Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—4th Cir.: Employer statement unlawfully purported to tie wage increases to union activities, (Jun 3, 2025)

By Jason Albright, J.D.

“Congress was clear that Section 8(c) sought to expand the range of permissible employer speech during union campaigns, and that the provision should not be read narrowly.”

The NLRB did not err in finding that Garten Trucking LC violated Section 8(a)(1) by suggesting, on an internal message board and in response to a union flyer, that “[a]s a matter of fact if it wasn’t for [the union] trying to steal money out of your paychecks you would already have your raises,” the Fourth Circuit held. Although “employers are constitutionally and statutorily entitled to give their noncoercive opinion on union activities, especially in the midst of organizing campaigns,” and the larger part of the employer message here served lawful purposes, the evidence showed that this specific employer statement regarding pay raises attempted “to secure a particular course of employee action not by mere persuasion, but by intimidation and coercion” (Garten Trucking LC v. NLRB, No. 24-1571 (4th Cir. June 2, 2025)).

Trucking company. The employer in the case, Garten Trucking LC, is a company in Covington, Virginia, specializing in the transportation of paper products and other such goods.

Organizing campaign. In early June 2021, two Garten Trucking employees coordinated with the Association of Western Pulp and Paper Workers (AWPPW) to begin a campaign to unionize approximately 109 workers at Garten Trucking’s facilities.

Election loss and initial ULP charges. A representation election was held between August 4-6, 2021, and AWPPW lost the election by a vote of 65-30. After its election loss, AWPPW filed “a bevy of unfair labor practice charges,” in the words of the court, contending that the employer fatally tainted the election results.

First ULP findings. On February 17, 2023, an ALJ issued its findings of fact and conclusions of law, determining that the employer had engaged in various violations of Section 8(a)(1), including: (1) unlawfully interrogating employees; (2) creating an impression that “union activities were under surveillance;” (3) making various “threat[s] to close its business and threatening employees with job loss if they chose the Union as their bargaining representative, as well as informing employees it would be futile for them to select the Union as their bargaining representative;” and (4) “telling employees that it disciplined them for their union activity.” The ALJ ordered that the election results be set aside and that a new election be held.

Board’s decision in first case. On September 17, 2024, the NLRB affirmed the ALJ’s findings of facts and conclusions of law but amended the remedy to order mandatory bargaining with AWPPW because a “majority of [Garten Trucking’s] employees supported the Union before [the company] engaged in unfair labor practices.”

Union’s flyer. While the Union’s initial case was pending before the ALJ and NLRB, it continued its organizing efforts. These activities included the dissemination of a flyer on September 19, 2022, asserting that Garten Trucking was required to bargain with the AWPPW and that the union’s “presence creates raises for [the company’s] employees.” Among other things, the flyer stated, “ It is illegal for Garten Trucking to give raises without bargaining with the AWPPW and the AWPPW will not bargain without your input and your voice…. As a member of the AWPPW, everybody gets raises! We want raises for every employee, not just a select few.”

Employer’s message. Later the same evening, the employer’s owner posted a response to the flier on the company’s internal message board available to all employees. His message contested that the union was responsible for any pecuniary benefit Garten’s employees had previously received. The full post read: “I have been honest with everyone since day 1 and have done everything I can do to try and help all the employees in every area of GT, GT2, Big Island, and the warehouses, and I want you to be the first to know that everything that is in that letter that those worthless pieces of trash put in that paper they handed out is pure horseshit. For them to say they have anything to do with a raise for you all is nothing but a lie. They don’t even get to talk to anyone at the mill. I can’t speak for everyone, but I can say with 100% confidence that I would never let 2 idiots like [Union organizers] [fully named organizer] and [first name of other organizer] whatever his name is be in charge of your families [sic] income. I would resign first. As a matter of fact if it wasn’t for them trying to steal money out of your paychecks you would already have your raises.”

Five employees reacted to the message with a thumbs-up emoji, and two employees replied with positive comments.

More ULP charges and ALJ’s findings. On October 11, 2022, the Union filed an unfair labor practice charge with the NLRB, claiming that Garten’s post constituted a new unfair labor practice under Section 8(a)(1). Then, on December 7, 2023, an ALJ ruled against Garten Trucking, concluding that Garten violated Section 8(a)(1) by suggesting that employees “would have already received a raise if it were not for their union activities.”

Board’s decision and employer’s petition for review. Garten Trucking objected to the ALJ’s decision and sought review by the NLRB, which, on May 24, 2024, issued a decision adopting the ALJ’s conclusions.

Garten Trucking subsequently petitioned the Fourth Circuit for review.

Section 8(c). The appeals court initially observed that the NLRA embodies and “implements” First Amendment principles. “Congress was clear that Section 8(c) sought to expand the range of permissible employer speech during union campaigns, and that the provision should not be read narrowly.” As part of the 1947 Taft-Hartley Act, by this account, “Congress sought to restore balance between employees and employers, guaranteeing to both ‘the full exercise of the right of free speech.’”

Majority of message lawful. Applying this understanding of Section 8(c) in the context of the Section 8(a)(1) charge, the Fourth Circuit found that the majority of Garten’s message served lawful purposes; the company’s owner “rebutted the facts of AWPPW involvement in determining raises and evinced his belief that employees are better off without the Union.” This was a valid position to take, according to the court, “one which employees are entitled to hear, and one which gives them worthwhile and useful information on which to base their votes.”

18th-century “ballroom brawl.” Nor did the caustic nature of his speech change the appeals court’s analysis. “Campaigns often resemble a barroom brawl more than they do a poised, prim-and-proper duel,” observed the court, quoting July 1798 observations from the then-president of Yale. “Since the very beginning of our nation, candidates and their supporters have not shied from visceral exhortations.”

“To silence one party,” the Fourth Circuit continued, “is to steal from voters the liberty of actual choice. Perhaps unionization is the right decision, perhaps not. That is a question not for the courts, but for employees, and employees require access to a full range of information and positions, from union advocates to be sure, but also from their employers.”

Last sentence as threat. The last sentence of Garten’s post, however, told a different story: “As a matter of fact if it wasn’t for [AWPPW] trying to steal money out of your paychecks you would already have your raises.” The court’s analysis focused on whether the statement, under the “totality of the circumstances,” could objectively be perceived as a threat, and the appeals court found that it could.

Under this standard, the Fourth Circuit found, “it becomes clear that the NLRB had substantial evidence to conclude that Garten crossed the line.” Wage increases were not on a regular schedule and were not then subject to collective bargaining. And as the company’s owner, Garten’s discretion was substantial, if not plenary. Garten “could easily withhold future wages on a whim,” and employees would readily know this. “In textually linking employees’ raises to the activities of the Union,” the appeals court concluded, “Garten improperly implied that union efforts had previously impacted wages and that future organizing activity would have the same negative effect. This was not a general statement that unionizing is bad for business.”

Intimidation and coercion. Instead, “the NLRB presented substantial evidence that this is the paradigmatic quid pro quo that neither the NLRA nor traditional campaign-speech doctrine protects: the evidence showed that Garten’s speech attempted to secure a particular course of employee action not by mere persuasion, but by intimidation and coercion.”

Employee responses as “false positives.” The coercive nature of the statement was, in fact, underscored by the fact that some employees responded positively to it with emojis and positive comments. “Indeed,” the Fourth Circuit observed, “feeling compelled to placate economic decision-makers is what the NLRA seeks to avoid.” The Board thus permissibly viewed the employees’ responses “as false positives, a symptom of unfair labor practices rather than a genuine sign that the message was not coercive.”

The employer’s petition for review was accordingly denied and the Board’s cross-petition for enforcement granted.

The case is No. 24-1571.

Judge: Wilkinson, J.

Attorneys: Agnis Chandra Chakravorty (Woods Rogers Vandeventer Black) for Garten Trucking LC. Jennifer Abruzzo for the NLRB.

Companies: Garten Trucking LC

MainStory: TopStory Labor UnfairLaborPractices UnionsMembers IndividualRights MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews GCNNews