While there are many reasons to oppose President Trump’s choice of Brett Kavanaugh to serve on the U.S. Supreme Court, the anti-workers opinions of Judge Kavanaugh (who sits on the D.C. Circuit Court of Appeals) are particularly troubling.
In Venetian Casino Resort, LLC v. National Labor Relations Board, 793 F.3d 85 (D.C. Cir. 2015), Judge Kavanaugh wrote a decision overturning a ruling of the NLRB that a Las Vegas hotel had violated the National Labor Relations Act by asking the police to issue criminal citations to lawful union protestors. Kavanaugh held that the hotel’s action in seeking police intervention constituted “a direct petition to government” and was therefore privileged under the First Amendment, even though the picketing was not illegal. (The Labor Board had held that only employer actions which advocate the passage of laws or policy decisions were protected.) Thus, Kavanaugh squarely placed the so-called “rights” of the employer over the right of union members to lawfully protest.
In Agri Processor Co., Inc. v. National Labor Relations Board, 514 F.3d 1 (D.C. Cir. 2008) an employer whose workers voted to unionize refused to bargain with their union, claiming that the workers were undocumented migrants who did not qualify as “employees” under the National Labor Relations Act. The Board found that the employer violated Section 8(a)(5) of the NLRA. The majority of the court, applying established Supreme Court precedent, upheld the Board’s conclusion. The lone dissenter was Kavanaugh, who in a manner described as illogical by the court majority, ignored precedent to conclude that illegal immigrants should not be considered employees. Judge Kavanaugh’s position would leave such workers totally at the whim of unscrupulous employers, since if they are not “employees” they could be fired for union activities, with no recourse.
In Seaworld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014), a trainer at Seaworld in Orlando was killed by a killer whale during a performance. The Department of Labor found that Seaworld violated the Occupational Safety and Health Act by exposing trainers to recognized hazards when working in close contact with these whales. The majority of the court upheld the decision of the Secretary of Labor. Kavanaugh, the lone dissenter, argued that OSHA should not apply to entertainment activities. Kavanaugh argued that because the trainers were “willing participants” they were not entitled to what he characterized as “paternalistic” protection. As the majority pointed out, Kavanaugh’s “willing participant” argument would deny protection to workers in many dangerous industries.
These decisions demonstrate that Judge Kavanaugh consistently gives priority to the asserted “rights” of corporations over those of employees.
Those who live in Missouri should call the office of Senator Claire McCaskill at (202) 224-6154 and urge her to oppose the nomination of Brett Kavanaugh to the U.S. Supreme Court.