Insights for the Labor Relations Professional


My Obligatory SCOTUS Nominee Blog Post….

By Nelson Cary

So, by now, I’m sure everyone has heard that President Obama announced his pick for the U.S. Supreme Court last week.  In case you missed that, he selected Chief Judge Merrick Garland, from the D.C. Circuit Court of Appeals.  As a result, many have been writing about how Judge Garland has ruled in any given area of the law — even Sports Illustrated.  Since he has been on the bench for nearly two decades, there is a lot of material!

I decided to take a decidedly unscientific approach to the question of Judge Garland’s opinions involving the NLRB.  I looked at only those decisions and opinions since 2009.  After all, as regular readers of this blog know, there have been a number of very significant NLRB decisions in that time.

Here are some qualitative tidbits from my review:

  • The judge reversed the NLRB’s finding that an employer’s policy requiring that employees wear only the employer’s baseball cap restricted the wearing of union insignia on its face.  My colleagues covered this development in a prior post.
  • Judge Garland dissented in a case involving FedEx drivers.  At issue was whether the drivers were independent contractors.  The majority held that they were.  The judge would have found that they were not.
  • Before the current NLRB found that an employer’s “business use only” email policy was unlawful, the Bush II NLRB had held in a case called Register-Guard that it wasn’t.  When Register-Guard was appealed to the D.C. Circuit, Judge Garland held that the NLRB was right to find a violation of the NLRA in part of the case and was wrong to not find a violation in a different part of the case.  Judge Garland wasn’t called upon, however, to determine whether the “business use only” policy was lawful.
  • In a case involving an unlawful discharge, Judge Garland affirmed the NLRB’s finding of a violation.  In so doing, he wrote that the court “accords a very high degree of deference to administrative adjudications by the NLRB.”
  • Echoing this high level of deference to the NLRB’s findings, Judge Garland also affirmed the NLRB’s finding that there was no impasse in negotiations in a 2011 decision.  Accordingly, the employer violated the NLRA when it refused to meet and bargain with the union.
  • In a case applying the Supreme Court’s decision in Noel Canning, Judge Garland voted to reject an employer’s challenge to the appointment of former Member Becker (D) to the NLRB.  The court’s opinion reasoned that the recess during which former Member Becker was appointed, which lasted 17 days, was sufficiently long enough to permit the President to make a recess appointment.
  • When confronted with a question of whether an employee walkout constituted a “labor dispute” and was therefore protected by the NLRA, the majority held that the walkout was not protected.  Thus, the employer’s termination of the employees was lawful.  In a dissenting opinion, Judge Garland would have held that the walkout was protected.  Judge Garland relied, in part, on the deference he said was owed to the NLRB.  The majority found that the NLRB had incorrectly applied a Supreme Court decision, and the court owed no deference to the NLRB in such a situation.

The takeaway from my unscientific review of a subset of Judge Garland’s opinions, therefore, is that he voted to affirm the NLRB’s decision far more frequently than he voted to reverse.  This appears to be consistent with other commentary about the nominee, which notes that he is deferential to the executive branch when it comes to matters of administrative law.  Labor professionals should take note.

Tags: Becker, Courts, appiontment, 'Federal Express'


Insights for the Labor Relations Professional