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Supreme Court Nominee Has History of Respecting NLRB Authority

| Mar 23, 2016 | Uncategorized



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Merrick Garland’s Pro-Labor Rulings Run Deep on D.C. Circuit

C. Ryan Barber, The National Law Journal

March 16, 2016    | 





                                                                                                                                                               In nearly two decades on the U.S. Court of Appeals for the D.C. Circuit, Judge Merrick Garland has rarely ruled against the National Labor Relations Board. But when he has overturned NLRB’s decisions, departing from his typical deference to federal agencies, he has done so to the benefit of labor unions.

As he enters what is expected to be a tough confirmation process to replace the late Justice Antonin Scalia, Garland’s record on labor issues is likely to be a point of scrutiny. The month before Scalia’s death, the high court heard arguments in Friedrichs v. California Teachers Association, a case that could decide whether public-sector employees can be required to pay union fees. 

After arguments in January, the U.S. Supreme Court was seen as leaning 5-4 against labor. But Garland’s appointment to the court would likely flip the court. And if Garland has an opportunity to rule on the case, his vote could give a victory to the California Teachers Association and confidence to public-sector unions concerned that the decision could jeopardize future revenue from dues. 

“From what I know about this judge’s background, it’s a reasonably safe assumption that you’ll see a 5-4 decision against the complainants now,” said Steve Bernstein, a partner at the national labor law firm Fisher & Phillips.

In a 2006 opinion, Garland upheld the NLRB’s ruling against Ceridian Corp., an information-services company that was found to have violated labor laws by refusing to meet with a union during nonworking hours and by declining to grant union members unpaid leave to participate in bargaining sessions. Ceridian argued that the NLRB’s ruling went against its own precedent, but Garland denied the company’s petition for review.

“As we have repeatedly held in considering this kind of challenge, an ‘agency’s interpretation of its own precedent is entitled to deference,’ ” Garland wrote.

Five years earlier, Garland upheld a decision in which the NLRB ruled that four fired employees should receive full back pay from a home building and property management company that had fired them for complaining about their wages and working conditions. The employer, Halle Enterprises, argued that its reinstatement offer to the employees should have tolled their back pay, but the NLRB disagreed. Garland wrote that, in reviewing the agency’s decision, “we ask only ‘whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion,’ and in so doing we give ‘substantial deference to the inferences drawn by the NLRB from the facts.’ “

Garland used the same language a year later when the court denied Antelope Valley Bus Co.’s petition for review of the NLRB’s finding that the company illegally refused to bargain with union members.

Those opinions were among the 18 he has authored backing the agency. Only in four other cases has he ruled against even a portion of an NLRB decision, Bernstein said.

“To me, that’s pretty striking,” he said.

“He’s shown the NLRB a great deal of deference,” Bernstein added. “Some would say that’s not unusual, but I would point out he’s a member of the D.C. Circuit, and that circuit has been as skeptical of the board’s authority as any in the land.”

In 2000, Garland found in favor of the United Food and Commercial Workers International Union in a case involving organizers who were expelled from a Farm Fresh grocery store. The NLRB rejected the unfair labor practice charge related to the two organizers, finding that the store expelled them because they violated Farm Fresh’s nonsolicitation policy.

But Garland, writing for a three-member panel, found that the board erred in attributing Farm Fresh’s actions to the nonsolicitation policy and not to the warrants that had been obtained for arresting the organizers on trespass charges. Garland remanded the case to the NLRB, writing that “because there is no substantial evidence to support the Board’s factual finding, its ultimate disposition cannot stand.”

Reuben Guttman, a founding partner Guttman, Buschner & Brooks and adjunct professor at Emory University School of Law, said Garland’s record shows clear respect for the authority and expertise of agencies in labor disputes.

“You’ve got a judge who’s very smart, and he’s going to, at first blush, give deference to the agency. But that doesn’t mean he’s going to give blanket approval to everything an agency does. And quite frankly, that’s where you want a judge to be,” Guttman said.


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50 N. Front St., Memphis TN  38103

901 528 1702    901-528-1702 


established yesterday – subscriptions good until tomorrow – published as news breaks