In Brett Kavanaugh, workers have a justice who will always side with big business

Workers should be worried about the possibility of Kavanaugh on the U.S. Supreme Court.

Judge Brett Kavanaugh poses for photographs before meeting with Senate Majority Leader Mitch McConnell (R-KY) in his office in the U.S. Capitol July 10, 2018 in Washington, DC. (CREDIT: Chip Somodevilla/Getty Images)
Judge Brett Kavanaugh poses for photographs before meeting with Senate Majority Leader Mitch McConnell (R-KY) in his office in the U.S. Capitol July 10, 2018 in Washington, DC. (CREDIT: Chip Somodevilla/Getty Images)

Brett Kavanaugh’s confirmation to the Supreme Court will be bad news for workers’ rights.

While much attention has been paid to his stance on abortion, Trump’s judicial nominee has an equally conservative record on labor issues. This should be a cause for concern for workers, particularly after the recent U.S. Supreme Court decision in Janus, which could significantly weaken public sector unions. In Janus, the Court said public employees don’t have to pay fees to unions to account for the cost of collective bargaining. In that environment, Kavanaugh could deal even further blows to workers’ rights.

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“He has upheld the interests of big business time and time again, especially when juxtaposed to workers and unions,” said Angela B. Cornell, clinical professor of law at the Labor Law Clinic at Cornell University. “He has found in favor of the waiver of workers’ rights and waiver of judicial forum in favor of corporate interests.”

In a D.C. Circuit Court case last year, the court had to decide on a case where CNN reorganized the workplace and unionized technicians lost their jobs. The National Labor Relations Board decided that CNN’s decision to replace a unionized contractor with a nonunion workforce was against the National Labor Relations Act (NLRA) and applied for enforcement. The D.C. Circuit Court did not hold all of the Board’s determinations but affirmed three of the findings of unfair labor practices. In a partial dissent, Kavanaugh said CNN was not responsible for NLRA violations and should not have to pay back wages. He said the NLRB “jumped the rails” when it decided CNN’s hiring decisions violated the NLRA.

In a 2015 decision involving AT&T, Kavanaugh said AT&T lawfully prohibited employees from wearing union shirts on the job. The NLRB said this was an unfair labor practice. Kavanaugh also came to the conclusion, in 2016, that Verizon’s decision to tell employees to stop displaying union signs in their cars was not an unfair labor practice because a collective bargaining agreement contained a waiver of union members’ right to picket.

“We see extraordinary deference [to arbitration] on his part,” Cornell said of the 2016 case. “A panel of arbitrators ruled that this was a display of picketing which was prohibited by the [Collective Bargaining Agreement], which is kind of an outlandish conclusion, but on the part of the [NLRB], the board has the right to enforce the statute if it believes it is being transgressed by an arbitrator. And that’s what they did.”

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Cornell said that although Kavanaugh shows deference to arbitrators, he does not show the same deference to administrative agencies.

“He has his own take in the way in which administrative decisions should be processed, which can be troubling because some administrative agencies have an enormous amount of depth when it comes to understanding the statues and the context and how they are applied so we could see some real changes there,” Cornell said.

Cornell added, “It would be trouble for the interests of workplace health and safety to have this judge on the Supreme Court.” 

In 2010, a SeaWorld trainer was killed by a killer whale in front of a crowd of people. The Occupational Safety and Health Administration (OSHA) ordered the company to take measures to keep trainers safe and said that SeaWorld knew these animals were dangerous. Sea World continued to appeal the case after the Occupational Safety and Health Review Commission upheld OSHA’s citation, which brought it to the D.C. Circuit Court. In 2014, the Court found that the business’ current precautions were inadequate. But Kavanaugh dissented and called the show at SeaWorld a sport like many others.

He wrote, ” … the bureaucracy at the U.S. Department of Labor has not traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball.”

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This opinion concerns some former OSHA officials. Jordan Barab, former Deputy Assistant Secretary at the Occupational Safety and Health Administration (OSHA) during the Obama administration, wrote on his blog, Confined Space:

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.  Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.  Maybe the worker even liked doing dangerous work.  Employers also escaped responsibility by showing that the worker was somehow negligent.

Cornell said she also fears for the rights of undocumented workers. A 2008 decision shows why. A meat wholesaler called Agri Processor fought unionization at its company at every turn. After workers unionized, Agri Processor said they weren’t able to collectively bargain because many of them were undocumented immigrants.

“The majority on the D.C. Circuit agreed with NLRB that the participation of undocumented workers did not void the election in any way because undocumented workers meet definition of employee,” she said. “But he dissented and said undocumented immigrants tainted the election. That is troubling.”

Cornell added, “They have met the definition of an employee for decades and even the Supreme Court have found they meet the definitions of employees, not only under the NLRB. It’s under a lot of different statutes and of course if they didn’t meet the definition of employee, it would be very troubling for other workers. It would undermine workplace rights.”

Cornell said that she expects to see issues involving undocumented workers’ rights make it to the U.S. Supreme Court, as well as conservative organizations pushing for the Janus decision to be extended to private sector agency fees. There may be more debates over what it means to breach duty of fair representation, which means the union has to represent all employees, whether or not they are members of the union, without discrimination and in good faith, Cornell said.

“In so many different decisions, he has demonstrated very staunch support for business interests,” Cornell said. “Certainly, if he were on Supreme Court it would be detrimental for unions and detrimental to interests of working people.”