If a ruling in which Judge Kavanaugh took part some years ago involved a Trump-owned entity, there’s got to be something newsworthy there, right? Wrong.
This Bloomberg article titled “Kavanaugh Sided With Trump Casino in 2012 to Thwart Union Drive” undertakes to report on Judge Kavanaugh’s joining a unanimous 2012 D.C. Circuit panel ruling in Trump Plaza Associates v. NLRB. But it manages to get some elementary things wrong. (Nor—pet peeve alert!—does it bother to include a link to the opinion.)
After the NLRB concluded that Trump Plaza had unlawfully refused to bargain with a union representing card dealers, Trump Plaza argued to the D.C. Circuit that the NLRB had wrongly certified the union. It advanced two separate claims.
Trump Plaza’s first claim was that the union election (in the article’s summary) “had been tainted by the pre-election press conference and other shows of support from politicians that the company said could make workers think the labor board wanted them to unionize.” (Emphasis added.) The panel ruled against Trump Plaza on this claim. (See section on “Government Endorsement,” pp. 827-829.)
Trump Plaza claimed, second, that a mock card-check ceremony at the pre-election press conference misled employees into thinking that the union had already been certified as their representative. On this issue, the panel held that the ground on which the NLRB had ruled against Trump Plaza—namely, that there was an “absence of evidence” that the mock card-check had been widely disseminated—was “plainly wrong.” Further, the panel ruled, the NLRB had departed from its own precedent, and had given no “reasoned explanation” for doing so, when it declined to set aside the union election in the face of the evidence of dissemination. The panel therefore remanded the matter to the NLRB “to, first, assess the severity of the challenged conduct … and second, to reassess the extent of the mock card-check dissemination under its precedent.” (See pp. 830-832.)
The Bloomberg article hopelessly muddles these two distinct claims. That muddle conceals that the panel ruled against Trump Plaza on the first claim. It also obscures that the panel’s ruling for Trump Plaza on the second claim, far from being evidence of anti-union animus (as “labor advocates” quoted in the article contend), was a run-of-the-mill application of the black-letter administrative-law principle that an agency cannot depart from its own precedents without explanation. Thus, far from delivering a final victory to Trump Plaza, the ruling simply returned the matter to the NLRB to give it the opportunity to do things right.