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The Journal Gazette

  • Groth

Monday, August 20, 2018 1:00 am

Labor would be a loser in Kavanaugh votes

William R. Groth

William R. Groth is an attorney with the firm of Fillenwarth Dennerline Groth & Towe, LLP in Indianapolis.

As a labor lawyer who has represented unions for more than four decades, I have observed that for most of my career federal judges have strived to maintain a careful balance between the interests of labor and management.

Judicial modesty means a judge doesn't have all the answers to complex societal problems. It thus means being willing to defer to the rulings of the National Labor Relations Board and other administrative agencies with special expertise and experience in labor matters.

The Supreme Court's reputation for judicial modesty took a big hit this June when five “conservative” justices ruled in the Janus case that the First Amendment prohibits public-sector unions from enforcing collectively bargained fair- share provisions. (So much for the freedom to contract.)

In so doing, the majority overruled a 41-year old precedent, but not because experience had proven it to be unworkable or unwise. No, these justices appear to have simply capitulated to anti-union groups that viewed the precedent as an obstacle to their goal of weakening unions' political muscle.

Janus and the 2016 theft of the Supreme Court seat to which Judge Merrick Garland was nominated are a permanent blot on this nation's 80-year social contract among government, labor and management. Workers and their unions increasingly no longer believe that their views will be given fair consideration in the Supreme Court.

This has in turn led to further disillusionment among workers, who despite low unemployment rates continue to see their real wages stagnate.

The Supreme Court's retrenchment from the 1935 Wagner Act's goal of mitigating the inherent inequality in bargaining power between employees and management will be complete if Judge Brett Kavanaugh is confirmed.

Kavanaugh grew up in a world of privilege and wealth. He never worked in a factory or construction site, and he has never belonged to or represented a union.

His views from the bench through his opinions reflect that privileged lifestyle.

Judicial modesty causes most judges to grant considerable leeway to administrative agencies like the NLRB. But not Kavanaugh.

In one of his recent labor rulings, Arc Bridges, Inc. v. NLRB, Kavanaugh joined an opinion refusing to enforce an NLRB ruling that an employer had violated federal labor law by granting unrepresented but not union-represented employees wage increases. The dissenting judge accused Kavanaugh of deliberately ignoring substantial evidence in the record of the employer's antiunion bias.

Kavanaugh's extremism and unwillingness to defer either to the NLRB or settled law was again on display in his 2008 dissent in Agri Processor Co. v. NLRB. There, the majority accused him of creating his own rule to support his bizarre view that Congress in passing an immigration law had implicitly removed undocumented persons from the meaning of “employee,” despite a Supreme Court precedent which held precisely the opposite.

One of his conservative colleagues felt obliged to remind him of his obligation to follow the Supreme Court's interpretation of labor law until Congress or the court expressly changed it.

And, perhaps most tellingly, in 2012 Kavanaugh joined an opinion reversing an NLRB order requiring an Atlantic City casino owned by Donald Trump to bargain with the United Automobile Workers after it won a secret-ballot, government-run election among the casino's employees.

His own prior words on the bench show that Kavanaugh would come to the court with a personal agenda to impose his radical and even reactionary views, priorities and preferences from the bench. Confirming him will only accelerate the court's already-clear bias in favor of corporations. I urge the Senate, and especially Sen. Joe Donnelly, not to vote to confirm Kavanaugh to a lifetime appointment on the Supreme Court.