Two Supreme Court Cases That Could Be Big Trouble for Organized Labor
In the Atlantic, Matt Bruening and Elizabeth Stoker look ahead to two Supreme Court cases that could devastate organized labor:
The first case concerns the president’s ability to appoint members to the National Labor Relations Board. Vacancies on the NLRB must be filled promptly because the board shuts down without a 3-member quorum. When Senate Republicans blocked Obama’s NLRB appointees, the president started filling the board with recess appointments. So, the Senate Republicans used procedural tricks to keep the Senate in perpetual “session” and thereby prevent recess appointments. The White House argues that the president should be allowed to make recess appointments anyway because the senate isn’t really in session if no business is being conducted. If the White House loses this case, the Senate Republicans will be able to paralyze the body that enforces the nation’s labor laws indefinitely.
The second case could doom one of the most effective new organizing strategies to come along in years:
[M]ulhall v. UNITE HERE Local 355, calls into question what is probably the most successful union organizing strategy of last decade. Because our labor laws are so unfriendly to workers, major unions – including SEIU, UNITE HERE, and CWA, among others – often seek to enter into so-called “organizing agreements” with employers. These deals establish the rules that the unions and employers must follow in subsequent organizing battles. The most common provisions require employers to remain neutral about the union and to recognize it as soon as the majority of their employees sign cards authorizing it to represent them.
In Mulhall, these agreements are being challenged under anti-corruption laws that prevent employers from providing “things of value” to unions. If the Supreme Court decides that organizing agreements are unlawful, the only promising unionization strategy in recent years will die.
It’s unclear to me how an organizing agreement counts as a “thing of value” for the purposes of an anti-corruption statute that is intended to prevent the improper exchange of tangible things of actual value–like suitcases stuffed with $100 bills. But to further muddy the waters, the Mulhall case involves an employer that agreed to a neutrality agreement in exchange for $100,000 worth of political support from the union for a casino gambling vote and a promise not to strike. A federal judge found that the agreement was legal, but the 11th Circuit disagreed. Unite Here said in a statement that it was pleased the Supreme Court decided to review the case.
[Photo credit: Sad Panda, Jason Scott Jones, Creative Commons.]