Last week, as I’m sure everyone has now heard, President Trump announced his pick for the U.S. Supreme Court. For those of you who missed it, President Trump nominated Brett Kavanaugh, a judge on the D.C. Circuit Court of Appeals.
Judge Kavanaugh has been involved in numerous decisions dealing with the NLRA. Primarily, this is because the D.C. Circuit Court of Appeals is more likely than any other circuit to hear appeals from federal agency actions, including those from the NLRB. Since his tenure on the bench started in 2006, Judge Kavanaugh has heard over fifty cases involving the NRLA. Of the decisions in which Judge Kavanaugh has been involved, he has authored eight majority opinions and four dissents.
Judge Kavanaugh’s decisions suggest some deference to the NLRB’s decision-making authority, at least in certain situations. Notably, in one of Judge Kavanaugh’s opinions, New York-New York, LLC v. NLRB, he held that it was within the NLRB’s discretion to decide whether it is a violation of the NLRA for a property owner to bar employees of an onsite contractor from distributing union-related handbills on the property. Citing another decision that he was obligated to follow, Judge Kavanaugh stated that the NLRB had sole discretion to decide this issue, and that it “adequately considered and weighed the respective interests” in deciding the issue. Thus, Judge Kavanaugh held that the NLRB’s decision that the property owner violated the NLRA should be enforced.
At the same time, however, Judge Kavanaugh is not reluctant to hold that the NLRB’s decision was wrong. In fact, seven of his twelve authored opinions do just that.
An interesting case that highlights how Judge Kavanaugh reviews NLRB decisions is Southern New England Telephone Co. v. NLRB. AT&T Connecticut prohibited its union employees, who interacted with customers or were visible to the public, from wearing a union-sponsored shirt that had the word “Inmate #” on the front and the phrase “Prisoner of AT&T” on the back. I wrote about this case at the time of the NLRB’s decision.
Judge Kavanaugh, in an opinion that begins with the sentence, “Common sense sometimes matters in resolving legal disputes,” held that the NLRB’s finding that AT&T Connecticut had violated the NLRA was unreasonable. Mainly, Judge Kavanaugh found that the NLRB did not appropriately apply the “special circumstances” exception, stating that the employer could reasonably conclude that employees wearing the “Inmate/Prisoner” shirt would harm AT&T Connecticut’s relationship with customers and hurt its public image. By examining how a customer would evaluate the shirt, Judge Kavanaugh opined, the NLRB had misapplied the exception.
Another case that displays how Judge Kavanaugh reviews factual findings by the NLRB is the NLRB v. CNN case. In one of his more well-known dissents, Judge Kavanaugh disagreed with the majority and the NLRB, and opined that there was not “substantial evidence” in the record to support a finding that CNN was a successor-employer under an analysis that rested upon a finding that CNN discriminated against union employees who had worked for the predecessor employer. Instead, Judge Kavanaugh agreed with dissenting, former Member Miscimarra (R), who found that there was enough evidence in the record to support a finding that CNN was a successor-employer under the NLRB’s traditional analysis.
This difference in approach was stark when it came to the remedy. Under the majority’s opinion, CNN was liable for millions of dollars in back pay. Under Judge Kavanaugh’s approach, CNN would only have been required to bargain with the union moving forward, but not for any back pay.
Other cases where Judge Kavanaugh has voted to reverse the NLRB’s decision include:
- An arbitration decision, involving a union waiving its right to picket in its CBA, being overturned by the NLRB;
- Two companies being found to be the “same” under the “alter ego” analysis; and
- An employer refusing a request for information from its employees’ union, claiming that the information was confidential under state law.
So, what are the takeaways? Based on the authored decisions by Judge Kavanaugh, it is fair to say that he gives deference to the NLRB in certain situations. However, it is also clear that Judge Kavanaugh is not afraid to overrule the NLRB’s decision if he believes that decision was unreasonable or not supported by “substantial evidence.”