Loans, Deliveries and Money in Mulhall
In Unite Here Local 355 v. Mulhall, the parties have asked the Supreme Court to interpret §302 of the Labor Management Relations Act (LMRA), which provides that an employer may not “pay, lend, or deliver… any money or other thing of value” to a union. Unite Here claims that the term “thing of value” must be read narrowly to include only property that is “‘like’ or equivalent to money.” I suggest that this claim is correct, but not for the precise reasons Unite Here offers. Unite Here argues that the phrase “money or” must limit the reach of the phrase “thing of value” because, if it did not, then the phrase “money or” would be superfluous. This argument overlooks a crucial role that the term “money or” plays in the statue: it limits the scope of the words “lend” and “deliver” to encompass only the transfer of tangible property. I contend, that, in fact, the phrase “money or” narrows the scope of the terms “lend,” “deliver,” and “thing of value.” This reading of the statute is the only reading that is fully consistent with the penalty provisions of §302 and with other well-settled rules of labor law.
Unite Here’s textual argument begins with the premise that there are two possible ways to read the phrase “thing of value.” First, because the phrase appears immediately after the words “money or,” it could be read to encompass “only property that is not money but is ‘like’ or equivalent to money.” Second, the phrase “thing of value” could be read broadly to encompass “anything that is of utility or subjectively valuable to a union.” On the first reading of the statute, the term “money or” plays an important role: it limits the scope of a neighboring term. By contrast, on the second reading, the words “money or” appear to be superfluous: the term “money” is subsumed by the term “thing of value,” and it does no other work to help courts discern the meaning of neighboring terms. Applying the familiar presumption that Congress does not include superfluous terms in statutes, Unite Here concludes that the phrase “thing of value” must be read in the first way.
This argument seems to rely on flawed reasoning. Even if the term “thing of value” is read broadly, the phrase “money or” still plays an important role in the statute. Specifically, the term “money or” narrows the scope of the words “lend” and “deliver.”
Crucially, while the Eleventh Circuit suggested that it was possible for Mulhall’s employer to “pay” “organizing assistance” to a union in violation of §302, the court insisted that “intangible organizing assistance cannot be loaned or delivered because the actions ‘lend’ and ‘deliver’ contemplate the transfer of tangible items.” By reading of the words “lend” and “deliver” narrowly, the Eleventh Circuit placed meaningful limitations on the reach of § 302. However, looking only at the dictionary definitions of “lend” and “deliver,” it is not clear that the Eleventh Circuit’s reading of these terms is correct. Curiously, none of the parties have addressed the fact that the word “lend” has at least two meanings: (1) “to give for temporary use on [the] condition that the same or its equivalent be returned”; and (2) “to give the assistance or support of: [to] afford, furnish.” Given the second definition, it makes perfect grammatical sense to say that an employer lent “organizing assistance” to a union. Similarly, as Mulhall argued (in his Supreme Court brief and during oral arguments), the term “deliver” can be used to describe something other than the transfer of tangible goods. Mulhall observed that is possible for a judge to deliver an opinion of the court, and possible for a business to deliver a service. Contrary to Mulhall’s suggestion, the word “deliver” can be used in so many ways, not because it has one expansive definition, but because it has many different definitions. In fact, the term “deliver” can mean: (1) “to take and hand over to or leave for another”; (2) to “speak, sing, [or] utter”; (3) “to bring (as votes) to the support of a candidate or cause”; and (4) “to come through with: produce.” Given the third and fourth definitions, it might make (grammatical) sense to say that an employer delivered “organizing assistance” to a union.
Nevertheless, in the context of the statute, the words “lend” and “deliver” contemplate nothing more than the transfer of tangible items. Under § 302, an employer may not “pay, lend, or deliver… any money or other thing of value” to a union. (emphasis added). In this sentence, the words “lend” and “deliver” must mean whatever English speakers mean when they talk about lending and delivering money. Ordinarily, if one person says that she will “lend” another person money, she means that she will give the person money “for temporary use on [the] condition that the same or its equivalent be returned.” Similarly, if one person says that she will “deliver” money, she ordinarily means that she will “hand over” the money. Thus, there is good reason to think that, in context, the terms “lend” and “deliver” contemplate the transfer of property to some person or place.
If the term “money or” limits the scope of the words “lend” and “deliver,” then—regardless of whether it limits the scope of the phrase “thing of value—it is not a superfluous term. However, it is still possible to construct a textual argument that the term “money or” limits the scope of multiple statutory terms, including “thing of value.” This textual argument begins with the same premise as Unite Here’s argument: there are two possible ways to read the term “thing of value.” One is to read it narrowly to include only property that is like money, and the other is to read it broadly to include anything of utility to a union. Of these two readings, the first is more consistent with other parts of §302 and with the larger statutory scheme.
As both Unite Here and the United States point out in their briefs, other parts of § 302 suggest that the statue only sought to criminalize the transfer of money or similar property. For example, the criminal penalties in § 302 depend on the “value of the amount of money or thing of value involved.” Thus, the statute suggests that the value of any “thing of value” can be easily ascertained. And while the market value of property is readily ascertainable, the subjective utility that unions receive from various employer actions is not.
Furthermore, if the phrase “thing of value” were read broadly, it would likely conflict with well-settled rules of labor law. For example, it seems that employer promise to arbitrate a dispute could be a “thing of value” to a union. However, existing rules of labor law permit this kind of promise. The Supreme Court seemed particularly receptive to this line of reasoning at oral argument.
This textual analysis can be bolstered by Unite Here’s strong arguments regarding the purposes and legislative history of §302. Thus, one need not invoke the presumption against superfluous statutory terms to read the phrase “thing of value” as Unite Here suggests.