AFL-CIO on SCOTUS nominees

[Omaha Steve]

We just released this memo to media with anti-worker highlights from the records of the leading candidates.



TO: Members of the Media

FROM: Donna Euben, AFL-CIO Associate General Counsel

DATE: July 6, 2018

RE: Supreme Court Finalists’ Anti-Worker Records


On Monday evening, President Trump is expected to announce a nominee to the Supreme Court. Recent decisions by the court, often the result of 5-4 votes, have a dramatic impact of the lives of working families and reinforce the importance of the choice of a new justice.


President Trump’s first appointment drastically shifted the Court towards one that protects privileges of the wealthy and powerful at the expense of working people. The reported finalists for his next nomination have all demonstrated a record that puts the rights of working people at serious risk.


Judge Brett Kavanaugh


Judge Kavanaugh routinely rules against working families, regularly rejects the right of employees to receive employer-provided health care in the workplace, too often sides with employers in denying employees relief from discrimination in the workplace and promotes overturning well-established U.S. Supreme Court precedent.


Cases of note:


American Fed. Of Gov’t Employees, AFL-CIO v. Gates, 486 F.3d 1316 (D.C. Cir. 2007)

Dissent argued that Kavanaugh’s opinion would allow the Secretary of Defense to “abolish collective bargaining altogether.”


Agri Processor Co. v. N.L.R.B., 514 F.3d 1 (D.C. Cir. 2008)

Dissented from a majority decision that ordered a company to bargain with a union, reasoning that the employees were ineligible to vote as undocumented immigrants.


SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014)

Dissented from a majority opinion upholding a safety citation against SeaWorld following the death of a trainer.


Venetian Casino Resort, LLC v. N.L.R.B., 793 F.3d 85 (D.C. Cir. 2015)

Reversed and remanded a NLRB decision that the hotel engaged in unfair labor practices when it requested police officers to issue criminal citations to union demonstrators who were legally protesting.


Judge Raymond Kethledge


Judge Kethledge routinely rules against workers and working families, regularly rejects claims of employees for relief from discrimination in the workplaces, and regularly attacks federal agencies for enforcing well-established regulations, including those that protect workers and their families. He has also ruled against voting rights.


Cases of note:


Bailey v. Callaghan, 715 F.3d 956 (6th Cir. 2013)

Upheld anti-union Michigan law targeting public school teachers that was inspired by Governor Scott Walker of Wisconsin.


NLRB v. Lakepointe Senior Care & Rehab Ctr. LLC, 680 Fed. Appx. 400 (6th Cir. 2017)

Denied the National Labor Relations Board’s application for enforcement of an order finding that Lakepointe had committed an unfair labor practice by refusing to bargain with nurses who had chosen collective bargaining.


Acosta v. Cathedral Buffet, Inc., 887 F.3d 761 (6th Cir. 2018)

Reversed and remanded the district court opinion that had found a church restaurant’s use of unpaid labor violated minimum wage requirements.


Huffman v. Speedway LLC, 621 Fed. Appx. 792 (6th Cir. 2015)

Joined an opinion allowing a company to fire a pregnant worker.


Judge Amy Barrett


Barrett’s record as a judge and an academic is troubling for working people. As a judge, she has joined opinions that rule against workers. As a professor, she opposed requiring comprehensive employer-supported health care under the Affordable Care Act, and she questioned the requirement that judges adhere to legal precedent, a position which could adversely impact worker rights.


United States EEOC v. AutoZone, Inc., 860 F.3d 564 (7th Cir. 2017)

Joined opinion denying an employee’s claim of racial discrimination in violation of Title VII of the Civil Rights Act; the dissent observed that the majority’s opinion heralded the return of Brown v. Board of Education, because “under the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII.”


Reliford v. Advance/Newhouse P’ship, 716 F. Appx 551 (7th Cir. 2018)

Participated on a panel that denied an employee relief when she claimed she was fired for retaliation under Title VII of the Civil Rights Act after filing with the Equal Employment Opportunity Commission a complaint for workplace harassment.


Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003)

Argued that strict adherence to legal precedent raises due process and constitutional concerns and stare decisis must be “flexible.”