For Immediate Release
June 24, 2013
UNITE HERE Statement on grant of certiorari in Mulhall v UNITE HERE Local 355
UNITE HERE is very pleased that the Supreme Court granted its petition to review the 11th Circuit Court of Appeals’ decision in Mulhall v. UNITE HERE Local 355. The 11th Circuit’s decision is out of step with all of the other courts which have considered the theory advanced by the plaintiff in Mulhall. Starting with a decision from a 3rd Circuit Court of Appeals authored by Michael Chertoff before he became the first Secretary of Homeland Security, the federal judiciary has held unanimously that labor-management organizing agreements are lawful and enforceable. The Department of Justice, the Department of Labor and the National Labor Relations Board have all agreed with this conclusion in forceful briefs submitted to the 11th Circuit and the Supreme Court. The 11th Circuit’s split decision (Judge Restani, appointed by President Reagan, dissenting) is the only departure from the view that has prevailed nationally.
The plaintiff’s theory is that organizing agreements such as the one between plaintiff’s employer (Mardi Gras casino in Florida) and UNITE HERE Local 355 violate the anti-bribery part of the Taft-Hartley Act passed in 1947. The theory is implausible on its face. No employer would think to bribe a union by making it easier for the union to organize. The aspects of the agreement attacked by Mulhall—that the employer would give the union the means to contact its employees and would remain neutral on the question of whether they should authorize a union to represent them—have been regular features of labor relations since the Taft-Hartley Act was passed. The plaintiff’s theory would wreak havoc with these and many other aspects of federal law—including the validity of collective bargaining agreements, for which there is no explicit exception in the anti-bribery section of the law.
“We are confident that the Supreme Court will reach the same result as the vast majority of federal judges and federal law enforcement authorities and will reject the Right-to-Work Foundation’s arguments as being utterly without foundation,” said Richard G. McCracken, General Counsel of UNITE HERE, who filed the petition with the Court.
Mulhall is backed by the “National Right to Work Foundation.” This case has nothing to do with what has supposedly been the mission of the Foundation: to resist “union security” provisions that require union membership. There is no requirement of union membership in the agreement between Mardi Gras and UNITE HERE and such provisions are in any event illegal in Florida. Thus, in bringing this case the Foundation revealed its true purpose: to interfere with union organizing and prevent employees from improving their lives through collective bargaining.