Curious about his decisions in cases involving the NLRB, I set about collecting them using the online Lexis case database. What I found? Judge Gorsuch has been involved in eight decisions involving the NLRB since he went on the bench in 2006.
The low number was initially surprising. It is significantly less than the number of decisions in which Chief Judge Garland, President Obama’s pick for the same seat last year, participated.
But I think there are at least two reasonable explanations. The first is simply time. Chief Judge Garland has been on the bench for nearly two decades. Judge Gorsuch has been on the bench just over one decade.
The second is location. Chief Judge Garland is on the D.C. Circuit Court of Appeals, which is more likely than other circuits to hear appeals from federal agency actions, including those from the NLRB. Moreover, of the six states from which the Tenth Circuit’s appeals come, four are right-to-work states. And in each of the six states, the percentage of unionized workers is among the lowest in the country.
Turning back to the actual decisions, here is how they came out. Of the eight cases, one had no substantive decision, but was merely an order vacating a NLRB decision in light of the U.S. Supreme Court’s decision in Noel Canning.
Of the remaining seven cases, five have precedential value. This means that the case can be cited as authority in other decisions involving the same or related topics. (The court itself decides if the case has precedential value.) Judge Gorsuch authored the majority opinion in three of those cases. In another precedential decision, Judge Gorsuch authored a dissent.
In every NLRB case that came before the Tenth Circuit that involved Judge Gorsuch, the court affirmed the NLRB’s decision. Judge Gorsuch dissented in only one of those cases, which also happens to be the most recent decision (January 2016).
Stay tuned to this blog next week for additional information about the cases involving Judge Gorsuch and the NLRB, including a discussion of that dissenting opinion.
