The U.S. Supreme Court has decided not to rule on whether it’s illegal for a nonunion employer to let union organizers talk to employees, or for a union to ask for that. The very question may seem bizarre to those familiar with U.S. labor law, but it stems from a novel legal argument by the anti-union National Right To Work Legal Defense Foundation. In the case UNITE HERE Local 355 v. Martin Mulhall, the group argued that certain elements of what have come to be standard “union neutrality agreements” are in fact illegal. Letting union organizers on the property, giving them a list of employees, and agreeing not to disparage the union, the group argued, amount to giving a “thing of value” to the union, and thus violate an anti-bribery provision in the labor law. That provision makes it a crime for an employer “to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value” to a labor union that represents or seeks to represent its employees.
Incredibly, the 11th U.S. Circuit Court of Appeals agreed with the group’s argument, ruling in effect that it would be a criminal offense for an employer to agree to let union organizers on their property. The 11th Circuit Court of Appeals decides federal cases in Alabama, Georgia and Florida. But its ruling contradicted previous rulings by other Circuit Courts of Appeals. So earlier this year, the Supreme Court agreed to hear an appeal of the 11th Circuit’s decision, and the two sides presented oral arguments on Nov. 13.
The case originated from an agreement between UNITE HERE Local 355 and Mardi Gras Gaming. Under the agreement UNITE HERE promised to spend $100,000 to support a Florida ballot measure legalizing slot machines at racetracks. In return, casino owners, including Mardi Gras, promised to adhere to the union neutrality provisions. Such “neutrality agreements” are a way to sidestep the traditional union election process, which union organizers say can be cumbersome and conflict-ridden. UNITE HERE made good on its pledge, and the ballot measure passed narrowly. But Mardi Gras reneged on its promise of neutrality. The union sued to enforce the agreement. Then the National Right To Work Legal Defense Foundation sued on behalf of anti-union Mardi Gras employee Martin Mulhall, arguing that the agreement itself was illegal.
But on Dec. 10, the Supreme Court changed its mind about whether the Court should rule on the case. The Court didn’t explain why it’s dropping the case, but Supreme Court Justice Stephen Breyer disagreed with that decision, and so did justices Sonia Sotomayor and Elena Kagan. In his written dissent, Breyer suggests that the case was dropped for technical grounds —that Mulhall may not have proper legal standing to sue (anti-bribery provisions are enforced by the federal government, not by private lawsuits), and also that the agreement in question may be moot because it was set to expire at the end of 2011.
The decision to drop the case means that for now, the 11th Circuit Court ruling stands — for Alabama, Georgia, and Florida.
Breyer wrote that unless the Supreme Court resolves the issue, the differences among the Courts of Appeals could negatively affect the collective-bargaining process. “The Eleventh Circuit’s decision raises the specter that an employer or union official could be found guilty of a crime that carries a five-year maximum sentence,” Breyer wrote, “if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to ‘corrupt’ or ‘extort.’”
