The Supreme Court’s decision to hear a challenge to President Obama’s “recess” appointments to the National Labor Relations Board, which he made while the Senate was in pro-forma session, got considerable media attention last week (National Labor Relations Board v. Noel Canning). But that isn’t the only major labor case the Court will soon be hearing. It also agreed to hear Unite Here Local 355 v. Mulhall, which has received much less attention but could have a significant impact on how unions may organize workplaces.
The case stems from a lawsuit brought by Martin Mulhall, an employee of Hollywood Greyhound Track, doing business as Mardi Gras Gaming, in Hallandale Beach, Florida, with assistance from the National Right to Work Legal Defense Foundation. In his suit, Mulhall, who did not want to join the union, challenged the legality of a 2004 agreement between his employer and the union trying to organize him and his colleagues, UNITE HERE.
Under that agreement, Mardi Gras Gaming would give UNITE HERE access to workplaces during non-work hours and remain “neutral” during the organizing drive. That meant that employees would hear only the union’s case for joining it, without any company representatives making the case against. The company would also provide the union with a list of its employees, including their departments, job classifications, and addresses.
Why would an employer agree to such an arrangement? In most organizing campaigns, a company’s management agrees to a so-called neutrality agreement in exchange for a union ceasing its attacks upon the firm through an organizing tactic known as a corporate campaign. Most neutrality agreements contain a card-check provision, whereby the employer agrees waives the right to call for a secret ballot organizing election and instead agrees to recognize the union once it gathers signed union cards from a majority of employees in the intended bargaining unit. Cards are signed openly and in the presence of union organizers, which exposes workers to high-pressure tactics which secret ballots are intended to avoid. (The misleadingly named Employee Free Choice Act, which failed in 111th Congress, would have allowed unions to circumvent secret ballot elections through card check essentially whenever they chose.)
In the Mulhall case, however, the company got something different — a sweet deal from the union, which “agreed to refrain from picketing, boycotting or striking, against Mardi Gras so long as it was recognized as the sole bargaining agent for Mardi Gras’s employees. It also agreed to financially support a ballot initiative on casino gaming, spending more than $100,000 campaigning for it,” reports The Wall Street Journal. Mulhall’s legal challenge alleges that, in exchange for this favorable treatment from UNITE HERE — in effect, insurance against strikes and future organizing efforts from other unions — Mardi Gras Gaming gave the union “something of value” — a list of its employees.
Martin Mullhall deserves to prevail, because no one should be forced to join a union, or any other organization, and pay dues to it against his or her will. But the fact that he had to resort to court to defend his right of free association highlights a greater problem that affects millions of workers in 26 states — unions’ ability, under the National Labor Relations Act, to require workers to join and pay dues (or for those who don’t wish to join, “agency fees” in lieu of dues) as a condition of employment.