Last week, as I’m sure everyone has now heard, President Trump announced his pick for the U.S. Supreme Court. For those of you who missed it, President Trump nominated Brett Kavanaugh, a judge on the D.C. Circuit Court of Appeals.
Judge Kavanaugh has been involved in numerous decisions dealing with the NLRA. Primarily, this is because the D.C. Circuit Court of Appeals is more likely than any other circuit to hear appeals from federal agency actions, including those from the NLRB. Since his tenure on the bench started in 2006, Judge Kavanaugh has heard over fifty cases involving the NRLA. Of the decisions in which Judge Kavanaugh has been involved, he has authored eight majority opinions and four dissents.
Judge Kavanaugh’s decisions suggest some deference to the NLRB’s decision-making authority, at least in certain situations. Notably, in one of Judge Kavanaugh’s opinions, New York-New York, LLC v. NLRB, he held that it was within the NLRB’s discretion to decide whether it is a violation of the NLRA for a property owner to bar employees of an onsite contractor from distributing union-related handbills on the property. Citing another decision that he was obligated to follow, Judge Kavanaugh stated that the NLRB had sole discretion to decide this issue, and that it “adequately considered and weighed the respective interests” in deciding the issue. Thus, Judge Kavanaugh held that the NLRB’s decision that the property owner violated the NLRA should be enforced.
At the same time, however, Judge Kavanaugh is not reluctant to hold that the NLRB’s decision was wrong. In fact, seven of his twelve authored opinions do just that. Continue Reading