This morning, in a per curiam opinion, the Supreme Court of the United States dismissed the writ of certiorari in UNITE HERE Local 355 v. Mulhall as improvidently granted. As a result, the high court will not consider the issue of whether an employer’s actions assisting a union in organizing employees constitutes a violation of section 302 of the Labor-Management Relations Act, often known as the Taft-Hartley Act.

The case involved an employer that entered into an agreement with a union according to which the employer promised (1) to provide union representatives access to non-public work premises to organize employees during non-work hours; (2) to provide the union a list of employees, their job classifications, departments, and addresses; and (3) to remain neutral to the unionization of employees. The Eleventh Circuit Court of Appeals ruled that the employer’s assistance with organizing could be a “thing of value,” which, if demanded or given as payment, could constitute a violation of section 302 of the Labor-Management Relations Act.

When it agreed to hear the case last June, the Court had agreed to decide the following issue: whether an employer and union may violate section 302 by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business. Ogletree Deakins filed an amicus brief in support of the respondent in the case, Martin Mulhall. The brief carefully distinguished voluntary recognition agreements from those which are coerced by union corporate campaigns.

Justice Breyer wrote a nearly three-page dissent to the one-sentence opinion, in which Justices Sotomayor and Kagan joined. According to Justice Breyer, who authored the dissent, in reviewing the briefs and hearing arguments in the case, the justices became aware of two questions, which required additional briefing before a conclusion could be reached on the section 302 issue. The two issues concerned whether the case had been rendered moot because the contract between the employer and union had already expired before the Eleventh Circuit issued its decision in the case and whether Mulhall, who is the sole plaintiff in this case, lacked Article III standing.

If additional briefing should reveal that federal courts lack jurisdiction in the case because of mootness or Mulhall’s lack of standing, Breyer wrote, the high court should order that the Eleventh Circuit’s decision be vacated, “thereby removing its precedential effect and leaving the merits question open to be resolved in a later case that does fall within the jurisdiction of the federal courts.” Breyer ended his dissent by opining that, “given the importance of the question presented to the collective-bargaining process, further briefing, rather than dismissal, is the better course of action.” Justice Breyer also wrote that the Court should have also asked for further briefing on a third question, namely whether section 302 authorizes a private right of action.

According to a shareholder in the Chicago office of Ogletree Deakins, “The Court reached the right result. Procedurally, the case was before the Court on denial of a motion to dismiss and the factual record was sparse and needed fuller development. If the case is not settled or withdrawn, the parties will have an opportunity to do that, which is something the Justice Department suggested to the Court when it initially opposed granting certiorari before the Court agreed to hear the case.”


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Practice Group

Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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