Tag Archives: Supreme Court

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.

U.S. Supreme Court Decision Narrows the Definition of Supervisor and Vicarious Liability for Employers under Title VII

Contributed by Michael Hughes and Michael Wong

On June 24, 2013, in Vance v. Ball State University, the Supreme Court adopted the Seventh Circuit’s narrow definition of a supervisor under Title VII.  In doing so the Supreme Court rejected the EEOC and other appellate courts broader definition of “supervisor,” which included employees who lacked the authority to make tangible employment actions, but directed other employees’ day-to-day activities. 

In this decision the Supreme Court provided employers a clearer distinction between supervisors and co-workers and a better understanding of which employees fit within the scope of a supervisor under Title VII.  This is important for employers as the standards for liability in discrimination and harassment cases are different depending on whether the alleged wrongdoer is a supervisor or a co-worker. 

By narrowing the definition of a supervisor, the Supreme Court in effect limited the liability that employers can face under Title VII. Under the narrower definition of supervisor, in order to hold an employer vicariously liable for a supervisor’s actions in violation of Title VII, the supervisor must be an employee authorized by the employer to take tangible employment actions against another employee, such as hiring, firing, promoting, reassigning with significantly different responsibilities or causing significant changes in benefits.  This should make it more difficult for employees to prevail on claims involving non-supervisory co-worker discrimination or harassment claims, unless the employer was aware of the alleged misconduct and did not take action to remedy it.  To take advantage of this favorable decision, employers may want to review their operations and job descriptions to ensure that they accurately reflect which supervisors or managers have the authority to make tangible employment action in accordance with this Supreme Court decision. 

It should be noted that while the Supreme Court narrowed the definition of a supervisor, it recognized that an employer could still be held liable for effectively delegating tangible employment decision powers to an employee, even if he or she is not a supervisor in title or authority, by relying on the employee’s recommendations in making tangible employment decisions.  Moreover, employers should be aware that corresponding state anti-discrimination statutes may not follow federal law with respect to who qualifies as a “supervisor.”  For example, under the Illinois Human Rights Act, employers are subject to strict liability for any harassment or discrimination committed by a supervisor—and the Illinois courts have tended to find supervisor status for a broader scope of an employer’s workforce than the federal courts.