The Kavanaugh Nomination and Labor
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Author: Sharon Block
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On Labor

Kavanaugh’s nomination was met with swift and strong opposition from the labor movement.  AFL-CIO President Rich Trumka described Kavanaugh as having a “dangerous track record protecting the privileges of the wealthy and powerful at the expense of working people.”  SEIU tweeted 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.  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 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:

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:

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 and here and here), 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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