A More Complete List of Judge John Roberts' Labor and Employment Related Decisions

Posted 11:42 AM by Michael Fox

Although I set out a fairly comprehensive list yesterday, a little more checking turned up an additional four cases, and Don Caster at All Deliberate Speed, has done more yeoman's work on this as well. In light of the two efforts, I have "updated" (and hopefully corrected) the list of Judge Roberts' labor and employment law decisions. First, I found four more cases that I did not find in my initial search. As with the overall list, on the most simplistic basis -- which side won -- the results were split.

• Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161, 15 A.D. Cases 1351 (07/09/2004). 2-1 panel. Roberts in majority. Reversed finding of lower court that employee's disability discrimination claim was barred by sovereign immunity. Employee
• Harris v. Federal Aviation Administration, 353 F.3d 1006 (01/13/2004) 3-0 Panel. Affirmed lower court's dismissal on limitations of claims by PATCO employees arising out of their placement after being rehired. Employer
• Resort Nursing Home v. National Labor Relations Board, No. 03-1369 (11/30/2004) 3-0 Panel. Enforcing NLRB's order against appeal by employer. Employee
• Stanford Hospital and Clinics v. National Labor Relations Board, 370 F.3d 1210 (06/11/2004) 3-0 Panel. Reversed NLRB order finding employer refused to bargain. Employer

For those one or two individuals (if there is anyone other than Don and I) who want to review all the decisions that Judge Roberts participated in (at least that I have found so far) to divine how he might decide labor and employment cases if confirmed as a Supreme Court Justice, the list of of 31 decisions follows.

To explain its makeup, in addition to adding the four new cases (and including the two that were contained in a separate post yesterday) I made some other adjustments based on Don's analysis. First, as he points out there were two FAA cases included which although involving employees are more administrative than employment cases, so I have removed those two. On the two that I listed as mixed, I have left Storer as such, since it was an OSHA appeal with two contested points, the employer wone one and the employee won one. I have moved the In Re England case involving the Chaplaincy Board to the Employer win group as opposed to mixed. (It is interesting that Roberts sided against the position of the Full Chaplaincy Group, which has been identified in the New York Times as a group promoting evangelical chaplains in the military, see Evangelicals Are a Growing Force in the Military Chaplain Corps, although that is a wholly different subject that I don't need to approach.)

So with the revised and recategorized list I have again done my very simplistic analysis based on the outcome as Employee (which also includes the position of labor) and Employer, and the now one case that remains, Mixed. See Don's post for a slightly different way of analyzing the opinions and his analysis.

At the point of over-emphasizing the obvious, the results reflect nothing in the way of a clue to Judge Roberts' views on labor and employment issues. That would take at least a careful reading of the opinions (which I certainly have not done) and even then it is quite possible that given the number and the fact that in most cases he was a participant, not an author, one might not be confident that one could predict how he would rule in any particular case. However, with that rather large caveat, it is an interesting split based just on the results (Employee - 12 Employer 18 Mixed 1). Perhaps more meaningfully, when the Court was reversing the court or agency below the results are (Employee 6 Employer 3). The two times his vote made a difference, i.e. he was to use an O'Connor reference, the "swing vote" one decision was for the employee and one was for the employer.

After all is said and done, perhaps the most that can be said about this data, but also what in all fairness should be said about it, is that Judge Roberts' judicial record with respect to labor and employment law is certainly within the judicial mainstream. And there is nothing in it, that should stand as a bar, or in my personal view as an impediment, to his confirmation.

Now back to regular blogging.

List of Employment Related Decisions

1. Bloch v. Powell, 348 F.3d 1060 (11/21/2003). 3-0 Panel. Roberts' opinion. Affirmed lower court's dismissal of claim by State Department employee. Employer
2. International Union of Operating Engineers, Local 470, ALF-CIO v. National Labor Relations Board, 350 F.3d 105 (12/02/2003). 3-0 panel. Affirmed NLRB decision in favor of employer. Employer
3. Stewart v. Evans, 351 F.3d 1239 (12/19/2003). 3-0 panel. Roberts' opinion. Affirmed dismissal of employee's claim of wrongful search by employer. Employer
4. American Federation of Government Employees v. Federal Labor Relations Authority, 352 F.3d 433 (12/23/2003). 3-0 panel. Upheld Federal Labor Relations Authority dismissal of union claim. Employer
5. Harris v. Federal Aviation Administration, 353 F.3d 1006 (01/13/2004) 3-0 Panel. Affirmed lower court's dismissal on limitations of claims by PATCO employees arising out of their placement after being rehired. Employer
6. LeMoyne-Owen College v. National Labor Relations Board, 357 F.3d 55 (02/10/2004). 3-0 panel. Judge Roberts' opinion. Granted employer's petition for review of NLRB's decision and remanded to the Board for further proceedings. Employer
7. Graham v. Ashcroft, 358 F.3d 931 (02/24/2004). 2004 3-0 panel. Roberts' opinion. Affirmed trial court's dismissal of FBI agent's claim. Employer
8. Association of Civilian Technicians v. Federal Labor Relations Authority, 360 F.3d 195 (03/12/2004). 3-0 panel. Reversed finding of FLRA, granting union's petition to review. Employee
9. S.A. Storer and Sons Co. v. Secretary of Labor, 360 F.3d 1363 (03/19/2004). 3-0 panel. Agreeing, in part, that employer had not violated OSHA standards, sent back for further proceedings. Mixed
10. Dunkin' Donuts Mid-Atlantic Distribution Center, Inc. v. National Labor Relations Board, 363 F.3d 437 (April 02, 2004). 3-0 panel. Affirmed NLRB's finding against employer. Employee
11. Evergreen America Corp. v. National Labor Relations Board, 362 F.3d 827 (04/02/2004) 3-0 panel. Affirming NLRB's finding that employer had refused to bargain. Employee
12. National Association of Government Employees, Local R5-136 v. Federal Labor Relations Authority, 363 F.3d 468 (04/06/2004). 3-0 panel. FLRA had dismissed two complaints brought by Union. Court reversed one, and upheld one. Employee
13. American Postal Workers Union, AFL-CIO, v. National Labor Relations Board, 370 F.3d 25 (06/04/2004). 3-0 panel. Affirmed NLRB decision in favor of employer. Employer
14. Stanford Hospital and Clinics v. National Labor Relations Board, 370 F.3d 1210 (06/11/2004) 3-0 Panel. Reversed NLRB order finding employer refused to bargain. Employer
15. Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161, 15 A.D. Cases 1351 (07/09/2004). 2-1 panel. Roberts in majority. Reversed finding of lower court that employee's disability discrimination claim was barred by sovereign immunity. Employee
16. In re England, No. 03-5329 (D.C.Cir. 07/27/2004) 3-0 panel. Roberts' opinion. Reversed trial court and upheld rule that Chaplaincy Board decisions not open to review. Challenge was filed by Full Gospel Chaplaincy Group. Employer
17. United States ex rel Totten v. Bombardier Corporation, 380 F.3d 488 (08/27/2004) 2-1 panel. Roberts' majority opinion. Affirmed dismissal of whistleblower complaint. Employer
18. Carter v. George Washington University, No. 01-7203 (D.C.Cir. 10/29/2004) No. 01-7203 October 29, 2004 3-0 panel. Upheld trial court's grant of summary judgment on Title VII claim. Employer
19. United States, ex rel Williams v. Martin-Baker Aircraft Co., Ltd. (11/26/2004). 3-0 panel. Reversed and reinstated whistle-blower claim. Employee
20. Resort Nursing Home v. National Labor Relations Board, No. 03-1369 (11/30/2004) 3-0 Panel. Enforcing NLRB's order against appeal by employer. Employee
21. National Treasury Employees Union v. Federal Labor Relations Authority, 392 F.3d 498 (12/17/2004) 3-0 Panel. Reversed FLRA and sustained union's complaint. Employee
22. Hutchinson v. Central Intelligence Agency, 393 F.3d 226 (01/04/2005). 3-0 panel. Affirms trial court's summary judgment in favor of employer. Employer
23. Koszola v. Federal Deposit Insurance Corporation, 393 F.3d 1294 (01/07/2005). 3-0 Panel. Roberts' opinion. Affirms dismissal of a whistleblower's claim. Employer
24. American Federation of State, County & Municipal Employees Capital Area Council 26 v. Federal Labor Relations Authority, 395 F.3d 443 (01/14/2005). 3-0 panel. Held the FLRA properly dismissed complaint of Union. Employer
25. National Treasury Employees Union v. Federal Labor Realtions Authority, 404 F.3d 454 (04/15/2005). 3-0 panel. Roberts' concurring. Upheld Union's position over whether bargaining was required. Employee
26. WalMart Stores, Inc. v. Secretary of Labor, 406 F.3d 731 (05/10/2005). 3-0 panel. Denies WalMart's challenge of OSHA violation. Employee
27. Wagener v. SBC Pension Benefit Plan - Non Bargained Program, 407 F.3d 395 (05/17/2005). 3-0 panel. Reversed trial court's dismissal of claim. Found employee had stated a claim for ERISA discrimination. Employee
28. American Federation of Labor and Congress of Industrial Organizations v. Chao, 409 F.3d 377 (05/31/2005) 2-1 Panel. Roberts' dissented. Panel found Secretary of Labor had exceeded her authority in regulations governing union reporting. Roberts' dissent argued that it was within her authority. Employer
29. ITT Industries, Inc. v. National Labor Relations Board, (06/28/2005). 3- 0 Panel. Affirmed NLRB's finding against employer. Employee
30. Booker v. Robert Halfinternational, Inc. (07/01/2005). 3-0 panel. Roberts' opinion. Severed out provision of arbitration agreement that was unenforceable, affirmed trial court and enforced the arbitration agreement. Employer
31. Porter v. Natsios, (07/01/2005). 3-0 panel. Roberts' opinion. Affirmed trial court's dismissal of Title VII claim of employee. Employer

---