Major Supreme Court Not-Ruling on Labor Organizing

After giving cert (accepting) the case, the Supreme Court has dismissed the case, essentially saying, "Oops, my bad."

Unions dodged a bullet today when the Supreme Court took the unusual step of dismissing the strange and possibly disastrous case of Mulhall v. Unite Here Local 355 as “improvidently granted.”

Though the dismissal leaves some bad law in place in the 11th Circuit Court of Appeals, which includes Florida, Alabama and Georgia, labor should nonetheless breathe a sigh of relief.

In Mulhall, a Florida casino employee backed by the anti-union National Right to Work Legal Defense Foundation (NRTW) argued that neutrality agreements violate an anti-bribery provision in the Taft Hartley Act of 1947 and therefore constitute a federal crime.

Making neutrality agreements a crime would have struck at the heart of organizing as it is practiced today. The neutrality approach—in which the employer agrees not to oppose an organizing campaign—has been the mode of choice in most union drives since the ‘90s. The employer usually further promises to “card check,” which means that it will recognize the union if a majority of the employees sign cards stating their desire for union representation.

………

Although this was a bad ruling, letting it stand would have been less dangerous than the approach Unite Here took—appealing it to the Supreme Court and giving them the chance to invalidate neutrality agreements entirely. Though incorrectly reasoned, the 11th Circuit decision did not end neutrality agreements as we know them. The precedent may have caused some problems for unions in the 11th Circuit by scaring some potentially cooperative employers into demanding NLRB elections, by inviting additional lawsuits from the NRTW (which uses “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses"), or by posing a possible danger in the hands of a future, zealous Republican U.S. Attorney in Florida, Alabama and Georgia. However, the case did not pose an immediate threat that warranted bringing this case before the Supreme Court—a court that has been found to be the most pro-business Supreme Court since World War II.

I'm not sure of his analysis, but the dismissal is profoundly odd.

• They accepted the case.
• They had oral arguments.
• Then they dismissed the case.

My guess right now is that the Supreme Court has 5 justices more or less inclined to rule that neutrality agreements are bribery (WTF?!?!?!), but one, or two, of the 5 decided that they needed some less expansive cases to build a foundation to justify to their partisan goal of gutting organized labor.

If you want to look at the legal minutae here, try SCOTUS blog.