Today, President Obama nominated Merrick B. Garland as his choice to fill the U.S. Supreme Court vacancy left by the recent death of Justice Antonin Scalia. Chief Judge Garland was appointed to the U.S. Court of Appeals for the District of Columbia by President Clinton in 1997 and became Chief Judge on February 12, 2013. He received wide, bipartisan support for his nomination to the U.S. Court of Appeals. Seven of the Republican Senators who voted for his 1997 nomination still serve in the U.S. Senate, including Senator Susan Collins of Maine. Prior to taking the bench, he served as a federal prosecutor during President George H.W. Bush’s administration.
From the time he was appointed to the D.C. Circuit Court of Appeals in 1997 through 2016, Judge Garland wrote the majority opinion in 22 cases involving appeals of National Labor Realtions Board decisions. In 18 of those cases, he sustained the Board’s findings that the employers committed unfair labor practices. In two of the four remaining cases, his language suggested favor toward union activity, largely sustaining the Board’s decisions while only overturning the portions of the decisions that favored the employers’ positions. In the one case in which he did not defer to the Board at all, the Board had found that the employer had not committed an unfair labor practice.
Only in one of the 22 labor cases authored by Judge Garland did he rule on the side of the employer, finding that the employer was not guilty of two charges of committing unfair labor practices, but upholding a third charge. While Judge Garland shows deference to other agencies and their processes, he appears to show particular deference to the National Labor Relations Board.
Examples of the 18 Cases of Complete Deference to the Board:
- Ceridian Corp v. N.L.R.B., 435 F.3d 352, 355 (D.C. Cir. 2006)
- Shamrock Foods Co. v. N.L.R.B., 346 F.3d 1130, 1134 (D.C. Cir. 2003)
- Antelope Valley Bus Co. v. N.L.R.B., 275 F.3d 1089, 1093 (D.C. Cir. 2002)
Three Cases of Incomplete Deference to the Board:
- Carpenters and Millwrights, Local Union 2471 v. N.L.R.B., 481 F.3d 804 (D.C. Cir. 2007)
- Guard Publishing Co. v. N.L.R.B., 571 3.d 53 (D.C. Cir. 2009)
- United Food and Commercial Workers International Union Local 400, AFL-CIO v. N.L.R.B., 222 F.3d 1030 (D.C. Cir. 2000)
The Sole Case in which the Nominee Found Partly in Favor of the Employer:
- Pioneer Hotel, Inc. v. N.L.R.B., 182 F.3d 939 (D.C. Cir. 1999).
The Nominee Did Not Join the Majority when the Majority Favored the Employer:
- Ross Stores, Inc. v. N.L.R.B., 235 F.3d 669 (D.C. Cir. 2001)
Dissenting Opinions Where the Majority of the Court Favored the Employer:
- Northeast Beverage Corp. v. N.L.R.B., 554 F.3d 133 (D.C. Cir. 2009)
- FedEx Home Delivery v. N.L.R.B., 563 F.3d 492 (D.C. Cir. 2009)
Examples of Other Employment-Related Agency Deference Cases:
- Secretary of Labor v. Excel Mining, 334 F.3d 1 (D.C. Cir. 2003)(upholding mine operator citations)
- Steele v. Schafer, 535 F.3d 689 (D.C. Cir. 2008)(reversing lower court’s ruling for the employer on harassment and retaliation claims)
- Harris v. Gonzales, 488 F.3d 442 (D.C. Cir. 2007)(reversing lower court’s finding for an employer in a gender discrimination lawsuit)