By: Kristen Verrastro, Esq.
The Supreme Court of the United States today dismissed as improvidently granted its original grant of certiorari in UNITE HERE Local 355 v. Mulhall (“Mulhall”). As previously discussed on this blog by both Jeremy P. Sherman, Esq. and Bradford L. Livingston, Esq., the Supreme Court’s decision in Mulhall would have resolved a Courts of Appeals split regarding whether pre-recognition employer neutrality agreements are, or may be, unlawful because they provide the union with a “thing of value,” in violation of Section 302 of the Labor Management Relations Act, 29 U.S.C. Section 186. In particular, the question in the case was whether an employer violates Section 302(a) by making the following promises to a union that seeks to represent its employees: (1) that the employer will remain neutral in respect to the union’s efforts to organize its employees; (2) that the union will be given access (for organizing purposes) to nonpublic areas of the employer’s premises; and (3) that the union will receive a list of employee names and contact information for organizing purposes. A related issue was whether a union violates Section 302(b) by requesting that the employer perform its contractual obligations to fulfill these promises.
Justice Breyer, authoring the dissent and joined by Justices Sotomayor and Kagan, provided some insight into possible reasons for the Court’s dismissal:
“First, it is possible that the case is moot because the contract between the employer and union that contained the allegedly criminal promises appears to have expired by the end of 2011, before the Eleventh Circuit rendered its decision on the scope of §302. Second, it is arguable that respondent Mulhall, the sole plaintiff in this case, lacks Article III standing.”
Justice Breyer implies these issues interfered with the Court’s ability to reach the merits of the interpretation of Section 302. But, “given the importance of the question presented to the collective-bargaining process,” Justice Breyer would have preferred to request additional briefing on these questions, and a third issue (whether Section 302 permits a private right of action), rather than dismiss.
Because of today’s dismissal, however, the Eleventh Circuit Court of Appeals decision still stands, finding that neutrality agreements permitting union organizing may be a “thing of value” and therefore unlawful under Section 302. Additionally, the Eleventh Circuit’s decision still conflicts with those of the Third and Fourth Circuit Courts of Appeals which determined that pre-recognition agreements assisting, or at least permitting, a union to organize did not provide a “thing of value” and therefore did not violate Section 302. Consequently, the interpretation of Section 302, regarding whether neutrality agreements permitting union organizing contain a “thing of value” and could therefore be unlawful, remains an open question. And as Justice Breyer indicates, “[u]nless resolved, the difference among the Courts of Appeals could negatively affect the collective-bargaining process.”