Labor leaders and businesses are closely watching a Supreme
Court case to be argued this Wednesday that involves a popular strategy used by
unions to successfully organize hundreds of thousands of workers.
Culinary Union workers marched outside the Palace Station
Casino in Las Vegas last year.
That strategy — widely deployed by the Service Employees
International Union and the Unite Here hotel workers union — involves
pressuring an employer into signing a so-called neutrality agreement in which
the employer promises not to oppose a unionization drive. By some estimates,
more than half of the recent successful unionization campaigns involve such
agreements, which sometimes allow union organizers onto company property to
talk with workers.
Benjamin Sachs, a professor of labor law at Harvard Law
School, said the case before the Supreme Court was potentially “the most
significant labor case in a generation.”
Professor Sachs said that if the court ruled against labor,
it could significantly hobble efforts by private sector unions to organize
workers. He added that the other big labor case the Supreme Court has agreed to
hear this session could have a significant impact on public sector unions. In
that case, a home-care worker has asked the court to rule that the state of
Illinois violated her First Amendment rights by requiring her to pay “fair
share” fees, much like dues, to a union she did not support.
In the case being argued on Wednesday, Unite Here Local 355
vs. Mulhall, an employee of Mardi Gras Gaming in Florida sued Unite Here,
asserting that its neutrality agreement with the company was illegal. The
United States Court of Appeals for the Eleventh Circuit ruled in his favor,
finding that the agreement was a “thing of value” that federal labor law bars
employers from giving to any union or union official.
Unite Here appealed, urging the Supreme Court to overturn
the Eleventh Circuit and instead embrace rulings of the Third and Fourth
Circuits, which have held that such agreements were not illegal things of
value.
Karen Harned, executive director of the National Federation
of Independent Business Small Business Legal Center, which filed a supporting
brief with the Supreme Court, applauded the
Eleventh Circuit and denounced neutrality agreements,
asserting that they are the type of improper “thing of value” that employers
are prohibited from giving to unions.
“A lot of small employers don’t have the resources to fight
back if they’re the subject of a union campaign to get them to sign a
neutrality agreement,” she said. “We are concerned that neutrality agreements
are nothing more than extortion. The way they’re being used by unions, the
unions say, ‘We promise not to trash your reputation or do X, Y, Z, if you sign
this agreement.' ”
The National Right to Work Legal Defense Foundation, which
helped the Mardi Gras employee, Martin Mulhall, bring the case, said another
prevalent union tactic — in which unions get employers to agree to use “card
check” rather than a secret ballot election to determine whether a majority of
workers want a union — should also be considered an illegal thing of value.
With card check, union organizers ask workers to sign cards saying they support
a union and if a majority of workers sign them, the union presents the cards to
the employer so the employer will recognize the union.
As part of its neutrality agreement, Mardi Gras Gaming
agreed to permit card check. In exchange Unite Here pledged to back a casino
gambling ballot initiative, spending more than $100,000 on the effort, and not
to picket or strike Mardi Gras during its unionization drive.
Craig Becker, general counsel of the A.F.L.-C.I.O., said the
Right to Work group’s legal theory to bar such agreements “would criminalize a
large swath of ordinary, voluntary labor-management relations.”
“Under their theory,” Mr. Becker said, “parties cannot agree
to this, the employer can’t give it unilaterally and the union can’t even ask
for it. The implications are really sweeping.”
Mr. Becker argued that when Congress barred employers from
giving union officials a “thing of value,” the legislation was intended to
prohibit gifts like Cadillacs that could improperly influence officials. He
said neutrality agreements should not be considered such corrupt “things of
value” that the law addressed, asserting that if a neutrality agreement were to
be barred under the law, so should a 3 percent raise that an employer awarded a
union.
Patrick Semmens, vice president of the National Right to
Work Committee, said card check agreements were inherently corrupt because they
denied workers a secret ballot vote. His group argues that card checks should
not be allowed, because workers can be pressured to sign the cards. But card
check supporters said that the National Labor Relations Board had allowed card
checks for more than 70 years.
Mr. Sachs noted that some conservative legal scholars were
uncomfortable with efforts to bar neutrality agreements because that would
inhibit employers’ freedom to make contracts — in this case, with a union to in
theory assure smooth labor relations.
The other labor case, Harris v. Quinn, involving
the home-care worker, stems from a 2003 executive order issued by Rod
Blagojevich, the governor of Illinois at the time, stating that thousands of
home-care workers who helped disabled individuals at home were public employees
— Medicaid funds pay for their salary — who had the right to unionize. Later
that year a majority of 20,000 Illinois home-care workers voted to choose the
Service Employees as their union. Workers who joined the union had to pay union
dues, while the state required those who opted not to join to pay “fair share”
fees to help finance union representation.
Pamela Harris, a home-care aide, sued the state, objecting
to the fees. The Service Employees International Union receives an estimated $3
million a year in dues and fees from the state’s home-care workers. In
petitioning the Supreme Court to hear the case, the National Right to Work
Legal Defense Foundation, which is affiliated with the National Right to Work
Committee, said the case involved “a new and pernicious form of compelled
expressive association” that violated Ms. Harris’s First Amendment rights.
Ms. Harris also challenged the legality of the state’s
declaring that it was the home-care aides’ employer.
Unions have pushed Illinois, California and other states to
declare that home-care aides are public employees under the theory that the
state is a joint employer, along with the family of the person using the aide.
The stamp of public-employee status helps unionize these workers, and, unions
argue, gives a collective voice to thousands of home-care workers scattered
across a state.
Ms. Harned objected to the categorization of the state as
employer. “The bottom line is you are seeing another entrepreneurial tactic by
unions to advance their agenda,” she said.
If the court rules that Illinois wrongly declared that
home-care aides are public employees, unions could lose several hundred
thousand members because the ruling could dissolve the union for home-care
aides in Illinois and similar unions in other states.
Union lawyers voiced concern that the court would be guided
by an earlier decision, written by Justice Samuel A. Alito Jr. Writing for the
majority in June 2012, he stated that the primary purpose of letting unions
collect fees from nonmembers was to prevent so-called free-riding in which
workers shared in the benefits of having a union without sharing the costs
incurred. Justice Alito wrote, “Such free-rider arguments, however, are
generally insufficient to overcome First Amendment objections.”
Mr. Sachs said that for the Supreme Court to rule that the
fees home-care aides pay to unions violate the First Amendment, it must
overturn Abood, a 1977 Supreme Court decision involving Detroit schoolteachers.
Mr. Sachs noted that the court ruled in 1990 that California lawyers could be
required, without violating the First Amendment, to pay bar association dues
used to regulate the legal profession and improve the quality of legal services
— although they cannot be required to contribute to the bar association’s
political activities.
Source: NYTimes.com
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