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Labor Logic

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John D. Finerty, Jr.

President Bush’s nominee to be Chief Justice of the United States Supreme Court is, of course, Judge John G. Roberts Jr. By now, most of us are familiar with his background: Harvard College, Harvard Law School, a judicial clerkship, a staff attorney position with the Department of Justice and Office of the White House Counsel, an attorney in the Solicitor General’s Office, appellate lawyer, district court judge and judge for the District of Columbia Circuit Court of Appeals. The following are the highlights from Judge Roberts’ career that involve the labor and employment cases from his time on the D.C. circuit and one noteworthy case when Roberts was in private practice.

Toyota v. Williams

Roberts, as an appellate lawyer at Hogan & Hartson, a Washington, D.C.-based law firm, represented Toyota Motor Manufacturing, Kentucky, Inc. in the case of Toyota v. Williams, 534 U.S. 184 (2002). That case held that an employee with a repetitive motion injury who could not work was not "disabled" within the meaning of the Americans With Disabilities Act. As Toyota’s attorney, Roberts argued to the U.S. Supreme Court in November 2001 and took the position that the ADA definition of "disability" should be interpreted narrowly.

Specifically, he argued that the issue in the case was whether or not Williams’ inability to perform manual tasks associated with her assembly line job, in particular gripping a sponge and repetitively wiping down cars for an extended period, was a "major life activity" under the ADA. The Court sided with Roberts’ client and held that Williams was not disabled.

Opinions from the D.C. Circuit

Judge Roberts authored 49 opinions as a appellate judge on the D.C. Circuit. Only 2 of his opinions elicited dissents; he authored 3 dissenting opinions of his own.

The following is a summary of the labor and employment cases in which Judge Roberts issued a written opinion.
Barbour v. Washington Metro Transit.

One of the 2 cases Roberts authored in which a colleague dissented was Barbour v. WMTA, 374 F.3d 1161 (D.C. Cir. 2004), which held the sovereign immunity defense did not apply to bar a District of Columbia employee with bipolar disorder from suing the Metropolitan Transit Agency for discrimination under federal law.

Interestingly, in that case, a Clinton appointee, Judge Merrick B. Garland, joined Roberts in the majority opinion; Judge David B. Sentelle, a noted conservative, dissented. The Supreme Court decided in Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) that the states have 11th Amendment immunity against disability claims.

LeMoyne-Owen College v. NLRB.

In LeMoyne-Owen College v. NLRB, 357 F.3d 55 (D.C. Cir. 2004), the court granted the petition for review by the employer, LeMoyne-Owen College, and remanded the case to the NLRB to provide an explanation why college faculty were not management, but rather employees entitled to protection under the National Labor Relations Act. The NLRB had sided with the faculty, and ordered the college to recognize and bargain with the faculty’s representative. Judge Roberts noted, however, that the NLRB had, over the years, applied multiple tests to determine whether an employee was or was not management and, in the instant case, had failed to fully explain the rationale behind its holding. The court remanded the case with an admonishment to the NLRB that, when applying multi-factor tests, it is the agency’s obligation to fully examine the record and explain why or why not each factor of the test was met.

AFL-CIO v. Chao.

In AFL-CIO v. Chao, 409 F.3d 77 (D.C. Cir. 2005), the court held that the Secretary of Labor acted within her authority by issuing new regulations that required greater detail on financial disclosure forms filed with the Department by labor unions under the Labor Management Reporting Disclosure Act or LMRDA.

The majority, however, also held that the Secretary exceeded her authority by issuing regulations that were too general with respect to trust reporting; it vacated a portion of the Department’s regulation that relate to disclosures known as a Form T-1. In reaching the holding, the court conducted a detailed historical analysis of the LMRDA and related labor laws to point out that, in some respects, the law does not limit the Secretary of Labor’s authority to impose financial disclosure requirements on unions; alleged ambiguities in legislation passed by Congress requires deference to the administrative agency on how to apply those statutes. The majority held, however, that the Secretary’s power was not unlimited and that general regulations on trust reporting exceeded her authority.

Judge Roberts issued a concurring opinion in which he wrote that he disagreed with the majority’s interpretation of the Secretary’s trust reporting authority and would have held that the Secretary had broad authority to pass regulations requiring financial disclosures. Judge Roberts cited the LMRDA, 29 U.S.C. § 438, which outlines the Secretary’s authority to issue regulations, "including rules prescribing reports concerning trusts in which a labor organization is interested …" Judge Roberts found the statute was a broad grant of power and would have allowed the Secretary to exercise it.

Booker v. Robert Half Int’l, Inc.

In Booker v. Robert Half, 413 F.3d 77 (D.C. Cir. 2005), the court held that a pre-dispute arbitration agreement, that contained an unreasonable provision, was severable, so that the court could strike the offending provisions and compel arbitration. The court noted that statutory claims may be such to agreements to arbitrate, as long as the agreement does not require the claimant to forego substantive rights afforded under the statute. The issue in the case, however, was what should a court do when the arbitration agreement is unenforceable because it contains a provision limiting an employee’s statutory rights, such as the right to collect comp
ensatory and punitive damages, under federal law. The court held that a district court may carve out the limitation on statutory rights and compel arbitration.

Conclusion

There are only a handful of labor and employment cases in which Judge Roberts has been involved as an attorney and as an appellate judge on the D.C. Circuit. The position he took on behalf of the client in Toyota Motors, would lead one to believe he is a strict constructionist; cases such as AFL-CIO v. Chao and Booker would lead one to believe he is not so much a strict constructionist as simply a judicial minimalist, emphasizing precedent while applying a pragmatic reading of statutes and regulations.

For more information on these cases, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or on the Internet at jdfinerty@michaelbest.com.

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