Labor- management neutrality deals get justices’ scrutiny

WASHINGTON Labor- management agreements that help unions organize workers in exchange for concessions ran into skepticism at the Supreme Court Wednesday, but perhaps not enough to end a common practice that has served both sides well for decades.

The case involves a Hollywood, Fla., racetrack and casino that gave a hospitality services union a list of employees, access to its property and a pledge to be neutral in the union’s labor- organizing bid. In exchange, the union agreed not to strike or picket, and it spent $ 100,000 to back a state ballot initiative that led to legalizing slot machines.

A groundskeeper opposed to the union took the case to court and won a surprising victory at the 11th Circuit Court of Appeals, which ruled that Mardi Gras Gaming gave the union “things of value” barred under the Labor Management Relations Act of 1947. If the Supreme Court upholds that verdict, labor groups say, it would cut off an increasingly important avenue for union organizing.

What bothered several justices was the union’s willingness to spend $ 100,000. Did that imply the casino’s concessions had tangible value and would be illegal? Or was the union merely supporting an initiative that would produce jobs, much like today’s construction union support for the Keystone oil pipeline?

“That $ 100,000 is troubling to me,” said Justice Sonia Sotomayor, whose support organized labor probably needs to win the case. “It does feel like a bribe to the employer.”

But Richard McCracken, the San Francisco lawyer representing the union in Unite Here Local 355 v. Mulhall, said the union was exercising its First Amendment rights by lobbying for the initiative. “That’s all that happened in this case,” he said. “There’s nothing nefarious about it.”

Faced with a case that could have a profound impact on labor organizing, the justices appeared to break down along predictable lines. Chief Justice John Roberts, along with Justices Samuel Alito and Antonin Scalia, were skeptical of such agreements and wondered why the casino’s concessions shouldn’t be considered valuable. “Why wouldn’t the right to use private property in a way that otherwise wouldn’t be allowed constitute a thing of value?” Alito asked. Roberts said it gave the union the ability to conduct an election using “card check” procedures he said were “more coercive than a secret ballot.”

Deputy Solicitor General Michael Dreeben, siding with the union on behalf of the Obama administration, said it’s because “these things — access, employee list, neutrality — have been elements of federal labor policy for decades.”

Justice Elena Kagan, backed in part by Justices Ruth Bader Ginsburg and Stephen Breyer, said if those can be considered things of value, so can almost anything — even an employer’s simple willingness to negotiate.