Advocacy Blog_ABC_Keystone

By: Brent Sailhamer, Director of Government Affairs

With a number of vulnerable Senate Democrats in pro-Trump states looking to shift to the center this year, the nomination of Brett Kavanaugh to fill the vacant position on the U.S. Supreme Court could prove a costly gamble for opponents of the President’s agenda. Since Sen. Harry Reid’s move to enact the “nuclear option,” requiring a simple majority to confirm judicial nominees, Republicans only need 51 votes to confirm Kavanaugh on the bench. But staunch opponents are dedicated to combing through his record and a number of labor leaders have declared the judicial nominee as combative to “worker’s rights.” Here’s a quick look at some of Brett Kavanaugh’s opinions on employment issues:

  • Midwest Division-MMC, LLC v. NLRB (2017) – a group of employees successfully claimed before the National Labor Relations Board that they should have been allowed to have union representatives present in their interviews with a nursing peer review committee. The interviews related to state licensing and were not compulsory. The D.C. Circuit panel, which included Judge Kavanaugh, refused to enforce the NLRB decision. Judge Kavanaugh wrote a separate concurrence to emphasize that there is no right to union representation in peer review interviews because the interviews are not investigatory or related to discipline.The majority on the panel enforced the NLRB’s finding that the employer should have provided information about the peer review process to the union. Judge Kavanaugh dissented from this part of the decision, arguing that confidentiality was essential to the peer review process and that the union’s need for the information was “minimal at best” because the interviews were unlikely to result in discipline.
  • Local 58 of the International Brotherhood of Electrical Workers v. NLRB (2018) – the IBEW Local (in Detroit) adopted a policy regarding members who wanted to either resign from the union or stop having union dues deducted from their paychecks. Under the policy, members were required to come to the IBEW office in person with a photo ID and a written request to resign/stop checkoff. Even the NLRB found that this practice was coercive and illegal, which is saying something.Judge Kavanaugh did not write the court’s opinion, but he joined in enforcing the NLRB’s decision and denying the union’s request for review.
  • Verizon New England v. NLRB (2016) – Kavanaugh again wrote a majority opinion rejecting protection for employees who expressed pro-union sentiments during a labor dispute. Kavanaugh held that Verizon could prohibit workers from displaying pro-CWA signs in their cars parked on Verizon’s property and in view of the public. The majority held that the collective bargaining agreement’s waiver of the right to picket encompassed a waiver of the right to display the signs.


July 12, 2018