Agri Processor Company, Inc. v. National Labor Relations Board (514 F.3d 1 ) is an example of Judge Kavanaugh not following the law but rather trying to make law, that is, behaving as an activist's judge! The Agri Processor case was a collective bargaining case involving illegal immigrants. Specifically, Agri Processor was a meat processing company whose employees voted to unionize and the company management refused to bargain with them so their union the "United Food and Commercial Workers Union" filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The General Counsel of the NLRB issued a complaint against the company accusing it of violating the National Labor Relations Act (NLRA) [ the act is codified in the U.S. Code in 29 U.S.C. Sec.151 thru Sec.169] principally charging the company with the violation defined as "to refuse to bargain collectively with the representatives of his employees". The company then ran all the employees social security numbers through the Social Security Administration database and discovered that the majority of them were either from non-existent people or were other people's social security numbers so in the hearing in front of the Administrative Law Judge (ALJ) on the complaint the company argues the union election was invalid because the majority of voters were unauthorized aliens not legally permitted to be or work in this country so were not entitled to the protections of the NLRA because they did not fall within the definition of employee pursuant to the NLRA and in addition the NLRB was wrong in certifying one collective bargaining unit because the illegal immigrant workers cannot be in the same bargaining unit as legal workers. The ALJ rejected the company arguments, sustained the charges and ordered Agri Processor to bargain with the Union, the NLRB unanimously adopted the ALJ's recommendations. Agri-Processor then appealed to the Court of Appeals D.C. Circuit. A panel of three judges from the Circuit hears the appeal two judges affirm the ruling of the NLRB the third judge, Judge Kavanaugh dissents. The principle issue in this case is are unauthorized aliens considered employees as defined by the NLRA.. The backdrop for this case is important because the seminal case on this issue is the 1984 Supreme Court case Sure-Tan, Inc. and Surak Leather Company v. NLRB (104 S.Ct 2803) which found specifically that the term "employee" in the NLRB includes unauthorized alien employees. However, the catch is that in 1984 it was not illegal for U.S. employers to employ unauthorized aliens. It was only two years later, in 1986, with passage of the Immigration Reform and Control Act (IRCA) did it become illegal where U.S. employers that do such hiring face civil and criminal penalties. Enactment of IRCA thus raised a big issue did this law change the holding of the Sure-Tan case. After the Sure-Tan case, the U.S. Supreme Court never again addressed in a case this specific issue. After 1986 actually in 2002 the U. S. Supreme Court did address an unauthorized alien and the NLRA Act in the case of Hoffman Plastic Compounds, Inc. v. NLRB (122 S.Ct. 1275) but it was a different issue; the issue was whether an unauthorized alien was entitled to backpay. Backpay is a common issue in "collective bargaining" cases the issue arises like this an employee engages in union activity or is a leader in such an activity and the employer fires the employee over the activity and this violates the NLRA so the NLRB or a Court orders the reinstatement of the employee to employment and the employer to pay the employee backpay from the date he was terminated until his or her reinstatement. In the Hoffman case the Supreme Court held that unauthorized aliens could not get back pay because under the IRCA it was unlawful for them to work in the United States! In the Agri Processor case the majority held that the holding in Sure-Tan is not changed by the enactment of IRCA the holding being that "unauthorized aliens" are employees within the meaning of that term for the NLRA. The majority focused on applying fundamental statutory principles in interpreting the IRCA. The majority found that there was no explicit or implicit change in the IRCA law to remove "unauthorized aliens" from the group of employees considered employees for the NLRA. "To begin with, nothing in IRCA's text alters the NLRA's definition of employee" (page 3). Did IRCA implicitly repeal "unauthorized aliens" from the NLRA definition of employee? No says the majority, applying the first rule of statutory construction "where two statures are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary to regard each as effective" (p3) there is no implicit change both statutes NLRA and IRCA can coexist they both can be given effect without any obstruction to the other. Another rule of statutory interpretation the majority applied was "Courts should not infer that one stature has partly repealed another unless the later statute expressly contradicts the original act or unless such a construction is absolutely necessary in order that the word of the later stature shall have any meaning at all". The majority found that "Neither condition is even arguably met here. Because IRCA nowhere states that undocumented aliens no longer qualify as employees under the NLRA it does not expressly contradict the original act. And IRCA has meaning with our being read as partly repealing the NLRA: it prohibits employers from hiring undocumented aliens, which would otherwise be legal". The last rule of statutory interpretation the court applied was "amendments by implication , like repeals by implication, are not favored, ----- and will not be found unless an intent to repeal (or amend) is clear and manifest". The majority referenced two areas of the Congressional Record on the law a committee report from the House Judiciary Committee and a committee report from the House Education and Labor Committee where just the opposite was conveyed as Congress's intention on the law that being that the existing law of the NLRA in regards to unauthorized aliens is not to be disturbed by this law. Judge Kavanaugh dissented in the case and found that unauthorized aliens are not employees for the purposes of the NLRA. The problem with Judge Kavanaugh opinion is he did not follow the law on this issue as recognized in the Sure-Tan case. Following the law for a Circuit Court appellate Judge means not only following the holding in a Supreme Court Cases but also the reasoning behind that holding; it means no distorting no picking and choosing what part of the reasoning you want to consider. In this case the Agri Proccessor case Judge Kavanaugh in his opinion distorted and misstated the reasoning behind the holding in the Sure-Tan case. Judge Kavanaugh in his opinion repeatedly said the Sure-Tan Court "stated that the NLRA's definition of employee 'depends' on whether Congress prohibits employment of illegal immigrants" and so held that an "illegal immigrant worker is not an employee under the NLRA because Congress (thru IRCA in 1986) has now made it illeggal for illegal immigrants to be employed". Judge Kavanaugh here is distorting and disregarding the law in the Sure-Tan case. In the Sure-Tan case the Supreme Court found unauthorized aliens to be employees for the purpose of NLRA for three primary reasons. First, because of the plain meaning of the statute, in the NLRA definitions section it essentially defines "employee" as any employee and then goes into a list of exclusions like agricultural laborers, independent contracts, supervisors, etc. and since "unauthorized aliens" wasn't an excluded group the S.C. ruled it included. Secondly, finding "unauthorized aliens" included is consistent with and furthers the purpose of the NLRA which is to encourage and protect the collective bargaining process meaning if you didn't find this way you would have businesses with this sub-class of employees comprised of unauthorized aliens with substandard wages, benefits and working conditions and it would undermine the efforts of legal workers in the union to get fair treatment in these areas. Thirdly, the S.C. found that Congress gave the task of defining employee in specific cases to the NLRB so the Courts should show deference to the Board and uphold any of their decisions in this area which is reasonably defensible which inclusion of unauthorized aliens is. The S.C. in the Sure-Tan case never said that the definition of employee was "dependent" on U.S. immigration laws. How America's immigration laws came into play in the Sure-Tan case is that the S.C. acted like any good appellate court trying to resolve a legal issue pertaining a specific statute they first went to the specific statute and determined how that statute resolved the issue "then" they look to other U.S. laws that have a bearing on this legal issue to see if there is any conflict between the interpretation of the specific statute and the other relevant statute. The subject of America's immigration laws came up because the S.C. was trying to see if there was a conflict between its interpretation of the NLRA on this employee definition issue and America's immigration laws embodied in the Immigration and Nationality Act (INA). The S.C. never found any dependency or direct linkage between these subjects in regard to this definition issue; Judge Kavanaugh's interpretation that they did is just flat out wrong he is not following the Supreme Court's ruling here in Sure-Tan he is making up his own ruling here. To get back to the Sure-Tan case the Supreme Court held that their was no conflict there between its interpretation of the NLRA and INA because although the INA dealt with trying to control and stop illegal immigration into the U.S. it did not make illegal employers hiring and employing illegal immigrants. The Supreme Courts focus on this point of the lack of illegality in undocumented aliens being employed in the U.S. was just a common sense straight forward logical way of disposing of the conflict issue certainly if Congress in the INA did not see it as illegal undocumented aliens being employed in the U.S. Congress could not see it as illegal the smaller issue of allowing them collective bargaining rights. The S.C. also dispatched this conflict issue between its definition of employee and the INA by saying that this definition is consistent with the purpose of the INA because the purpose of the INA in restricting immigration into the U.S. is to preserve jobs for American citizens and this Courts finding that the NLRA covers illegal immigrants means that there is no incentive for America's employers to hire illegal immigrants which there would be if such workers were not entitled to collective bargaining rights and so its ruling is protecting American jobs and discouraging illegal immigration by cutting down the demand for illegal immigration employment in the U.S.. In the Agri Processor case Judge Kavanaugh was flagrant in his disregard for the Supreme Court law as set out in the Sure-Tan case. This was evidenced in his opinion when he wrote "The (Sure-Tan) Court then held that illegal immigrant workers were employees covered by the NLRA because -------- the immigration laws as they stood in 1984 did not prohibit employment of illegal immigrant workers. 467 U.S. 892" Justice O'Connor in the Sure-Tan case never wrote that, that citation is just plain wrong. Judge Kavanaugh distortion of the Sure-Tan holding is huge and alarming he takes the S.C. holding that there is no conflict between the courts defining of "employee" for the NLRA and the INA and comes up with the conclusion that the Supreme Court found that the definition depends on U.S. immigration law specifically whether it is lawful or not for undocumented immigrants to work in the U.S.. This is bad and faulty legal analysis in the extreme Senators should really be troubled about an appellate judge that produces such analysis it is so off the mark one should really wonder if you could trust such a Judge in interpreting the holdings of prior cases which is a significant part of an appellate court judge's job! What is it with this "Code of Silence" with Republican Senators about Judge Kavanaugh's work product? What is it with their refusal to acknowledge the truth that in some major cases of Judge Kavanaugh he failed to follow the law he behaved like an activist Judge. In the Seven-Sky case, Judge Kavanaugh's Affordable Care Act case, in the Garza case, Judge Kavanaugh's Abortion case and now in the Agri Processor case, Judge Kavanaugh's Illegal Immigration case Judge Kavanaugh did not follow the law he behaved as an activist Judge. Watching the caucus of Republican Senators and their actions on the Judge Kavanaugh nomination I think I am watching the movie "Serpico" with Al Pacino where he played the NYPD cop Frank Serpico trying to expose massive corruption in the NYPD in the 1960's where the evidence of corruption was overwhelming but officials in the NYPD wanted to just sweep it under the carpet there was a big "code of silence" about the rampant bribe taking amongst the staff of the NYPD. This "code of silence" amongst Republican Senators about Judge Kavanaugh's work product, the legal opinions he wrote, is surreal its rather unbelievable it is their fundamental duty to evaluate Judge Kavanaugh's cases to see if there is anything there which would make him unsuitable to be placed on the Supreme Court. There is huge red flags there three in the aforementioned cases. The unrefutable truth is that Judge Kavanaugh is an activist Judge when doing so serves his purpose and this part of his make-up makes him unsuitable for a job on the Supreme Court. Judge Kavanaugh is such a bad candidate for the Supreme Court from this standpoint that if the Republicans confirm him to the Supreme Court they will have lost all credibility to complain about activist Judges being placed on the Supreme Court by Democrats for a hundred years!