Today the Supreme Court will hear arguments on whether “neutrality agreements” are really just a bribe from the employer, and therefore illegal.
Scalia’s chance to smash unions: The huge under-the-radar case A Supreme Court case being argued Wednesday could take away a tactic that’s kept unions alive
Josh Eidelson, Salon, November 13, 2013
On Wednesday, the Supreme Court will hear arguments on an under-the-radar case that could deal a major blow to already embattled U.S. unions. As Harvard labor law professor Benjamin Sachs told the New York Times, the case now facing Antonin Scalia and company could be “the most significant labor case in a generation.” The case, Unite Here Local 355 v. Mulhall, involves the constitutionality of “card check neutrality agreements” between unions and companies they’re trying to organize. ….. “Because essentially all successful union organizing campaigns today are conducted” under “alternative ground rules,” professor Sachs wrote Tuesday, “the case could effectively outlaw union organizing (at, at least, outlaw effective union organizing).”
Supreme Court Enters the Union Battles
Source: Noah Feldman, Bloomberg, November 12, 2013
Fights over forming unions are hardball — which is why the decision process is more heavily regulated than almost any other act of association in American life. One popular technique favored by unions is to promise management something in exchange for a promise to stay neutral and even allow organizers access to the workplace. Now a federal appeals court has essentially banned these neutrality agreements, and the U.S. Supreme Court will hear arguments to decide whether a side deal between a union and management is a form of illegal bribery or just part of the game. …But even if neutrality agreements are not an option, unions won’t simply go away. Instead, they’ll employ the pressure tactics legally available to them, including picketing. In short, unions will try to impose costs on management in the hopes of coercing employers to back down. The two sides just won’t be able to negotiate a deal ex ante — before the unionization fight takes place. Some employers might therefore actually prefer to have the option of signing a neutrality agreement that would spare them the cost of union efforts and buy them something in return, such as Unite Here’s support of a gambling initiative. The case can’t really be resolved on legal language alone. Sure, a neutrality agreement has “value” to the union — that’s why it’s part of the negotiation. So the company probably wins on literal meaning divorced from context. And yes, the Taft-Hartley Act probably had in mind more ordinary forms of bribery, like Cadillac cars, when it prohibited “delivery” of “a thing of value.” So the union should win on original legislative intent. Each side therefore has a plausible statutory argument. …