Amid a swarm of controversy created by Senate Republicans’ vow to stonewall a hearing or vote on any Supreme Court nominee during this election year, President Obama has nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to replace the late Justice Antonin Scalia. While Chief Judge Garland has a long row to hoe before donning a robe as Justice Garland, it is worthwhile to consider what his confirmation to the Supreme Court might mean for employers. A review of Chief Judge Garland’s recent opinions in labor and employment cases reveals a mixed bag, with the judge ruling against the employer in most cases.
Eight labor and employment decisions issued by Chief Judge Garland in the past three years (including one per curiam opinion) are summarized below and offer interesting insight into the man who could be sitting on the highest court in the land as several watershed labor and employment matters make their way up the chain.
The first three cases presented here illustrate what is perhaps the most troubling aspect of Chief Judge Garland’s judicial philosophy for employers — his strong deference to agency determinations. This willingness to defer to administrative decisions has fueled his reputation as a union-friendly jurist. Indeed, in 18 of 22 appeals involving determinations of the National Labor Relations Board (NLRB or Board), he ruled in favor of the Board.
This philosophy of deference, coupled with the Supreme Court’s recent determination in Perez v. Mortgage Bankers Association that administrative agencies are permitted to change their interpretive rules and guidelines without public input, could lead to a Justice Garland approving an ever-greater expansion of agency rulemaking, despite Congressional and public objections. Such a combination of non-public rulemaking and judicial deference to agency action could be very harmful to businesses in the face of activist federal agencies.
Spurlino Materials, LLC v. NLRB, 805 F.3d 1131 (D.C. Cir. 2015)In this case, the court of appeals denied the petition of construction contractor Spurlino Materials, LLC for review of a determination by the NLRB that the company had engaged in an unfair labor practice in refusing to reinstate striking employees, and that the employees must be reinstated. At the heart of the case was a group of employees who went on strike to protest what they viewed to be the unlawful termination of (and failure to reinstate) a prominent union supporter. In conducting the strike, the employees honored a no-strike clause specific to one particular construction project.
The employer argued that it had no duty to reinstate the workers upon request, because the strike was an economic one (and permanent replacements had been hired) and alternatively because the strike was an unprotected partial strike. The opinion’s analysis of the economic versus unfair labor practice strike issue is relatively straightforward, crediting the Board’s findings of fact and concluding that there was no basis to disturb its conclusion that the strike was not economic. As to the idea that honoring the no-strike clause as to one location rendered the strike an unprotected partial strike, Chief Judge Garland noted that the Board reasonably took note of the “Catch-22” that the employer’s argument would create if accepted, writing as follows:
In Spurlino’s view, if the employees honored the no-strike clause and agreed to perform [work at the covered location], they would be engaging in a partial strike, thus forfeiting the NLRA’s protection. Yet, if they refused to perform [work at the covered location], they would be violating the no-strike clause, which would again strip the strike of its protected status. Hence, if Spurlino’s position were accepted, the employees could be fired for engaging in any kind of strike. (internal citations omitted)
Finally, the court of appeals declined to disturb the Board’s determination that Spurlino Materials and a separate company called Spurlino Materials of Indianapolis, LLC were a single employer of the employees at issue and therefore could be held jointly and severally liable. Central to this determination were the facts that both entities shared common management and control and had interrelated operations.
This case is an example of Chief Judge Garland’s general disinclination to upend the findings of administrative agencies.
Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321 (D.C. Cir. 2015)In this case, the court of appeals denied the employer’s petition for review of a determination by the NLRB that the employer unlawfully withdrew recognition from a union, and granted the Board’s cross-application for enforcement. The union in question represented a 15-employee bargaining unit, and while bargaining was underway for a successor collective bargaining agreement after expiration of the predecessor, eight of the 15 employees submitted handwritten...
