Neutral? Not Exactly. The End of the Union Neutrality Agreements?

Contributed by Steven Jados

Last week, we briefly introduced Unite Here Local 355 v. Mulhall, a case in which the U.S. Supreme Court will determine whether a union neutrality agreement can be a “thing of value” paid, lent, or delivered to a union in violation of Section 302 of the Labor-Management Relations Act (“LMRA”).  The LMRA was enacted for purposes including the protection of employees’ freedom to choose whether or not they want a union.

With that purpose in mind, when the Court hears oral argument in November, several justices are likely to be troubled by how little the agreements have to do with neutrality.  Instead, the agreements often require the employer to actively assist the union.  In truth, neutrality agreements are a means for one particular union to fast-track its way to representative status for employees who may never have heard of the union, let alone shown any interest in having the union as their representative.  

The assistance sought in Mulhall included giving the union (that is, the particular union that proposed the agreement, but not any other union) the right to come onto the employer’s property during working hours to give pro-union speeches to an assembly of workers.  (Apparently the union has no problem with so-called “captive audience” speeches when the union is giving them.)    

Additionally, the neutrality agreement in Mulhall required the employer to recognize the union as the collective bargaining representative only upon a showing of authorization cards, sometimes referred to as “card check,” a procedure far less reliable than the secret ballot election typically used. 

The true benefit of the neutrality agreement to a union is that the agreement bypasses expensive, time-consuming processes that include actually convincing employees to choose the union, convincing them not to choose a competing union, overcoming employer opposition, and winning an election.  Those processes can cost a union hundreds of thousands of dollars just in legal fees.    

As such, there can be little question that a neutrality agreement is a thing of value as a matter of plain English.   Whether that is so as a matter of law remains to be seen.  

Predicting the outcome of Supreme Court cases is virtually impossible.  That said, organized labor has little reason to believe it has five friends on the Court, especially when a decision against the union can be framed as both pro-business and pro-employee.  (The union’s opponents, Mulhall and Hollywood Greyhound Track, Inc., are an employee and his employer, respectively.) 

Whatever the Court decides, it will likely have a significant impact on union organizing strategies in the coming years.