HR Management & Compliance

Obama’s Supreme Court nominee may not be a friend to employers

On March 16, President Barack Obama announced his nominee for the U.S. Supreme Court vacancy left by the passing of Justice Antonin Scalia. Obama’s nominee, Judge Merrick Garland, was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1997 and has served as chief judge since 2013.

Battle lines over when confirmation hearings will be held were immediately drawn between Obama and Senate Republicans. If the nomination is considered by the Senate before the end of Obama’s second term, employers may be interested in understanding where Garland will likely come out on employment-related issues.

“Judge Garland is on the ‘liberal’ side of the D.C. [Circuit] and does not appear to be a friend of the employer,” says Kevin McCormick, an attorney with Whiteford, Taylor & Preston, LLP, in Baltimore, Maryland. McCormick noted that the D.C. Circuit has traditionally been considered the preferred venue for employers to challenge decisions of the National Labor Relations Board (NLRB). The court is very knowledgeable on the National Labor Relations Act (NLRA) and NLRB procedures and is not afraid to set aside Board decisions that it believes are incorrect.

A review of D.C. Circuit rulings in which Garland wrote the majority opinion, however, reveals that the court upheld NLRB decisions that employers committed unfair labor practices in 18 of 22 cases issued from 1997 to 2016. According to McCormick, Garland’s language in the cases reveals a strong preference for deference. In Ceridian Corp v. NLRB, 435 F.3d 352, 355 (D.C. Cir., 2006), Garland noted that an “agency’s interpretation of its own precedent is entitled to judicial deference.”

It is early in the process, and more information about Garland’s record will be made public, especially if confirmation hearings proceed.

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