Opinion

Union's Supreme Court case threatens key organizing tool

Longstanding framework for labor-employer relations may be criminalized

November 19, 2013 8:30AM ET
Kennedy and Ginsburg
US Supreme Court Associate Justice Anthony M. Kennedy (L) and Associate Justice Ruth Bader Ginsburg participate in the courts official photo session on October 8, 2010 at the Supreme Court in Washington, DC.
Tim Sloan/AFP/Getty Images

On Nov. 13 in oral arguments before the U.S. Supreme Court, Justice Anthony Kennedy asked the first question in an important case about labor practices. He began by prodding the lawyer for the petitioner, a union, to define "property."

Employers have used traditional notions of property to deny workers the right to organize, the right to work free from discrimination and the right to demand a greater share of productivity. This first question by Kennedy, the justice who wields the court's swing vote, confirmed that the union had entered hostile territory.

Before the case, UNITE HERE Local 355 v. Martin Mulhall et al., reached the Supreme Court, the 11th U.S. Circuit Court of Appeals ruled that neutrality agreements — a common feature of agreements between unions and employers since at least the 1970s — may violate a criminal provision of the 1947 Labor Management Relations Act, also known as the Taft Hartley Act. The union, UNITE HERE Local 355, appealed to the Supreme Court to overturn this judgment. The attempt, as Kennedy's first question confirmed, was likely foolhardy.

In neutrality agreements, the employer typically promises to remain neutral during a union's organizing drive. The employer further promises to card-check, which means that it will recognize the union if a majority of employees sign cards indicating they desire union representation. Card-check allows the union and employer to bypass the National Labor Relations Board (NLRB) election process, which can be filled with pitfalls for the union. The employer may also allow union representatives access to nonpublic areas during nonwork hours, provide lists of employees and agree to other terms that are useful in an organizing campaign. Agreements vary, but usually these core provisions are included.

In exchange, the union usually agrees not to boycott, strike or take other economic actions against the employer. Studies have found that when such agreements are in place, employees are able to organize a union 78 percent of the time, compared with 46 percent when the NLRB holds an election. Furthermore, after union recognition, employees are able to negotiate a first contract — which is the ultimate goal — in almost 100 percent of campaigns that have such agreements, compared with approximately 60 percent after a successful NLRB election. Therefore these agreements are certainly valuable to workers and unions.

The Supreme Court, however, has been asked to determine whether such agreements meet the statutory definition of a "thing of value" — i.e., a form of property — that one can "pay, lend or deliver."

In the case at issue, UNITE HERE Local 355, a union of hotel, casino and airport workers, had a neutrality agreement in place with Mardi Gras Gaming, which owns a casino and greyhound racetrack in Hallandale Beach, Fla. After the union fulfilled its part of the agreement by spending approximately $100,000 in a campaign to pass a local initiative aimed at expand gaming facilities — a benefit to both the employer and the union — Mardi Gras violated its side of the agreement by refusing to provide the union with employee information.

In 2008 the National Right to Work Legal Defense Foundation (NRTW), a conservative nonprofit organization that often bankrolls anti-union litigation, helped Mardi Gras employee Martin Mulhall file a lawsuit alleging the neutrality agreement violated Section 302 of the Taft Hartley Act. Under that section, it is a criminal act for an employer "to pay, lend or deliver ... any money or other thing of value" to a labor union that seeks to represent its employees. The section was intended to curb perceived corrupt practices in unions, like bribery of union officials, and has long been limited to such actions. There is scant evidence that this provision was intended to prevent neutrality agreements.

Even under the best circumstances, the Supreme Court has regularly misinterpreted the history and purpose of federal labor laws.

The argument before the Supreme Court is not new either. It was attempted in the 3rd and 4th circuit courts — once on behalf of the employer in the suit and later by an aggrieved employee represented by the NRTW. It failed both times.

Therefore, as the case stood prior to this Supreme Court hearing, two circuit courts held in broad language that neutrality agreements were always legal, and one circuit court held that some neutrality agreements may be illegal. The union should have let the 11th Circuit's reading of the law — however flawed — stand on its own because it likely would not have had any practical effect. In a split decision, the 11th Circuit held that there is no absolute exemption from Section 302 for such agreements and that "innocuous ground rules can become illegal payments if used as valuable consideration in a scheme to corrupt a union or extort a benefit from an employer." The union could have let the decision stand and still won the case by arguing that there was no "scheme to corrupt." Instead, it foolishly petitioned the Supreme Court, currently dominated by conservatives, to get a stronger ruling in favor of neutrality agreements.

Even under the best circumstances, the Supreme Court has regularly misinterpreted the history and purpose of federal labor laws. In fact, it was the Supreme Court's 1992 Lechmere decision, drafted by Justice Clarence Thomas, that created the increased need for neutrality agreements by forbidding union organizers access to company property in most situations. Since the appointment of John Roberts to chief justice in 2005, the decisions have been the most pro-business of any Supreme Court since World War II. For that reason, it is not surprising that Mulhall and the NRTW agreed with the union to let the Supreme Court hear the case, even though Mulhall had already won on this issue at the lower court stage.

By appealing the case to the Supreme Court, UNITE HERE Local 355 has opened the door to an expansive decision that may radically limit future organizing. In the oral arguments, the NRTW attorney pushed the court to interpret the law broadly, such that employers are prohibited from providing a union any information, access or neutrality that unions may hold valuable in an organizing drive. If this attorney's vision is adopted, all employers faced with organizing campaigns would be forced into a more hostile relationship with unions. Employers could rarely cooperate, even when cooperation would primarily benefit them. Unfortunately, despite the fact that this effect would contradict the overarching purpose of U.S. labor law — harmony between employers and workers — this view may sway a critical number of justices on the court.

Justice Ruth Bader Ginsburg was perhaps the only one who recognized the union's mistake when she gave the union attorney a chance to argue why the court should not consider the case's merits. She pointed out that the agreement in question expired a year ago and there was no union election, so perhaps there was no live case at issue. Unfortunately, the union attorney forged ahead, flatly missing the cue.

Rich Yeselson, a political writer who worked in the labor movement for over 20 years, recently wrote in Democracy Journal that the Taft Hartley Act "codified a series of legal land mines that might explode in the face of unions at any time." The tenor of the oral arguments in UNITE HERE v. Mulhall suggests that Yeselson is correct about the law. However, perhaps the more obvious point needs to be stated: Unions should not risk stepping on land mines if they don't have to.

Moshe Z. Marvit is a fellow at the Century Foundation.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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