The Court and the Future of Unions: Private Sector Edition

This Term, the Court will hear what could be the most significant labor law case in a generation.  The case is Mulhall v. Unite HERE Local 355 and it involves the ability of unions and management to set alternative ground rules for union organizing campaigns.  Because essentially all successful union organizing campaigns today are conducted according to ground rules established this way, the case could effectively outlaw union organizing (or, at least, outlaw effective union organizing).  That’s the most important thing to say about Mulhall: it deserves serious attention.

Much more will be written about the case over the next several months, but there are a few other things worth saying now:

First, the relevant background in a nutshell.  In 1935, Congress set up a regime for union organizing campaigns: the National Labor Relations Board (NLRB) was charged with designing all the rules and then policing them.  The system worked for a while, but, for a variety of reasons, stopped working as well over time and today is essentially dysfunctional.  In essence, the NLRB has become too slow and too weak to ensure that workers who want to organize a union can do so.  Unions have responded by establishing – through agreements with employers – alternative rules.  For example, whereas NLRB rules don’t give organizers any right to speak to employees while they’re at work, many union-management agreements (including the one at issue here) grant those rights.  Whereas NLRB rules enable employers to run nearly unlimited anti-union campaigns, union-management agreements (including the one at issue here) often require employers to restrict the ways in which they fight the union or to remain neutral.  Finally, since the law doesn’t require employers to agree to these NLRB alternatives, unions have come up with a series of bargaining tools to secure them: sometimes already-organized workers strike; sometimes the union generates public pressure on the employer; sometimes the union uses its political clout to secure things the employer wants.

The theory that underlies Mulhall’s attack on these agreements was, until recently, a laugher.  In essence, the theory is that when employers agree to adhere to alternative ground rules for organizing campaigns they are bribing unions. The section of the labor law on which Mulhall relies makes it unlawful for any employer to “pay, lend, or deliver . . . any money or other thing of value” to a union or a union officer.  This is an anti-corruption provision – we don’t want employers corrupting union officials by paying or lending them things of value, and a history of such practices moved Congress to enact the section.  But, until very recently, nobody took seriously the idea that, when an employer lets union organizers talk to employees on company property, the employer has bribed or otherwise corrupted the union.

In fact, one of the striking things about the Mulhall litigation is that the court of appeals (which ruled for Mulhall) did not articulate a theory about how or why the agreement at issue in the case was corrupt.  Instead, the court’s opinion explores whether things like property access and employer neutrality are – in the abstract – “thing[s] of value” that, like money, can be paid, lent, or delivered to a union.  But this kind of linguistic exploration, divorced from a substantive understanding of the kind of corruption the statute prohibits, is a fool’s errand.

This is not a point about which form of statutory interpretation the Court should deploy.  The words of the statute matter, and much of the contest going forward must be about whether organizing agreements are things of value that can be paid to unions, within the meaning of the statute.  But to figure out the meaning of the statutory words, we need a theory of why – substantively – an agreement like this is or is not corrupt.  Such a theory is essential because employers routinely deliver things of value to a union and it would be flatly inconsistent with the statute to prohibit all of them.

The most obvious example is the so-called union security clause.  These are clauses that require employers to fire employees if the employees refuse to pay dues to the union.  That’s something quite plainly “of value” to the union; there’s no exception for the clause in §302; and yet the clauses are quite clearly not prohibited by §302.  Another obvious example is employee lists.  Mulhall argues that by giving the union information about employees, the employer has violated §302.  But the NLRB itself requires employers to give unions lists of employees during organizing campaigns.

A bit more broadly, it is probably correct to say that every provision of a collective bargaining agreement is valuable to a union.  When employers pay higher wages, that’s valuable to the union.  Why?  If the union wins higher wages, employees are more likely to become full-fledged members and pay higher dues, and more employees are likely to unionize in the future (and pay dues to the union).  Similarly, when employers give employees just-cause protection against dismissal, that’s valuable to the union; when employers give employees time off for union activity, that’s valuable to the union; when safety in the workplace improves, that’s valuable to the union.  That is to say, collective bargaining agreements – like organizing agreements – are of value to unions.  Read in the abstract, §302 would prohibit all of this.  But this cannot be the correct construction of the statute.

Scattered in various of Mullhall’s papers are assertions about why the UNITE agreement, at issue in this case, was corrupt.  Perhaps the closest Mulhall gets to a viable theory is in his opposition to the union’s motion to dismiss: “In sharp contrast to legitimate collective bargaining, here UNITE is demanding things of value from [the employer] solely for itself, and not for employees it represents.”  The idea is that if the union acts to advance its own interests, rather than the interests of employees, then the union is acting corruptly.  That’s reasonable.  But the question here is why, exactly, employer neutrality, or access to the employer’s property, or lists of employees in the bargaining unit, are of value to the union and not employees? Unlike money or other tangible things, employer neutrality itself, or access itself, or a list of employees itself, have zero value to the union: the union doesn’t have any interest in sending organizers onto employer property to enjoy the view.  What is valuable to the union is the ability to organize employees and, of course, eventually to collect dues from them.  Neutrality, property access, and employee lists enable the union to achieve these goals because they make it possible for the union to conduct an organizing campaign.

But it is a premise of our labor law that unionization can be in the interests of employees – not just of unions.  For this reason, the statute facilitates organizing campaigns in all kinds of ways: it gives unions the right to employee lists, it gives employees the right to talk about unionization at work, it prohibits employers from firing employees who try to organize unions.  In the end, what labor law hopes to ensure is that employees can choose for themselves whether or not they want to be represented by a union (more here).  As long as organizing agreements leave to employees the ultimate choice about whether or not to have a union – as they must and as this agreement did – then its wrong to say that the agreements further union but not employee interests.  They further both.  And, even on Mulhall’s theory, they are not corrupt.