Monday, November 11, 2013

Supreme Court to Take Up Challenges to Union Practices



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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