MERRICK GARLAND HAS RARELY SECOND-GUESSED NLRB DURING HIS TIME ON D.C. CIRCUIT

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Merrick Garland Has Rarely Second-Guessed NLRB During His Time on D.C. Circuit

As the Obama administration and Senate leaders gear up for what could become a drawn-out struggle for a vote to confirm Merrick Garland as an Associate Justice of the U.S Supreme Court, Chief Judge Garland’s record in labor cases before the D.C. Circuit is coming into focus. Though Garland has reviewed an array of NLRB findings since taking the bench in 1997, in most of these cases he’s shown deference to the NLRB as the agency charged with enforcing the National Labor Relations Act.

Recent cases

Garland’s two labor law opinions of the past year illustrate his usual approach well, and they stand in contrast to other recent opinions by D.C. Circuit judges who have found fault in the agency’s findings.

In Pac. Coast Supply, LLC v. NLRB, 204 LRRM 3304, 2015 BL 302572 (D.C. Cir 2015), Garland wrote for a unanimous three-member panel that enforced an NLRB order finding that a lumber supply company unlawfully withdrew its recognition of an incumbent union based on written statements of eight of 15 employees in the unit. The employer argued that the signed statements showed that employees wanted to end union representation. Garland deferred to the board’s finding that four of the statements could be read to mean that those employees no longer wanted to be union members, not that they wanted to end representation.

In Spurlino Materials, LLC v. NLRB, 204 LRRM 3593, 2015 BL 373769 (D.C. Cir 2015), Garland wrote for another unanimous three-member panel that enforced an NLRB order finding that a construction materials supplier unlawfully refused to reinstate workers who engaged in a strike in support of a discharged union activist. The employer argued that the employees engaged in an economic strike rather than an unfair-labor-practice strike. Finding that the board’s order was supported by substantial evidence, Garland noted that the union called a meeting specifically to vote whether to conduct an unfair-labor-practice strike, that its strike letter and picket signs were limited to protesting the activist’s discharge, and that the union made no economic demands during the strike.

Garland’s opinion in the case also upheld the board’s finding that the Ohio supplier and its Indianapolis affiliate are a “single employer,” a holding that the board has cited in several of its recent decisions to clarify the standard it applies when it asks that question. Garland was persuaded by the board’s reasoning that the supplier and affiliate share a majority shareholder who was president and manager of both and made all major policy decisions, that they shared a controller, and that they held themselves out as a common enterprise with common trucks, stationary, business cards and a common website.

Broad trends

These recent opinions are part of a strong trend. In 17 of Garland’s 21 opinions reviewing NLRB orders during his time on the D.C. Circuit, the court enforced the order. In three of these cases, the court enforced the order in part.

In only one case did Garland deny enforcement completely, and this was because he thought the board overlooked evidence of unlawful interference. That opinion, in Food Workers Local 400 v. NLRB, 169 LRRM 2205 (D.C. Cir. 2000), found that the NLRB erred in concluding that a grocer lawfully kicked nonemployee union organizers out of its snack bar for violating a no-solicitation policy. Garland and a unanimous three-member panel of the D.C. Circuit found that the board didn’t have any evidence at all that the grocer acted based on the policy. Instead, all the evidence in the case showed the organizers were excluded because of outstanding trespass warrants that a store manager got from a local magistrate.

Differing approaches

Two recent D.C. Circuit opinions that have been less deferential to the NLRB throw Garland’s usual approach into relief.

In SW Gen, Inc. v. NLRB, 203 LRRM 3577, 2015 BL 254014 (D.C. Cir. 2015), Judge Karen LeCraft Henderson vacated an NLRB order on the basis that Acting General Counsel Lafe Solomon was not validly appointed under the Federal Vacancies Reform Act when he issued the complaint.

The board argued that Solomon, regardless of his appointment status, didn’t have a substantial legal interest in the charge. Vacating the order, Henderson reasoned that the court can’t be confident that a complaint would have issued under another acting general counsel, that the board's order did not ratify his action or mean that it was harmless, and that the board has not informed the court of when it first became aware of the problem.

In Venetian Casino Resort, LLC v. NLRB, 203 LRRM 3453, 2015 BL 220854 (D.C. Cir. 2015), Judge Brett M. Kavanaugh vacated an NLRB order against a casino operator that the board found unlawfully requested that police issue criminal citations to union demonstrators and block them from picketing on its casino’s private walkway. Rather than defer to the board’s finding that this was unlawful interference, the court turned to constitutional law and applied the “Noerr-Pennington doctrine,” which stands for the idea that conduct that would otherwise be unlawful may be protected by the First Amendment if it is part of a direct petition to the government. Under this doctrine, and applying a heightened standard of review, the court reasoned that calling police to enforce a state trespass law qualifies as a protected petition and immunized the employer from liability under the NLRA.

What’s next?

These two opinions of D.C. Circuit colleagues, both by unanimous three-member panels that didn’t include Garland, show what it can look like when the court reaches for a heightened standard of review or otherwise takes a less hands-off approach to the practical workings of a federal agency.

As the Senate mulls over possible hearings to confirm the president’s nominee before January, court watchers might anticipate some questions about what explains Chief Judge Garland’s typical deference to the NLRB, and then how his thinking about key issues in labor and administrative law might or might not impact the court’s balance.

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