Here’s another very quick reaction to the oral argument in Mulhall.

One of more the interesting themes in today’s oral argument was developed during an exchange between Justice Scalia and William Messenger, the attorney for Respondent Mulhall.  Justice Scalia was calling attention to something that the briefing in the case brought to light, and something that also seemed to trouble Justice Kagan, which is the following: An employer has an indisputable right to decide not to campaign against a union and to remain neutral during a union organizing campaign.  Indeed, if it wished, an employer could decide to express affirmative support for a union.  An employer has a free-speech right to take whatever position it wants in a union campaign, a right that is expressly guaranteed by §8(c) of the labor act, as the Court recently reaffirmed in Chamber of Commerce v. Brown, 554 U.S. 60, 66-67 (2008).

So here’s the question: If an employer has a statutorily protected right to remain neutral, how can an employer’s agreement to remain neutral be a felony under §302?

In its brief and during oral argument, Respondent attempted to answer this question by arguing that a neutrality agreement – as distinct from the act of remaining neutral – is a problem because with a neutrality agreement the employer is delivering “control” over the employer’s free speech rights to the union.

I think Justice Scalia was rightly puzzled by this contention.  And the puzzlement has good statutory grounding (a point that unfortunately was not made during argument).  Here’s what I mean: Section 302 makes it unlawful for an employer to “pay, lend, or deliver, or agree to pay, lend or deliver, any money or other thing of value.”  This clearly means that if an employer cannot pay, lend, or deliver something to the union then it may not agree to pay, lend, or deliver that something.  But §302 is simply not amenable to an interpretation that an agreement to deliver something is illegal when the underlying something could be provided lawfully in the absence of agreement. Put differently, the structure of §302 makes clear that an agreement is only illegal if the “thing” that the employer agrees to pay, lend, or deliver could not be provided in the absence of an agreement.

Moreover, it just doesn’t make sense to say, as Respondent would have it, that a neutrality agreement is different than neutrality because an agreement amounts to the delivery, from an employer to a union, of “control” over the employer’s speech rights.  This is a point made in the briefing.  And it is a point the Court has itself made before. In Sekhar v. United States (a Hobbes Act case), the Court put it this way: “[n]o fluent speaker of English would say that . . . a person ‘obtained and exercised another’s right to free speech.’”