Amicus Brief: Garten Trucking v. NLRB

Garten Trucking is a small, family-owned trucking company that transports paper in rural southwest Virginia. After a union lost a representation election by a decisive 65–30 margin, the NLRB found the company committed unfair labor practices and, nearly three years later, issued the extraordinary remedy of a bargaining order requiring the company to recognize and bargain with the union despite its lack of majority support.

The Fourth Circuit enforced the order and did not discuss the seminal case of Loper Bright. In Loper Bright, the Supreme Court overturned Chevron, and thus reestablished the constitutional rule that courts, not agencies, determine what the law is. Yet, in the wake of that ruling, courts are dealing with what to do with agency rules that were given deference and legal force before Loper Bright. 

Now on petition for Supreme Court review, the Manhattan Institute has joined the labor-law specialty law firm Yugo Collins on a brief in support of the trucking company. We argue that the Fourth Circuit panel ignored Loper Bright, afforded “special respect” to the NLRB, and enforced the Board’s bargaining order without conducting any independent review. Moreover, these NLRB decisions stretch well-known statutory terms beyond the limits of congressional intent, and thus also implicate the Major Questions Doctrine. The Supreme Court should grant review and clarify how Loper Bright applies to longstanding NLRB practices.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.