Has the Employer in Mulhall Confessed to a Felony?

Published September 23rd, 2013 -  - 09.23.139


As we have already discussed, UNITE HERE Local 355 v. Mulhall is a case with potentially enormous implications and, yet, a case that the Court probably should not have taken.  Jack has written about three problems with the Mulhall grant.  But the employer’s brief, just filed, brings home yet another oddity of this case.  The employer’s argument is that the organizing agreement at issue in the litigation “conveys a thing of value to Local 355.”  In no uncertain terms, then, the employer is arguing to the Supreme Court of the United States that it – the employer – has violated a federal criminal statute and has committed a felony.

There is no subtlety here, or even room for interpretation.  The employer’s position is that the organizing agreement that it signed conveyed a thing of value to the union.  According to the employer’s brief, the value of this “thing of value” is approximately $100,000 – the amount that the union allegedly spent “in exchange” for the organizing agreement.  If the Court accepts the employer’s argument, then the union violated §302.  But so too did the employer.  Why?  Because §302 makes it illegal for an employer to deliver a thing of value to a union.  §302(d) states that if the value of the “thing of value” involved in the transaction is greater than $1,000 – which, if we accept the employer’s argument, is easily true here – then the violator “shall, upon conviction . . ., be guilty of a felony.”

There is a long list of strange things about Mulhall.  Near the top of that list is a party arguing that its own conduct was felonious.

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