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The Two Supreme Court Cases That Could Cripple Unions

By William Peacock, Esq. on October 18, 2013 | Last updated on March 21, 2019

Organized labor affects us all, from in house attorneys to the poor, stranded BART riders in San Francisco. (A local radio station coined a new phrase today: "calling in BART.") And if your company deals with organized labor, you may have experience dealing with "top down" unionization or compulsory union dues.

Both of those things could become a thing of the past after the Supreme Court hears two landmark labor cases this term: Unite Here Local 355 v. Mulhall and Harris v. Quinn. The hype for these cases has already began, with Harvard Law School Professor Benjamin Sachs stating that Mulhall "could be the most significant labor law case in a generation."

Top Down Unionization

There are two ways to unionize a workplace. There is the hard way, requiring surreptitious unionization campaigns and protracted battles against management. Picture attempts to unionize Walmart -- that's the hard way.

And then there is the easy way. Unions, seeking to move in, make a deal with management to facilitate unionization. Unions use their political clout and assets to either exchange favors or to exert pressure on the company. The company provides access to employees and to employee lists to make unionization easier.

The question is, when do these union-management deals cross the line into outright bribery?

Unite Here Local 355 agreed to pay for ads supporting a gambling law and agreed to forego all future labor disturbances. Mardi Gras Gaming provided access to company property and employee lists, and agreed not to oppose unionization. It's a win-win, right? Except, what do the employees get out of it?

Martin Mulhall was the employee who brought suit. According to Professor Sachs, Mulhall argued in his opposition to a motion to dismiss that the what the union bargained for was benefits for the union, and not for the employees, and indeed, isn't that the problem here?

Employees lose their labor disturbance leverage in this deal. The union gets dues, more members on the rolls, etc. The Eleventh Circuit felt that the union was bribed here, with "things of value" consisting of the employee lists, access to company property, and other assistance to unionization.

Prof. Sachs argues that the Eleventh Circuit was wrong, as the statute, which prohibits bribery was not intended to be stretched to the point where it covers the minimal things passed to the union here (employee lists, access to property). The circuit court dissent was on the same page, finding the deal fishy, but not seeing the illegality.

If the Supreme Court sides with the majority, however, it could mean little to no "top down" unionization. That likely means less labor peace, less successful unionization, and a big blow to organized labor.

Compulsory Dues

Stare decisis be damned. The Supreme Court, in Knox v. SEIU, hinted that compulsory union dues could violate the First Amendment, and that the court's precedent in Abood v. Detroit Board of Education may be on borrowed time.

Medicaid reimburses independent contractors working as home healthcare workers. Illinois considers these individuals to be state workers, and requires them to pay union dues. In fact, according to the Cato Institute, more than a dozen states take this stance.

Should the court reverse precedent, and hold that compulsory union dues infringe upon the First Amendment, this case could not only affect that dozen-or-so states, but depending on the reach of the holding (independent contractors only? Full-time employees?), it could affect all compulsory union dues.

Have any thoughts on compulsory union dues or "top down" unionization? Want to vent about the Supreme Court's pro-business slant? Join the discussion on Facebook at FindLaw for Legal Professionals.

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