Organized labor leaders strongly praised President Obama’s nomination Wednesday of Judge Merrick Garland to fill the vacant seat on the Supreme Court.
Garland has a long history of pro-union rulings, often going beyond what federal labor law enforcement agencies propose.
AFL-CIO President Richard Trumka said Garland had “impeccable credentials and deep experience” and called for his “prompt consideration and confirmation by the U.S. Senate. Working people deserve and expect no less.”
Several other top labor leaders praised the nomination. American Federation of Teachers President Randi Weingarten called him “highly qualified and widely respected,” while Communications Workers of America President Chris Shelton called him “undeniably qualified [and] highly regarded.”
Service Employees International Union President Mary Kay Henry said he was a “good choice for working families” largely because his judicial opinions show a long history of deferring to the National Labor Relations Board, the main federal labor law enforcement agency.
“His record shows that he believes in the duty of government to protect regular Americans, and our democracy, from being corrupted by the excesses of the super wealthy and their corporate agenda. He has shown that he respects the opinion of the National Labor Relations Board,” Henry said.
Henry’s claim is borne out by an examination of Garland’s record. Since 1997, when he joined the D.C. Circuit Court of Appeals, he has been involved in 22 cases involving appeals of labor board decisions. In 18 of those cases, he supported upholding the board’s earlier rulings finding for workers or union groups. In the four cases in which he rejected the board’s decision, his rulings nevertheless favored the unions involved.
“If Judge Garland is appointed to the Supreme Court, we can certainly expect him to continue to be highly deferential to the federal agencies in their exercise of administrative authority,” said Steve Bernstein, a labor attorney with the management-side firm of Fisher & Phillips.
In 2009’s Northeastern Beverage Corp. v NLRB, for example, Garland was part of a three-judge panel reviewing a case involving the firing of five workers who had walked off the job despite their union’s contract having a “no strike” clause and their own labor representatives advising them to return to work. The NLRB ruled that the workers should be reinstated, saying the walkout was a protected “labor dispute” — the workers had been concerned about their jobs following the company being acquired by a larger one — but that the action was not a strike since their purpose was to try to speak to company officials.
The judicial panel’s majority rejected the labor board’s reasoning, noting that workers’ union representatives were meeting with management at the same time to discuss the job concerns, so there was no need for them to also be there. “The employees’ leaving work was justified neither by connection to an ongoing labor dispute with their employer nor by a compelling necessity to attend the bargaining session that day,” the majority found.
Garland dissented, saying the judges as a matter of routine should simply defer to the labor board’s own analysis. He quoted the majority opinion from a 2005 D.C. Circuit case called Citizens Investment Services Corp. v. NLRB, that said, “the board’s determination that an employee has engaged in protected concerted activity is entitled to considerable deference if it is reasonable.” Garland was one of the judges who wrote that opinion.
