From the National Law Journal, March 16, 2016
In nearly two decades on the U.S. Court of Appeals for the D.C. Circuit, Judge Merrick Garland has rarely ruled against the National Labor Relations Board. But when he has overturned NLRB’s decisions, departing from his typical deference to federal agencies, he has done so to the benefit of labor unions.
As he enters what is expected to be a tough confirmation process to replace the late Justice Antonin Scalia, Garland’s record on labor issues is likely to be a point of scrutiny. The month before Scalia’s death, the high court heard arguments in Friedrichs v. California Teachers Association, a case that could decide whether public-sector employees can be required to pay union fees.
After arguments in January, the U.S. Supreme Court was seen as leaning 5-4 against labor. But Garland’s appointment to the court would likely flip the court. And if Garland has an opportunity to rule on the case, his vote could give a victory to the California Teachers Association and confidence to public-sector unions concerned that the decision could jeopardize future revenue from dues.