U.S. Supreme Court hears challenge to union neutrality agreements
By DON McINTOSH
Associate Editor
Union-employer agreements that
make it easier for workers to unionize
are under attack from an anti-union
group — in a case heard by the U.S.
Supreme Court Nov. 13. In the case,
UNITE HERE Local 355 vs. Mulhall,
the anti-union National Right to Work
Legal Defense Foundation is arguing
that the so-called union “neutrality”
agreements violate federal labor law.
Neutrality agreements have be-
come standard practice for unions like
UNITE HERE and Service Employ-
ees International Union (SEIU).
They’re an alternative to certifying a
union through an election — a
process that can be very stacked in the
employer’s favor. Employers use legal
maneuvers to delay union elections
and then pressure workers to vote no
in mandatory-attendance anti-union
presentations and in one-on-one meet-
ings with managers. In the standard
neutrality agreement, an employer lets
union representatives communicate
with workers, pledges not to oppose
worker efforts to unionize, and agrees
to recognize a union if a majority of
workers sign cards requesting that (a
process known as “card check”.) Em-
ployers typically do that either to
avoid a campaign of negative public-
DECEMBER 6, 2013
ity from the union, or in exchange for
union support for some business goal,
like more public funding of nursing
homes.
The Mulhall case started with a
neutrality agreement between Florida-
based UNITE HERE Local 355 and
Mardi Gras Gaming, which operates a
greyhound race track near Miami. In
2004, Florida UNITE HERE prom-
ised $100,000 in support of a
statewide referendum to allow slot
machines at dog racing tracks in
Broward and Miami-Dade counties.
In exchange, casino operators signed
neutrality agreements. The measure
passed by 50.8 percent, and UNITE
HERE moved to unionize the casinos.
Under the neutrality agreement,
Mardi Gras was supposed to give the
union limited access to company work
premises, provide a list of workers,
with their addresses, and voluntarily
recognize Local 355 if a majority of
its workers signed authorization cards.
But Mardi Gras reneged on the deal.
UNITE HERE sued to enforce the
agreement.
Then Martin Mulhall, a grounds-
keeper at the race track sued, repre-
sented by William Messenger of the
National Right to Work Legal Defense
Foundation, arguing that the neutrality
agreement itself was illegal. Under
Section 302 of the National Labor Re-
lations Act, it’s illegal for an employer
to pay, lend, or deliver “things of
value” to a union. The intent of that
section is to prevent employers from
bribing unions. But Messenger argued
that access to employer premises and
a list of employees were things of
value, and for an employer to agree to
give them to a union should be con-
sidered a federal crime.
Incredibly, the Eleventh U.S. Court
of Appeals agreed. UNITE HERE
then appealed, joined by the U.S. De-
partment of Justice, and the Supreme
Court agreed to hear the case.
It’s always hard to predict how a
court will rule, but in the Nov. 13 oral
argument, Messenger’s logic drew
fierce questioning from justices Elena
Kagan, Ruth Bader Ginsberg, An-
thony Kennedy and Stephen Breyer.
“Let’s just say that there was an
employer,” Kagan said. “This em-
ployer said, you know, I think that my
employees should have a right to lis-
ten to you and to decide for them-
selves whether they want to be repre-
sented by — by the union, so I'm
inviting the union onto my premises.
Just simple as that. You’re saying that
the employer cannot do that.”
“That’s correct,” Messenger
replied.
NORTHWEST LABOR PRESS
“So this is to say that the National
Labor Relations Act prohibits em-
ployers from providing access to their
premises, from granting a union a list
of employees, or from declaring itself
neutral as to a union election.”
“Yes,” Messenger replied.
“Do you acknowledge that your
answer to Justice Kagan is contrary to
years of settled practices and under-
standings?” Justice Anthony Kennedy
interjected.
Even conservative Justice Antonin
Scalia was drawn in. “What if the em-
ployer does not oppose the union, he
neither speaks against it nor for it? Is
that giving something of value to the
union?
“If he agrees to do so,” then yes,
Messenger replied.
Kagan pointed out the law says
seven days after an election is sched-
uled, an employer has to make avail-
able to the union an employee list.
Kagan “So you're suggesting that if
the employer gives it six days after,
that’s not only not required, that’s for-
bidden?”
Deputy Solicitor General Michael
Dreeben argued for the Department of
Justice that the purpose of the Na-
tional Labor Relations Act is to en-
courage collective bargaining. Sec-
tion 302 was intended to prevent
employers bribing unions; it’s not in-
tended to prevent employers from
making agreements that further the
purpose of the Act, namely collective
bargaining.
Conservative Justice John Roberts
took the opportunity to ask Dreeben if
he would agree that card check is
more coercive than secret ballot: “The
union organizer comes up to you and
says, well, here’s a card. You can
check I want to join the union, or two,
I don’t want a union. Which will it be?
And theres a bunch of your fellow
workers gathered around as you fill
out the card.… and he’s a big guy.”
“Some would argue that employers
also have big guys,” Dreeben replied.
“And it’s very coercive to have your
employer in there on the factory floor
reminding employees daily that
they’re very anti-union and that there
are a lot of costs to joining a union.”
2-1-1 can be a lifesaver
2-1-1 is an easy to remember tele-
phone number that connects callers to
information about critical health and
human services available in their com-
munities. In Oregon, it is run by
211info, in partnership with United
Way. It can be accessed online at
www.211info. org.
PAGE 11