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July 2018, Week 4

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 		 [Kavanaugh’s record demonstrates consistent support for the
interests of employers and a lack of concern for the interests of
workers and the government agencies that come to the D.C. Circuit to
protect workers’ rights.] [https://portside.org/] 

 THE KAVANAUGH NOMINATION AND LABOR  
[https://portside.org/node/17746] 

 

 Sharon Block 
 July 10, 2018
On Labor [https://onlabor.org/the-kavanaugh-nomination-and-labor/] 

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 _ Kavanaugh’s record demonstrates consistent support for the
interests of employers and a lack of concern for the interests of
workers and the government agencies that come to the D.C. Circuit to
protect workers’ rights. _ 

 , 

 

Kavanaugh’s nomination was met with swift and strong opposition from
the labor movement.  AFL-CIO President Rich Trumka described
[https://aflcio.org/press/releases/judge-brett-kavanaugh-puts-rights-working-people-serious-risk] Kavanaugh
as having a “dangerous track record protecting the privileges of the
wealthy and powerful at the expense of working people.” 
SEIU tweeted
[https://twitter.com/SEIU/status/1016507143627919361] that
“confirming Kavanaugh would tip the scales of justice
against working people.”

Opposition to the nomination by the labor movement is no surprise. 
Kavanaugh’s record demonstrates consistent support for the interests
of employers and a lack of concern for the interests of workers and
the government agencies that come to the D.C. Circuit to protect
workers’ rights.  Below, I will provide an overview of his record
and attempt to make the case that his record reflects a sustained and,
at times, aggressive hostility to the role of the law in protecting
the vulnerable and less powerful.

An appropriate starting point in conveying the character of his record
is his dissent in _Agri Processor Co., Inc. v. NLRB_
[https://scholar.google.com/scholar_case?case=17224381163705815741&q=Agri+Processor+Co.,+Inc.+v.+N.L.R.B.,+514+F.3d+1&hl=en&as_sdt=4006&as_vis=1]. 
There, the majority held that the employer had a duty to bargain with
its employees, despite the fact that many of the employees were
undocumented workers. The majority relied on the Supreme Court’s
holdings in _Hoffman Plastic Compounds_ and _Sure-Tan_ that
undocumented workers were “employees” covered by the NLRA. 
Despite the Supreme Court’s decision in _Hoffman_, Kavanaugh
dissented, denying that either _Hoffman_ or _Sure-Tan_ resolved
the question of the Act’s coverage for undocumented workers.  The
majority held that the argument offered by the employer and supported
by Kavanaugh “ignores both the Act’s plain language and binding
Supreme Court precedent.”

The _Agri Processor_ dissent is significant for a number of
reasons.  First, it reflects a broader trend in Kavanaugh’s record
of being unsympathetic to the plight of immigrants.  The National
Immigration Law Center cautioned
[https://twitter.com/NILC_org/status/1016502385940676608?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet] that
“Kavanaugh’s legal writings and recent dissents speak for
themselves: he thinks immigrant communities should be
Constitution-free zones . . . .”  I would note too that while
the _Agri Processor _majority refers to the workers at issue in the
case as “undocumented workers” or “aliens without work
authorization,” Kavanaugh adopts the label reviled by advocates for
immigrants, “illegal immigrant workers.” Second, as discussed in
greater detail below, his dissent reflects a willingness to write
groups of workers completely out of basic labor standards – here all
undocumented workers out of the basic right to engage
in collective bargaining.

Finally, and in some ways most important, the _Agri
Processor _dissent raises serious questions about Kavanaugh’s
respect for precedent.  Sitting as a court of appeals judge in _Agri
Processor_, Kavanaugh was bound to follow the Supreme Court’s
holding in _Hoffman Plastic_.  His view that this decision left open
the question of whether undocumented workers were “employees”
under the Act runs counter to a stark fact about _Hoffman_.
In _Hoffman,_ the Supreme Court holds that undocumented workers are
not entitled to back pay awards under the National Labor Relations
Act. But the Court also explicitly holds that _other remedies are
available when an employer violates the NLRA rights of an undocumented
worker_. As the Supreme Court put it in _Hoffman_, “[l]ack of
authority to award backpay does not mean that the employer gets off
scot-free.” Indeed, the _Hoffman _Court goes on to hold that the
employer “_will be subject to contempt proceedings should it fail to
comply with these orders_,” and that such remedies – including
contempt sanctions – are “sufficient to effectuate national labor
policy.” Of course, if undocumented workers are not employees, there
would be _no remedies_ available in a case like _Hoffman_. The fact
that the Supreme Court goes out of its way to affirm that remedies are
available in cases involving undocumented workers – and writing that
such remedies effectuate national labor policy – is simply
inconsistent with a holding that undocumented workers are not
employees. That Kavanaugh would have held as much as a court of
appeals judge raises questions about how as a Justice he would treat
controlling precedent with which he disagrees.

Looking more broadly at Kavanaugh’s record reinforces the themes
present in the _Agri Processor_ dissent. In his 12 years on the
bench, Kavanaugh frequently sided with employers in the numerous NLRB
cases that came before him, including in several high profile
cases. For example:

	* In _NLRB v. CNN America Inc.,_
[https://www.cadc.uscourts.gov/internet/opinions.nsf/738D600892639DB2852581720053BDB0/$file/15-1112-1687320.pdf] when
CNN brought approximately 300 union-presented technical positions
in-house after having contracted out those positions for many years,
Kavanaugh joined the majority in finding that CNN was not a joint
employer with contractor, but dissented from the finding that CNN was
a successor employer. Kavanaugh’s position would have completely
absolved CNN of any liability for failing to abide by the collective
bargaining agreement.
 	* In _Southern New England Telephone Co. v. NLRB_
[https://www.cadc.uscourts.gov/internet/opinions.nsf/80AD773E2F0DF13385257E7E0052C14A/$file/11-1099-1561845.pdf],
Kavanaugh wrote the majority opinion allowing the employer to prohibit
workers from wearing pro-union t-shirts when dealing with customers.
He began his opinion by accusing the NLRB of lacking “common
sense.”
 	* In _Verizon New England v. NLRB_
[https://www.cadc.uscourts.gov/internet/opinions.nsf/80AD773E2F0DF13385257E7E0052C14A/$file/11-1099-1561845.pdf]_,_ Kavanaugh
again wrote a majority opinion rejecting protection for employees who
expressed pro-union sentiments during a labor dispute. Kavanaugh held
that Verizon could prohibit workers from displaying pro-CWA signs in
their cars parked on Verizon’s property and in view of the public.
The majority held that the collective bargaining agreement’s waiver
of the right to picket encompassed a waiver of the right to display
the signs.
 	* In_Venetian Casino Resort v. NLRB_
[https://www.leagle.com/decision/infco20150710108], Kavanaugh wrote
the majority opinion reversing the Board’s decision that the
Venetian violated the Act when it called the police to remove union
demonstrators who were trying to organize the Venetian’s workers.
The majority held that the Venetian’s call to the police constituted
a petition to the government, shielded from liability by the First
Amendment by the Noerr-Pennington doctrine.

What stands out about Kavanaugh’s record in labor cases is not just
his consistency in ruling for employers over workers, but the
seemingly unnecessary positions he sometimes takes when doing so. 
Below is an overview of those cases – in addition to _Agri
Processor_ — that demonstrate Kavanaugh’s
more anti-worker/pro-employer tendencies:

	* In _American Federation of Government Employees v. Gates
[https://law.resource.org/pub/us/case/reporter/F3/486/486.F3d.1316.06-5113.html]_,
the court reviewed regulations issued by the Bush Administration’s
Department of Defense implementing a statute that gave DOD the
authority to temporarily impose a new labor management system for
DOD’s career employees. Kavanaugh’s majority opinion held that the
Secretary of Defense was empowered to abolish collective bargaining
altogether. As the dissent points out, Kavanaugh reached this
conclusion despite the fact that: (1) the authorizing statute
explicitly stated that DOD was required to “ensure that employees
may . . . bargain collectively,” and (2) DOD did not even argue to
the court that it had the authority to abolish collective bargaining
– instead DOD argued for flexibility in creating the new system.
 	* In _Miller v. Clinton
[https://www.leagle.com/decision/infco20120807146]_, Kavanaugh argued
to remove a group of employees from the protection of the
anti-discrimination statutes. In that case, the State Department
conceded that it had fired a worker employed abroad expressly because
of his age – imposing mandatory retirement for employees who reached
sixty-five. The majority rejected the State Department’s position. 
Kavanaugh dissented, holding that the State Department was free to
impose a mandatory retirement age.  The majority noted – and
Kavanaugh did not disagree – that Kavanaugh’s position would free
the State Department from “any statutory bar against terminating an
employee like Miller solely on account of his disability or race or
religion or sex.”  Kavanaugh argued that workers’ rights under
constitution were sufficient to protect them from discrimination on
the basis of race, sex and religion, even as he conceded that they
would be entitled only to equitable remedies without the protection of
the federal anti-discrimination statutes and have no protection from
age discrimination.
 	* _Seaworld of Fla., LLC v. Perez
[https://www.leagle.com/decision/infco20140411164]_ involved the
death of a worker who trained killer whales who performed for the
public at the theme park. One of the performing whales dragged the
trainer under the water and drowned her during a performance. The
record showed that killer whales at Seaworld had killed three trainers
previously.  The Occupational Safety and Health Administration had
found that Sea World failed to take the necessary steps to protect
trainers from the known hazard posed by close contact between trainers
and killer whales. The majority agreed that ample evidence supported
OSHA’s citation.  Kavanaugh dissented, questioning the basic
premise of OSHA’s mission to determine appropriate levels of risk
for workers.  He accused OSHA of “paternalistically” deciding
whether entertainers must be protected from themselves.  Instead, he
argued, employers – at least those who provide public
entertainment – should be free from addressing known risks for
their workers and workers should decide whether they think the risks
are worth undertaking. He argued that the majority’s decision would
lay a foundation for OSHA outlawing NASCAR races and NFL games.

Labor unions and their progressive allies already have pledged to wage
a fierce campaign against Kavanaugh’s confirmation.  As many of the
headlines about the nomination note Kavanaugh’s strong pro-business
stance (see here
[https://www.marketwatch.com/story/business-are-winning-big-at-the-supreme-court-a-new-trump-pick-means-theyll-keep-winning-2018-07-09] and here
[http://fortune.com/2018/07/10/brett-kavanaugh-scotus-nominee-business/] and here
[https://www.bna.com/trumps-supreme-court-n73014477231/]), we should
expect that much of the debate over confirmation will focus not only
on abortion and LBGTQ rights, but also on labor
and employment issues.

_Sharon Block is the Executive Director of the Labor and Worklife
Program at Harvard Law School. Prior to coming to Harvard Law School
in 2017, she was the Principal Deputy Assistant Secretary for Policy
at the U.S. Department of Labor and Senior Counselor to Secretary of
Labor Tom Perez. While serving in the Obama White House as Senior
Public Engagement Advisor for Labor and Working Families, Block led
the historic White House Summit on Worker Voice. Early in her career
she worked as an attorney at the National Labor Relations Board’s
Appellate Court Branch, and returned to the NLRB in 2012 when she was
appointed to serve as a member of the Board by President Obama. She
also served as senior labor and employment counsel to the Senate
Health, Education, Labor and Pensions Committee under Senator Edward
Kennedy. Block received her B.A. from Columbia University and her J.D.
from Georgetown University Law Center, where she received the John F.
Kennedy Labor Law Award._

_OnLabor is a blog dev­oted to workers, unions, and their politics.
We in­ter­pret our sub­ject broadly to in­clude the cur­rent
cri­sis in the tra­di­tional union move­ment (why union de­cline
is hap­pen­ing and what it means for our so­ci­ety); the new and
con­tested forms of worker or­ga­ni­za­tion that are fill­ing
the la­bor union gap; how work ought to be struc­tured and
man­aged; how work­ers ought to be rep­re­sented and
com­pen­sated; and the ap­pro­pri­ate role of gov­ern­ment –
all three branches – in each of these is­sues._

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