Among the most significant decisions of the Supreme Court this year was a case on which it decided not to rule: Unite Here v. Mulhall. After hearing the case on Nov. 13, the justices abruptly dropped it on Dec. 10, saying it had been a mistake to take it up in the first place — “improvidently granted” in legal speak.
That’s unfortunate because the case involves a serious, unresolved question of workplace law: Can labor organizations collude with management to railroad workers into being unionized? More specifically, where does cooperation end and bribery begin?
The notion of unions being created through grassroots workers organizing in Norma Rae fashion is increasingly outdated. Today, Big Labor regularly uses “top-down” strategies in which union leaders try to get management, not workers, to agree to unionization. Sometimes such efforts are preceded by scorched-earth public relations campaigns meant to get management to cry “uncle.” Ask Walmart for more details on that. Others are so-called “neutrality agreements” in which union leaders cut special quid pro quo deals with management. These bargains — some might call them "collusion" — can often leave the actual employees getting little in return.
Mulhall was the latter case. In it, Unite Here Local 355 spent $100,000 in 2006 to support a local ballot initiative favored by Mardi Gras Gaming, a Florida dog track and casino. To further sweeten the deal for the employer, the union agreed to a no-strike clause in any contract. In exchange, the company gave the union the contact information for its employees, among other assistance.
Martin Mulhall, a dog track employee, sued to stop his private number from being given to the union. A federal appeals court agreed that the information was a “thing of value” to the union and handing it over therefore violated the anti-bribery section of the National Labor Relations Act.
The case illustrates an inherent problem with labor law: It presupposes that unions always represent the interests of workers, but what if they don’t? Thanks to Mardi Gras Gaming’s deal with Local 355, its employees faced the prospect of being pressured to join a union that had already surrendered its strongest leveraging power on behalf of workers: the right to strike.
A dissenting appeals court judge stated flatly that such deals were legal even if they were crooked: “Even if the union has some other aim besides achieving collective bargaining rights (such as obtaining more members and dues without ever promoting the interest of the employees), such conduct implicates the union's duty to its members, not the collective bargaining process between the employer and the union.”
But during the Nov. 13 hearing, liberal Justice Sonia Sotomayor struggled with the issue: "Tell me how I deal with that niggling problem I have about the $100,000, because it does feel like a bribe to the employer," she said.
The case was apparently rejected on the basis of whether Mulhall had proper standing to sue. Whatever the reason, the court should not miss the next opportunity to address an area of labor law that cries out for clarity.