Right to Work Foundation-won Eleventh Circuit ruling stands, putting at risk backroom deals between companies and aggressive union organizers
Washington, DC (December 10, 2013) – Today, the United States Supreme Court announced that it "dismissed as improvidently granted" a union appeal of the Eleventh Circuit Court of Appeals' ruling in Mulhall v. UNITE HERE.
The order leaves intact a significant victory for National Right to Work Foundation staff attorneys and a Florida Mardi Gras Gaming employee in which the appeals court ruled that the company's organizing assistance to union officials could be unlawful "thing[s] of value." Consequently, as Jack Goldsmith, the Henry L. Shattuck Professor at Harvard Law School, today said about the Mulhall dismissal in a blog, "as long as CA11's decision stands, the specter of expensive and difficult litigation will hover over neutrality/bargaining agreements in many circuits, and will indeed chill the making of those agreements."
In 2004, UNITE HERE Local 355 and Mardi Gras Gaming entered into an agreement in which union officials promised to spend over one hundred thousand dollars on a gambling ballot initiative and guaranteed not to picket, boycott, or strike against Mardi Gras facilities.
In return, Mardi Gras agreed to give union operatives employees’ personal contact information (including home addresses) and grant access to company facilities during a coercive "card check" organizing campaign, refrain from informing workers about the downsides of unionization, and refrain from requesting a federally-supervised secret ballot election to determine whether employees unionized.
Under the Labor Management Relations Act, employers are prohibited from handing over "any money or other thing of value" to union organizers, a provision that is supposed to prevent union officials from selling out workers' rights in exchange for corporate concessions. With the help of Foundation staff attorneys, Mardi Gras Gaming employee Martin Mulhall sued challenging this organizing pact in 2008. Mulhall alleged that the company's concessions were of substantial monetary value because they made UNITE HERE's organizing drive easier and less expensive.
Mark Mix, President of National Right to Work, issued the following statement in wake of the Court's order:
"We're happy to report that the Eleventh Circuit's ruling will stand, limiting the potential for backroom deals between union organizers and company officials. Management shouldn't be allowed to turn over employees' personal information to aggressive Big Labor organizers as a negotiating tactic, which is why the Eleventh Circuit's precedent is a vital protection for independent-minded workers.
"Union bosses and employers who use workers' rights as a bargaining chip will now enter into these agreements at their own risk."