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Unite Here v. Mulhall: Will SCOTUS End Top-Down Unionization?

By William Peacock, Esq. on October 14, 2013 | Last updated on March 21, 2019

Ah, the perils of collective bargaining.

In a truly impressive deal, Unite Here managed to bargain away the rights of workers of the Mardi Gras Casino before it actually represented them. How so?

Seeking to represent the rights of the workers, Unite Here entered into a deal with the management of Mardi Gras Gaming: they would pay for ads supporting gambling and the union would promise to forego its rights to picket, boycott, or otherwise put pressure on the business in exchange for an open invitation onto company property, no opposition to unionizing the company's workers, and the company would even provide the contact information for the employees.

The union gets dues and new members, while the company gets support for a gaming law and incredible leverage in all future disputes, thanks to that labor peace guarantee.

Meanwhile, you have Martin Mulhall, a 40-year-old employee who was not too keen on being represented by Local 355, probably because their collective bargaining skills resulted in a pretty terrible deal for him and his fellow workers. He sued to block the agreement.

The Eleventh Circuit found a violation of the Labor Management Relations Act (the Taft-Hartley Act), which prohibits bribery to unions in these sorts of deals. According to the court, the bargain contained "things of value," namely the assistance with organization.

The dissent, though also suspicious, didn't think the law could bend that far:

"Even if the union has some other aim besides achieving collective bargaining rights (such as obtaining more members and dues without ever promoting the interest of the employees), such conduct implicates the union's duty to its members, not the collective bargaining process between the employer and the union."

The Supreme Court will review whether it's possible to violate the Taft-Harley Act by coming to these types of sweetheart deals, where no money is exchanged, but everything else is.

The Washington Examiner notes that these types of "top down" deals, where the union strikes a deal with management before unionizing, are actually quite common, and a defeat in the Supreme Court would greatly impair unions' ability to organize.

This is one of two major union cases that have been added to the court's docket so far. In another case, the Court will weigh whether obligatory union dues violates free speech rights. A union defeat in either case could have major ramifications for organized labor.

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