On November 13, the Supreme Court heard oral arguments in Unite Here v. Mulhall, a case that could make it even more difficult for unions to organize workers. One of the issues in the case is whether a “neutrality agreement” -- where management agrees to remain neutral during a union organizing campaign in exchange for union concessions -- is illegal under a labor statute that prohibits employers from giving unions a “thing of value.”

In an editorial, The Wall Street Journal glossed over the fact that these are voluntary agreements, instead claiming that they are the result of union intimidation and collusion. Moreover, the WSJ ignored that neutrality agreements have been an increasingly useful tool for both unions and employers during organization campaigns since a wave of Republican anti-union legislation has placed obstacles between workers and union representatives and disrupted opportunities for workplace productivity.

From the November 13 WSJ editorial:

With their membership declining, unions have become more politically creative and one of their tactics has been to cut deals with management to replace bottom-up organizing on the shoproom floor. On Wednesday, the Supreme Court heard oral arguments on whether so-called neutrality agreements between Big Labor and business are collusion that infringes on the rights of employees.

Martin Mulhall (Unite Here v. Mulhall) is a groundskeeper at the Mardi Gras greyhound racetrack in Florida, where he has worked for 40 years. In 2004, Unite Here's Local 355 struck a deal with the company to grease the skids for unionization.

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Mr. Mulhall didn't want to join a union and objected to the company entrapping him in a unionized workplace. He sued, arguing that Mardi Gras's collusion with Unite Here is forbidden by the 1947 Labor Management Relations Act, aka Taft-Hartley. Under Section 302 of that law, employers are forbidden from giving any “thing of value” to a union that wants to organize its employees.

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While unions typically win only 45% of secret ballot elections, they succeed in 78% of organizing efforts using card check, when the union needs merely to collect signed cards from 50% of the work force to automatically become the monopoly bargaining agent.

If the Justices agree that Mardi Gras's concessions represent a “thing of value,” organizers will have a harder time getting companies to sign off on deceptive procedures like card check. Unions will have to spend more time convincing individual workers that they can provide a service worth having. That would be a real thing of value.

WSJ also says unions who bargain for neutrality agreements somehow “intimidate” management, even though in exchange for neutrality, management is assured that the union will not strike in the event of a dispute over the agreement. 

Voluntary card check neutrality agreements have become increasingly popular among unions in the face of nationwide anti-union laws and court decisions that have made it more difficult for unions to communicate directly with workers or to remain certified. Neutrality agreements have reportedly been at the root of more than half of recent successful unionization efforts. Should the Supreme Court find these neutrality agreements unconstitutional, it could "put a dagger in organized labor." As reported by The New York Times, labor law experts from across the political spectrum are concerned about the implications of this challenge to long-standing law and practice:

Benjamin Sachs, a professor of labor law at Harvard Law School, said the case before the Supreme Court was potentially “the most significant labor case in a generation.”

Professor Sachs said that if the court ruled against labor, it could significantly hobble efforts by private sector unions to organize workers.

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Craig Becker, general counsel of the A.F.L.-C.I.O., said the Right to Work group's legal theory to bar such agreements “would criminalize a large swath of ordinary, voluntary labor-management relations.”

“Under their theory,” Mr. Becker said, “parties cannot agree to this, the employer can't give it unilaterally and the union can't even ask for it. The implications are really sweeping.”

Mr. Becker argued that when Congress barred employers from giving union officials a “thing of value,” the legislation was intended to prohibit gifts like Cadillacs that could improperly influence officials. He said neutrality agreements should not be considered such corrupt “things of value” that the law addressed, asserting that if a neutrality agreement were to be barred under the law, so should a 3 percent raise that an employer awarded a union.

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Mr. Sachs noted that some conservative legal scholars were uncomfortable with efforts to bar neutrality agreements because that would inhibit employers' freedom to make contracts -- in this case, with a union to in theory assure smooth labor relations.

Undermining a key part of labor relations history seems to be the goal, as far as the WSJ is concerned. Its characterization of the card check process as a “deceptive procedure[],” is wholly misleading. Research shows that secret ballot elections, which the WSJ suggests are somehow more equitable than card checks, are deeply flawed. As Salon reported, secret ballot elections are “rife with opportunities” for employers to forestall unionization:

[T]he government-supervised National Labor Relations Board unionization process is, depending on your level of cynicism, either “broken” or “fixed” against workers. It's rife with opportunities for bosses to delay, gerrymander and intimidate workers -- including holding mandatory on-the-clock anti-union lectures full of ominous “predictions” -- without breaking the law. And research suggests it's also marked by rampant illegality -- including alleged illegal firings in a third of election campaigns -- that's perhaps predictable given that the worst-case scenario for scofflaw CEOs is usually reinstating an employee months later with back pay. Even if pro-union workers win an election, the law alone doesn't make corporations offer real contract concessions, and a year after the vote workers are about as likely as not to still be without a union contract.

Given the WSJ's low opinion of unions, it's strange that the newspaper would overlook the most obvious solution to Mulhall's problem: don't join the union. The union is not guilty of “entrapping” Mulhall or any other employee -- all workers are free to refrain from union membership, even if the union ultimately becomes the exclusive bargaining representative. This is especially true in Florida, where the Mardi Gras racetrack is located, because of its controversial right-to-work law that makes it illegal to compel employees to join a union or pay union dues.

But the WSJ won't let facts get in the way of its well-established anti-union bias. 

Photo by Flickr user jonbloy