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08.02.18

IFPTE Opposes Nomination of Brett Kavanaugh to the Supreme Court

August 2, 2018

Dear Senator:

On behalf of the members of the International Federation of Professional & Technical Engineers (IFPTE), we are writing regarding President Trump’s nomination of Brett Kavanaugh to the United States Supreme Court. Throughout his twelve years on the federal bench, Judge Kavanaugh has consistently sided with employers, while ruling against workers at every opportunity.

Of particular interest to our union is the 2007 case, American Federation of Government Employees, AFL-CIO v Gates, in which IFPTE was also a Plaintiff, and in which Judge Kavanaugh wrote the majority opinion that overturned a lower court’s ruling blocking implementation of the Pentagon’s union busting National Security Personnel System (NSPS). The lower court had previously found that NSPS would “entirely eviscerate collective bargaining.” Nonetheless, Judge Kavanaugh decided to allow the Pentagon to go forward in busting unions at the Department of Defense. Fortunately, Congress eventually stepped in by reversing NSPS, and President Obama signed that repeal into law.

Perhaps one of his most disturbing opinions involved SeaWorld of Fla., LLC v. Perez, where Judge Kavanaugh dissented from the majority opinion upholding an Occupational Safety and Health Administration (OSHA) finding that SeaWorld was negligent in not sufficiently limiting a trainer’s physical contact with killer whales. OSHA issued a citation against SeaWorld, which was upheld by an Administrative Law Judge (ALJ) and reaffirmed by the Occupational Safety and Health Review Commission. When SeaWorld petitioned a federal court to review the case, two of the three judges on the D.C. Circuit panel denied the request, while the third, Judge Kavanaugh, claimed that OSHA does not have the authority to “paternalistically decide” that SeaWorld should have taken precautions to protect the trainer from the whale. Judge Kavanaugh dissented in this case knowing full well that OSHA requires employers to create workplaces that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Evidence was also presented to the court showing that SeaWorld understood that the very same killer whale that drowned their trainer was involved in a previous 2010 event where a trainer at a different marine park had also been killed.

The SeaWorld case is not the only example. Regrettably, Judge Kavanaugh has a long history of decisions that are unfavorable to workers and their unions:

  • In Venetian Casino Resort, LLC v NLRB, Judge Kavanaugh overturned an NLRB Unfair Labor Practice (ULP) finding against the employer. In this case, the hotel urged police to issue criminal citations to union demonstrators who were legally protesting.

  • In Agri Processor Co. v NLRB, Judge Kavanaugh dissented from a decision requiring the employer to bargain with the union, claiming that employers do not have to bargain with a union whose collective bargaining unit includes undocumented workers.

  • In Miller v Clinton, Judge Kavanaugh was the dissenting opinion in a decision finding that the U.S. State Department violated Age Discrimination in Employment Act when they fired an employee because he was 65 years old.

  • In Howard v Office of the Chief Admin. Officer, Judge Kavanaugh was the dissenting opinion when the DC Circuit sided with an African-American employee who wanted to pursue a race discrimination lawsuit after she was fired from her job at the U.S. House of Representatives.

  • In Doe v Exxon Mobil Corp, Judge Kavanaugh dissented from the majority opinion that Exxon could be liable for misconduct overseas. In this case, Exxon employees where accused of killing and torturing Indonesian villagers.
Judge Kavanaugh’s track record as a federal judge, particularly as it relates to cases involving worker rights, collective bargaining rights, and safety & discrimination in the workplace, is clear. If confirmed to the Supreme Court, he will be a vote for big money corporations over workers.

Workers desperately need the Senate to side with them for a change. Please oppose the Supreme Court nomination of Judge Kavanaugh.

Sincerely,

Paul Shearon
President

Matthew Biggs
Secretary-Treasurer

IFPTE Letter to the Senate Opposing Judge Kavanaugh

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