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.