Justices let stand, but limit, ruling against card check

WASHINGTON – In a decision the dissenters said ducked the issue, the U.S. Supreme Court voted 6-3 on Dec. 11 to let stand a lower court ruling that outlaws card check recognition, company neutrality in organizing drives and even the long-established requirement that firms, through the NLRB, give unions names and addresses of workers if the unions gathered enough signatures to seek a recognition election. But the majority limited the ruling to Alabama, Georgia, and Florida.

 The six-person majority said the justices never should have heard the case. The anti-worker National Right to Work Committee had pushed it through courts in Florida and in the 11th U.S. Circuit Court of Appeals in Atlanta, which covers those three states. The majority gave no reason for its ruling. It also didn’t overturn the Atlanta court’s decision.

The net effect is that card check, company neutrality and the name and address list, called the “Excelsior List,” are “things of value,” i.e. illegal benefits, from firms to unions under federal labor law, but only in those states and nowhere else. That led Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan to dissent.

 The three said the court should not have ducked the basic issue, raised by an anti-union worker, Martin Mulhall, against Unite Here Local 355 in Florida, after the union’s organizing drive at a noted racetrack resulted in company support for the idea of its workers unionizing.

In summary, the anti-union worker was objecting to the idea that a company and a union could mutually agree on a deal that results in recognition of a union without having to go through the process of a secret ballot election. (Those elections often give companies time to organize against unionization by forcing workers to attend anti-union propaganda sessions and by intimidating and even firing union supporters.)

The three dissenters said the case may now be a dead letter, as Unite Here’s contract has since expired.  They also said Mulhall may not have had the right to bring the case anyway. But other appeals courts have ruled the Excelsior list, card check recognition and company neutrality are not illegal benefits from firms to unions, the three noted. The High Court will eventually have to resolve that difference, they said.

“Unless resolved, the differences among the courts of appeals could negatively affect the collective bargaining process,” Breyer wrote for the dissenters. “This is because the 11th Circuit’s decision raises the specter that an employer or union official could be found guilty of a crime that carries a five-year maximum sentence, if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to ‘corrupt’ or ‘extort.’ 

 “Given the importance of the ques­tion presented to the collective-bargaining process, further briefing,” from the two sides on whether the case is moot, if Mulhall had the right to sue and thus whether the Atlanta court’s ruling should be reversed – “rather than dismissal, is the better course of action,” Breyer said.

Photo: University of Minnesota