Opinion analysis: Union organizing lives to fight another day — but so do its opponents

On Tuesday, by a vote that appears to have been six to three, the Court in a per curiam opinion dismissed the writ of certiorari as improvidently granted in UNITE HERE Local 355 v. Mulhall. The dissenting opinion of Justice Breyer, which was joined by Justices Sotomayor and Kagan, provides us with some insight into the Court’s reasoning.  It is to be recalled, as Justice Breyer notes, that the issue in the case is whether Section 302 (a) and (b) of the National Labor Relations Act (as amended ) – which prohibits the union from demanding or receiving a thing of value from an employer — is violated when an employer promises during an union organizational campaign to (1) remain “neutral”; (2) provide access for union organizing in the nonpublic areas of the employers’ premises; and (3) provide a list of employees’ names and contact information that the union can use for organizational purposes.

Justice Breyer’s opinion notes that the Court, in considering briefs and oral argument, “became aware of two logically antecedent questions that could prevent us from reaching the question of the correct interpretation of §302.”  In this connection, the dissent alluded to the possibility that the case was moot because the contract had expired prior to the Eleventh Circuit ruling below, which assumed that Section 302 applied to neutrality clauses, and that it was therefore “arguable” that Mulhall lacked Article III standing.  The disagreement between the dissent and the majority is to be found in the fact that the dissent would have, in the event that no jurisdiction was found, ordered the appellate decision to be vacated, “thereby removing its precedential effect and leaving the merits question open to be resolved in a later case” where jurisdiction existed.  Additionally, Justice Breyer would have sought further briefing on the question whether a private cause of action could be maintained under Section 302, which provides for criminal penalties, in which event the courts would not be required to reach the merits “unless the Federal Government decides to prosecute such cases rather than limit its attention to cases that clearly fall within the statute’s core antibribery purpose.”  This issue was not argued below.

The Breyer opinion – which more than once properly characterizes the statutory provision in question as an “antibribery” provision at its “core” — could be read as aligning these three Justices against the view that it could be applied to the kind of union organizing activities presented in the instant case.  The mootness issue, which received very little attention in the briefing and argument, would not seem to be an adequate procedural ground upon which to avoid the merits.  Even though the agreement had expired prior to appellate consideration, the parties agreed that the union still demanded enforcement of the agreement and a remedy for alleged violations of it – and thus the case was not moot.  In other respects, standing under Article III is more complicated, however, with the apparent test here being whether the Mulhall would have suffered imminent and actual harm. Though Mulhall’s right to refrain from union activity would have been undoubtedly harmed by the neutrality provisions, the ultimate alleged harm arguably would only occur in a non-union establishment – a result not made necessarily imminent by the neutrality agreement.

Finally, there is the issue of whether a private cause of action, which the Supreme Court had seemed to provide for in earlier dicta, can be maintained under a federal criminal statute which would normally provide for federal government enforcement through criminal sanctions.  This was not briefed at all, though Justice Ginsburg expressed some interest in it during oral argument.

The upshot of the Court’s disposition of the case is that the courts will remain divided on union neutrality agreements, so that their lawfulness (as will any “collective-bargaining process” which addresses them) will remain uncertain.  The combination of Justice Ginsburg’s pointed questions about the private cause of action theory – which, again, had not been raised below – combined with the dissent’s characterization of prior dictaas “uncertain” probably means that there are at least four Justices aligned on the union side on this issue.  But, at this juncture, no more than three Justices are apparently in evidence to support the union position on the merits. (The precise vote in the case is uncertain because a fourth Justice could have voted against the dismissal without publicly noting that vote.)

Thus, the unions and union organizing had a fortunate procedural victory, given that, in all probability, at least four and perhaps five Justices were against them on the merits given their ideological disposition and the tone of the oral argument.  Union organizing lives to fight another day – but so do its opponents.