Brett Kavanaugh Ruled Against Workers When No One Else Did

By Dave Jamieson

07/10/2018

His dissents involving undocumented meatpacking workers and a death at SeaWorld tell us a lot about the worldview of Trump’s Supreme Court pick.

WASHINGTON ― In 2005, a group of workers at a meatpacking plant in Brooklyn voted to join a union. Their employer, a kosher meat wholesaler called Agri Processor, fought the organizing effort as best it could. Once the workers were unionized, the company refused to bargain, arguing that most of them weren’t covered by collective bargaining law because they were undocumented immigrants.

Ultimately, neither the National Labor Relations Board nor the majority of judges on a panel for the U.S. Court of Appeals for the District of Columbia Circuit agreed with Agri Processor. The only one who did was Brett Kavanaugh, the circuit judge who wrote a dissent in the case and is now President Donald Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court.

The Agri Processor case provides a window into Kavanaugh’s thinking when it comes to workers’ rights. Like the conservative justices he would join at the Supreme Court, Kavanaugh has tended to side with employers in workplace disputes. If confirmed, he would almost certainly continue the Supreme Court’s run of business-friendly rulings in contentious, precedent-setting cases that have weakened labor unions and class-action lawsuits in recent years.

Yet despite his conservative track record, it’s unlikely that the seating of Kavanaugh would create a dramatic rightward shift in the court when it comes to labor law. That’s because the justice he would be replacing was already a reliable vote for management in major decisions. 

Though often a swing vote on social issues, Kennedy tended to side with the conservative wing in blockbuster employment cases, including two from this term: Epic Systems Corp. v. Lewis, which made it legal for employers to require workers to sign class-action waivers, and Janus v. AFSCME, which will likely decrease union membership by making the entire public sector right-to-work.

“The bottom line, [Kavanaugh] will be a justice who will understand the employer’s perspective, and I don’t think it will be a significant change from Justice Kennedy in that regard,” said Steven Suflas, a management-side attorney at Ballard Spahr law firm who argued a case before Kavanaugh. 

Kavanaugh has understood the employer’s perspective in plenty of cases beyond Agri Processor. In 2014, he dissented in a 2-1 decision upholding the Occupational Safety and Health Administration’s fines against SeaWorld in one of the most closely watched workplace safety cases in recent years. 

OSHA used what’s known as the general duty clause to cite SeaWorld for safety violations after the whale Tilikum killed trainer Dawn Brancheau in 2010. SeaWorld challenged the citations, but the appeals panel sided with OSHA, ruling that SeaWorld knew its protections for trainers like Brancheau were insufficient and that it could have prevented her death had it taken the proper steps.

Kavanaugh disagreed. He compared working at SeaWorld to playing a sport like ice hockey that comes with inherent dangers, and, unlike his colleagues on the panel, argued that OSHA doesn’t have the legal standing to regulate it.

“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants?” he asked.  

Jordan Barab, a former OSHA official during the Obama years, wrote Tuesday on his blog Confined Space that the SeaWorld case shows Kavanaugh to be “a threat to workers and to OSHA.”

“Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed,” Barab wrote. “Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had ‘assumed’ the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.”

The AFL-CIO labor federation and several unions came out strongly against Kavanaugh’s nomination. The Communications Workers of America pointed to a handful of cases Kavanaugh decided that it considered anti-worker.

In one of them, Kavanaugh ruled against a group of Verizon employees represented by the International Brotherhood of Electrical Workers. The workers had displayed pro-union signs in their cars on company property where the public could see them ― a move that Verizon claimed ran afoul of the union’s agreement that it wouldn’t picket Verizon. After the NLRB ruled in favor of the workers, Verizon appealed the case and Kavanaugh sided with the telecom giant. (Verizon owns HuffPost’s parent company, Oath.)

“Based on his record, we can expect that Judge Kavanaugh will continue to protect the interests of already powerful corporate CEOs instead of working families,” the Communications Workers of America said in a statement.

Sharon Block, a former member of the NLRB who is now a professor at Harvard Law School, said Kavanaugh’s dissent in the Agri Processor case concerns her most.

In that case, Agri Processor claimed that undocumented workers were not covered by the National Labor Relations Act of 1935 because a more recent law ― the Immigration Reform and Control Act of 1986 ― said it was illegal to knowingly employ them. (A detailed breakdown of the case can be read here.) 

The majority of the D.C. Circuit panel disagreed with that reasoning, noting that the Supreme Court had ruled in a 1984 case that undocumented workers were indeed employees for the purposes of collective bargaining law. 

In his dissent, Kavanaugh argued that undocumented workers were no longer employees under the law due to the 1986 law passed by Congress. In Block’s view, Kavanaugh’s opinion sidestepped Supreme Court precedent and denied workers safeguards they deserved regardless of their legal status.

“It shows a willingness to go out of his way to write a whole group of people out of the protection of the [law],” said Block. “And I find that to be troubling.”