WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 24 granted a petition for writ of certiorari
in a case regarding whether an employer and union may enter into an agreement
under which the employer promises to remain neutral to union organizing and
grants unions reps limited access to the employer's property and employees and,
in exchange, the union agrees to forgo its rights to picket, boycott or
otherwise pressure the employer (Unite Here Local 355 v. Martin Mulhall, et
al., No. 12-99, U.S. Sup.) (lexis.com subscribers may access Supreme Court briefs for this case).
Hollywood Greyhound Track Inc., doing business as Mardi
Gras Gaming, and Unite Here Local 355 entered into an agreement on Aug. 23,
2004. Under the agreement, Mardi Gras promised to provide Unite Here
representatives access to nonpublic work premises to organize employees during
nonwork hours; provide the union a list of employees, their job
classifications, departments and address; and remain neutral to the
unionization of employees. In return, Unite Here promised to spend more than
$100,000 supporting a ballot initiative regarding casino gaming. Unite Here
also promised, if it was recognized as the exclusive bargaining agent for Mardi
Gras' employees, to refrain from picketing, boycotting, striking or undertaking
other economic activity against Mardi Gras.
Martin Mulhall, a Mardi Gras employee, opposed
unionization. He also sued Unite Here and Mardi Gras in the U.S. District Court
for the Southern District of Florida. He sought to enjoin enforcement of the
agreement. He claimed that it violated Section 302 of the Labor Management
Relations Act, which makes it unlawful for an employer to give or for a union
to receive any "thing of value," subject to limited exceptions. The District
Court dismissed the complaint for failure to state a claim. It found that the
assistance promised in the agreement did not constitute a "thing of value"
under Section 302. Mulhall appealed.
The 11th Circuit panel on Jan. 18, 2012, issued a split
decision. The majority reversed and remanded. "We hold that organizing
assistance can be a thing of value that, if demanded or given as payment, could
constitute a violation of § 302. Because the dismissal of Martin Mulhall's
complaint was based on the contrary conclusion, we reverse," Judge Charles R.
Wilson wrote for the majority. Judge Peter T. Fay joined in the opinion.
U.S. Judge Jane A. Restani of the Court of International
Trade, sitting by designation, issued a dissenting opinion pointing to earlier
rulings out of the Third and Fourth Circuits (Adcock v. Freightliner LLC,
550 F.3d 369 (4th Cir. 2008) [an enhanced version of this opinion is available to lexis.com
subscribers] and Hotel Emps. & Rest. Emps. Union,
Local 57 v. Sage Hospitality Res. LLC, 390 F.3d 206, 218-19 (3d Cir. 2004)) [enhanced version]. "I also write because I do not
agree that an improper intent on behalf of the union or employer in demanding
or offering the types of concessions at issue here transforms an otherwise
'innocuous' concession into a bribe or constitutes extortion in violation of §
302 of the Labor Management Relations Act ('LMRA'). Mulhall has not alleged
that Mardi Gras offered these concessions as a bribe. Thus, I put this aside
and focus on whether a union that demands these types of concessions with an
improper intent commits extortion and thereby runs afoul of § 302," she wrote.
Unite Here petitioned the U.S. Supreme Court.
Richard G. McCracken of Davis,
Cowell & Bowe in San Francisco
represents Unite Here.
William L. Messenger of National Right to Work Legal
Defense Foundation in Springfield,
Va., represents Mulhall.
Mark E. Levitt of Allen, Norton & Blue in Winter Park, Fla.,
represents Mardi Gras.
Solicitor General Donald B. Verrilli Jr. filed an amicus
curiae brief on behalf of the United States.
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