Skip to main content

Supreme Court Nominee's Prior Labor Law Opinions Garner Attention


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
 

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more