Divided U.S. Supreme Court Dismisses Union, Employer Agreement Appeal

Divided U.S. Supreme Court Dismisses Union, Employer Agreement Appeal

 WASHINGTON, D.C. —  (Mealey’s) Less than a month after hearing oral arguments, a split U.S. Supreme Court this morning dismissed the appeal of a suit over an agreement between an employer and union regarding access to the premises, employee information, monetary support for a ballot initiative and a promise not to picket (Unite Here Local 355 v. Martin Mulhall, et al., No. 12-99, U.S. Sup.; See November 2013, Page 26) [an enhanced version of this opinion is available to lexis.com subscribers].

The one-sentence per curiam opinion announced that “[t]he writ of certiorari is dismissed as improvidently granted.”

Justice Stephen G. Breyer authored a three-page dissent in which he was joined by Justices Sonia Sotomayor and Elena Kagan.  “We have received briefs on the issue, and we have heard oral argument.  But in considering the briefs and argument, we became aware of two logically antecedent questions that could prevent us from reaching the question of the correct interpretation of §302 [of the Labor Management Relations Act (LMRA)].  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 [U.S. Court of Appeals] 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.

“In my view, rather than dismiss the writ of certiorari as improvidently granted, the Court should simply ask for additional briefs addressing these two questions.  If it turns out that the federal courts lack jurisdiction either because the case is moot or because Mulhall lacks standing, then we cannot reach the merits.  But if that is the case, then we should likely order the Eleventh Circuit’s decision vacated, thereby removing its precedential effect and leaving the merits question open to be resolved in a later case that does fall within the jurisdiction of the federal courts,” the justice wrote.

Organizing Agreement

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 addresses; 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, claiming that it violated Section 302, 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.

An 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.

Dissenting 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) [enhanced version] 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 noted.

Unite Here petitioned the U.S. Supreme Court.  The high court granted the petition on June 24.  Oral arguments were held Nov. 13.


Richard G. McCracken of Davis, Cowell & Bowe in San Francisco represents Unite Here Local 355.  William L. Messenger of the National Right to Work Legal Defense Foundation in Springfield, Va., represents Mulhall.

Deputy Solicitor General Michael R. Dreeben of Washington filed an amicus curiae brief on behalf of the United States in support of the union. 

Robert Norton and Mark E. Levitt of Allen, Norton & Blue in Coral Gables, Fla., represent Hollywood Greyhound Track. 

Leon Dayan of Bredhoff & Kaiser in Washington filed an amicus brief on behalf of American Federation of Labor and Congress of Industrial Organizations, Service Employees International Union and National Education Association.

John C. Eastman of Center for Constitutional Jurisprudence in Orange, Calif., filed an amicus brief on behalf of Center for Constitutional Jurisprudence.  Matthew W. Finkin of University of Illinois College of Law in Champaign, Ill., filed an amicus brief on behalf of National Academy of Arbitrators.

Karen R. Harned of NFIB Small Business Legal Center in Washington filed an amicus brief on behalf of National Federation of Independent Business Small Business Legal Center and Cato Institute.  Arthur B. Smith Jr. of Chicago filed an amicus brief on behalf of The Council on Labor Law Equality.  Solicitor General Donald B. Verrilli Jr. filed an amicus brief on behalf of the United States.

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