By Stephen R. McCutcheon, Jr., Attorney at Law
Campaigns to organize companies are often highly contentious and difficult, especially where the employer or employees oppose entry of the union. In response, unions often use a top-down organizing model in which the union convinces the employer to agree to remain “neutral” in the election, and provide the union with access to its property and the names and contact information of the employees the union seeks to organize. These “neutrality agreements” are not without controversy, and have been challenged as violating Section 302 of the Labor Management Relations Act which prohibits employers from giving any “thing of value” to a labor union that represents or seeks to represent its employees. As they are often preceded by a “corporate campaign” in which the union uses publicized protests, media efforts, and political leverage to pressure the employer to sign the agreement, neutrality agreements can be viewed assomething quite valuable to the union.
In UNITE HERE v. Mulhall, the plaintiff challenged such an agreement between UNITE HERE Local 355 and Mardi Gras Gaming, under which the employer agreed to remain neutral on the organizing campaign, give union organizers access to its property, and information about the employees. The union also agreed to help pass a gambling ballot initiative and promise not to initiate strikes.
The Eleventh Circuit Court of Appeal held that this agreement violated the Labor Management Relations Act. In contrast, other Circuit Courts of Appeal had disagreed that similar neutrality agreements did not violate Section 302, creating a conflict in the courts.
The United States Supreme Court agreed to hear the case. However, after the briefing was complete and the parties argued the case the Supreme Court had second thoughts about whether the case was appropriate for its review. On Monday, December 10, 2013, the United States Supreme dismissed the case as improvidently granted. The court did not explain its decision to dismiss the case, but a dissent written by Justice Stephen Breyer and joined by Justices Sonia Sotomayor and Elena Kagan suggests that a majority of the court believed that the case was moot as the challenged agreement had expired at the end of 2011, or that the plaintiff lacked standing to pursue his claims.
This leaves the courts in a state of conflict, and unions and employers must be cautious about entering into neutrality agreements until an appropriate case is heard by the Supreme Court as such agreements may violate the Labor Management Relations Act and expose employers or union officials to criminal prosecution if the circumstances suggest bribery or extortion.