On July 9, Donald Trump announced his nominee to replace the retiring Justice Anthony Kennedy on the U.S. Supreme Court: D.C. Appeals Court judge Brett Kavanaugh, Kennedy’s former clerk. The reaction of top labor leaders was swift and unhappy: Kavanaugh is known in Washington, D.C., as a highly partisan judicial figure with a history of one-sided rulings in favor of corporations — and against the rights of workers.
“Judge Kavanaugh has a dangerous track record of protecting the privileges of the wealthy and powerful at the expense of working people,” said AFL-CIO President Richard Trumka.
Kavanaugh worked in the 1990s on the Starr Commission investigating Bill Clinton. He later advised the George W. Bush campaign in the 2000 Florida recount, served as White House Staff Secretary, and was appointed by Bush to the United States Court of Appeals for the District of Columbia Circuit. Since he began that job in 2006, he’s had a remarkable run as a pro-corporate judge.
Examples of Brett Kavanaugh’s judicial decisions
- SeaWorld v Perez In 2010, a killer whale attacked and killed trainer Dawn Brancheau in front of hundreds of Sea World spectators. It was the third employee the whale had killed. OSHA found that SeaWorld had violated its duty as an employer to provide a safe work environment, issued a $70,000 fine, and ordered the company to physically separate trainers from whales. Sea World appealed, and lost 2-1. Kavanaugh was the one. “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?” Kavanaugh wrote. [That totally misses the point of the law that created OSHA, which puts the duty on the employer to create a safe workplace, not on the employees to choose whether they want to risk death.]
- Southern New England Telephone Co. v. National Labor Relations Board (NLRB) Kavanaugh wrote a majority opinion allowing the employer to prohibit workers from wearing pro-union t-shirts when dealing with customers.
- AFGE v. Gates Kavanaugh wrote the majority opinion allowing the Defense Department to temporarily abolish collective bargaining among its 700,000 civilian workers. The union and its allies later persuaded Congress to reverse that.
- Agri Processor Co. Inc. v. NLRB Kavanaugh argued in a minority opinion that a Brooklyn kosher meat plant didn’t have to bargain with the UFCW because a critical number of pro-union employees were undocumented immigrants. That ignored a 1984 Supreme Court ruling that said workers have the right to unionize regardless of their immigration status.
- Venetian Casino Resort LLC v. NLRB The NLRB said the Venetian casino violated workers rights when it asked police to cite workers for trespass during a peaceful (and permitted) protest in the public right of way. Kavanaugh said the casino had a First Amendment right to call the cops.
- Miller v. Clinton Kavanaugh argued that the U.S. State Department could fire an employee because he turned 65.
- UFCW 540 v. NLRB After 10 meat cutters in Jacksonville, Texas, voted to form the first union at a Walmart, the company closed its meat operations in 180 stores and switched to pre-packaged meats. Kavanaugh said Walmart didn’t have to bargain with the meat cutters because they no longer constituted an appropriate bargaining unit.
- Verizon New England v. NLRB Kavanaugh said Verizon could prohibit workers from displaying pro-CWA signs in their cars parked on Verizon’s property and in view of the public, because their union contract had waived their right to picket.
- NLRB v CNN In 2003, CNN hired a nonunion in-house workforce to replace about 200 unionized employees of a contractor at its D.C. and New York bureaus. NABET-CWA had represented those camera and studio operators since the 1980s even when CNN switched which contractor employed them several times. The National Labor Relations Board (NLRB) found that CNN refused to meet with the union, and discriminated against the union members in hiring, and ordered backpay and benefits to all TVS technicians who either lost their jobs or received reduced wages. CNN appealed, but the D.C. Circuit Court of Appeals upheld the damages. Kavanaugh, in a dissenting opinion, said he didn’t see discrimination because CNN had hired about 100 of the former contractor’s employees; and therefore he thought CNN shouldn’t have to pay damages.
