On July 9, 2018, President Donald Trump announced his selection of Judge Brett Kavanaugh to fill the vacancy of retiring Justice Anthony Kennedy. Judge Kavanaugh will still need to be confirmed by the Senate in what has become an increasingly political process. Since 2006, Judge Kavanaugh has served as a United States Circuit Judge for the U.S. Court of Appeals for the District of Columbia Circuit. As a result, there is a large body of opinions, concurrences, and dissents that he has authored that provide insight into how Judge Kavanaugh may rule if confirmed.
In his speech following his nomination, Judge Kavanaugh described his judicial philosophy as straightforward. He said, “a judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.” While the majority of discussion has focused on how Judge Kavanaugh’s appointment may affect the Affordable Care Act and abortion rights, this article touches on what we might be able to expect from a “Justice” Kavanaugh on employment and labor issues.
A Westlaw search showed that in the past five years, Judge Kavanaugh has authored 16 opinions in the labor and employment arena. We will cover three here.
In Verizon New England Inc. v. Nat’l Labor Relations Bd., the court granted the employer’s petition for review of a National Labor Relations Board (NLRB) order and held that an arbitration panel’s decision that the employer did not violate collective bargaining agreement by requiring employees to stop displaying signs in parked cars was not clearly repugnant to the National Labor Relations Act. In this decision, Judge Kavanaugh highlighted the highly deferential standard of review for arbitration decisions.
In Johnson v. Interstate Mgmt. Co., LLC, the court held that the anti-retaliation provision of the Occupational Safety and Health Act (OSHA) does not provide for a private cause of action for employees, and that the employer’s proffered reason for terminating the employee was not pretextual. Here, consistent with Judge Kavanaugh’s statements following his nomination, the court strictly interpreted OSHA to provide standing only to the Secretary of Labor to investigate and sue on retaliation complaints.
In S. New England Tel. Co. v. N.L.R.B., the court granted the employer’s petition for review of an NLRB order and held that the NLRB applied a “special circumstances” exception in an unreasonable way when it found that the employer committed an unfair labor practice by banning its employees who interacted with customers or worked in public from wearing union shirts that said “inmate” on the front and “Prisoner of (Company)” on the back. In his opinion for the court, Judge Kavanaugh stated that this was a common sense case based on the “special circumstances” exception that allows employers to limit employees from wearing union apparel at work when the employer reasonably believes that the message may harm its relationship with customers or its public image.
Overall, the review was consistent with Judge Kavanaugh’s own words describing his judicial philosophy. In the labor and employment arena, we should expect Judge Kavanaugh to exercise his “common sense” approach to rulings with an emphasis on interpreting the statutes and the Constitution as they were written.
According to Senate Majority Leader Mitch McConnell, confirmation hearings will occur prior to the November midterm elections. Look for an additional alert from Goldberg Segalla’s Employment and Labor team regarding Judge Kavanaugh’s confirmation process.
To learn more about Judge Kavanaugh’s decision-making record and how his confirmation could affect your business and industry, please contact: