Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

Moshe Z. Marvit July 10, 2018

Brett Kavanaugh has shown a disturbing trend of siding with employers on a range of issues. (Bill Clark/CQ Roll Call/POOL)

On Mon­day, Pres­i­dent Don­ald Trump announced his nom­i­na­tion of con­ser­v­a­tive Brett Kavanaugh to replace retir­ing Jus­tice Antho­ny Kennedy on the U.S. Supreme Court. If Kavanaugh is con­firmed, Chief Jus­tice John Roberts, a fel­low con­ser­v­a­tive, will become the ide­o­log­i­cal and polit­i­cal cen­ter of the Supreme Court, and pro­tec­tions for women, minori­ties, vot­ing rights, civ­il lib­er­ties and more could come under threat. Work­ers and labor unions should be par­tic­u­lar­ly con­cerned about Judge Kavanaugh’s his­to­ry of sid­ing with busi­ness­es against work­ers and for push­ing a dereg­u­la­to­ry agenda.

In his 13 years on the Court, Chief Jus­tice Roberts has helped to unleash unlim­it­ed cor­po­rate mon­ey into pol­i­tics, open the door to mass vot­er dis­en­fran­chise­ment and lay the ground­work to strength­en the pow­er of cor­po­ra­tions over con­sumers and employ­ees. He has also, in the words of Jus­tice Ele­na Kagan, led the con­ser­v­a­tive project of weaponiz­ing the First Amend­ment, in a way that unleash­es judges, now and in the future, to inter­vene in eco­nom­ic and reg­u­la­to­ry pol­i­cy.” This is who will now be the swing vote on the Supreme Court if Kavanaugh is confirmed.

Kavanaugh, who is 53 years old, once clerked for Judge Alex Kozin­s­ki, who abrupt­ly retired last year after a long his­to­ry of sex­u­al harass­ment was revealed. Pre­vi­ous­ly, Kavanaugh worked with Ken­neth Starr to inves­ti­gate Pres­i­dent Clin­ton and draft the report that lead to Clinton’s impeach­ment. Over his last 12 years on the D.C. Cir­cuit Court of Appeals, Kavanaugh has shown him­self to be an extra­or­di­nar­i­ly con­ser­v­a­tive judge. An analy­sis by Axios deter­mined that Kavanaugh is just slight­ly less con­ser­v­a­tive than the most con­ser­v­a­tive mem­ber of the Court, Clarence Thomas.

A review of Judge Kavanaugh’s deci­sions regard­ing work­ers’ rights shows a dis­turb­ing trend of sid­ing with employ­ers on a range of issues.

In South­ern New Eng­land Tele­phone Co. v. NLRB (2015), Kavanaugh over­ruled the NLRB’s deci­sion that the employ­er com­mit­ted an unfair labor prac­tice when it barred work­ers from wear­ing T‑shirts that said, Inmate” on the front and Pris­on­er of AT$T” on the back. Under the law, employ­ees are per­mit­ted to wear union appar­el to work, and the NLRB found that these shirts were pro­tect­ed under the Nation­al Labor Rela­tions Act. The Board reject­ed the argu­ment that spe­cial cir­cum­stances” war­rant­ed lim­it­ing work­ers’ rights, because no rea­son­able per­son would con­clude that the work­er was a prison convict.

Kavanaugh reject­ed the Board’s legal analy­sis, writ­ing, Com­mon sense some­times mat­ters in resolv­ing legal dis­putes. … No com­pa­ny, at least one that is inter­est­ed in keep­ing its cus­tomers, pre­sum­ably wants its employ­ees walk­ing into peo­ple’s homes wear­ing shirts that say Inmate’ and Pris­on­er.’” Kavanaugh was undoubt­ed­ly cor­rect in his under­stand­ing of the company’s desire not to have work­ers wear such shirts, which is pre­cise­ly why the work­ers did so. What the unions did in wear­ing the shirts was apply pres­sure in a labor dis­pute in a man­ner that the law has long allowed. How­ev­er, Kavanaugh crit­i­cized the Board’s analy­sis, writ­ing that the appro­pri­ate test for spe­cial cir­cum­stances’ is not whether AT&T’s cus­tomers would con­fuse the Inmate/​Prisoner’ shirt with actu­al prison garb, but whether AT&T could rea­son­ably believe that the mes­sage may harm its rela­tion­ship with its cus­tomers or its pub­lic image.” By shift­ing the focus to the employer’s pub­lic image, Kavanaugh under­cut the right of work­ers to pub­licly protest and dissent.

In Ver­i­zon New Eng­land Inc. v. NLRB (2016), Kavanaugh over­turned the NLRB’s rul­ing that work­ers could dis­play pro-union signs in their cars parked in the com­pa­ny park­ing lot after the union waived its mem­bers’ right to pick­et. In his deci­sion, Kavanaugh held that No hard-and-fast def­i­n­i­tion of the term pick­et­ing’ excludes the vis­i­ble dis­play of pro-union signs in employ­ees’ cars rather than in employ­ees’ hands, espe­cial­ly when the cars are lined up in the employ­er’s park­ing lot and thus vis­i­ble to passers-by in the same way as a pick­et line.” There­fore, accord­ing to Kavanaugh, the union’s waiv­er of the right to pick­et also applied to signs left in cars.

Judge Kavanaugh again over­ruled a pro-work­er NLRB deci­sion in Venet­ian Casi­no Resort, L.L.C. v. NLRB (2015). The NLRB had deter­mined that the casi­no com­mit­ted an unfair labor prac­tice when, in response to a peace­ful demon­stra­tion by employ­ees (for which they had a per­mit), the casi­no called the police on the work­ers. Cit­ing the First Amend­ment, Kavanaugh held that When a per­son peti­tions the gov­ern­ment in good faith, the First Amend­ment pro­hibits any sanc­tion on that action.” Call­ing the police to enforce state tres­pass­ing laws, Kavanaugh con­clud­ed, deserved such protection.

In UFCW AFL CIO 540 v. NLRB (2014), Judge Kavanaugh issued an anti-work­er deci­sion involv­ing Wal-Mart’s meat wars.” After 10 meat cut­ters in Jack­sonville, Texas, vot­ed to form the first union at a Wal-Mart, the com­pa­ny closed its meat oper­a­tions in 180 stores and switched to pre-pack­aged meats. (The noto­ri­ous­ly anti-union Wal-Mart denied that its deci­sion had any­thing to do with the union vote.) After the switch, Wal-Mart refused to bar­gain with the meat cut­ters, argu­ing that they no longer con­sti­tut­ed an appro­pri­ate bar­gain­ing unit. Judge Kavanaugh agreed with Wal-Mart’s argu­ment, but did write that Wal-Mart must bar­gain with the union over the effects of the con­ver­sion of the employees.

Judge Kavanaugh has con­sis­tent­ly sided with employ­ers in labor law cas­es, to the detri­ment of work­ers’ labor rights. He also has argued that the Con­sumer Finan­cial Pro­tec­tion Bureau, estab­lished in 2011, is uncon­sti­tu­tion­al, and Aaron Klein, direc­tor of the Cen­ter on Reg­u­la­tion and Mar­kets at the Brook­ings Insti­tu­tion, has said that his nom­i­na­tion could reverse over a cen­tu­ry of Amer­i­can finan­cial regulation.”

Labor advo­cates should be extreme­ly con­cerned about this ide­o­log­i­cal bent if Kavanaugh becomes a jus­tice on an already very busi­ness friend­ly — and con­ser­v­a­tive — Supreme Court.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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