Supreme Court punts decision on union-organizing strategy

In a surprising, one-line opinion today, the Supreme Court wrote that it had “improvidently” agreed to hear a case from the U.S. Court of Appeals for the 11th Circuit regarding card-check neutrality, a popular organizing strategy used by unions across the country. Although the Court heard oral arguments on the merits of the case, Unite Here Local 355 v. Martin Mulhall and Mardi Gras Gaming, on Nov. 13, it apparently concluded upon further review that the case was not ripe for decision.

As Al Jazeera America reported prior to oral argument, the litigation concerned the legality of “neutrality agreements” concluded between unions and private employers to set ground rules for workplace unionization efforts. Such agreements are often paired with “card check,” a signature-based alternative to a yes-no union vote. The 11th Circuit ruled that the types of promises and information exchanged in neutrality agreements are impermissible “things of value” prohibited by an anti-corruption labor statute, hamstringing unions reliant on the strategy of card-check neutrality.

Justice Breyer, joined by Justices Kagan and Sotomayor, authored a dissent stating that the Court should have requested additional briefing on two “antecedent” questions: whether the case was moot — because the agreement in question had expired — and whether Martin Mulhall, the plaintiff, lacked standing — because he had opted out of the union anyway. The Workplace Prof Blog noted, “The dissent would have preferred that the Court rule on these questions and, if either apply, vacate the Eleventh Circuit's decision to remove any precedential value.” Justice Breyer also raised the question of whether the anti-corruption statute at hand permits individuals for filing “private rights of action.”

The Court’s inaction leaves the 11th Circuit decision in tact and preserves a split in authority: The 3rd and 4th Circuits have explicitly ruled that neutrality agreements do not violate anti-corruption laws. Both the National Right to Work Legal Defense Foundation (NRTW), which represented plaintiff Mulhall and the Mardi Gras Casino, and Unite Here Local 355, the South Florida service workers’ union, read today’s decision positively.

“Because the 11th Circuit opinion stands, at least in Georgia and Florida, workers are still protected from these agreements,” said Bill Messenger, the NRTW lawyer who argued the case before the Supreme Court. He said that his group will continue to litigate the legality of card-check neutrality.

A press release issued by Unite Here stated, “It is clear that if the Court had thought that neutrality agreements were criminal, as the plaintiff alleged, it would have proceeded to consider the merits. Very significantly, the dissent in Mulhall… should put an end to the National Right to Work Foundation’s project of finding employees to front for its attacks on these agreements.”