If readers recall, President Donald Trump recently nominated D.C. Circuit Court of Appeals Judge Brett Kavanaugh to fill a vacancy on the United States Supreme Court. Shortly after his nomination to the highest bench in the country, attention turned to his prior opinions in an effort to gauge how he might rule on cases if confirmed as the next Supreme Court Justice.
Of particular note, a few of his prior labor law opinions have started to catch the eye of some legal scholars. In particular, Judge Kavanaugh ruled in favor of Trump Entertainment Resorts in 2012 in a case in which an effort was made to prevent a unionization drive at the Trump Plaza in Atlantic City. That case centered on a unionization effort at the hotel back in 2007. At the time, the United Auto Workers ("UAW") held a media event with a group of supportive federal and state lawmakers and claimed that they had counted union cards and confirmed the union had majority support. Six days afterward, the workers voted 324 to 149 in favor of unionizing. The company asked the National Labor Relations Board ("NLRB") to throw out the election on the grounds that it had been tainted by the pre-election media event (among a few other objections).
An NLRB judge rejected the company's arguments as did a panel of two NLRB members. In part, a decision was issued that noted that regardless of whether there was anything improper about the media event prior to the election, given the apparent lack of evidence that any employees knew about the event coupled with the union's margin of victory, insufficient evidence had been presented to overturn the election.
After a panel of three NLRB members ruled that the company was in violation of federal law for its refusal to negotiate with the UAW, the D.C. Circuit Court of Appeals heard the matter. In particular, I point readers to Judge Kavanaugh's stance on the matter in which he noted that it "defies common sense" to argue that news from the pre-election media event would not be widespread. He joined another Justice's opinion which wrote that the NLRB had wrongly "ignored the substantial circumstantial evidence" [in regard to how the pre-election media event could have improperly influenced the election less than a week later] and ordered the NLRB to reconsider the case.
At the time, the Trump Plaza was owned and operated by Trump Entertainment Resorts, Inc. As of this writing, the Atlantic City casino is closed. It is interesting to note that President Trump apparently owned 9.5% of the company at the time, although present day figures are unclear.
What does this opinion mean? In short, it is further confirmation that Judge Kavanaugh is likely to maintain a pro-employer stance should he be confirmed. As well, this nomination could spell further trouble for the viability and long term success of unions, which have already been dealt a major blow after the recent Janus opinion. As confirmation hearings approach for Judge Kavanaugh, I would expect Democrats to seize upon this case in an effort to paint a picture of a nominee who is already too intertwined with the President that he would be unable to make an impartial ruling (should a similar case...or even another Trump Entertainment Resorts case) come before the Supreme Court.
Stay tuned.
For additional information: https://www.bloomberg.com/news/articles/2018-07-30/kavanaugh-sided-with-trump-casino-in-2012-to-thwart-union-drive
After a panel of three NLRB members ruled that the company was in violation of federal law for its refusal to negotiate with the UAW, the D.C. Circuit Court of Appeals heard the matter. In particular, I point readers to Judge Kavanaugh's stance on the matter in which he noted that it "defies common sense" to argue that news from the pre-election media event would not be widespread. He joined another Justice's opinion which wrote that the NLRB had wrongly "ignored the substantial circumstantial evidence" [in regard to how the pre-election media event could have improperly influenced the election less than a week later] and ordered the NLRB to reconsider the case.
At the time, the Trump Plaza was owned and operated by Trump Entertainment Resorts, Inc. As of this writing, the Atlantic City casino is closed. It is interesting to note that President Trump apparently owned 9.5% of the company at the time, although present day figures are unclear.
What does this opinion mean? In short, it is further confirmation that Judge Kavanaugh is likely to maintain a pro-employer stance should he be confirmed. As well, this nomination could spell further trouble for the viability and long term success of unions, which have already been dealt a major blow after the recent Janus opinion. As confirmation hearings approach for Judge Kavanaugh, I would expect Democrats to seize upon this case in an effort to paint a picture of a nominee who is already too intertwined with the President that he would be unable to make an impartial ruling (should a similar case...or even another Trump Entertainment Resorts case) come before the Supreme Court.
Stay tuned.
For additional information: https://www.bloomberg.com/news/articles/2018-07-30/kavanaugh-sided-with-trump-casino-in-2012-to-thwart-union-drive
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