Court ‘non-ruling’ could risk cooperative labor relations

Bill Knight column for Thurs., Fri., or Sat., Jan. 2, 3 or 4

A recent U.S. Supreme Court ruling not to decide an important labor issue could put at risk efforts that unions and management have engaged in for years to work together on common interests, from in-house Quality of Life committees to community organizations such as labor-management councils.

The Supreme Court on Dec. 10 in a 6-3 vote let stand a lower court ruling that outlaws card-check recognition, company neutrality in organizing efforts, and even the long-established requirement that employers, through the National Labor Relations Board (NLRB), give names and addresses of workers to unions that gather enough signatures to seek a recognition election.

The court’s non-ruling action is limited to Alabama, Florida and Georgia.

At issue is a neutrality agreement between Unite Here Local 355 in Florida and Mardi Gras Gaming, a circumstance in which an employer lets employees decide whether or not to organize as a union without coercion or retaliation from the company. One anti-union worker, Martin Mulhall, objected to it and also the employer’s agreement to recognize the union as exclusive bargaining agent if a majority of workers signed cards requesting it. For its part, the union agreed not to strike and to support a ballot initiative about gambling, which the Mardi Gras Gaming racetrack backed.

Mulhall’s case was supported by the anti-union National Right to Work Foundation.

The consequence for the moment is that card check, company neutrality and access to names and addresses – called the “Excelsior List” – are now legally “things of value,” that is, illegal benefits from firms to unions under the Taft Hartley Act. But, again, for the time being only in Alabama, Florida and Georgia.

If ultimately successful nationwide, the attempt to judicially outlaw card-check recognition, company neutrality during organizing, and even the right to job-site access if the firm agrees to it “would criminalize a large swath of ordinary, voluntary labor-management relations,” said AFL-CIO general counsel Craig Becker, who used to serve on the National Labor Relations Board. “The implications are really sweeping.”

Supreme Court dismissals like this happen rarely. It’s happened an average of twice a year since the 2005 beginning of the Roberts Court – the most business-friendly Supreme Court since the 1940s, according to research in Minnesota Law Review. The unusual move and the uncertainty it creates led Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor to dissent and invite future challenges the court could consider.

“Unless resolved, the differences among the courts of appeals could negatively affect the collective-bargaining process,” Breyer wrote. “This is because the 11th Circuit’s decision raises the specter that an employer or union official could be found guilty of a crime that carries a five-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’.”

Indeed, hard-liners could reasonably conclude that the ruling means the AFL-CIO/United Way partnership is improper despite helping communities for more than 70 years.

Likewise, would pot-luck lunches be banned? Gift exchanges? Company softball teams?

“Given the importance of the question presented to the collective-bargaining process, further briefing, rather than dismissal, is the better course of action,” Breyer added.

Former Unite Here labor-union employee Josh Eidelson in Salon.com said, “None of this would matter as much if the National Labor Relations Act – which commits the federal government to encourage collective bargaining (seriously, that’s what it says) – actually ensured that it was up to a company’s workers, not its management, whether to have a union contract.”

Other appeals courts have ruled that the Excelsior List, card-check recognition and company neutrality are not illegal benefits from firms to unions, noted the decision’s dissenters, who said that the Supreme Court eventually will have to resolve that difference.

“Reading the policies of the (National Labor Relations) Act as a whole, voluntary recognition” of a union by a company “is not only permissible, but preferred,” said Unite Here General Counsel Richard McCracken. “And the agreement here doesn’t recognize the union.”

[PICTURED: Labor Notes photo of rally at Mardi Gras Casino, which violated the neutrality agreement that was at issue in the Supreme Court by firing 10 workers for union activism.