What the Grant of Certiorari in Mulhall Means

Published August 13th, 2013 -  - 08.13.133

Over the next two weeks I will be offering my preliminary thoughts on Mulhall (which Ben posted on last week).  Here I will address the significance of the Court’s grant of certiorari in the case.

At first I thought that pro-labor groups, gripped by understandable anxiety after the activist anti-labor decision in Knox, were overreacting to the Mulhall certiorari grant.  Why should one conclude that the Supreme Court might be on the verge of clamping down on labor neutrality agreements simply by virtue of the grant?  The Eleventh Circuit’s recognition that some neutrality agreements might violate LMRA Section 302 (29 U.S.C. § 186) created a split in the Circuits (two other courts had ruled that neutrality agreements could not violate Section 302), and the Supreme Court might have simply granted cert. to resolve the split, without tipping its hat in any particular direction.

Or so I thought until I read the briefs last weekend.

I learned that the SG had weighed in against certiorari on the usually compelling grounds that (a) the case is in an interlocutory posture (since CA11 remanded the case to the district court for inquiry into why the parties entered in to the agreement), (b) the split is new and relatively shallow (since all courts of appeal recognize that Section 302 permits neutrality agreements in some circumstances, and the significance of CA11’s proposed and barely discussed “intent” test for impermissible neutrality agreements is uncertain), (c) there is a serious mootness issue in the case (because the neutrality agreement in question has arguably expired), and (d) the case is factually and procedurally messy in other respects.  Normally these arguments would have precluded certioriari.  The fact that the Court granted nonetheless suggests that at least four Justices have an agenda here.

And then I read the brief by Respondent Mulhall, the employee who brought the original challenge to the neutrality agreement between the labor union (Unite Here) and the employer (Mardi Gras Gaming Company).  Mulhall is represented by the National Right to Work Legal Defense Foundation (NRWLD), an organization whose “mission is to eliminate coercive union power and compulsory unionism abuses through strategic litigation.”  NRWLD did not (as one might have expected) oppose certiorari in the case.  It supported the petition, arguing that the split was (in relevant respects) deeper than the Petitioner represented, and adding in strong terms that whether the benefits conferred by the neutrality agreement violated Section 302 was an even more significant federal question than Petitioner suggested.

In this light, and especially after Knox, I think that the (at least) four justices who voted to grant certiorari have in mind affirming the case and adopting some version of CA11’s or Mulhall’s theory.  For it otherwise makes little sense to grant the case, with all of its procedural and factual difficulties.

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