac., LLC,
372 NLRB No. 130, 2023 WL 5506930 . . . . . . . . . . . 10
Crown Bolt, Inc.,
343 NLRB 776 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Evergreen Am. Corp. v. NLRB,
531 F.3d 321 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 8
FDRLST Media, LLC v. NLRB,
35 F.4th 108 (3d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 15
Garten Trucking LC v. Nat’l Lab. Rels. Bd.,
139 F.4th 269 (4th Cir. 2025) . . . . . . . . . . . . . . . . . 7, 14
Lee v. NLRB,
393 F.3d 491 (4th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 11
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) . . . . . . . . . . . . . . . 6-8, 11, 13, 14, 16
NLRB v. Appletree Chevrolet, Inc.,
608 F.2d 988 (4th Cir. 1979) . . . . . . . . . . . . . . . . 7, 9, 10
NLRB v. Apple Tree Chevrolet, Inc.,
671 F.2d 838 (4th Cir. 1982) . . . . . . . . . . . . . . . . 6, 7, 11
ix
Cited Authorities
Page
NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969) . . . . . . . . . . . . . 2, 5-8, 10, 11, 13-15
NLRB v. Village IX, Inc.,
723 F.2d 1360 (7th Cir. 1983) . . . . . . . . . . . . . 11, 12, 15
NLRB. v. So-Lo Foods, Inc.,
985 F.2d 123 (4th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 13
NLRB v. Windemuller Elec., Inc.,
34 F.3d 384, 393 (6th Cir. 1994) . . . . . . . . . . . . . . . . . 15
Overnite Transp. Co. v. NLRB.,
280 F.3d 417 (4th Cir. 2002) . . . . . . . . . . . . . 6, 7, 12, 13
Tecnocap, LLC v. NLRB,
1 F.4th 304 (4th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 10
Statutes and Other Authorities
28 U.S.C. §1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
29 U.S.C. §160(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
29 U.S.C. §160(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
29 U.S.C. §160(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 8(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15
1
OPINIONS BELOW
The Fourth Circuit’s opinion is unreported but
available at 2026 WL 458394 and is reproduced at Pet.
App. 1a-20a.
The NLRB’s opinion is reported at Garten Trucking
LC and Association of Western Pulp and Paper Workers,
373 NLRB No. 94 (N.L.R.B.) (September 17, 2024) and
is reproduced at Pet.App. 27a-63a. The NLRB’s decision
granting in part and denying in part the motion for
reconsideration filed by Charging Party is reported at
373 NLRB No. 147 (N.L.R.B.) (December 12, 2024) and
is reproduced at Pet.App. 23a-26a.
JURISDICTION
The Fourth Circuit denied petitioner’s timely
rehearing petition on April 17, 2026. That court had
jurisdiction to review the Board’s decision under 29 U.S.C.
§160(e), (f); the Board had jurisdiction under 29 U.S.C.
§160(a). This Court has jurisdiction under 28 U.S.C.
§1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant provisions of the National Labor Relations
Act are reproduced at Pet.App. 165a-182a.
2
STATEMENT OF THE CASE
A. Procedural Background
This action involves a petition for review of an Order
entered on May 24, 2024, by the Respondent National
Labor Relations Board in Garten Trucking LC and
Association of Western Pulp and Paper Workers, NLRB
Case 10-CA-304929 (the “Board’s Order”). The Board’s
Order reversed its own Administrative Law Judge and,
inter alia, found that a bargaining order was appropriate
under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Showing significant and inappropriate deference to
the Board’s decision, the Fourth Circuit denied Garten
Trucking’s petition for review and granted the Board’s
motion to enforce the Board’s Order. Slip Op. 14-18
(Document 54).
B. Factual Background
Garten Trucking is a small family-owned business
located in Covington, Virginia. (JA791.)1 The Company
runs the “local mill shuttle” for another company,
Smurfit WestRock, 2 transporting paper from the Smurfit
WestRock paper mill to various locations in and around
Covington. (JA844-845.) The hands-on owners of the
Company are George Matthew “Matt” Garten and Robert
Christopher “Dizzy” Garten. 3 (JA 35, 26, 776-777, 830.)
1. All record citations are to the Joint Appendix filed in the
Fourth Circuit Court of Appeals.
2. During the events at issue in this case, the mill was simply
called “WestRock.”
3. Former co-owner George Thomas “Tommy” Garten passed
away in January, 2024. Notably, as discussed infra, the majority of
3
On June 30, 2021, the Association of Western Pulp
and Paper Workers (the “Union”) filed an election petition
with a possible bargaining unit of 109 employees. (JA1380,
JA1355.) After a three-day election in August, 2021,
the vote was over two-to-one (65-30) against the Union.
(Id.) The loss was not surprising, as evidence during the
Hearing showed that only a maximum of 61 of the 109
employees (or 56% rounded up) had signed authorization
cards in support of representation. (JA 1563-1571, JA15731741.) Indeed, this low showing of support was contrary to
what the Union organizer historically viewed as necessary
to win an election (JA135-136).
The evidence also showed that the election process was
fair and untainted. For instance, a variety of witnesses
called by General Counsel testified that they were free
to discuss the Union without fear or pressure (JA662),
wore Union paraphernalia without consequence (JA700,
JA1065), and never heard management say that there
would be adverse consequences if they supported the
Union. (JA406, JA460, JA568.) Employees were also not
asked to identify who supported the Union, questioned
about their own Union activities or the Union activities of
others, asked who signed a card, or who attended Union
meetings. (JA405, JA459-460, JA568, JA616.) In fact,
employees were free to ask questions and state their
opinions about what they believed were problems with
the Company. (JA520, JA548.)4
the alleged unlawful statements were by Tommy Garten (although
he denied having made them), meaning that the primary actor
in the alleged ULPs would not be present for any rerun election.
4. Of the ten employees that testified on behalf of General
Counsel at the Hearing on the ULPs, and presumably were
union supporters, four were later promoted or moved to a job at
4
C. Board Proceedings
In response to post-election unfair labor practice
charges filed by the Union, the ALJ concluded, and the
Board adopted, the finding that the Company engaged
in certain threatening conduct violative of Section 8(a)(1)
during the campaign period. The specific statements in
question were as follows.
On June 24 (prior to the filing of the election petition):
• Tommy Garten allegedly “stated that he
[Garten Trucking] only had 14 months left on
the contract with Westrock and, if employees
brought a union in, he would not renew it”;
• Matt Garten allegedly stated “the Gartens
would not deal with a union and would take
‘their ball to a new court’ if one came in”;
• Tommy Garten allegedly stated “the
Gartens were not going to deal with a ‘third
party’ but, if the union failed to get in, the
Gartens would probably renew the WestRock
contract”.
(JA2229.) On July 9:
• Tommy Garten allegedly stated that
“Garten Trucking only had 14 months left on
its WestRock contract and would shut down if
the Union came in”;
higher pay. (JA347, JA413, JA648, JA769-770.) The only employee
terminated was Jeff Baker, and the Board upheld the ALJ’s
decision that the dismissal was lawful. (JA2208, n.3.)
5
• George “Stick” Austin allegedly stated “if
the Union came in, Tommy Garten would have
to deal with the Union for 14 months, but after
that, he would not renew the contract.”
(JA 2229, n.56). This meeting was 44 days before
the employees voted overwhelmingly against union
representation. Additionally, employees came and went
when these alleged statements were made (JA776-777,
JA792, JA846-847, JA1128) and there was no evidence
presented by General Counsel of how many employees
actually heard these alleged comments (which were denied
being made by the purported speakers).
The Administrative Law Judge, who heard all the
witness testimony in the case, determined that a rerun
election was the appropriate remedy under applicable
Board precedent. (JA 2238-2239.) As the ALJ noted,
“[I]t is the Board’s usual policy to direct a new election
whenever an unfair labor practice occurs during the
critical period.” Pet.App. 151a. Finding that the July
9, 2021, meeting occurred during the critical period
(from June 30, 2021 through August 21, 2021), the ALJ
determined that a new election was appropriate.
Notably, rather than suggesting that a bargaining
order was even remotely appropriate, the ALJ instead
considered whether this was a case in which even a rerun
election might not be justified. (JA 2238-2239.) The
Board, however, chose not to accept the ALJ’s decision,
and instead implemented a modified remedy including a
bargaining order. 5 Pet.App. 35a.
5. Under the Gissel Category II standard at issue, the Board
is required to establish by “substantial” evidence that: “(1) the
union once had majority status, (2) the employer committed unfair
6
D. Fourth Circuit Proceedings
In response to Garten Trucking’s petition for review
and the Board’s cross-application for enforcement, the
Fourth Circuit granted enforcement of the Board’s
remedy. Pet.App. 20a. In an exceedingly brief discussion,
and with total disregard for this Court’s holding in Loper
Bright, the court did not so much analyze as simply
express agreement with the Board’s conclusory holding
that Garten Trucking’s alleged unfair labor practices had
caused the union’s purported majority support to dissipate
(i.e., Gissel factors 1 and 2). Pet.App. 17a-18a. In three
short paragraphs, the court then summarily brushed aside
the significant challenges presented by Gissel factors 3
and 4, explaining little more than its belief that this case
was distinguishable from the Fourth Circuit’s seminal
ruling in Overnite Transp. Co. v. NLRB, 280 F.3d 417
(4th Cir. 2002). Pet.App. 18a-19a.
REASONS FOR GRANTING THE PETITION
“[I]t is the strong preference of our national labor
policy not to impose collective bargaining representatives
on employees except when they have, by a majority vote,
elected to be so represented.” Overnite, 280 F.3d at 435–36
(citing NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838,
840 (4th Cir. 1982) (“Apple Tree II”) (noting that “the
extraordinary and drastic remedy of forced bargaining
pursuant to [Gissel ] is reserved for only the most unusual
cases” (internal quotation marks and citations omitted)).
labor practices that caused majority status to dissipate, (3) the
possibility of erasing the effects of past practices to ensure a fair
election through tradition-al remedies is slight, and (4) employees’
sentiments expressed in union cards would be better protected by
a bargaining order than a new election.” Gissel, 395 U.S. at 614.
7
The Fourth Circuit’s decision in this case is inconsistent
with Overnite and other precedents because it imposes
(and rubber stamps) a bargaining order without requiring
the Board to meet the standard for such an extraordinary
remedy. See Overnite, 280 F.3d at 435–36; Apple Tree
II, 671 F.2d at 840; NLRB v. Appletree Chevrolet, Inc.,
608 F.2d 988, 996 (4th Cir. 1979) (“Appletree I”); Be–Lo
Stores v. NLRB, 126 F.3d 268, 273 (4th Cir. 1997); see
also NLRB v. Gissel Packing Co. 395 U.S. 575, 614 (1969)
(holding that bargaining orders are available only when
traditional remedies are insufficient to make possible a
“fair and reliable election”).
Importantly, this Court’s decision in Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2024) creates
a substantial question over whether the Fourth Circuit
excessive deference to the Board’s Order constitutes
reversible error. As the Fourth Circuit itself has stated
(in a separate case involving Garten Trucking):
We note, however, that the interpretation of a
statute like the NLRA is “exclusively a judicial
function,” and afford the NLRB’s interpretation
deference only to the extent that the agency’s
opinion has the “power to persuade.”
Garten Trucking LC v. Nat’l Lab. Rels. Bd., 139 F.4th
269, 276 (4th Cir. 2025) (citing Loper Bright, 603 U.S. 369,
387-88, 393 n.4.
Ironically, the Fourth Circuit’s decision enforcing the
Board’s Order noted that mitigating circumstances must
be considered, and further took the time to explain that:
The Board must make specific and detailed
findings about “the likelihood of recurring
8
misconduct, the residual impact of unfair labor
practices, considering whether that effect has
been or will be dissipated by the passage of
time, and the efficacy of [ordinary] remedies”
before implementing a Gissel order.
Pet.App. 15a-16a (citing Evergreen Am. Corp. v. NLRB,
531 F.3d 321, 329–30 (4th Cir. 2008) (cleaned up). Yet, the
panel did not follow its own advice, completely excusing
the lack of such specific findings and choosing instead to
defer to the Board’s highly suspect conclusion that the
alleged violations themselves are sufficient to support a
bargaining order, even in the face of a large majority vote
against the union (65-30), and substantial elapsed time
and turnover since the election (over 4½ years ago). This
level of deference to an agency decision is not proper in
light of Loper Bright.
Because the panel summarily assented to the Board’s
bargaining order remedy without requiring an appropriate
justification for the exercise of such an extraordinary
power, this petition should be granted.
1. The Board Failed to Identify Evidence of Dissipation
Courts have repeatedly cautioned that the Board
“must undertake a comprehensive analysis for each of
Gissel’s necessary predicate findings, and support its
order with detailed record evidence.” Be-Lo Stores, 126
F.3d 268, 273 (4th Cir. 1997). It is “manifestly insufficient’
for the Board to satisfy the Gissel predicates by simply
engaging in perfunctory or boiler-plate language, or
using a litany, reciting conclusions by rote without factual
explication.” Id. (internal quotations omitted). Thus,
9
it is “not sufficient that an employer has engaged in
unfair labor practices; a bargaining order in this second
category requires the Board to go beyond a finding of
such unfair labor practices and to make specific findings
as to the immediate and residual impact of the unfair
labor practices on the election process . . . .” Appletree I,
608 F.2d at 997 (internal quotations omitted).
In the instant case, the maximum Union support by
authorization cards was 56% of the bargaining unit, and
even that figure is subject to legitimate disagreement.
(JA2211.) In any event, putting aside any debate about
whether Union support ever actually reached that level,
the Board’s decision to reverse the ALJ lacks any evidence
that the alleged ULPs dissipated the Union’s support as
the Board was required to show. In fact, not one employee
testified that anyone had changed their vote because of
the Company’s allegedly improper behavior. See Crown
Bolt, Inc., 343 NLRB 776, 777-79 (2004) (noting that
the dissemination of a threat, which is required to set
aside an election, “is a relatively easy matter to establish
through testimony of employees who participated in the
transmission” and that “the General Counsel’s burden
of proving dissemination as ‘exceedingly slight’ and one
of which he should not be relieved”) (internal citations
omitted).6
Having no evidence to support the theory that the
Company’s conduct caused the Union to lose its scant
6. The NLRB General Counsel had the names and contact
information for every employee in the bargaining unit through
the Excelsior list (JA1452-1464) and could have called witnesses
(if there were any) to testify about the alleged threats and how it
changed their vote.
10
support, the Board ultimately held that the allegations
of misconduct were evidence of “hallmark” violations
which made the Gissel order necessary. But using such
boilerplate language is not enough to sustain such an
order. Be-Lo Stores, 126 F.3d at 280.7
Moreover, as Board Member Kaplan has pointed out,
studies show that “18 percent of those signing authorization
cards did not want union representation at the time they
signed.” Cemex Constr. Materials Pac., LLC, 372 NLRB
No. 130, 2023 WL 5506930, at *44 (Kaplan, dissenting)
7. While the “Board is permitted to draw reasonable
inferences from the evidence, it may not, [however,] base its
inference on pure speculation.” Tecnocap, LLC v. NLRB, 1 F.4th
304, 313 (4th Cir. 2021). Here, the Board noted that “while the
unit involved was relatively large, the Respondent’s threats were
directly communicated to a substantial percentage of the unit
employees, a factor particularly supportive of a bargaining order.”
(JA2213.) One is left to guess, however, what that “substantial”
percentage is because the Board’s decision certainly does not
provide any guidance, which is particularly troubling since the
Board admits that there was “some overlap among attendees”
at meetings where these alleged comments were made. (Id.)
Additionally, the Board never mentions that employees were
not forced to attend any meeting and that employees came and
went as they pleased—some arriving late and some leaving
early—thus, calling into question whether an employee even
heard what is alleged to have been said for the comments to have
been disseminated to a “substantial” percentage of them. (JA382,
776-777, 792, 846-847, 1128.) Thus, the Board’s blanket assertion
that a substantial percentage of the Company’s employees heard
these alleged comments is speculation and also a perfect example
of the “perfunctory or boiler-plate language lacking substantive
factual explication” for which courts have, in the past, admonished
the Board. Be-Lo Stores, 126 F.3d 268 at 273 (citing Appletree
Chevrolet, 608 F.2d at 997).
11
(quoting NLRB v. Village IX, Inc., 723 F.2d 1360, 1371
(7th Cir. 1983)). This is because “signing an authorization
card is an observable and, often, an observed act, and
employees may sign a union card not because they want
the union as their bargaining representative but because
they feel pressured by their coworkers to sign.” Id.; see
also Village IX, 723 F.2d at1371(“[w]orkers sometimes
sign union authorization cards not because they intend
to vote for the union in the election but to avoid offending
the person who asks them to sign, often a fellow worker,
or simply to get the person off their back, since signing
commits the worker to nothing”).
Applying this principle to the instant case leads to
one of two undeniable conclusions: (1) the Union never
actually enjoyed majority support; or (2) reasons other
than alleged employer ULPs explain the decrease in
support that occurred. Village IX, 723 F.2d at 1371
(denying enforcement of a bargaining order where “[t]
he union’s card majority was only 60 percent, and if you
assume that only 82 percent wanted union representation
at the time this means that less than half of the company’s
work force did”). Yet, rather than address this flaw in
the Board’s decision, the Fourth Circuit swiftly brushed
aside any contrary concern, concluding simply that it
agreed with the Board’s finding on factors one and two
in contravention of Loper Bright. Pet.App. 18a. This
contravenes the precedent that the Board must consider
the “body of evidence opposed to the Board’s view” in
making its findings. Lee v. NLRB, 393 F.3d 491, 494 (4th
Cir. 2005); see also Appletree II, 671 F.2d at 841 (the “really
significant fact” in a Gissel bargaining order case is “the
dissipation of a previous union majority” and that cannot
shown through the Board’s “speculation”); Village IX,
12
723 F.2d at 1370 (“[t]here has been over the years much
adverse comment, including by this court, on the Board’s
stubborn refusal, well-illustrated by the administrative
law judge’s opinion in this case, to make adequate findings
to support the issuance of a bargaining order in cases
where the union, having lost the election, cannot be
considered the presumptive choice of the employees to
bargain with the employer on their behalf”).
2. The Board Failed to Support Its Contention that
the Possibility of a Fair Election is “Slight” or that
a Bargaining Order would Best Protect Employee
Choice
The “clear and established precedent of [the Fourth
Circuit [is] that both the passage of time and employee
turnover are highly relevant matters to be considered”
in determining whether a bargaining order is necessary.
Overnite, 280 F.3d at 437. As noted in Overnite:
On the passage of time we have stated:
It strains credulity to believe that [a company’s]
unfair labor practices, such as they were, had
such long lasting effects that a fair rerun
election could not have been held four years
later, much less today, some six years after the
original violations occurred.
Be–Lo, 126 F.3d at 282. We have found that
even more telling than the passage of time
is the turnover of employees: “‘Significant
employee turnover through normal attrition’
is highly relevant to determining the necessity
13
of a bargaining order and well ‘may make a
bargaining order inappropriate.’” Id. (quoting
NLRB v. So–Lo Foods, 985 F.2d 123, 128–29
(4th Cir. 1992)). As we explained:
Not only is the possibility of a fair rerun election
great when many of the intimidated employees
have moved on and been replaced by new
workers who have not witnessed the company’s
unfair labor practices, but the issuance of a
bargaining order in the face of significant
employee turnover risks unjustly binding new
employees to the choices made by former ones.
Overnite, 280 F.3d at 437.
Here, the Fourth Circuit inexplicably deferred to
the Board’s interpretation, once more in contravention of
Loper Bright. It is the Board’s burden to show that the
extraordinary remedy of a bargaining order is warranted.
See, e.g., Overnite, 280 F.3d at 436. Knowing that the
ALJ had not even considered imposing a Gissel order,
and that this Court requires a detailed analysis about the
passage of time/changed circumstances for the issuance
of such an order, the Board nevertheless thumbed its
nose at this precedent. See Be-Lo Stores, 126 F.3d at 282
(denying enforcement because “[s]ignificant employee
turnover often (if not usually) renders a bargaining order
inappropriate); NLRB. v. So-Lo Foods, Inc., 985 F.2d 123,
128–29 (4th Cir. 1992) (“[g]enerally speaking, significant
employee turnover through normal attrition may make
a bargaining order inappropriate and is relevant to that
inquiry”). The Fourth Circuit improperly deferred to
the Board’s interpretation that the statute authorizes a
14
bargaining order under these circumstances, explicitly
relying on the Chevron-like rationale that the agency
“draws on a fund of knowledge and expertise all its
own, and its choice of remedy must therefore be given
special respect by reviewing courts.” Pet.App. 15a
(citing Gissel, 395 U.S. at 612 n.32); see also Pet.App.
20a (“we defer to the knowledge and expertise of the
Board”). This deference is in fatal conflict with Loper
Bright and should be remedied upon granting Garten
Trucking’s Petition.
The last argument raised by the Board to justify the
Gissel order is that one unfair labor practice charge (that
arose in September 2022, one year after the election)
somehow establishes that a fair election cannot be held
now. (JA2213.) A review of the 2022 case shows that it stems
from a union flyer that was sent after the election which
admittedly contained numerous lies. Garten Trucking
LC v. NLRB, 139 F.4th 269, 275 (4th Cir. 2025) (“Garten
Trucking I”). Even though the evidence was undisputed
that no employee raises had in fact been delayed, the
only issue was whether the Company’s strongly worded
response to the Union flyer had improperly assigned blame
on the Union for a non-existent delay in wage increases.
This Court enforced the Board’s determination that the
Company message was unlawful in that regard. Id. at 281.
Significantly, the Board (and the approving Fourth
Circuit panel) failed to recognize that the Board cited
no evidence in the 2022 case as to: (a) how many of the
more than 100 Company employees actually saw/read
the allegedly improper post; (b) how many of those
15
employees thought it was coercive;8 or (c) how many of
those employees who saw the post in September 2022 and
thought it was coercive were still with the Company when
the Board decided to issue the Gissel order. Without any
such evidence, it is, once more, pure speculation to suggest
that a fair election could not be conducted now.
The Board now wants the Company’s current
employees to be forced into having the AWPPW as their
bargaining representative nearly five years after the Union
convincingly lost that opportunity. This is so even though
the Board cannot tell this Court (as it is required to do)
how many employees were still with the Company from the
time of the election to the time it entered the Gissel order.
The Court should not allow the Board to substitute its will
for the will of the vast majority of employees who did not
want a union in 2021, as well as for those new employees
who would have no choice to decide for themselves whether
to have a bargaining representative or not. Village IX,
723 F.2d at 1372 (“[i]t would be reckless to assume that a
union that got a 60 percent card majority in 1980 and lost
the election decisively in January 1981 (getting only 30
percent of the vote) will be the choice of [the company’s]
employees for collective bargaining representative in
1984”); Be-Lo Stores, 126 F.3d at 282-283 (“[n]ot only is the
8. No witness testified in the 2022 case that the post was
coercive. FDRLST Media, LLC v. NLRB, 35 F.4th 108, 125 (3d Cir.
2022) (where the “record contains no evidence that any employee
perceived [an executive officer’s] tweet as a threat” there was no
violation of Section 8(a)(1)); N.L.R.B. v. Windemuller Elec., Inc.,
34 F.3d 384, 393 (6th Cir. 1994) (where no employee “gave direct
testimony about the creation of a threatening or intimidating
atmosphere” as to a comment made there was no violation of the
Act).
16
possibility of a fair rerun election great when ‘many of the
intimidated employees have moved on’ and been replaced
by new workers who have not witnessed the company’s
unfair labor practices, but ‘the issuance of a bargaining
order in the face of significant employee turnover risks
unjustly binding new employees to the choices made by
former ones’”) (internal citations omitted).
Because the panel did not follow this Court’s decision
in Loper Bright and uncritically accepted the Board’s
flawed remedy analysis, this Court should grant this
petition and refuse to enforce the bargaining order.
17
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Agnis C. Chakravorty
King F. Tower
Counsel of Record
Woods Rogers Vandeventer
Black PLC
10 South Jefferson Street,
Suite 1800
Roanoke, VA 24011
(540) 983-7600
king.tower@woodsrogers.com
Attorneys for Garten Trucking LC
Dated: July 16, 2026
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A – OPINION OF THE UNITED
STAT ES COU RT OF A PPEA LS FOR
T H E F OU R T H C I R C U I T, F I L E D
FEBRUARY 18, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B – JUDGMENT OF THE UNITED
STAT ES COU RT OF A PPEA LS FOR
T H E F OU R T H C I R C U I T, F I L E D
FEBRUARY 18, 2026 . . . . . . . . . . . . . . . . . . . . . . . . 21a
APPENDIX C – ORDER OF THE NATIONAL
LA BOR RELATIONS BOA RD, FILED
DECEMBER 12, 2024 . . . . . . . . . . . . . . . . . . . . . . . 23a
APPENDIX D – DECISION AND ORDER OF
THE NATIONAL LA BOR RELATIONS
BOARD, FILED SEPTEMBER 17, 2024 . . . . . . . 27a
A P P EN DI X E – DE C I S ION OF T H E
A D M I N I S T R A T I V E L AW J U D G E ,
NATIONAL LABOR RELATIONS BOARD,
FILED FEBRUARY 17, 2023 . . . . . . . . . . . . . . . . . 64a
APPENDIX F – ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
FOURTH CIRCUIT, FILED APRIL 17, 2026 . . . 163a
APPENDIX G – STATUTORY PROVISIONS
INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165a
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT, FILED FEBRUARY 18, 2026
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1973
GARTEN TRUCKING LC,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
ASSOCIATION OF WESTERN
PULP AND PAPER WORKERS,
Intervenor.
No. 24-2102
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
GARTEN TRUCKING LC,
Respondent.
Submitted: September 30, 2025
Decided: February 18, 2026
2a
Appendix A
OPINION
UNPUBLISHED
On Application for Enforcement of an Order of the
National Labor Relations Board. (10-CA-279843; 10-CA280804; 10-CA-281786; 10-CA-282554; 10-CA-296060;
10-RC-279259)
Before HARRIS, HEYTENS, and BENJAMIN, Circuit
Judges.
Unpublished opinions are not binding precedent in this
circuit.
DeANDREA GIST BENJAMIN, Circuit Judge:
Garten Trucking LC (“Garten”) petitions the court
for review of a National Labor Relations Board (“Board”)
decision and order, which found that Garten had interfered
with and discouraged labor organization in violation of 29
U.S.C. § 158(a)(1), (3) of the National Labor Relations Act,
29 U.S.C. §§ 151-169 (the “NLRA”). The Board specifically
took issue with Garten’s interference with its employees’
efforts to elect the Association of Western Pulp and Paper
Workers (the “Union”) as their bargaining representative.
The Board imposed a Gissel bargaining order, requiring
Garten to bargain with the Union, and a notice-reading
and cease-and-desist order. NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). The Board now seeks enforcement of
its order. For the foregoing reasons, we grant the Board’s
application for enforcement and deny Garten’s petition
for review.
3a
Appendix A
I.
A.
Garten is a small family-run trucking business in
Covington, Virginia, that transports paper for WestRock
paper mill. Garten employees sought to elect the Union
as their bargaining representative. At the time, Garten
employed 109 employees, meaning the Union needed to
collect 55 votes to succeed. But as union organizing began,
Garten managers began questioning their employees
about union activity and making statements about the
Union during company meetings.
For example, George Rose, a Garten supervisor,
brought Shannon Morgan, one of his direct reports, into
his office to discuss the ongoing union campaign. Rose told
Morgan that he heard rumors about the Union, that he
believed he knew who started the campaign, that he heard
the exact number of union authorization cards signed, and
that he thought she might know who started the campaign.
Morgan was unwilling to discuss union activity with him.
The same day, Rose approached Jeff Baker, another
of his direct reports, and asked him about the union
campaign, about which union was being considered,
and about which employees contacted the Union. Baker
answered some questions but denied knowing who
contacted the Union, although he was responsible for
making contact.
At a company meeting the next day, Garten co-owner
Tommy Garten told employees he heard that employees
4a
Appendix A
were talking with a union. He said Garten’s contract with
WestRock would expire in 14 months and it would not be
renewed if employees unionized, but that he would likely
renew the contract if they voted against the Union.
At a subsequent company meeting a few weeks later,
Tommy Garten again emphasized the time remaining on
WestRock’s contract. He stated Garten would shut down
if a union came in and told employees that if they voted
to unionize, another company would come in, and they
would be out of a job.
Garten also disciplined two employees for engaging
in union activity on the job in violation of the company’s
employee handbook policy. Garten’s policy provides that
“[e]mployees may not solicit . . . to other employees during
their own work time, to other employees who are working,
or [in] areas where customers are present.” J.A. 2209.1
Garten first disciplined driver Allen Pullin. During
one of Pullin’s lunch breaks, he asked two other employees
if they knew about the Union and asked for their thoughts
on the Union. One coworker said they were happy with
what they had, and the other did not respond. Pullin
asked no other questions. General Manager Ben Strozier
issued Pullin a written warning for soliciting employees
to sign union cards during work hours in violation of the
company’s solicitation policy. Pullin said he was at lunch
and thus did not violate the policy.
1. Citations to “J.A.” refer to the joint appendix filed by the
parties. The J.A. contains the record on appeal from the Board.
Page numbers refer to the “J.A. #” pagination.
5a
Appendix A
Second, driver Ray Humphries was disciplined for
talking with a coworker while on a break and asking the
coworker’s opinion on the Union. The coworker responded
he needed to discuss the Union with his family and
Humphries stated he had union cards if the coworker
later became interested. Tommy Garten called Humphries
on his personal cellphone and said he heard Humphries
was soliciting for the Union and that this was not allowed
on WestRock property. Humphries was issued a written
warning by Strozier similarly for soliciting while on duty
in violation of Garten’s solicitation policy.
At one point, the Union collected 61 union authorization
cards (expressing support for the Union and intent to vote
to unionize). About a month after the alleged unfair labor
practices, the Union held a representation election. Union
representation was ultimately rejected in a 65-30 vote
against representation.
B.
The Union alleged multiple unfair labor practices by
Garten in violation of § 158(a)(1) and (3) of the NLRA.
The issues were heard before an administrative law judge
(ALJ). The ALJ found that Garten committed unfair labor
practices in response to union activity and interfered with
its employees’ rights.
The Board adopted the ALJ’s findings and determined
that Garten had violated employees’ rights in four
distinct ways. First, it determined Rose’s questioning of
Morgan and Baker constituted interrogation and created
6a
Appendix A
an impression of surveillance in violation of § 158(a)(1).
Second, the Board found that Tommy Garten’s statements
at company meetings amounted to threats violating
§ 158(a)(1). Third, it determined that Garten disciplined
its employees in violation of § 158(a)(3) because Garten
lacked an honest belief that its employees were engaged
in misconduct. Fourth, the Board found that Garten’s
solicitation policy was overbroad, a violation of § 158(a)(3).
The Board then made separate findings to craft and
impose proportional remedies. It 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. As
other remedies, the Board also imposed a notice-reading
order and a cease-and-desist order.
Garten petitioned this court for review, and the Board
cross-applied to enforce the order. The Union was allowed
to intervene in these proceedings in support of the Board.
We have jurisdiction to consider Garten’s petition
and the Board’s cross-application pursuant to 29 U.S.C.
§ 160(e) and (f). First, we address the Board’s findings
regarding Garten’s unfair labor practices. Second, we
consider the Gissel order and other remedies implemented
by the Board. For the following reasons, we grant the
Board’s application for enforcement.
II.
Our review is confined to determining whether,
considering the record as a whole, the Board’s findings
7a
Appendix A
are supported by substantial evidence. Inter tape
Polymer Corp. v. NLRB, 801 F.3d 224, 230 (4th Cir.
2015). “Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support
a conclusion.” Id. (quoting Medeco Sec. Locks, Inc. v.
NLRB, 142 F.3d 733, 742 (4th Cir. 1998)). “It is ‘more
than a scintilla but less than a preponderance.’” Vance v.
NLRB, 71 F.3d 486, 489 (4th Cir. 1995) (quoting NLRB
v. Peninsual Gen. Hosp. Medical Ctr., 36 F.3d 1262, 1269
(4th Cir. 1994)).
“[W]e must accept the Board’s factual findings based
on credibility determinations ‘absent extraordinary
circumstances. Exceptional circumstances include
those instances when a credibility determination is
unreasonable, contradicts other findings of fact, or is
based on an inadequate reason or no reason at all.’”
Intertape, 801 F.3d at 231 (citation omitted).
We do not “displace the Board’s choice between two
fairly conflicting views of the evidence.” S.C. State Ports
Auth. v. NLRB, 75 F.4th 368, 378 (4th Cir. 2023) (internal
alterations omitted) (quoting NLRB v. Pepsi Cola Bottling
Co. of Fayetteville, 258 F.3d 305, 310 (4th Cir. 2001)).
“We accord due deference to the reasonable inferences
that the Board draws from the evidence.” Grinnell Fire
Prot. Sys. Co. v. NLRB, 236 F.3d 187, 195 (4th Cir. 2000)
(citing NLRB v. Brown, 380 U.S. 278, 292 (1965)). This is
“regardless of whether we might have reached a different
conclusion in the first instance.” Id. at 195 (citing Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
8a
Appendix A
Garten asserts that no substantial evidence supports
the Board’s ruling that Garten interrogated its employees
and created an impression of surveillance in doing so,
made threats at company meetings, unlawfully disciplined
its employees, or maintained an unlawful solicitation
policy. We disagree.
A.
The Board first adopted the ALJ’s findings that Garten
interrogated and created an impression of surveillance
among employees in violation of § 158(a)(1). We agree with
the Board’s determination and hold there is substantial
evidence in the record that supports the Board’s finding
that Garten’s actions coerced its employees.
The NLRA provides that it is an unfair labor practice
for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed” in
the Act, such as the right to organize. § 158(a)(1). An
employer violates § 158(a)(1) when an employer’s conduct
“reasonably tend[s] to coerce or intimidate employees.”
NLRB v. Grand Canyon Min. Co., 116 F.3d 1039, 1044
(4th Cir. 1997). The coerciveness of an employer’s conduct
is a question “for the specialized experience of the
NLRB.” Id. An employer also violates § 158(a)(1) when it
questions employees about union views or activity, if the
questioning “had a reasonable tendency in the totality
of the circumstances to intimidate.” Standard-CoosaThatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133,
1137 (4th Cir. 1982) (quoting NLRB v. P.B. & S. Chemical
Co., 567 F.2d 1263, 1267 (4th Cir. 1977)).
9a
Appendix A
To determine whether the questioning of employees
is coercive, such that it amounts to interrogation, “we
must consider a variety of factors including the history of
employer hostility to the union, the nature of information
sought, the identity of the questioner, and the place and
method of questioning.” Intertape, 801 F.3d at 231 (cleaned
up). We also consider “whether the employee was reluctant
to discuss unionization.” Id.
Alternatively, to determine whether an employer
created an impression of surveillance, we consider
objectively if “the employer’s conduct, under the totality
of the circumstances, was such as would tend to interfere
with, restrain, or coerce employees in the exercise of
their rights.” Id. at 236 (cleaned up). Even one comment
to one employee is enough to establish an impression
of surveillance. See Grand Canyon, 116 F.3d at 1045.
Conveying one knows the person responsible for bringing
in a union is violative of § 158(a)(1). Dillingham Marine
& Mfg. Co., 239 NLRB 904, 909 (1978), enforced, 610 F.2d
319 (5th Cir. 1980).
The Board determined Garten interrogated and
created an impression of surveillance of its employees
based on Rose’s conversations with Morgan and Baker.
It found that Rose’s questioning amounted to coercive
interrogation because both employees were reluctant to
discuss the union. And Baker, the Garten employee that
contacted the Union, denied knowing who made contact.
The Board also found that Rose indicated that he knew
who started the campaign and his mention of the exact
number of union cards signed so far (at a time when the
10a
Appendix A
union campaign was not public) constituted an impression
of surveillance.
Garten challenges only the credibility determinations
of certain witness testimony made by the ALJ and the
Board. Garten attacks Baker’s credibility as he was
untruthful regarding unrelated matters. It asserts Rose’s
comments to Morgan and Baker were a result of things
he heard in the company “rumor mill,” not a byproduct of
employee surveillance. Appellant’s Br. (ECF No. 26) at 28.
These challenges present no exceptional circumstances
requiring us to overturn the Board’s findings. Garten
has not offered sufficient evidence that the Board’s
credibility determination was unreasonable nor evidence
that sufficiently contradicts the Board’s findings of fact.
But even without Baker’s testimony, there is substantial
evidence in the record to support the Board’s finding that
these unfair labor practices occurred. Specifically, the
Board’s reasoning was grounded in Morgan’s testimony
that Rose asked questions that she was reluctant to
answer, and that his discussion with her created an
impression that he was surveilling her. Accordingly, we
agree with the Board that there is substantial evidence in
the record to support its finding that Garten interrogated
its employees.
B.
Second, the Board found that Tommy Garten’s
statements at company meetings amounted to threats of
job loss and plant closure in violation of § 158(a)(1). We
11a
Appendix A
also hold that there is substantial evidence in the record
to support the Board’s findings regarding threats.
Employers may discuss views on union activity
generally, “so long as the communications do not contain
a threat of reprisal or force or promise of benefit.” Gissel,
395 U.S. at 619 (cleaned up). An employer may “predict the
precise effect of Unionization” but “when coupled with the
threat of plant closure, the Board is justified in concluding
. . . that an unfair labor practice occurred.” Weis Markets,
Inc. v. NLRB, 265 F.3d 239, 244 (4th Cir. 2001).
The Board concluded that Tommy Garten’s statements
at company meetings constituted threats of job loss and
plant closure. The Board relied on multiple witnesses
that corroborated the statements made at the meetings.
The Board specifically noted that Garten failed to offer
contradictory evidence of what was said at each of those
meetings.
Garten contends the ALJ and the Board f latly
disregarded the testimony of Garten management, which,
in sum, included broad, categorical denials of the events
alleged (such as the interrogations or company meetings)
without specific testimony contrary to the allegations.
It argues instead that comments by leadership were
ultimately misconstrued, and without a recording, it could
not clear up those discrepancies.
We hold there are no exceptional circumstances
r equ i r i ng we over t u r n t he Boa rd’s c r ed ibi l it y
determinations of witness testimony. Garten did not
12a
Appendix A
present evidence contradicting the Board’s findings.
Instead, Garten asks the court to accept its blanket
denials of the veracity of certain statements, and to view
those denials as exceptional circumstances warranting
our disregard of the facts in the record. Several
witnesses testified about the statements made by Garten
management in different meetings. Thus, we defer to
such statements as substantial evidence that supports
the Board’s findings.
C.
Third, the Board found Garten unlawfully disciplined
its employees in violation of § 158(a)(3). We hold there
is substantial evidence in the record that supports the
Board’s findings.
It is an unfair labor practice for an employer “by
discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage
or discourage membership in any labor organization.”
§ 158(a)(3). An employer violates § 158(a)(3) when it
discharges an employee for engaging in protected
activity when, in fact, the employee was not guilty of that
misconduct. NLRB v. Burnup & Sims, Inc., 379 U.S. 21
(1964). The burden rests on the employer to show “that
it held an honest belief that the discharged employee
engaged in misconduct. If the employer meets its burden,
the burden shifts to the [g]eneral [c]ounsel [of the NLRB]
to show that the employee did not, in fact, engage in the
asserted misconduct.” Roadway Express, Inc, 355 NLRB
197, 204 (2010), enforced 427 F. App’x 838 (11th Cir. 2011).
13a
Appendix A
First, the Board determined Garten did not have an
honest belief that Pullin and Humphries were engaged
in misconduct when talking to other employees about the
Union. It determined that the relevant conversations took
place during breaks, not working hours, meaning neither
employee violated the company’s solicitation policy.
Garten argues that Pullin and Humphries were guilty
of misconduct and thus disciplinary action was lawful.
It asserts that Strozier’s warnings and the relevant
timecards indicate Pullin and Humphries solicited during
working hours. Garten further argues its policy is lawful
because Garten does not enforce the policy when someone
is not working.
We agree with the Board’s finding that Garten has not
met its burden. As relied on by the Board, Garten only
offered Strozier’s warnings and the relevant timecards
at issue to support its claim. But Garten did not offer
employee testimony from those who complained of the
misconduct to Strozier. It offered only Strozier’s notes,
which stated the complainant-employees indicated they
were on duty when each of the alleged conversations
occurred. The timecards also do not specify when Garten
employees take breaks, nor do Garten employees have
an assigned lunch or break time. Considering Pullin and
Humphries testified they only spoke to fellow employees
during lunch breaks and never solicited union card
signatures, the Board appropriately found Garten had
not met its burden.
14a
Appendix A
D.
Fourth, the Board found Garten maintained an
unlawful company solicitation policy in violation of
§ 158(a)(3). We hold there is substantial evidence in the
record that supports the Board’s findings.
Employees may solicit coworkers on company property
so long as they do so outside of working hours and a
company rule to the contrary is presumptively prohibited.
NLRB v. Lexington Chair Co., 361 F.2d 283 (4th Cir.
1966). The Board took issue with Garten’s solicitation
policy at large which states that “[e]mployees may not
solicit . . . to other employees during their own work time,
to other employees who are working, or [in] areas where
customers are present.” J.A. 2209. It found the phrase
“or [in] areas where customers are present” problematic,
determining the policy implied that, during nonworking
times, employees may not solicit. The Board determined
the policy was overbroad in violation of § 158(a)(3).
We agree with the Board’s determination that
Garten’s employee handbook policy is unlawfully broad.
It leaves open whether employees may solicit, even outside
of working hours, when in an area a customer could be
present. Further, Garten has offered no evidence that it
only enforces the policy when employees solicit during
working hours. And ultimately, this argument does not
resolve the Board’s primary concern that the policy could
apply during nonworking hours in violation of § 158(a)(3).
15a
Appendix A
III.
The Board imposed a Gissel order, requiring Garten
to bargain with the Union, and other remedies, such as
notice-reading and cease-and-desist orders. We hold
the Board acted within its discretion in imposing these
remedies.
The Board maintains broad discretion to craft orders
that remedy unfair labor practices. NLRB v. Williams
Enters., Inc., 50 F.3d 1280, 1289 (4th Cir. 1995). Generally,
“[i]n fashioning its remedies . . . the Board draws on a
fund of knowledge and expertise all its own, and its choice
of remedy must therefore be given special respect by
reviewing courts.” Gissel, 395 U.S. at 612 n.32. We enforce
the Board’s choice of remedy “‘unless it can be shown that
the order is a patent attempt to achieve ends other than
those which can fairly be said to effectuate the policies of
the NLRA.’” Fibreboard Paper Prods. Corp. v. NLRB,
379 U.S. 203, 216 (1964) (citing Virginia Elec. & Power
Co. v. NLRB, 319 U.S. 533, 540 (1943)).
A.
The Board may order an employer to bargain with
a union in one of two circumstances: (1) “exceptional
cases marked by outrageous and pervasive unfair labor
practices,” and (2) in “less extraordinary cases marked by
less pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede the
election processes.” Gissel, 395 U.S. at 613–14. The Board
applied the second category, which requires (1) the union
16a
Appendix A
once had majority status, (2) the employer committed unfair
labor practices that caused majority status to dissipate,
(3) the possibility of erasing the effects of past practices
to ensure a fair election through traditional remedies is
slight, and (4) employees’ sentiments expressed in union
cards would be better protected by a bargaining order
than a new election. Id. at 614.
A Gissel order is justified “unless [there is] a very
strong showing negat[ing] the inference of lasting
effects.” Standard-Coosa-Thatcher, 691 F.2d at 1144.
The employer’s violations alone do not establish a future
election will be unfair, as mitigating circumstances may
exist and alter the seriousness of the conduct at issue.
NLRB v. So-Lo Foods, Inc., 985 F.2d 123, 126 n.5 (4th
Cir. 1992). The Board must make specific and detailed
findings about “the likelihood of recurring misconduct,
the residual impact of unfair labor practices, considering
whether that effect has been or will be dissipated by the
passage of time, and the efficacy of [ordinary] remedies”
before implementing a Gissel order. Evergreen Am. Corp.
v. NLRB, 531 F.3d 321, 329–30 (4th Cir. 2008) (cleaned
up); J.A. 2214 n.21. But hallmark violations such as
“[t]hreat of plant closure . . . standing alone, may support
a bargaining order.” So-Lo Foods, Inc., 985 F.2d at 127
(citation omitted). Such violations “are so coercive that
their presence will support the issuance of a bargaining
order unless some significant mitigating circumstance
exists.” Id. (citation omitted).
To establish factors one and two, the Board found the
Union once had majority status when 61 of 109 employees,
or 56%, signed union cards. It determined that, after the
17a
Appendix A
union campaign began, Garten committed several unfair
labor practices, including interrogation, surveillance,
unlawful discipline, and the most flagrant, threats of
job loss, such that the majority was undermined and the
ability of a fair future election was significantly impeded.
The Board then considered its previous decision against
Garten where it found an unfair labor practice occurred, 2
and taken together with the present hallmark violation
of threatening job loss, found factors three and four
to be met—that it was highly unlikely that the effects
of Garten’s coercive conduct would be easily erased.
Accordingly, the Board found that employee sentiments
would be best protected by a Gissel bargaining order.
For factors one and two, Garten challenges the Board’s
interpretation of the record. Garten raised the same
argument before the Board, that some of the authorization
cards should not count because some employees wanted
their cards back after initially submitting them. But as
the Board found, Garten has not offered any evidence that
the employees that requested their union cards back did
so prior to the unfair labor practices.
It is clear to the court that the Union maintained
majority status when 61 of 109 employees, or 56%, signed
2. This court enforced the order against Garten after one of
the current co-owners, Robert “Dizzy” Garten, blamed the Union
for employees not receiving raises through an employee messaging
board in violation of § 158(a)(1). Garten Trucking LC v. NLRB,
139 F.4th 269 (4th Cir. 2025) (emphasis added). The Board cites
the court’s decision in its petition for enforcement here; however,
that case was not decided at the time the Board issued its order.
18a
Appendix A
union authorization cards prior to Garten’s multiple unfair
labor practices as discussed in Part II.A-D. The threats
made by Garten management at company meetings took
place both during the union authorization card collection
period and leading up to the union election. Employees
were also disciplined after the collection period closed. If
anything, evidence that an employee wanted their union
authorization card returned after submission actually
supports a finding that the Union’s majority status
dissipated due to Garten’s unfair labor practices. We agree
with the Board’s findings on factors one and two—that
the Union had majority status and that Garten committed
unfair labor practices resulting in the Union’s majority
status dissipating.
Next, Garten challenges the Board’s analysis of
factors three and four. It argues that the Board failed to
independently consider employee turnover and passage
of time. Garten relies on Overnite Transportation Co. v.
NLRB, 280 F.3d 417 (4th Cir. 2002), a case in which the
court overturned a Gissel order holding that the Board
ignored mitigating circumstances that suggested against
imposing such a remedy. There, the court determined the
lasting effects of unfair labor practices had subsided as
the owners settled nearly all the unfair labor practices
complained of, subsequent fair elections had been held,
and many executives involved in the unfair labor practices
had since left. Id. at 438.
But Overnite is dissimilar to Garten’s circumstances.
No settlements have been entered, nor fair elections held.
No evidence was offered to show significant employee or
19a
Appendix A
management turnover. In fact, this is not Garten’s first
set of unfair labor practice violations. The court recently
enforced a separate Board order against Garten for
separate unfair labor practices. See Garten Trucking LC
v. NLRB, 139 F.4th 269 (4th Cir. 2025).
Further, Garten has not made a very strong showing
negating the inference of lasting effects. The Board
considered the evidence before it, made specific and
detailed findings, and reasonably found that fair elections
would be ensured and employee sentiments would be
best protected by a bargaining order. We agree with the
Board’s findings and hold it properly imposed a Gissel
order.
B.
The Board additionally imposed both notice and
cease-and-desist orders. It specifically selected these
remedies “in light of [Garten’s] extensive and serious
unfair labor practices” while weighing the “numerosity
and egregiousness” of Garten’s violations. J.A. 2215–16.
The notice order requires Garten management to publicly
read a notice attached to the order, J.A. 2217–18, that
reiterates employee protections under the NLRA. The
cease-and-desist order instructs that Garten must “cease
and desist in any other manner from interfering with,
restraining, or coercing its employees” in exercising their
rights. J.A. 2216.
Garten asserts the Board improperly imposed these
remedies because substantial evidence in the record does
20a
Appendix A
not support the need for these remedies. We enforce the
Board’s choice of remedy “unless it can be shown that the
order is a patent attempt to achieve ends other than those
which can fairly be said to effectuate the policies of the
NLRA.” Gissel, 395 U.S. at 612 n.32 (internal quotations
omitted). Garten has offered no evidence that the Board
abused its discretion by imposing these remedies.
Therefore, we defer to the knowledge and expertise
of the Board and hold it acted within its discretion in
imposing both the notice order and cease-and-desist order.
IV.
For the reasons above, we deny Garten’s petition for
review and grant the Board’s application for enforcement.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
21a
Appendix B OF THE UNITED
APPENDIX B — JUDGMENT
STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT, FILED FEBRUARY 18, 2026
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1973 (L)
(10-CA-279843)
(10-CA-280804)
(10-CA-281786)
(10-CA-282554)
(10-CA-296060)
(10-CA-279259)
GARTEN TRUCKING LC,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
ASSOCIATION OF WESTERN
PULP AND PAPER WORKERS,
Intervenor.
No. 24-2102
(10-CA-279843)
(10-CA-280804)
(10-CA-281786)
(10-CA-282554)
(10-CA-296060)
(10-RC-279259)
22a
Appendix B
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
GARTEN TRUCKING LC,
Respondent.
Submitted: September 30, 2025
Decided: February 18, 2026
JUDGMENT
In accordance with the decision of this court, the
petition for review is denied and the cross-application for
enforcement is granted.
This judgment shall take effect upon issuance of this
court’s mandate in accordance with Fed. R. App. P. 41.
/s/ NWAMAKA ANOWI, CLERK
23a
C
APPENDIXAppendix
C — ORDER
OF THE
NATIONAL LABOR RELATIONS BOARD,
FILED DECEMBER 12, 2024
NATIONAL LABOR RELATIONS BOARD
Cases 10-CA-279843, 10-CA-280804, 10-CA-281786,
10-CA-282554, 10-CA-296060, and 10-RC-279259
GARTEN TRUCKING LC and ASSOCIATION OF
WESTERN PULP AND PAPER WORKERS.
December 12, 2024
ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR RECONSIDERATION
By Chairman Mcferran and Members Kaplan and Wilcox
On September 17, 2024, the National Labor Relations
Board issued a Decision, Order, and Order Remanding in
Part in this proceeding1 in which it found numerous 8(a)(1)
and 8(a)(3) violations and severed and remanded multiple
8(a)(1) allegations involving the Respondent’s employee
handbook for evaluation under Stericycle, Inc., 372 NLRB
No. 113 (2023). Charging Party Association of Western
Pulp and Paper Workers filed a motion for reconsideration,
one of the grounds for which is its argument that the
Board’s underlying Order is unclear as to whether the
remand of the employee handbook allegations includes
the complaint allegation regarding the rule prohibiting
employees’ personal use of the internet.
1. 373 NLRB No. 94 (2024).
24a
Appendix C
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member panel.
In our underlying decision, we specifically listed
for severance and remand: the employee handbook
introductory statement; the social networking rule; the
conduct after separation rule; the protection of confidential
information rule parts 1 and 2; the personal and work
area appearance rule; and the return of property upon
termination of the employment relationship rule. As the
motion for reconsideration observes, however, we did not
specifically list the rule prohibiting employees’ personal
use of the internet. In dismissing the allegation regarding
this rule, the judge made only a passing reference to the
complaint paragraph containing this allegation, as the
General Counsel had conceded that this rule was lawful
under Board precedent as it existed at the time the judge
issued his decision. See Boeing Co., 365 NLRB 1494 (2017).
But because the Board has since overruled Boeing and
now assesses this type of rule under Stericycle, the rule
prohibiting employees’ personal use of the internet should
also be severed and remanded, and we accordingly modify
the Order below. 2
The Charg ing Party’s remaining g rounds for
requesting reconsideration do not identify any material
error or demonstrate extraordinary circumstances
2. For the same reasons explained in his partial dissenting
footnote in the underlying decision, see slip op. at 3 fn.7, Member
Kaplan would not sever and remand the rule prohibiting personal
use of the internet. Instead, he would issue a Notice to Show Cause
to inquire whether the parties would even welcome a remand.
25a
Appendix C
warranting reconsideration under Section 102.48(c)(1) of
the Board’s Rules and Regulations. 3
For these reasons, the Charging Party’s motion is
granted in part and denied in part.
ORDER
The Charging Party’s motion for reconsideration is
granted in part. Accordingly, the Respondent, Garten
Trucking LC, Covington, Virginia, its officers, agents,
successors, and assigns, shall take the actions specified
in the Order contained in the underlying Decision, Order,
and Order Remanding in Part reported at 373 NLRB No.
94 (2024), as modified below.
3. The Charging Party’s other grounds for requesting
reconsideration include: (1) that the Board should have issued a
bargaining order under Cemex Construction Materials Pacific,
LLC, 372 NLRB No. 130 (2023), instead of under NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969); (2) that remanding the specific
8(a)(1) handbook allegations listed in the Board’s underlying
Order for a new determination under Stericycle is unnecessary,
and the Board should find the 8(a)(1) violations as a matter of law
because the Respondent did not put on any evidence to justify the
challenged rules; (3) that the remedy should include a clarification
that the Union can videotape and record the notice reading, and
that instead of “we will not” language, the Respondent should post
a notice summarizing what its unlawful conduct was and admit
that it engaged in unlawful conduct; and (4) that the remedy should
allow work time for employees to read and discuss the Board’s
order, and the Respondent should allow the Union time to meet
with employees and discuss the impact of the Board’s decision
and bargaining order.
26a
Appendix C
Substitute the following for the final paragraph of
the Order:
“It is further ordered that the complaint
allegations that the Respondent violated
Section 8(a)(1) by maintaining in its employee
handbook the introductory statement, social
networking rule, conduct after separation rule,
protection of confidential information rule parts
1 and 2, personal and work area appearance
rule, return of property upon termination of the
employment relationship rule, and employees’
personal use of the internet rule are severed
and remanded to Administrative Law Judge
Charles J. Muhl for further appropriate action,
including reopening the record, if necessary,
and the preparation of a supplemental decision
setting forth credibility resolutions, findings
of fact, conclusions of law, and a recommended
Order. Copies of the supplemental decision
shall be served on all parties, after which the
provisions of Section 102.46 of the Board’s Rules
and Regulations shall be applicable.”
Dated, Washington, D.C. December 12, 2024
/s/
Lauren McFerran Chairman
/s/
Marvin E. Kaplan Member
/s/
Gwynne A. Wilcox Member
27a
Appendix D AND ORDER OF
APPENDIX D — DECISION
THE NATIONAL LABOR RELATIONS BOARD,
FILED SEPTEMBER 17, 2024
NATIONAL LABOR RELATIONS BOARD
Cases 10-CA-279843, 10-CA-280804, 10-CA-281786,
10-CA-282554, 10-CA-296060, and 10-RC-279259
GARTEN TRUCKING LC1 and ASSOCIATION OF
WESTERN PULP AND PAPER WORKERS.
September 17, 2024
DECISION, ORDER, AND
ORDER REMANDING IN PART
By Chairman Mcferran and Members Kaplan and Wilcox
On February 17, 2023, Administrative Law Judge
Charles J. Muhl issued the attached decision. The
Respondent filed exceptions and a supporting brief, to
which the General Counsel and the Charging Party
filed answering briefs. The General Counsel also filed
exceptions and a supporting brief, to which the Respondent
and the Charging Party each filed answering briefs, and
the General Counsel filed a reply to the Respondent’s
answering brief. Additionally, the Charging Party filed
cross-exceptions and a supporting brief, to which the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
1. We have amended the caption to reflect the correct name
of the Respondent.
28a
Appendix D
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, 2 and conclusions, 3 to
amend the remedy, and to adopt the recommended Order
as modified and set forth in full below.4
2. The Respondent has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings.
Additionally, the General Counsel has asked the Board
to overturn numerous prior decisions. We decline the General
Counsel’s request to revisit extant precedent in this case.
3. For the reasons stated by the judge, we affirm: (1) the
judge’s conclusion that the Respondent, through manager George
Rose, violated Sec. 8(a)(1) by creating an impression of surveillance
of employees’ union activities during his June 23, 2021 conversation
with employee Shannon Morgan; (2) the judge’s conclusions that
the Respondent violated Sec. 8(a)(1) when its supervisors and
owners threatened employees on numerous occasions that it would
close its business and they would lose their jobs if they selected the
Union and informed them that selecting the Union would be futile
because the Respondent would not deal with the Union; and (3) the
judge’s dismissal of the allegations that the Respondent violated
Sec. 8(a)(3) and (1) when it suspended and discharged employee
Jeff Baker and when it disciplined employee Theresa Horne.
4. We shall modify the judge’s recommended Order to
conform to the Board’s standard remedial language and the
amended remedy. We shall substitute a new notice to conform to
the Order as modified.
29a
Appendix D
UNLAWFUL INTERROGATION OF MORGAN
When deciding unlawful interrogation allegations, the
Board applies a totality of the circumstances analysis in
determining whether the interrogation was coercive. That
analysis includes consideration of the factors set forth in
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), which
have been adopted by the Board. See, e.g., Rossmore
House, 269 NLRB 1176, 1178 & fn. 20 (1984), affd. sub nom
HERE, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
Applying those principles here, we affirm the judge’s
conclusion that the Respondent, through manager George
Rose, violated Section 8(a)(1) by interrogating employee
Shannon Morgan on June 23, 2021.
The first Bourne factor, which asks whether the
employer has a history of hostility toward or discrimination
against union activity, weighs against the violation. The
Respondent’s interrogation of Morgan represented the
first alleged violation, chronologically, directly related to
union activity. The second factor looks at the nature of the
information sought. Here, Rose’s inquiry asked Morgan
to identify the specific individual who organized the
union campaign. The Board has found that such specific
inquiries support a finding that an interrogation was
coercive. Cf. John W. Hancock Jr., Inc., 337 NLRB 1223,
1224-1225 & fn. 9 (2002) (finding no unlawful interrogation
in part because the questioner only asked about “the
overall level of union interest in the entire work force as
a whole” rather than names of specific individuals who
supported the union), enfd. 73 F. App’x 617 (4th Cir. 2003).
The third factor—the identity of the interrogator and
30a
Appendix D
his placement in the Respondent’s hierarchy—weighs in
favor of finding the violation because Rose was Morgan’s
direct supervisor. See, e.g., River City Asphalt, 372
NLRB No. 87, slip op. at 3 (2023) (“[T]he Board has found
that questioning from a direct supervisor tends to make
questioning more threatening.”). The fourth factor— the
place and method of the interrogation—weighs in favor
of finding the violation. Rose called Morgan, who was not
an open union supporter, into his office for a one-on-one
meeting. During the meeting, Rose brought up the union
organizing campaign and, after Morgan indicated that
she did not want to discuss it, continued pressing her for
information. The fifth factor—the truthfulness of the
employee’s reply—is not directly applicable here because
Morgan did not answer Rose’s inquiry. Nevertheless, the
Board has found that an employee’s refusal to provide
information can be an indication that the interrogation was
coercive. See, e.g., Nestlé USA, Inc., 370 NLRB No. 53,
slip op. at 14 fn. 47 (2020) (finding the employee’s refusal
to answer the supervisor’s questions weighed in favor of
finding a violation because “[s]uch a refusal objectively
conveys the coercive impact of the questioning”); Chipotle
Services, 363 NLRB 336, 346 (2015) (“The coerciveness
of the interrogation is also evident from the fact that [the
employee] did not answer [the manager’s] question.”),
enfd. 849 F.3d 1161 (8th Cir. 2017). Accordingly, based
on a consideration of a totality of the circumstances and
the Bourne factors, we affirm the judge’s finding that
the Respondent’s interrogation of Morgan was unlawful.
31a
Appendix D
UNLAWFUL INTERROGATION OF BAKER
We also affirm the judge’s finding that the Respondent,
through Rose, violated Section 8(a)(1) by interrogating
employee Jeff Baker on June 23, 2021. As with the
interrogation of Morgan, the balance of the Bourne
factors weighs in favor of finding the violation. The first
factor weighs against finding the violation, as no violations
directly related to union activity had occurred prior to
June 23, and Rose’s interrogation of Morgan earlier that
same day—which Baker did not know anything about—
does not constitute a “history of hostility” toward union
activity. 5 The second factor weighs in favor of finding
the violation because Rose asked Baker to identify
who specifically initiated the union campaign as well as
which specific employees were talking about unionizing.
The third factor weighs in favor of finding the violation
because Rose was Baker’s direct supervisor. The fourth
factor weighs in favor of finding the violation because,
even though the conversation began casually as they
walked outside the trailers, Rose initiated a one-on-one
discussion about the union campaign—despite Baker not
being a known supporter—and, even after Baker refused
to identify who initiated the campaign, continued to ask
for that information. The fifth factor weighs in favor of
finding the violation because Baker lied when he said that
he did not initiate the organizing campaign, indicating
that he did not feel comfortable telling Rose the truth or
identifying himself as the initial organizer.
5. Unlike the judge, we find that because there is no evidence
that Baker knew about the prior unlawful interrogation of Morgan,
that interrogation could not have influenced how an objective
employee in his position would view Rose’s questions.
32a
Appendix D
UNLAWFUL DISCIPLINE
OF HUMPHRIES AND PULLIN
Applying the framework articulated in NLRB v.
Burnup & Sims, 379 U.S. 21 (1964), the judge found that
the Respondent violated Section 8(a)(3) and (1) when it
disciplined employees Allen Humphries and Ray Pullin for
discussing the organizing campaign with other employees.
Under that framework, “[t]he respondent employer
has the burden of showing that it held an honest belief
that the [disciplined] employee engaged in misconduct.
If the employer meets its burden, the burden shifts to
the General Counsel to show that the employee did not,
in fact, engage in the asserted misconduct.” Roadway
Express, 355 NLRB 197, 204 (2010), enfd. 427 F. App’x
838 (11th Cir. 2011). Even assuming arguendo that the
Respondent met its burden to show that it held an honest
belief Humphries and Pullin had engaged in misconduct
by soliciting authorization cards during working time,
we find that the General Counsel clearly met her burden
of proving that the misconduct did not actually occur.
Because the credited testimony establishes that the
relevant conversations took place during breaks, rather
than during working time, the record establishes that
neither Humphries nor Pullin violated the Respondent’s
rules.6
6. We also affirm the judge’s finding that the Respondent
violated Sec. 8(a)(1) when Ben Strozier, the general manager and
financial controller, told Pullin that he was being written up for
talking about the Union and soliciting signatures while he was
working.
33a
Appendix D
EMPLOYEE HANDBOOK RULES
For the reasons stated in the judge’s decision and
for the reasons that follow, we affirm the judge’s finding
that the employee handbook’s solicitation and distribution
policy violated Section 8(a)(1). We observe that the rule
states, “Employees may not solicit . . . to other employees
during their own work time, to other employees who are
working, or [in] areas where customers are present.”
This rule is overbroad and presumptively invalid because
it lists, in the disjunctive, “areas where customers are
present.” Because of that phrase, the rule could reasonably
be interpreted as disallowing solicitation in working areas
during nonworking time. Even though the Respondent
did not enforce the rule in that manner, it is unlawfully
overbroad. See, e.g., Harbor Freight Tools USA, Inc.,
373 NLRB No. 2, slip op. at 1-3 (2023) (finding that the
employer’s solicitation and distribution rule was overbroad
as written because it failed to clarify that the solicitation
ban does not extend to employees’ working areas during
their nonworking time); Medic Ambulance Service, Inc.,
370 NLRB No. 65, slip op. at 22-23 (2021) ( “Given the
rules’ use of the disjunctive, the [r]espondent has banned
union solicitation during nonwork time.”).
Unlike his colleagues, Member Kaplan would not find this
additional 8(a)(1) violation. In his view, informing an employee
about a disciplinary decision does not constitute a separate violation
from the act of imposing that discipline. See Triple Play Sports
Bar & Grill, 361 NLRB 308, 316 fn. 2 (2014) (Member Miscimarra,
dissenting in part) (declining to find the additional 8(a)(1) violation
because “[m]erely advising employees of the reason for their
discharge is ‘part of the res gestae of the unlawful termination,
and is subsumed by that violation”’) (quoting Benesight, Inc., 337
NLRB 282, 285 (2001) (Chairman Hurtgen, dissenting in part)).
34a
Appendix D
Applying the legal framework established in The
Boeing Co., 365 NLRB 1494 (2017), the judge also found
that the employee handbook’s introductory statement,
social networking rule, conduct after separation rule,
and part 1 of the protection of confidential information
rule violated Section 8(a)(1). The judge also found
that the employee handbook’s personal and work area
appearance rule, return of property upon termination
of the employment relationship rule, and part 2 of the
protection of confidential information rule did not violate
Section 8(a)(1). After the judge issued his decision, the
Board issued its decision in Stericycle, Inc., 372 NLRB No.
113 (2023), which overruled The Boeing Co. and adopted a
modified version of the framework set forth in Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004), for
assessing these types of work rules allegations. Therefore,
we shall sever and remand these remaining employee
handbook allegations for a new determination under
Stericycle, which has been the Board’s routine practice
since adopting the new standard. See, e.g., Harbor Freight
Tools, above, 373 NLRB No. 2, slip op. at 3; Phillips 66
Co., 373 NLRB No. 1, slip op. at 1 fn. 3 (2023); West Shore
Home, LLC, 372 NLRB No. 143, slip op. at 1 (2023).7
7. Member Kaplan does not join his colleagues in remanding
the remaining employee handbook allegations. Whether these
handbook provisions violate the Act under Stericycle is a
legal question, and his colleagues do not indicate what factual
determinations remain to be made by the judge, nor have they
provided any guidance regarding what possible evidence the
Respondent could produce that would be sufficient to satisfy the
seemingly impossible rebuttal burden formulated in Stericycle.
Because remand will not materially benefit either the parties or the
35a
Appendix D
AMENDED REMEDY
I.
GISSEL BARGAINING ORDER
The Board grants the General Counsel’s request for
a bargaining order pursuant to NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969).8 The Supreme Court held in Gissel
Board, there is no justification for the inherent delay and expense
resulting from remand. Accordingly, rather than remanding these
allegations, Member Kaplan would issue a Notice to Show Cause
to inquire whether the parties would even welcome a remand. See
Home Depot, USA, 373 NLRB No. 25, slip op. at 21-22 fn. 6 (2024)
(Member Kaplan, dissenting); West Shore Home, 372 NLRB No.
143, slip op. at 1-3 (Member Kaplan, dissenting).
8. We agree with the judge, for the reasons set forth in his
decision, that the Respondent’s coercive and unlawful misconduct,
including threatening to close its business if employees selected
the union and disciplining two union supporters for their protected
union activity during the critical period between the filing of the
petition and the election requires setting aside the results of the
election. See, e.g., Bon Appetit Mgmt. Co., 334 NLRB 1042, 1044
(2001).
In her exceptions, the General Counsel requested a Gissel
bargaining order, but shortly afterwards, the Board issued its
decision in Cemex Construction Materials Pacific, LLC, 372
NLRB No. 130 (2023). In Cemex, the Board held that an employer
violates Sec. 8(a)(5) and (1) by refusing to recognize, upon request,
a union that has been designated as a Sec. 9(a) representative
by the majority of employees in an appropriate unit unless the
employer promptly files a petition for an election pursuant to Sec.
9(c)(1)(B) of the Act (an RM petition). 372 NLRB No. 130, slip op. at
25. However, if the employer then commits unfair labor practices
that would require setting aside the election, the Board will rely
36a
Appendix D
that, where a union has at some point achieved majority
support and a respondent has engaged in unfair labor
practices which “have the tendency to undermine majority
strength and impede the election processes,” the Board
“should issue” an order for the respondent to bargain
with the union without an election if “the Board finds
that the possibility of erasing the effects of past practices
and of ensuring a fair election (or a fair rerun) by the
use of traditional remedies, though present, is slight and
that employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order” than by a second election. Gissel, above, 395 U.S.
at 614-615.9 The Court emphasized that the Board “can
properly take into consideration the extensiveness of
an employer’s unfair practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future.” Id. The Board accordingly
on the prior designation of a representative by the majority of
employees by nonelection means to conclude that the employer’s
refusal to recognize the Union violated Sec. 8(a)(5), and will, as
a remedy for that violation, order the employer to recognize and
bargain with the union. 372 NLRB No. 103, slip op. at 26. In her
answering brief, the General Counsel requested that the Board
issue a Cemex bargaining order. But because the General Counsel
did not allege or argue that the Respondent violated Sec. 8(a)(5), a
bargaining order is not warranted in this case under the standard
announced in Cemex. See 372 NLRB No. 130, slip op. at 35 (“[A]
bargaining order under the new [Cemex] standard” can issue “only
as a remedy for an employer’s violation of Sec[.] 8(a)(5) by refusal
to bargain with a union.”); see also Spike Enterprise, Inc., 373
NLRB No. 41, slip op. at 8 fn. 26 (2024).
9. This is the Gissel “Category II” standard.
37a
Appendix D
considers a respondent’s entire course of conduct, both
before and after the election, in determining whether a
bargaining order is warranted.10 Here, for the reasons
explained below, we find that an affirmative bargaining
order is warranted because a majority of the Respondent’s
employees supported the Union before the Respondent
engaged in unfair labor practices that had a tendency
to undermine majority strength and impede the election
process, and the possibility of erasing the effects of these
unfair labor practices and ensuring a fair election by the
use of traditional remedies is slight, so that the sentiments
of the Respondent’s employees once expressed through
authorization cards are better protected by a bargaining
order.
A.
The Union’s Majority Status
On June 30, 2021, the Union sent the Respondent a
voluntary recognition agreement and signed authorization
cards from 61 out of 109—or over 55 percent of—unit
members, and it also attached the cards to its Certification
10. See, e.g., Aldworth Co., 338 NLRB 137, 150 (2002) (finding
“pernicious effects of the [r]espondent’s preelection unfair labor
practices were exacerbated and renewed by independent unlawful
postelection conduct”), enfd. sub nom. Dunkin’ Donuts MidAtlantic Distribution Center v. NLRB, 363 F.3d 437 (D.C. Cir.
2004); General Fabrications Corp., 328 NLRB 1114, 1115 (1999)
(“An employer’s continuing hostility toward employee rights in its
postelection conduct ‘evidences a strong likelihood of a recurrence
of unlawful conduct in the event of another organizing effort.”’)
(quoting Garney Morris, Inc., 313 NLRB 101, 103 (1993)), enfd.
222 F.3d 218 (6th Cir. 2000).
38a
Appendix D
of Representation (RC petition) filed the same day. This
is sufficient to prove majority support. In disputing the
Union’s majority status, the Respondent challenges six of
the signed authorization cards and argues that they should
not be counted. The Respondent also argues that without
these six cards, the Union would not have had majority
support, as there were actually 110 unit members instead
of 109. For the reasons explained below, both arguments
are without merit.
In advancing its first argument, the Respondent
points to evidence that two employees, Laura Lawhorn
and Mark Carey, supposedly wanted their cards back.
But the record does not establish that either of these
employees asked for their cards back before the Union
filed its RC petition, let alone before the Respondent
repeatedly threatened to shut down the company if
employees unionized (as discussed in more detail below).
See, e.g., Grey’s Colonial Boarding Home, 287 NLRB 877,
887 & fn. 36 (1987) (counting a challenged authorization
card because there was no evidence that the employee who
signed it made up her mind to ask for it back before the
employer began unlawfully discharging employees, as she
did not “discard[] her union adherence” until “immediately
after her four fellow employees were discharged” for their
union activities). Additionally, neither of the two employees
who supposedly wanted their cards back actually testified.
Instead, two other employees—including Theresa Horne,
whose testimony the judge discredited in large part—
claimed that Lawhorn and Carey supposedly wanted their
cards back. But even accepting arguendo this evidence
for the truth of the matter asserted, that would mean 59
out of 109 unit employees signed cards, which would still
39a
Appendix D
have given the Union support from over 54 percent of unit
members.
The Respondent’s argument that four additional
cards were not properly authenticated is also without
merit, as the judge correctly admitted all 61 authorization
cards into evidence. The fact that Horne did not witness
each unit member sign their card in her presence is not
grounds for excluding the cards. See McEwen Mfg. Co.,
172 NLRB 990, 992 (1968) (setting forth the Board’s longheld principle that it “will . . . accept as authentic any
authorization cards which were returned by the signatory
to the person soliciting them even though the solicitor did
not witness the actual act of signing”), enfd. sub nom.
Amalgamated Clothing Workers of America v. NLRB,
419 F.2d 1207 (D.C. Cir. 1969). The fact that she was not
entirely certain who every employee was who returned a
card to her does not warrant exclusion either. See, e.g.,
Evergreen America Corp. v. NLRB, 531 F.3d 321, 330 (4th
Cir. 2008) (“[N]either [the solicitor’s] failure to witness the
signing of the cards nor his lack of personal acquaintance
with [the signers] precludes his authentication of their
cards. The Board has long held that it will accept as
authentic any authorization card returned by the signer to
the solicitor.”) (citing cases), enfg. 348 NLRB 178 (2006).
The Respondent never disputed that these employees
were on the payroll, and nothing in the record suggests
that someone else fraudulently signed these cards. But
even assuming arguendo that the Board should exclude
those four cards, the Union still would have had majority
support from over 52 percent of unit members (57 out of
109, including Lawhorn’s and Carey’s cards).
40a
Appendix D
The Respondent also claims there were actually 110
unit members, but the judge correctly found that there
were only 109.11 The Respondent provides no support for its
contention that there were 110 unit members. The record
evidence, including the voluntary recognition agreement
and corresponding list of unit employees as well as the
charging documents, shows 109 unit members, not 110.
This means that even if the Board were to exclude all six
of the challenged cards—the two cards that Lawhorn and
Carey supposedly wanted back and the four cards that the
Respondent claims were not properly authenticated—the
Union still would have had majority support by one unit
member (55 out of 109).
B. Propriety of a Bargaining Order
As stated above, the Board considers a respondent’s
entire course of conduct, both before and after the
election, in determining whether a Gissel bargaining
order is warranted. In particular, the Board considers “the
seriousness of the violations and their pervasive nature, as
well as such factors as the number of employees directly
affected, the identity and position of the individuals
committing the unfair labor practices, and the size of
the unit and extent of dissemination of knowledge of the
Respondent’s coercive conduct among unit employees.”12
11. At one point in his decision, the judge did inaccurately
state that there were 110 unit members, but he used the correct
number throughout the rest of the decision.
12. See, e.g., Cemex Construction Materials, above, 372
NLRB No. 130, slip op. at 12; Garvey Marine, Inc., 328 NLRB
991, 993 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001).
41a
Appendix D
For the reasons stated below, we find that the Respondent’s
violations were sufficiently numerous, serious, and
extensive to warrant a bargaining order.
Particularly significant in this regard is the fact
that, of the Respondent’s numerous violations, several
were of the variety that the Board and the courts have
recognized as “hallmark” violations, meaning that they are
particularly coercive because of their tendency to destroy
election conditions and to persist for longer periods of time
than other unfair labor practices.13 Violations of this type
tend to have such a coercive and long-lasting effect on
employees’ free choice in a potential rerun election that,
absent “some significant mitigating circumstance,” they
generally warrant a bargaining order “without extensive
explication.”14
Here, as the judge found, and we have affirmed, the
Respondent committed numerous hallmark violations of
Section 8(a)(1) when two of its owners and a supervisor
repeatedly threatened to shut down the company if
employees unionized, that employees would lose their
jobs, and told employees that selecting the Union would
be futile because the Respondent would not bargain
with the Union. Specifically, on the evening of June
13. See, e.g., NLRB v. Jamaica Towing, Inc., 632 F.2d 208,
212-213 (2d Cir. 1980) (“Certain violations have been regularly
regarded by the Board and the courts as highly coercive.
These . . . so-called ‘hallmark’ violations . . . . include such
employer misbehavior as . . . threats of plant closure or loss of
employment[.]”).
14. Id.
42a
Appendix D
24, 2021, Tommy Garten and Matt Garten—two of the
Respondent’s owners—along with two other managers
held a mandatory employee meeting at which Tommy
Garten told the employees that the company only had 14
months left on their contract with WestRock Company,
and if employees unionized, the Respondent would not
renew the contract at the end of 14 months. Because the
Respondent’s business was based solely on its contract
with WestRock, Tommy Garten was threatening to shut
down the entire company if employees unionized. Later
in the meeting, Matt Garten reiterated this threat, telling
the employees that the Gartens would “take their ball to a
new court” when the contract expired if employees voted
for the Union. Tommy Garten specifically tied any closure
decision to employees’ election decision by emphasizing
that if employees rejected the Union, the Respondent
would likely renew the contract. Additionally, Tommy
and Matt Garten each separately told the employees that
the Respondent would not deal with the Union if it were
voted in, suggesting that employees’ selection of the Union
would be futile. The Gartens further emphasized their
threat of futility when they said that if employees “were
to push the Union in . . . the Union would have to bargain
with WestRock. Not [them].”15
15. While the June 24 threats occurred before the critical
period between the Union’s June 30 petition and the August
6 election, it is well established that the Board considers the
appropriateness of a Gissel order in light of the Respondent’s
entire course of conduct, both before and after the election, and
not just its unfair labor practices committed during the critical
period. See, e.g., Gissel, above, 395 U.S. at 614; Alumbaugh Coal
Corp., 247 NLRB 895, 914 fn. 41 (1980) (observing that the Board
considers all unfair labor practices, not just those during critical
period), enfd. in relevant part 635 F.2d 1380 (8th Cir. 1980).
43a
Appendix D
The Respondent repeated these extremely coercive
unlawful threats a few weeks later on the evening of July
9 when Tommy Garten, Matt Garten, and supervisor
George “Stick” Austin held another mandatory meeting.
Tommy Garten repeated his June 24 statements about
only having 14 months left on the WestRock contract
and how he would not renew it if employees unionized;
instead, another company such as Swift Transportation
or Amazon Transportation would come in and take over.
But, according to Tommy Garten, that new company would
not be allowed to use any of the Respondent’s equipment
or facilities, and that new company would bring in their
own workers, putting the Respondent’s employees out of a
job. Austin reiterated that, if the Union came in, Tommy
Garten would have to deal with the Union for 14 months,
but after that, he would not renew the contract. Tommy
Garten further threatened that if the Union came in, the
Respondent would no longer be involved in employees’
health insurance or 401(k)s, and the Union would have to
provide those benefits. He further stated that the Union
would be useless to employees and that the Union was just
after employees’ money.
The Board and the courts have long emphasized that
threats of job loss or shutdowns in response to unionization
“are among the most flagrant of unfair labor practices and
are likely to affect the election conditions negatively for an
extended period of time.” Evergreen America Corp., 348
NLRB 178, 180 (2006) (quoting Cardinal Home Products,
338 NLRB 1004, 1011 (2003)), enfd. 531 F.3d 321 (4th Cir.
Moreover, the Respondent repeated these unlawful statements
from the June 24 meeting at the July 9 meeting described below,
which did occur during the critical period.
44a
Appendix D
2006).16 Because the June 24 and July 9 threats to close the
Respondent’s business implicated a potential loss of work
for the entire unit, they directly affected all employees who
learned of them. Both meetings at which the Respondent’s
owners explicitly threatened job loss and total shutdown
were mandatory, and although witness accounts differed
slightly in their approximations of how many employees
were present, they estimated that anywhere from 20 to 30
employees were present at each meeting. These accounts
also suggest that while there may have been some overlap
among attendees at these meetings, different work crews
were present at the two separate meetings. Thus, while the
unit involved was relatively large, the Respondent’s threats
were directly communicated to a substantial percentage
of the unit employees, a factor particularly supportive of
a bargaining order. See, e.g., Cogburn Healthcare Center,
Inc., 335 NLRB 1397, 1399 (2001) (“The Board has held
that, where a substantial percentage of employees in
the bargaining unit is directly affected by an employer’s
serious unfair labor practices, the possibility of holding
a fair election decreases.”) (citing cases), revd. on other
grounds 437 F.3d 1266 (D.C. Cir. 2006).17
16. See also, e.g., Gissel, above, 395 U.S. at 611 fn. 31
(“[C]ertain unfair labor practices [(for instance, threats to close or
transfer plant operations)] are more effective to destroy election
conditions for a longer period of time than others.”); Garvey
Marine, above, 328 NLRB at 994 (“[T]he Board deems [threats of
loss of jobs and business closure] ‘hallmark’ violations with effects
on bargaining unit employees that cannot be underestimated.”).
17. Cf. Scott v. Stephen Dunn & Associates, 241 F.3d 652, 665
(9th Cir. 2001) (directing entry of Sec. 10(j) interim bargaining
order: “Because these violations affected the entire 97-person
45a
Appendix D
Furthermore, the coercive and lasting effect of the
Respondent’s unlawful conduct was magnified by the fact
that these threats came directly from the Respondent’s
owners, who have complete control over whether to shut
the company down. See Evergreen America, above, 348
NLRB at 181; Consec Security, 325 NLRB 453, 455 (1998)
(“When the antiunion message is so clearly communicated
by the words and deeds of the highest levels of management,
it is highly coercive and unlikely to be forgotten.”), enfd.
mem. 185 F.3d 862 (3d Cir. 1999). Therefore, this factor
also strongly supports issuing a bargaining order. See
National Steel Supply, 344 NLRB 973, 977 (2005) (finding
that the “impact of the violations is heightened by . . . the
direct involvement of the [r]espondent’s highest ranking
officers”), enfd. 207 F. App’x 9 (2d Cir. 2006); Parts Depot,
Inc., 332 NLRB 670, 675 (2000) (finding “[t]he severity of
the [r]espondent’s unlawful conduct is exacerbated by the
involvement of high ranking officials”), enfd. 24 F. App’x
1 (D.C. Cir. 2001).
In addition to these hallmark violations, we rely on
the coercive impact of the Respondent’s other serious
violations. At the outset of the organizing campaign, the
Respondent immediately reacted by committing numerous
unfair labor practices. On June 23, 2021, manager George
Rose separately interrogated two different employees
about their union activities in violation of Section 8(a)(1),
and he also created an unlawful impression of surveillance
bargaining unit, there is no basis to contend that this violation
will not continue to impact the deliberations of all of the eligible
voters. The size of the bargaining unit did not lessen the impact
of the unfair labor practices here.”).
46a
Appendix D
during one of those conversations. Additionally, the
Respondent violated Section 8(a)(3) and (1) when
it disciplined two employees, Allen Pullin and Ray
Humphries, for talking to coworkers about the Union,
even though the credited testimony establishes that both
Pullin and Humphries had these conversations on breaks
when employees frequently discussed nonwork subjects
and engaged in solicitation. The Respondent compounded
this unfair labor practice by committing an 8(a)(1) violation
when manager Ben Strozier specifically told Pullin that
he was being written up for talking about the Union.
Respondent owner Tommy Garten specifically involved
himself in the decision to discipline Humphries, going as
far as to call Humphries and tell him to stop soliciting
for the Union on company time. Strozier, who unlawfully
disciplined Pullin, was a high-level management official
as the Respondent’s general manager, financial controller,
and de facto head of human resources, further weighing
in favor of a bargaining order. The Respondent committed
these violations against four different employees, and
the record evidence suggests that at least some of these
employees told others about the Respondent’s unlawful
statements and actions. See Garvey Marine, Inc. v.
NLRB, 245 F.3d 819, 827 (D.C. Cir. 2001) (finding that
dissemination to employees not personally affected by
unfair labor practices is a relevant factor supportive of a
bargaining order), enfg. 328 NLRB 991 (1999).
Finally, the Board has held, with court approval,
that a respondent’s post-election unfair labor practices
“reveal[ ] continued hostility toward employee rights
[that] evidences a strong likelihood of a recurrence of
47a
Appendix D
unlawful conduct in the event of another organizing
effort.”18 We accordingly take administrative notice that
the Respondent again violated Section 8(a)(1) shortly after
the conclusion of the hearing in this matter. Specifically,
on September 29, 2022, Respondent owner Dizzy Garten
unlawfully told employees that “if it wasn’t for [the Union]
trying to steal money out of your paychecks you would
already have your raises,” in a message that also referred
to the Union’s representatives as “worthless pieces of
trash” and “idiots” and to the content of a union flyer as
“pure horseshit.” Garten Trucking LC, 373 NLRB No.
64, slip op. at 2 (2024). Dizzy Garten’s unlawful message
was widely disseminated to unit employees through
a messaging application with which the Respondent
regularly communicates with employees, and its coercive
impact was magnified by his status as company owner.
Although we would find that the violations in this case
warrant a Gissel bargaining order even without this
subsequent violation, this violation is further evidence that
the Respondent remains intent on avoiding a collectivebargaining obligation even at the cost of continuing to
violate the law.
18. Garney Morris, Inc., 313 NLRB 101, 103 (1993), enfd.
mem. 47 F.3d 1161 (3d Cir. 1995); see also, e.g., MJ Metal Products,
328 NLRB 1184, 1185 (1999), affd. 267 F.3d 1059 (10th Cir. 2001);
Eddyleon Chocolate, 301 NLRB 887, 891 (1991) (“The likelihood
of the [r]espondent’s misconduct recurring in a rerun election is
high, as the [r]espondent’s postelection conduct reveals continued
hostility to employee rights.”); Chromalloy Mining & Minerals v.
NLRB, 620 F.2d 1120, 1131 fn. 8 (5th Cir. 1980) (noting that postelection violations “are always relevant because they demonstrate
that the employer is still opposed to unionization.”), enfg. in
relevant part 238 NLRB 688 (1978).
48a
Appendix D
Given the Respondent’s numerous unfair labor
practices, especially the repeated hallmark threats to close
the company that came directly from the Respondent’s
owners, the Respondent’s antiunion message is “unlikely
to be forgotten” by employees. See Consec Security,
above, 325 NLRB at 455. We conclude that the possibility
of erasing the effects of the Respondent’s highly coercive
misconduct and ensuring a fair rerun election by the use
of the Board’s traditional remedies, even with the addition
of certain enhanced remedies as discussed further below,
is slight, and that the majority of employees’ prior free
choice of the Union as their representative, as designated
by authorization cards, would be better protected by the
issuance of a bargaining order “unless some significant
mitigating circumstance exists.”19
The Respondent has not argued to the Board that
changed circumstances, including the passage of time
since its unlawful conduct, should preclude a bargaining
order. The Board’s traditional policy, with approval from
some courts of appeals, is to consider the appropriateness
of a bargaining order as of the time of the unfair labor
practices, because taking into account subsequent changes
incentivizes prolonged litigation, undermining the Act’s
goal of deterring unlawful behavior. 20 Other courts of
19. NLRB v. Jamaica Towing, above, 632 F.2d at 212.
20. See, e.g., Gissel, above, 395 U.S. at 614 (emphasizing that,
where a union has shown past majority support, a bargaining order
serves the dual goals of effectuating ascertainable employee free
choice and deterring employer misbehavior); Garvey Marine,
above, 328 NLRB at 995 (explaining deterrence purpose of Board’s
49a
Appendix D
appeals, however, including the Court of Appeals for the
District of Columbia Circuit and the Court of Appeals
for the Fourth Circuit (in which this case arises), have
required, as a condition of enforcing a Gissel bargaining
order, that the Board determine the appropriateness of
the order in light of the circumstances existing at the time
it is entered. 21
traditional practice); East Bay Automotive Council v. NLRB,
483 F.3d 628, 635 (9th Cir. 2007) (“[C]hanged circumstances
during intervals of adjudication ‘have been held irrelevant to the
adjudication of enforcement proceedings.”’) (quoting NLRB v.
Bakers of Paris, 929 F.2d 1427, 1448 (9th Cir. 1991) (observing
that this rule “prevent[s] employers from intentionally prolonging
Board proceedings in order to frustrate the issuance of bargaining
orders”)), enfg. 342 NLRB 1244 (2004); United Dairy Farmers
Cooperative Assn. v. NLRB, 633 F.2d 1054, 1069 (3d Cir. 1980)
(holding that the Board may “ignore a possible dissipation of
majority support through employee turnover after the unfair labor
practice [because] ‘[t]o require the Board to determine whether
a continuing majority supports unionization . . . would be to put
a premium upon continued litigation by the employer’ and allow
the employer ‘to avoid any bargaining obligation indefinitely.”’)
(quoting Hedstrom Co. v. NLRB, 629 F.2d 305, 312 (3d Cir. 1980)
(en banc)), remanding in relevant part 242 NLRB 1026 (1979).
21. See, e.g., Flamingo Hilton-Laughlin, above, 148 F.3d at
1171 & fn. 4 (District of Columbia Circuit citing precedent from
other courts of appeals considering changed circumstances,
including passage of time and employee and management
turnover). More specifically, both the District of Columbia Circuit
and the Fourth Circuit have held that, in a Gissel ““Category II”
case, the Board must make detailed findings based on substantial
evidence that (1) a majority of employees in an appropriate unit
had, at one time, supported the Union; (2) the Respondent’s unfair
labor practices had a tendency to cause or caused dissipation of
50a
Appendix D
Here, as discussed in detail above, we have found that
a majority of unit employees had designated the Union
as their representative by June 30, 2021. We have found
that the Respondent’s unfair labor practices, especially
its repeated threats to close the business, had a strong
tendency to undermine, and did undermine, the Union’s
majority support and impede the election process. We
have also found that, absent mitigating circumstances, the
possibility of erasing the effects of the Respondent’s highly
coercive misconduct and ensuring a fair rerun election by
the use of the Board’s traditional remedies is slight, and
that the majority of employees’ prior free designation of
the Union as their representative by authorization cards
would be better protected by the issuance of a bargaining
order.
the Union’s majority support; and (3) the possibility of erasing the
effects of the Respondent’s unfair labor practices and ensuring a
fair rerun election is slight, so that the employees’ pre-violation
sentiments would be better protected by a bargaining order. See
Evergreen America v. NLRB, above, 531 F.3d at 329-330 (Fourth
Circuit); Traction Wholesale Center, Inc. v. NLRB, 216 F.3d
92, 104 (D.C. Cir. 2000), enfg. in relevant part 328 NLRB 1058
(1999). The Fourth Circuit has additionally required the Board
to specifically consider and make findings about the likelihood
of recurring misconduct, whether the residual impact of the
Respondent’s unfair labor practices has been or will be dissipated
by the passage of time, and the efficacy of the Board’s ordinary
remedies. Evergreen America v. NLRB, above, 531 F.3d at 329330. And the District of Columbia Circuit has required the Board
to explicitly balance three considerations, as considered at the
time the Board issues its order: (1) the employees’ Sec. 7 rights; (2)
whether other purposes of the Act override the rights of employees
to choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the violations of
the Act. Traction Wholesale Center, above, 216 F.3d at 107-108.
51a
Appendix D
After examining the appropriateness of a bargaining
order under the circumstances existing at the present time,
we find that the passage of time since the Respondent’s
unfair labor practices does not constitute a mitigating
circumstance warranting withholding a bargaining order
in this case. 22
It has now been approximately 3 years since the
Respondent’s unfair labor practices at issue in this case.
We cannot conclude, under the circumstances of this
case, that this passage of time has made it likely that the
Board’s traditional remedies, even with the additional
22. In so finding, we have duly considered the Section 7 rights
of all employees involved. Consistent with the careful balancing
of employee rights described by the Court in Gissel, we find that
issuing a bargaining order in this case protects the rights of
the majority of the Respondent’s employees who designated the
Union as their representative prior to the Respondent’s unlawful
coercive threats, while the rights of those employees who may
be opposed to representation are safeguarded by their access
to the Board’s decertification procedure under Sec. 9(c)(1) of the
Act, following a reasonable period of time to allow the collectivebargaining relationship a fair chance to succeed. See Gissel, above,
395 U.S. at 613-614; cf., e.g., Stevens Creek Chrysler Jeep Dodge,
357 NLRB 633, 639 (2011), enfd. sub nom Mathew Enterprise,
Inc. v. NLRB, 498 F. App’x 45 (D.C. Cir. 2012). We find, again
consistent with Gissel, that, because a majority of the Respondent’s
employees in an appropriate unit have designated the Union as
their representative for the purpose of collective bargaining, the
Act’s dual purposes of effectuating ascertainable employee free
choice and of deterring employer misbehavior are aligned, so that,
absent the likelihood of a fair rerun election, a bargaining order
simultaneously serves both purposes without subordinating either
to the other. Gissel, above, 395 U.S. at 614.
52a
Appendix D
remedies discussed herein, could ensure that a fair
election could be held today. As discussed above, the
Board and the courts have long recognized that coercive
conduct such as the Respondent’s here, especially its
threats to close its business, tend to impede the possibility
of a fair rerun election for extended periods of time after
their commission. 23 Accordingly, courts that require
consideration of changed circumstances as a condition
of enforcing Board bargaining orders have regularly
enforced such orders after comparable or longer periods of
time where other circumstances have not determinatively
weighted against enforcement. 24 Here, we find that the
23. See, e.g., Gissel, above, 395 U.S. at 611 fn. 31; Stevens
Creek Chrysler, above, 357 NLRB at 638; Evergreen America,
above, 348 NLRB at 180.
24. See, e.g., Evergreen America v. NLRB, above, 531 F.3d
at 332-333 (Fourth Circuit affirming Board’s conclusion that
passage of four years between respondent’s unfair labor practices
and Board order did not make Gissel order unacceptable), enfg.
348 NLRB 178 (2006); NLRB v. Goya Foods of Florida, 525 F.3d
1117, 1138 (11th Cir. 2008) (rejecting respondent’s argument that
enforcement of non-Gissel bargaining order—evaluated under
Gissel standard—should be denied based solely on passage of 6 to
7 years between unfair labor practice conduct and Board order),
enfg. 347 NLRB 1118 (2006); Dunkin’ Donuts, above, 363 F.3d at
441-442 (District of Columbia Circuit enforcing Board order issued
four years after unfair labor practices); NLRB v. U.S.A. Polymer
Corp., 272 F.3d 289, 293-299 (5th Cir. 2001) (enforcing Board
order issued more than 4 years after unfair labor practices), enfg.
328 NLRB 1242 (1999), cert. denied 536 U.S. 939 (2002); Garvey
Marine v. NLRB, above, 245 F.3d at 826-830 (District of Columbia
Circuit enforcing Board order issued more than four years after
unfair labor practices); Parts Depot, above, 332 NLRB at 674-676
(entering Gissel order more than four years after postelection
53a
Appendix D
passage of time since the Respondent’s unfair labor
practices in this case does not warrant concluding that
the impact of the Respondent’s coercive misconduct
has been sufficiently dissipated to permit a fair rerun
election today, especially in light of the Respondent’s
intervening unfair labor practice discussed above. 25 We
accordingly conclude that a bargaining order under Gissel
is warranted, necessary, and appropriate to effectuate the
purposes and policies of the Act under presently existing
circumstances.
unfair labor practice), enfd. 24 F. App’x 1 (D.C. Cir. 2001); but cf.
Cogburn Health Center, Inc. v. NLRB, above, 437 F.3d 1272-1276
(District of Columbia Circuit denying enforcement to Board order
on finding Board failed to consider respondent’s proffered evidence
of changed circumstances during five years between unfair labor
practices and Board order); Flamingo Hilton-Laughlin, above,
148 F.3d at 1170-1173 (District of Columbia Circuit remanding
for reconsideration on finding Board failed to explain necessity of
order at time of issuance four years after unfair labor practices).
25. Given the extent and severity of the Respondent’s unfair
labor practices, Member Kaplan joins his colleagues in ordering
a Gissel bargaining order. He notes that the nearly three years
that have elapsed since the unfair labor practices in this case
would ordinarily raise concerns about the enforceability of the
bargaining order. See Cogburn Health Center v. NLRB, 437
F.3d 1266, 1275 (D.C. Cir. 2006) (finding five-year delay between
unfair labor practices and Board decision in part obviated need
for bargaining order), denying enf. in relevant part to 335 NLRB
1397 (2001); see also Flamingo Hilton-Laughlin v. NLRB, 148
F.3d 1166, 1171-1172 (D.C. Cir. 1998) (four-year delay); Stern
Produce Co., 368 NLRB No. 31 (2019) (delay of three and a half
years). However, he finds that the Respondent’s subsequent 8(a)(1)
violation found in Garten Trucking LC, 373 NLRB No. 64 (2024),
mitigates those concerns.
54a
Appendix D
II. ADDITIONAL REMEDIES
Certain additional remedies are warranted in light
of the Respondent’s extensive and serious unfair labor
practices in response to its employees’ union organizing. 26
Accordingly, we shall order the Respondent to have the
attached notice read aloud to the employees so that they
“will fully perceive that the Respondent and its managers
are bound by the requirements of the Act.” Federated
Logistics & Operations, 340 NLRB 255, 258 (2003), rev.
denied 400 F.3d 920, 929-930 (D.C. Cir. 2005). The Board
has long held that the “public reading of the notice is an
‘effective but moderate way to let in a warming wind of
information and, more important, reassurance.”’ United
States Service Industries, 319 NLRB 231, 232 (1995)
(quoting J.P. Stevens & Co. v. NLRB, 417 F.2d 533,
540 (5th Cir. 1969)), enfd. 107 F.3d 923 (D.C. Cir. 1997).
Reassurance to employees that their rights under the
Act will not be violated by the Respondent is particularly
important because it continues to employ the owners and
supervisors who were personally and directly involved in
unlawfully threatening the employees. See, e.g., North
Memorial Health Care, 364 NLRB 770, 770 (2016) (finding
notice-reading appropriate in part due to participation
of high-ranking management officials in unfair labor
practices), enfd. in relevant part 860 F.3d 639 (8th Cir.
2017). We shall accordingly order the Respondent, during
the time the required notice is posted, to hold a meeting
26. We also amend the remedy to affirmatively require the
Respondent to rescind the unlawful solicitation and distribution
policy in its employee handbook; the judge omitted this standard
remedy.
55a
Appendix D
or meetings during work time, scheduled to ensure the
widest possible attendance of employees, at which the
attached notice marked “Appendix” will be read to the
employees by a high-ranking management official of the
Respondent in the presence of the following: a Board
agent; managers and supervisors, including Tommy
Garten, Matt Garten, Dizzy Garten, Stick Austin, Betty
Mace, Mike McNeely, and George Rose; and, if the Union
so desires, a union representative; or, at the Respondent’s
option, by a Board agent in the presence of managers
and supervisors, including Tommy Garten, Matt Garten,
Dizzy Garten, Stick Austin, Betty Mace, Mike McNeely,
and George Rose, and, if the Union so desires, a union
representative. See Gavilon Grain, LLC, 371 NLRB No.
79, slip op. at 2 (2022).
Additionally, the numerous unfair labor practices
found in this case “amply demonstrate a general disregard
for employees’ fundamental Section 7 rights.” David Saxe
Productions, 370 NLRB No. 103, slip op. at 6 (2021). The
numerosity and egregiousness of the Respondent’s unfair
labor practices warrant a broad order requiring the
Respondent to cease and desist “in any other manner”
from interfering with, restraining, or coercing its
employees in the exercise of their Section 7 rights. See
Hickmott Foods, 242 NLRB 1357, 1357 (1979).
ORDER
The National Labor Relations Board orders that the
Respondent, Garten Trucking LC, Covington, Virginia,
its officers, agents, successors, and assigns, shall
56a
Appendix D
1.
Cease and desist from
(a) Maintaining a solicitation and distribution policy
prohibiting employees from soliciting on nonworking time
in work areas.
(b) Coercively interrogating employees about their
union activity.
(c) Creating the impression that it is engaged in
surveillance of its employees’ union or other protected
concerted activities.
(d) Threatening to close the business and threatening
employees with job loss if they select Association of
Western Pulp and Paper Workers (the Union) as their
bargaining representative.
(e) Threatening employees that selecting a union
representative would be futile.
(f) Issuing written warnings to employees because
of their support for and activities on behalf of the Union.
(g) Telling employees that they were disciplined due
to their union activity.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
57a
Appendix D
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All regular full-time and part-time truck
drivers, maintenance, truck wash, and dispatch
employees employed by [the Respondent] at its
facilities in Alleghany County, Virginia; but
excluding all temporary employees, managers
and supervisors, and guards as defined by the
Act.
(b) Rescind the solicitation and distribution provision
of its employee handbook, and furnish employees with an
insert for the current employee handbook that (1) advises
that the unlawful provision has been rescinded, or (2)
provides a lawfully worded provision on adhesive backing
that will cover the unlawful provision; or publish and
distribute to employees revised employee handbooks that
(1) do not contain the unlawful provision, or (2) provide a
lawfully worded provision.
(c) Within 14 days from the date of this Order,
rescind the July 9 and 12, 2021 warnings issued to Ray
Humphries and Allen Pullin and remove from its files
any references to them, and within three days thereafter,
notify Ray Humphries and Allen Pullin in writing that this
has been done and that these unlawful disciplines will not
be used against them in any way.
58a
Appendix D
(d) Post at its facilities in Covington, Virginia,
copies of the attached notice marked “Appendix.” 27
Copies of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with
its employees by such means. Reasonable steps shall be
27. If the facilities involved in these proceedings are open
and staffed by a substantial complement of employees, the notice
must be posted within 14 days after service by the Region. If the
facilities involved in these proceedings are closed or not staffed
by a substantial complement of employees due to the Coronavirus
Disease 2019 (COVID-19) pandemic, the notice must be posted
within 14 days after the facilities reopen and a substantial
complement of employees have returned to work. If, while closed
or not staffed by a substantial complement of employees due to the
pandemic, the Respondent is communicating with its employees by
electronic means, the notice must also be posted by such electronic
means within 14 days after service by the Region. If the notice
to be physically posted was posted electronically more than 60
days before physical posting of the notice, the notice shall state
at the bottom that “This notice is the same notice previously [sent
or posted] electronically on [date].” If this Order is enforced by
a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations
Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
59a
Appendix D
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since June 23,
2021.
(e) Hold a meeting or meetings during worktime,
scheduled to ensure the widest possible attendance
of employees, at which the attached notice marked
““Appendix” will be read to the employees by a highranking management official of the Respondent in the
presence of the following: a Board agent; managers and
supervisors, including Tommy Garten, Matt Garten,
Dizzy Garten, Stick Austin, Betty Mace, Mike McNeely,
and George Rose; and, if the Union so desires, a union
representative; or, at the Respondent’s option, by a Board
agent in the presence of managers and supervisors,
including Tommy Garten, Matt Garten, Dizzy Garten,
Stick Austin, Betty Mace, Mike McNeely, and George
Rose; and, if the Union so desires, a union representative.
(f) Within 21 days after service by the Region,
file with the Regional Director for Region 10 a sworn
certification of a responsible official on a form provided
by the Region attesting to the steps that the Respondent
has taken to comply.
60a
Appendix D
It is further ordered that the election conducted in
Case 10-RC-279259 on August 6, 2021, shall be set aside,
and that the petition shall be dismissed.
It is further ordered that the complaint allegations
that the Respondent violated Section 8(a)(1) by maintaining
in its employee handbook the introductory statement,
social networking rule, conduct after separation rule,
protection of confidential information rule parts 1 and 2,
personal and work area appearance rule, and return of
property upon termination of the employment relationship
rule are severed and remanded to Administrative Law
Judge Charles J. Muhl for further appropriate action,
including reopening the record, if necessary, and the
preparation of a supplemental decision setting forth
credibility resolutions, findings of fact, conclusions of law,
and a recommended Order. Copies of the supplemental
decision shall be served on all parties, after which the
provisions of Section 102.46 of the Board’s Rules and
Regulations shall be applicable.
Dated, Washington, D.C. September 17, 2024
/s/
Lauren McFerran Chairman
/s/
Marvin E. Kaplan Member
/s/
Gwynne A. Wilcox Member
61a
Appendix D
APPENDIX
Notice To Employees
Posted by Order of the National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us
on your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these
protected activities.
We will not maintain a solicitation and distribution
policy prohibiting you from soliciting on nonworking time
in work areas.
We will not coercively question you about your union
activities.
We will not create the impression that we are
engaged in surveillance of your union or other protected
concerted activities.
62a
Appendix D
We will not threaten to close the business or threaten
you with job loss if you select Association of Western
Pulp and Paper Workers (the Union) as your bargaining
representative.
We will not threaten you that selecting a union
representative would be futile.
We will not issue written warnings to you because
of your support for and activities on behalf of the Union.
We will not tell you that you were disciplined due to
your union activity.
We will not in any other manner interfere with,
restrain, or coerce you in the exercise of the rights listed
above.
We will , on request, bargain with the Union as
the exclusive collective-bargaining representative
of our employees in the following appropriate unit
concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All regular full-time and part-time truck
drivers, maintenance, truck wash, and dispatch
employees employed by [Garten Trucking LC]
at its facilities in Alleghany County, Virginia;
but excluding all temporar y employees,
managers and supervisors, and guards as
defined by the Act.
63a
Appendix D
We will rescind the solicitation and distribution
provision of our employee handbook, and we will furnish
you with an insert for the current employee handbook that
(1) advises that the unlawful provision has been rescinded,
or (2) provides a lawfully worded provision on adhesive
backing that will cover the unlawful provision; or publish
and distribute to you revised employee handbooks that
(1) do not contain the unlawful provision, or (2) provide a
lawfully worded provision.
We will, within 14 days from the date of the Board’s
Order, rescind the July 9 and 12, 2021 warnings issued
to Ray Humphries and Allen Pullin and remove from our
files any references to them, and we will, within 3 days
thereafter, notify Ray Humphries and Allen Pullin in
writing that this has been done and that these unlawful
disciplines will not be used against them in any way.
We will hold a meeting or meetings during worktime
at our facilities in Covington, Virginia, scheduled to ensure
the widest possible attendance of employees, at which this
notice will be read to you by one of our high-ranking
management officials in the presence of the following: a
Board agent; managers and supervisors, including Tommy
Garten, Matt Garten, Dizzy Garten, Stick Austin, Betty
Mace, Mike McNeely, and George Rose; and, if the Union
so desires, a union representative; or, at our option, by a
Board agent in the presence of managers and supervisors,
including Tommy Garten, Matt Garten, Dizzy Garten,
Stick Austin, Betty Mace, Mike McNeely, and George
Rose; and, if the Union so desires, a union representative.
64a
Appendix
E
APPENDIX
E — DECISION
OF
THE ADMINISTRATIVE LAW JUDGE,
NATIONAL LABOR RELATIONS BOARD,
FILED FEBRUARY 17, 2023
UNITED STATES OF AMERICA BEFORE
THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
JD-12-23
Covington, VA
Cases
10–CA–279843
10–CA–280804
10–CA–281786
10–CA–282554
10–CA–296060
10–RC–279259
GARTEN TRUCKING, LLC and ASSOCIATION
OF WESTERN PULP AND PAPER WORKERS.
February 17, 2023
DECISION
Charles J. Muhl, Administrative Law Judge. In early
June 2021, Jeff Baker and another individual initiated
an organizing campaign with the Association of Western
Pulp and Paper Workers (the Union). The two employees
sought to have the Union represent them and other
employees of Garten Trucking, LLC (the Respondent)
in Covington, Virginia. Those employees transport
65a
Appendix E
paper and other products pursuant to the Respondent’s
contract with WestRock Company, which operates a
paper mill in the same city. On June 21, Baker held a
meeting at his house with roughly 30 employees where
a union representative spoke via videoconference about
organizing. Nearly all of the attendees, including Baker,
signed union authorization cards. Shortly thereafter, the
Respondent began holding meetings with employees to
express its opinions concerning why employees should
reject unionizing. At a meeting on June 24, Baker spoke
out when one of the Respondent’s owners, Tommy Garten,
was addressing employees. On June 29, the Respondent
suspended Baker. The next day, the Union filed a petition
seeking an election in a bargaining unit of approximately
110 employees. On July 12, the Respondent discharged
Baker. Ultimately, on August 6, the Union lost the election
by a count of 30 to 65.
The story of Baker’s discharge is not as clear cut as
that sequence of events might initially sound, though. At
work on June 18, 3 days prior to the union meeting at his
house, Baker told a coworker, Scarlett Ledford, to make
numerous copies of a union organizing handbook for him.
The only copier Ledford could use to do so without alerting
management was owned by WestRock. Ledford made the
copies, totaling over 1000 sheets of paper. Then on June
26, Ledford filed a sexual harassment complaint against
Baker. The Respondent initiated an investigation into
that complaint, interviewed Baker, Ledford, and other
employees, then suspended Baker on June 29 to complete
the investigation. In addition to the sexual harassment
complaint, Ledford also volunteered to the Respondent
66a
Appendix E
that Baker had directed her to make a large number
of copies for personal use on June 18. The Respondent
verified with WestRock that an atypical number of copies
had been made using the Westrock copier on that date.
Fearing the cancellation of its contract with WestRock and
having previously discharged other employees for misuse
of WestRock property, the Respondent discharged Baker.
The General Counsel’s complaint alleges the
Respondent committed numerous unfair labor practices
during the Union’s organizing campaign. As will be
discussed fully herein, I conclude that the Respondent
violated Section 8(a)(1) by unlawfully threatening
employees with business closure and job loss if they chose
the Union as their bargaining representative; creating the
impression that employees’ union activities were under
surveillance; interrogating employees about their union
activities; telling employees that they received a written
warning due to their union activity; and maintaining
numerous unlawful handbook rules. I also find that the
Respondent violated Section 8(a)(3) and (1) by issuing
warnings to employees Ray Humphries and Allen Pullin
due to their union activity. Given this, I conclude that
the first election should be set aside and a new election
held. However, I find that the remaining allegations in
the General Counsel’s complaint should be dismissed. In
particular, I conclude that the Respondent’s discharge of
Baker was lawful.1
1. On June 15, 2022, the General Counsel, through the
Regional Director for Region 10, Subregion 11 of the National
Labor Relations Board (the Board), issued an order consolidating
Cases 10-CA-279843, 10-CA-280804, 10-CA-281786, and 10-CA282554, as well as a consolidated complaint (and notice of hearing)
against Garten Trucking LLC (the Respondent). The complaint
67a
Appendix E
From August 22-26, 2022, and September 12-14, 2022,
I heard this case via videoconference. 2 On November
16, 2022, the General Counsel and the Respondent filed
posthearing briefs, which I have read and carefully
considered. 3 On the entire record, I make the following
findings of fact and conclusions of law.4
was premised upon unfair labor practice charges filed, and in some
cases amended, by the Association of Western Pulp and Paper
Workers (the Union) from July 14, 2021, through May 19, 2022. On
July 6, 2022, the Regional Director issued a Report on Objections
in Case 10-RC-279259. The Union filed the objections following
its representation election loss at Garten Trucking on August
6, 2022. The Regional Director found that numerous objections
raised substantial and material issues of fact best resolved by a
hearing. The Regional Director consolidated the RC case with
the four prior CA cases. On July 25, 2022, the General Counsel
issued a second complaint against the Respondent in Case 10-CA296060 and subsequently consolidated that case with the prior CA
and RC cases. On June 27 and August 3, 2022, the Respondent
filed answers denying the substantive allegations and asserting
numerous affirmative defenses.
2. Prior to the hearing, I granted the Respondent’s motion
to conduct the hearing in person in Roanoke, Virginia. However,
shortly thereafter, issues caused, in part, by the COVID-19
pandemic resulted in compelling circumstances under Sec.
102.35(c) of the Board’s Rules and Regulations for my approving the
parties’ joint request to conduct the hearing by videoconference.
3. Prior to the hearing, the Charging Party filed a request
for special remedies. I also have read and carefully considered
that request.
4. In order to aid review, I have included citations to the
record in my findings of fact. The citations are not necessarily
exclusive or exhaustive. My findings of fact are based upon
consideration of the entire record. In assessing witnesses’
68a
Appendix E
FINDINGS OF FACT
ALLEGED UNFAIR LABOR PRACTICES
I.
BACKGROUND
The Respondent is engaged in the business of
transporting paper products and other goods to and from
facilities located in and around Covington, Virginia. 5 It
was formed in 2012 and employs approximately 180 people.
The transportation business is conducted pursuant to a
contract the Respondent has with WestRock Company,
which operates a paper mill in Covington. The Respondent
credibility, I primarily relied upon witness demeanor. I also have
considered the context of their testimony, the quality of their
recollections, testimonial consistency, the presence or absence of
corroboration, the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences
that may be drawn from the record as a whole. See Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. sub nom. 56 Fed.Appx.
516 (D.C. Cir. 2003). Of course, credibility findings need not be
all-or-nothing propositions. Indeed, nothing is more common in
judicial decisions than to believe some, but not all, of a witness’s
testimony. Daikichi Sushi, supra at 622; Jerry Ryce Builders, 352
NLRB 1262, 1262 fn. 2 (2008) (citing NLRB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950), reversed on other grounds
340 U.S. 474 (1951)). My specific credibility determinations are
detailed in the findings of fact.
5. The Respondent also is referred to in the transcript as
“Garten Trucking 1,” which encompasses its local mill shuttle
operation with WestRock.
69a
Appendix E
refers to this business as the “local mill shuttle run.” The
basic function is for drivers to transport loaded and empty
trailers from the paper mill to other lots and warehouses
owned by the Respondent in the Allegheny County,
Virginia area.6
Garten Trucking is a family-run business owned by
four members of the Garten family. They include George
“Tommy” Garten, his wife Marybeth Garten, and his two
sons, Matt Garten and Robert “Dizzy” Garten. Tommy
Garten oversees the Respondent’s day-to-day operations.
In the summer of 2021, Ben Strozier was the general
manager and financial controller of the Respondent. He
also handled the human resource functions at that time.
Betty Mace was the yard manager. Mike McNeely was the
base manager. During that timeframe, these individuals
worked out of the Respondent’s main office in Covington,
except for Mace. She was stationed at what is called the
“Pinehurst Lot” facility, also in Covington.
At the Pinehurst Lot, the Respondent has both a
driver trailer and a dispatch trailer. George “Stick” Austin
and George Rose are two additional supervisors who
worked out of that lot in the summer of 2021. Austin was
6. In its answers to the General Counsel’s complaints, the
Respondent admitted that, in annually conducting its business
operations, it purchases and receives at its Covington, Virginia
facility goods valued in excess of $50,000 directly from points
outside the Commonwealth of Virginia. It also admits, and I so
find, that it has been a Sec. 2(2), (6), and (7) employer “for the time
frames encompassed in the charges” upon which the complaints
are based.
70a
Appendix E
the logistics manager responsible for the operation of the
local mill shuttle. He supervised the Respondent’s drivers.
Rose was the assistant yard manager who supervised
three individuals: the load planner, dispatcher, and
account service representative (ASR). At that time, the
load planner was discriminatee Jeff Baker; the dispatcher
was Brian Hubbard; and the ASR was Scarlet Ledford.
All of these individuals worked out of the dispatch trailer.
That dispatch trailer contained a shared office for Baker
and Brian Hubbard, as well as individual offices for Rose,
Austin, and Ledford.7
Baker’s job as load planner was to answer phone calls
from WestRock personnel seeking to schedule trailers to
haul loads to and from the plant and warehouses. Once
the call came in, Baker would utilize a computer system
to assign the run to a driver and identify the equipment
to be moved and the involved docks. Baker then passed
that information along to Brian Hubbard, the dispatcher,
who utilized a radio to convey it to the assigned driver.
The Respondent operates 24/7 utilizing four different
crews, all of which work 12-hour shifts from either 6
a.m. to 6 p.m. or 6 p.m. to 6 a.m. The employees operate
on a “DuPont” schedule, which results in them being
moved back and forth between the two shifts and having
numerous days off over a 4-week period. All employees
who worked out of the Pinehurst Lot, including the drivers,
Baker, Brian Hubbard, and Ledford, were required to
7. This case has two witnesses with the last name “Hubbard”,
so I will utilize their full names in this decision. The same goes
for the four members of the Garten family.
71a
Appendix E
clock in and out of work at the start and end of their work
shifts using a timeclock in the drivers’ trailer. In addition,
employees did not have a set number of breaks or specific
assigned times for them. Instead, they would take breaks
when work was slow, e.g. Baker took his breaks when
no phone calls were coming in. Employees did not have
to ask permission to take a break, but drivers typically
would let the dispatcher know when they went on one. The
Respondent did not require employees to clock in or out
when they took a break. 8
II. THE UNION’S ORGANIZING CAMPAIGN AND
THE RESPONDENT’S INITIAL RESPONSE
Miles Cook is the director of organizing for the Union.
He typically works on the west coast of the United States.
Local 675 of the Union represents certain employees
who work at the WestRock paper mill in Covington.
The Respondent has a number of employees working
at that mill. In early June 2021, one of the members of
the WestRock bargaining unit put Cook in touch with
an employee of the Respondent who was interested
in organizing a union there. 9 Thereafter on June 10,
Baker and driver Alan Pullin attended a meeting with a
representative of the Union.10
8. Tr. 163-164, 277-278, 353-354, 410-411, 453-455, 503-505,
564-565, 587, 620-622, 636, 655-658, 715-716; GC Exh. 15, pp. 1-3.
9. All dates hereinafter are in 2021, unless otherwise noted.
10. Tr. 165, 411. At the hearing, the Respondent stipulated,
and I so find, that the Union has been a Sec. 2(5) labor organization
from January 1, 2021, to the present. (Tr. 113.)
72a
Appendix E
(a) “The Little Brown Book of Union Organizing”
On June 17, Cook emailed Baker “The Little Brown
Book of Union Organizing” which, unsurprisingly,
contains information on union organizing campaigns.
Baker printed the book out at home and discovered the
printout was 106 pages long. (The book itself was 53
pages and the file Cook sent had an English and a Spanish
version.) On June 18, Baker took the printed book to work
in the dispatch trailer. The ASR office, where Ledford
works, has an all-purpose copier in it (the ASR copier).
Baker told Ledford to make 19 copies of the book for him.
He told her he was going to be passing them out when they
got off of shift. He told her to hide the copies in a drawer
in the ASR office and he would come and get them out of
there later on. At that shift and time, Ledford understood
Baker to be her acting supervisor. Thus, she made the
copies for him, despite thinking that copying a union
handbook on a work copier was wrong. Ledford ended up
making 19 copies of the book, totaling over 1000 pages.11
11. The findings of fact in this paragraph are based on
Ledford’s testimony, which I credit, concerning her conversation
with Baker about “The Little Brown Book”, including that Baker
told her to make him copies. (Tr. 903, 906, 916, 922-923; R. Exh.
3.) Ledford was earnest and down-to-earth when providing this
testimony. She also had specific recall (despite frequent leading
questions from the Respondent’s counsel). Moreover, at the time of
the hearing, Ledford no longer was employed by the Respondent,
having voluntarily resigned in the summer of 2021. (Tr. 938.) Thus,
Ledford had no incentive to testify favorably to the Respondent’s
case. Finally, as will be discussed later in this decision, Ledford
contemporaneously reported making these copies at Baker’s
direction as part of the Respondent’s investigation into a sexual
73a
Appendix E
harassment complaint she subsequently made against Baker. (R.
Exhs. 4 and 5.)
I do not credit Baker’s and Brian Hubbard’s testimony to
the contrary. (Tr. 234-237, 247-248, 257-260, 372.) Baker claimed
that he asked Ledford how to make a copy of the book because
he needed a copy for Brian Hubbard. He further testified that
Ledford said she would do it for him, but then returned with “a
big stack of papers,” not just one copy. He further testified that
Ledford responded that she figured he would need them and she
would make even more copies if he needed more. However, at the
time of this June 18 conversation, no indication exists that Ledford
had any awareness of Baker and Pullin having met with union
representatives prior to then or more generally that employees had
initiated a union organizing campaign. Thus, Ledford would have
no reason to tell Baker she “figured he would need” the copies.
The General Counsel argues that Ledford was not credible
because she admitted that Austin, the Respondent’s logistics
manager, was present in the dispatch trailer at the time she
claimed Baker directed her to make the copies. However, the
argument goes, Ledford did not immediately report Baker’s
alleged misconduct to Austin or to any other supervisor on duty.
I find no merit to this argument. Ledford credibly testified that,
when Rose, her direct supervisor, was not present, she believed
that Baker, the load planner, acted in that supervisory role.
((Despite the extensive evidence the parties presented concerning
whether Baker actually was a Sec. 2(11) supervisor and/or in
charge when Rose was not there (Tr. 226, 255-256, 335, 353, 433,
500-501, 529, 563-564, 859, 900, 1002, 1107, 1121), the issue is
irrelevant and need not be resolved given Ledford’s belief.)) She
also believed that Austin supervised only the drivers. Based on
those beliefs, Ledford’s testimony that she acceded to the direction
of Baker, her acting supervisor, that she make the personal copies
for him is credible. That she did not report Baker’s conduct to the
Respondent until several days later does not alter that conclusion.
74a
Appendix E
The ASR copier is owned by WestRock, not Garten
Trucking. The copier has a tag on it with WestRock’s
name and the copier is linked to WestRock’s computer
system. Baker was aware of that latter fact. WestRock
provides all of the supplies necessary to operate the
copier and handles any needed repairs. However, despite
the WestRock tag on the computer, some employees were
unaware that it was WestRock’s property, including Baker.
The Respondent’s employees also occasionally used the
ASR copier for personal business, with the knowledge
and participation of at least one supervisor. However, any
personal use involved a minimal number of copies.12
12. R. Exhs. 17, 18; Tr. 229-233, 326, 378-379, 520-522, 848,
853, 856, 956, 987-988, 993. When the Respondent took over the
WestRock contract in 2012, WestRock provided it with a manual
containing “Contractor Site Conditions” requirements. Section
3.3 of the manual prohibits the unauthorized use of WestRock
property. Section 3.1 subjects a contractor whose employees engage
in prohibited activity to be declared in default of the contract and
subject to removal from the worksite. Updated manuals with the
same provisions were provided to the Respondent thereafter,
including in 2018. However, I find the testimony of Matt Garten
and Rose insufficient to establish the manual ever was given
to employees. (Tr. 856, 876-878, 1098, 1143-1144.) In addition,
in February 2021, WestRock was the subject of a ransomware
event. Their computer system was hacked and had to be shut
down, with the attackers seeking a payment from the company
to restore it. (Tr. 1097.) As a result, the Respondent’s employees
had to perform all of their job functions by hand, instead of using
the computer system. This went on for over a month. Obviously,
all employees were aware of that event, but awareness of that does
not automatically equate to awareness of WestRock’s manual for
contractors.
75a
Appendix E
(b) The June 21 union meeting at Jeff Baker’s
house
On June 21, Baker hosted a union organizing
meeting in the garage of his home, where Cook spoke
to about 30 assembled employees of the Respondent via
videoconferencing. Cook told the crowd about what a union
could try and do for them, the steps involved in becoming
represented by a union, and the need to obtain majority
support from the employees. He explained that, if they
unionized, the union would negotiate for them with the
Respondent and they would choose what they wanted to
seek in a contract. As to authorization cards, Cook read
aloud to employees the language at the top of a card he
had, stating:
I hereby authorize the Association of Western
Pulp and Paper Workers to act as my collective
bargaining agent in dealing with my employer
in regards to wages, hours and other conditions
of employment, and in proceedings before
the NLRB and other government agencies.
All previous authorizations made by me are
revoked.
Cook told them to sign a card only if they absolutely
wanted to be represented by the Union. He also told them
they could obtain signed cards from other employees on
company property, but only if both parties were not on
worktime, such as lunches, breaks, and before and after
work. Cook also told them that he wanted them to witness
an employee filling out and signing a card and, after it
76a
Appendix E
was completed, to initial and date the card on its side.
Finally, Cook told the gathered employees that signed and
initialed cards were confidential and had to be returned
either to him or to Baker. At the end of the meeting, Baker
advised the employees that he had authorization cards
for employees to sign if they were interested in showing
support for the Union. He also told them that signing the
card did not mean they were joining the Union or would
have to pay dues. He said it was a way to keep up with how
many people were interested in organizing.13
Baker, Brian Hubbard, and driver Brandon Jackson
then sat at a table together to collect signed authorization
cards. When an employee came up to them, one of the
three provided a blank card, watched the employee fill it
out and sign it, then initialed and dated the signed card
on the side of it. Once those steps were completed, Baker
collected the cards.14
The Respondent, through Tommy Garten and
Austin, learned about the meeting at Baker’s house, at
some unidentified point in time either before or after the
meeting.15
13. Tr. 125-126, 165-169, 278-279, 355, 412-413, 456-457,
566, 718. To the extent any conflict in witness testimony exists
concerning what Cook said at the June 21 meeting, I credit his
testimony, which was assured and detailed.
14. Tr. 169-170, 280.
15. Austin provided the only testimony concerning the
Respondent’s knowledge of the meeting. (Tr. 1169.) The testimony
was abbreviated, the source of Austin’s information was not
77a
Appendix E
In the days thereafter, Baker, Brian Hubbard,
and Jackson collected additional completed and signed
authorization cards from employees. One of them was
dated June 22 from Ledford.16
On June 22, Baker asked Ledford to make another 12
copies of the “The Little Brown Book of Organizing” so
he could pass them out to drivers.17
(c) Rose’s June 23 conversations with Morgan and
Baker
On June 23, Rose, the assistant yard manager, was in
the dispatch trailer with load planner Shannon Morgan.
Rose asked Morgan if he could speak to her and they went
to his office. Rose said he had heard rumors about a union
and he did not want to get floored. Morgan responded
that she did not want to talk about it. Rose then said that,
legally, he probably could not ask her any questions but,
because he still was an hourly employee, maybe he could.
Rose continued that he thought he knew who started the
union organizing and Morgan probably did too. Morgan
responded that she did not know and again that she did
not want to comment on it.
identified, and Austin gave conflicting testimony about when he
learned of the meeting and spoke to Tommy Garten about it.
Thus, the record only establishes that the Respondent knew of
the meeting at some unidentified time.
16. GC Exh. 60.
17. Tr. 923.
78a
Appendix E
Instead, Morgan told Rose she was willing to talk
to him about her opinions on how things were going at
the Company. Rose said he would listen. Morgan said
that lately it felt like employees were getting screwed.
She noted that employees did not receive bonuses during
COVID-19 even though the Company got Payment
Protection Program (PPP) loans. She also said they
did not get bonuses when WestRock’s computer system
got hacked, which was rough on them. Rose nodded in
response to that comment. They briefly discussed their
experience working for the prior contractor who had the
WestRock contract before Garten Trucking. Then Rose
told Morgan he heard that employees already had signed
47 cards for the Union and they only needed 51 percent
to come in. Morgan responded that she could not tell him
that because she did not know it herself. Rose concluded
by saying it would be a disaster if the Union came in,
especially if it was the same one they had at the prior
contractor. Rose told her he just needed to talk to someone
about this. Prior to this, Morgan had not discussed the
Union with any supervisors.
On that same date, Morgan texted fellow employee
Barry Jeffries about the conversation. She reported many
of the comments which Rose made to her.18
18. I credit Morgan’s testimony concerning her June 23
conversation with Rose. (Tr. 507-510, 534-538; GC Exh. 84.)
Morgan provided detailed and confident testimony on direct. Her
testimony is corroborated by the contemporaneous text messages
she sent to Jeffries the same day as her conversation with Rose.
Her testimony on cross-examination was wholly consistent. I do
not credit any of Rose’s testimony which is in conflict with Morgan’s
testimony. (Tr. 1109-1112.)
79a
Appendix E
That same day, Rose spoke to Baker as he was walking
outside from the drivers’ trailer to the dispatch trailer
after clocking in. Rose said some people were talking to
a union and wondered if he had heard anything about it.
Baker told him yes, he also heard that. Rose asked how
much interest they had from people who were talking
about a union and Baker told him there was quite a bit of
interest. Rose told him he was still an hourly employee
at that point and did not want to be left out in the cold.
Rose said he wanted to know what was going on in case
it dealt with him. Baker responded that Rose needed to
talk to Tommy Garten to find out if he was management.
Rose then asked what union they were talking to and
was it the USW [the United Steelworkers union} ? Baker
told him they were not talking to that union. Rose then
asked where he had heard all this from or who brought
this up. Baker responded they would be very surprised
when they found out who called in a union but it was not
him. Rose asked who it was but Baker would not tell him.
The two went on to discuss other life topics for a total of
8 to 10 minutes. Prior to this conversation, Baker had not
mentioned the Union to Rose.19
19. I credit Baker’s testimony concerning his June 23
conversation with Rose and do not credit Rose’s testimony where it
conflicts with Baker’s. (Tr. 206-208. 1096-1097, 1107-1108.) As with
Morgan, Baker’s testimony was assured and detailed. I further
note that many of the statements Baker attributed to Rose were
similar or the same as those that Rose made to Morgan the same
day. Finally, under the totality of the circumstances, I find Rose’s
statement to Baker that he “did not want to be left out in the cold”
to be in reference to knowing what was happening with the union
campaign, not an expression that he wanted to join or supported
80a
Appendix E
(d) The Respondent’s June 24 meeting with
employees regarding the Union’s organizing
campaign
On June 24 shortly before the 6 p.m. crew change at
the Pinehurst Lot, Baker and several employees were
walking in the parking lot on their way to clock in for the
night shift. Austin came up to the group, told them all
to clock in and come back out, and that Tommy Garten
wanted to talk to them about some stuff. Thereafter,
Tommy and Matt Garten held a meeting with employees
from two crews in the parking lot. Austin and Rose also
attended for management. About 20 employees were
there, including Baker, lead driver Ray Hubbard, Brian
Hubbard, and driver Theresa Horne. At least some of
those employees were clocked in.
At the start, Austin walked around and gave an
envelope to each employee. Inside the envelope was a
letter from the Respondent to the employee concerning
the Union’s organizing campaign. 20 Tommy Garten told
employees that there was talk going around that some
people had been talking to a “third party.” He said he did
not think a third party was in the best interests of him,
his family or the Company and that he wanted to discuss it
with them. He stated that unions were bad for companies.
the Union. Again, Rose made a similar statement to Morgan about
not being “floored” by the union campaign. Rose wanted to be kept
in the loop about the organizing campaign. That he was strongly
opposed to unionization does not mean that he was uninterested
in that campaign, but rather the exact opposite.
20. GC Exh. 6.
81a
Appendix E
He added that, if the gathered employees went that route,
Garten Trucking only had 14 months left on its contract
with WestRock and he would not renew the contract at
the end of the 14 months. Matt Garten later reiterated
the same point, telling employees that the Gartens would
not deal with a union and woul
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.