What Happens Next With Unions? How Supreme Court Nominee Neil Gorsuch Could Change Labor

If Judge Neil Gorsuch is confirmed as the next Supreme Court Justice, it’s not clear exactly what that means for unionized labor. This much is certain: Gorsuch had made a study of the late conservative Justice Antonin Scalia, and he’s been described as a “worthy heir to Scalia” by right-leaning magazine The National Review. But Scalia was not exactly known as a friend of the unions.

With one empty seat, the Supreme Court currently consists of eight justices. Four — Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomeyer and Steven Breyer — have liberal ideological leanings. Three — John Roberts, Clarence Thomas and Samuel Alito — lean conservative. Justice Anthony Kennedy is more of a centrist, who might go either way on any given case. If Gorsuch is confirmed, he'd be the fourth Supreme Court justice who aligns with a conservative interpretation of the Constitution. That could spell bad news for unions, which are historically associated more liberal ideologies.

Take the Supreme Court case from last year, which threatened to stop public-sector unions from being able to collect fees from workers who chose not to join. That decision ended in a 4-4 tie divided between justices on the left and right, which ultimately led to a win for unions. Had the court had one more conservative justice, it's likely that the unions could have seen a defeat instead of a victory.

Gorsuch has only worked on four court cases involving the National Relations Labor Board — In three of those decisions, he ruled on the side of the NRLB. All of those cases came to Gorsuch when he served in Colorado as a federal appellate judge on the United States Court of Appeals for the Tenth Circuit. Here’s a quick rundown.

Laborers’ International of North America, Local 758 v. NLRB (2010)

The issue at the center of this case: A union in Colorado Springs swayed an employer to fire an employee because that employee didn’t pay union dues. The NLRB, however, decided the union wasn’t playing fair. The union petitioned the court for review of the NLRB’s verdict, and the NLRB shot back, cross-petitioning for the enforcement of their decision. When the case came to Gorsuch, he sided with the NLRB.

Public Service Company of New Mexico v. NLRB (2012)

The NRLB decided the Public Service Company of New Mexico, an energy holding company, violated fair work practices because it refused to provide information about a termination grievance. In other words, the company wouldn’t turn over disciplinary information about why an employee was fired. The company was not happy about this decision, so it went to court. Gorsuch once again took the side of the NLRB.

Teamsters Local Union No. 455 v. NLRB. (2014)

When a local Teamsters union chapter wanted to declare an employer's lockout of employees unlawful, the NLRB said the equivalent of “nope.” The union protested, and asked to take a second look at the NLRB decision. Gorsuch sided with the NLRB over the union — the employer’s lockout was legal, he decided.

NLRB v. Community Health Services (2016)

In this case, a hospital was found to have cut the hours of some of its employees in a manner that was unlawful. The NLRB ordered the hospital to give those employees backpay, and when the hospital refused, the NLRB took the case to court. Although the majority opinion sided with the NLRB, this time, Gorsuch dissented. He claimed that the NLRB went beyond the “boundaries of [its] Congressional charter.”

What does all of this mean? So far, Gorsuch has tended to stand on the anti-union side of the fence. But with only four decisions, it's difficult to draw broad generalizations.