Shaping the Law
Bredhoff & Kaiser has a longstanding national reputation for advancing the interests of workers and worker organizations in the Supreme Court and courts of appeal. Our appellate practice dates back to the firm’s origins seven decades ago as a three-member appellate shop whose lawyers argued and crafted the legal theories adopted in by the Supreme Court in the landmark Steelworkers Trilogy—three cases decided on the same day in 1960. The Trilogy rejected a series of lower court rulings that had enabled employers to avoid the consequences of arbitral processes that they had voluntarily agreed to in collective bargaining. Other historic Supreme Court cases argued by Bredhoff lawyers are recounted on the Bredhoff History page.
Our appellate practice continues to thrive.
In the Supreme Court, Bredhoff lawyers have in recent years represented parties at both the merits and certiorari stages in many cases, including briefing and arguing M&G Polymers USA, LLC v. Tackett, 574 US 427 (2015), which addressed the interpretive principles applicable to collective bargaining agreements in the context of contract clauses providing health benefits to retirees. We have been retained on multiple occasions in recent years, including in cases in which we had no prior involvement, to draft briefs in opposition to certiorari. We also regularly are asked to draft amicus briefs before the Court. Examples of recent Bredhoff-authored Supreme Court amicus briefs can be found here and here.
A highlight of our practice in the federal courts of appeal has been our success in briefing and arguing almost a dozen cases—in five different circuits—involving several novel legal issues arising out of efforts by anti-union forces to weaken public sector labor unions in the wake of the Supreme Court’s June 2018 decision in Janus v. AFSCME Council 31. Janus overturned a 1977 Supreme Court decision that had upheld laws permitting public sector unions to collect fair-share fees from nonmembers if the fees were spent on services benefiting all represented employees, including nonmembers. Among the issues we have litigated are whether private parties sued as state actors under an 1870s-era civil rights law may assert a “good faith” defense against damages liability, whether the longstanding American system of union “exclusive representation” in labor relations is consistent with the First Amendment, and whether unions can, consistent with the First Amendment, make and enforce contracts with their members by which dues commitments are not revocable at will but extend for a fixed period of time (typically one year).
In the same 2018-2021 period in which he handled almost a dozen post-Janus appellate cases, we handled another dozen cases on a wide variety of other issues in federal courts of appeal and state supreme courts.
Our appellate practice includes many cases where we are retained for the first time at the appellate stage and others where we are retained at the beginning of important cases, such as the post-Janus cases, that raise legal questions of first impression likely to be the subject of an appeal. Because we have a flourishing trial court practice, we are well positioned to litigate thoroughly and properly the fact issues arising in these high-impact cases as well as address the novel legal issues. For example, the Care One case, described on the Trial Court page, required extensive fact development and presented legal issues of vital importance to our clients and the broader labor movement, many having serious First Amendment implications. Bredhoff, after handling the trial-court work, briefed and argued the Third Circuit appeal as well.
In addition to the cases described above, recent examples of appellate litigation include:
- Representing thousands of government employees who were forced to work for weeks without receving any paychecks during a federal government shutdown and who are seeking statutory liquidated damages under the Fair Labor Standards Act as compensation for the delay in receiving their paychecks. Multiple cases were consolidated for appeal, and we were the primary authors of the consolidated brief before the Federal Circuit.
- Representing a union against an employer in an appeal by the employer from an NLRB decision awarding reinstatement and backpay in favor of employees discriminated against for their union activism.
- Representing multiple groups of employees on appeal, in conjunction with their trial counsel, in several federal class action cases brought under ERISA to secure pension benefits wrongfully withheld from the employees by their employer or employer-sponsored benefit plan. In one such case, Laurent v. Pricewaterhousecoopers LLP, 945 F.3d 739 (2019), we first secured the reversal of a district court opinion that had held that benefit plan participants could not sue to obtain the reformation of illegal terms in a plan document, and we then successfully helped to keep the case out of the Supreme Court after the Court had requested the views of the Solicitor General.
- Representing a union in its capacity as employer in a defamation case brought by a former senior union official who was terminated for mistreating subordinates. The appeal involves constitutional issues as well as issues concerning the scope of the defamation tort.
- Representing a pension fund for bakery workers in an appeal raising a question of first impression under the federal Pension Protection Act. The Fourth Circuit held that an employer cannot avoid its obligation under that Act to make contributions to a defined benefit pension plan on behalf of new hires through the tactic of declaring an impasse in negotiations with the union and implementing terms that put new hires in a 401(k) plan instead of in the pension plan.