In a surprise move, Supreme Court justices today rejected hearing the case of Unite Here Local 355 v. Martin Mulhall, a major case involving whether certain union organizing campaigns that involve agreements between labor leaders and employers are tantamount to bribery. The decision leaves intact a lower court ruling on the issue.
In a one-sentence notice, the justices dismissed the case as "improvidently granted," meaning they shouldn't have agreed to hear it in the first place. Legal analysts had earlier noted that it was not clear that the plaintiffs had the proper standing to bring the case to the high court.
The decision leaves intact an 11th U.S. Circuit Court of Appeals ruling that found that a union's deal with a Florida business to get the contact information for its employees violated labor law since the names and addresses were a "thing of value" to the union.
In the case, a Unite Here local agreed in 2004 to campaign for the passage of a local gambling ballot initiative favored by Mardi Gras Gaming, a Sunshine State dog track and casino. In exchange, the company would turn over the employee information and otherwise not oppose organizing its employees. Martin Mulhall, an employee at the track, objected to his information being given away. For more on the case, see my July column.
The case was significant because the union's tactic of striking a deal with management is a fairly common one in labor organizing, known as a "top-down" campaign. Should Unite Here have lost, it would have made such campaigns a legal minefield for unions.
It may still, noted Harvard Law School professor Jack Goldsmith on his blog:
"Justice Breyer notes that the dismissal of Mulhall leaves [the lower court] opinion in place, and that decision 'raises the specter that an employer or union official could be found guilty of a crime that carries a 5-year maximum sentence ... if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to 'corrupt' or 'extort.' ' I don't think this last part is quite right, at least in the short term, since it is inconceivable that the Obama administration would prosecute. ... However, as long as [the] decision stands, the specter of expensive and difficult litigation will hover over neutrality/bargaining agreements in many circuits, and will indeed chill the making of those agreements."
Mark Mix, president of the pro-business National Right to Work Committee, which represented Mulhall, agreed, touting the dismissal as a success: "We're happy to report that the Eleventh Circuit's ruling will stand, limiting the potential for backroom deals between union organizers and company officials. Management shouldn't be allowed to turn over employees' personal information to aggressive Big Labor organizers as a negotiating tactic."
Unite Here didn't see it that way. In a statement to the Washington Examiner, spokeswoman Annemarie Strassel said the union was "satisfied with the Court's disposition of the Mulhall case. It is clear that if the [Supreme] Court had thought that neutrality agreements were criminal, as the plaintiff alleged, it would have proceeded to consider the merits."
Strassel added: "Very significantly, the dissent in Mulhall shows that the Court believes that cases like this may not even be brought in the first place -- that employees do not have the right to sue to challenge the legality of neutrality agreements. That should put an end to the National Right to Work Foundation's project of finding employees to front for its attacks on these agreements."