Judge Brett Kavanaugh, President Trump’s pick to replace retiring Supreme Court Justice Anthony Kennedy, is a sharp critic of the Obama administration’s efforts to rewrite federal rules and regulations to benefit unions.
In a dissent written in an appeals court cast last year, he characterized the effort as flouting “basic principles of administrative law” and indicated that helping unions financially was the real motivating factor involved. That stance has organized labor vowing to fight the president’s pick.
During former President Barack Obama’s administration, appointees at the Labor Department and the National Labor Relations Board made numerous efforts to update and reinterpret workplace laws and regulations in order to benefit labor organizing. The most controversial of these was an effort to expand what is known as the joint employer doctrine, by which one company can be held liable for workplace violations at a different company that works in cooperation with it under a contract or franchise agreement. The most obvious example relates to restaurant franchises: Can McDonald’s be sued over the labor practices of a particular McDonald’s franchise?
The Obama Labor Department and the NLRB, the top labor law enforcement agency, argued that the old standard of “direct control” by one company over the other was outdated and that the much vaguer “indirect control” was sufficient. But in a dissent last year in the D.C. Court of Appeals case NLRB v. CNN, Kavanaugh scolded the board’s efforts.
The NLRB alleged in the case that CNN’s move to end a contract with a company called TVS and then directly hire its workers was an attempt at union-busting. The court found that CNN wasn’t a joint employer with TVS but was a “successor company” and therefore obligated to recognize the TVS workers’ union. In a partial dissent to that ruling, Kavanaugh argued that CNN was neither a joint employer nor a successor company and said the NLRB had arbitrarily changed its traditional test to claim the cable company was a joint employer.
“The Board did not analyze the CNN-TVS relationship under the Board’s ‘direct and immediate control’ test,” Kavanaugh wrote. “[The] Board’s failure to apply that test (or to reasonably explain why it was not doing so) flouts basic principles of administrative law, as the majority opinion rightly concludes.” He then argued that although CNN didn’t qualify as successor company under the standard the NLRB argued, it did qualify under an older standard that the NLRB had not used. He then opined on why the board didn’t use the older standard.
“That raises a natural question: If CNN is a successor employer, why does it matter which way CNN qualifies as a successor employer? Money. Lots of money. As noted above, finding CNN a successor employer under the traditional test would have dramatically different consequences in terms of the remedies available in this case. In particular, under the traditional test, CNN would be subject to an obligation to bargain with the union going forward. Under the discrimination finding, however, CNN could also be liable for tens of millions of dollars of back pay to former TVS employees,” Kavanaugh wrote.
Kavanaugh sided with employers in other notable cases, including a 2015 case where he said a company was within its rights to demand that workers who deal with customers stop wearing shirts that had “Inmate” and prisoner on them.
The Communication Workers of America, which represented the workers in the case, cited the CNN ruling as the clearest proof that Kavanaugh shouldn’t be on the Supreme Court. “Based on his record, we can expect that Judge Kavanaugh will continue to protect the interests of already powerful corporate CEOs instead of working families,” CWA said in a statement Monday.
Others in organized labor gave a thumbs down. “Any Supreme Court nominee must be fair, independent and committed to protecting the rights, freedoms and legal safeguards of all Americans,” said AFL-CIO President Richard Trumka. “Judge Kavanaugh does not meet this standard and must not be confirmed.”
He also argued that Kavanaugh had “a dangerous track record of protecting the privileges of the wealthy and powerful at the expense of working people.”
Other union leaders offered similarly scathing assessments. Service Employees International Union President Mary Kay Henry called Kavanaugh “a narrow-minded elitist who would further rig our economy and democracy against working Americans.”
