WASHINGTON -- The Supreme Court seemed unlikely Wednesday to declare invalid a pre-organizing agreement between a union and a South Florida casino that had the business helping the union organize in return for help with a ballot initiative.
Justices heard from UNITE HERE Local 355, which wants overturned a decision saying its agreement with Hollywood Greyhound Track, Inc., also known as Mardi Gras Gaming, could be illegal.
The union agreed with the company to help win a gambling ballot initiative legalizing slot machines at racetracks, and agreed not to picket, boycott, or strike. Mardi Gras officials agreed to give the union employee addresses, access to the facility and not ask for a secret ballot election on unionizing.
An employee, Martin Mulhall, then sued, saying that the agreement violated national labor laws, which say companies cannot give unions that want to represent employees something of value.
A federal judge threw out Mulhall’s complaint, but that decision was overturned by the 11th U.S. Circuit Court of Appeals, which said the actions of the company, including giving the union names of employees, were “things of value” and thus could violate the labor laws.
But several justices seemed worried about the implications of that argument. For example, Justice Elena Kagan said that the argument from Mulhall’s lawyer, William L. Messenger, could mean that employers would never be able to do simple things like invite union representatives on their property to talk to their employees without running afoul of the law.
“So this is to say that the National Labor Relations Act prohibits employers from providing access to their premises, from granting a union a list of employees, or from declaring itself neutral as to a union election?” Kagan said.
Messenger agreed, prompting a reaction from Justice Anthony Kennedy. “Do you acknowledge that your answer to Justice Kagan is contrary to years of settled practices and understandings?” Kennedy said.
The union’s lawyer, Richard G. McCracken, told the justices that preorganization agreements are common among the hospitality industry and casinos.
“Many employers and unions find agreements such as this useful to avoid conflict during organizing campaigns,” McCracken said. “They are efficient. They avoid the hard feelings that come in many contested organizing campaigns and thereby create a good environment for collective bargaining.”
But several justices did question whether giving the union access to the employees, a list of the employees, agreement to a card check process and getting its assistance in passing the ballot initiative qualified as a “a thing of value” under the law.
“There are some things that I think have value even though they may not have market value.” Justice Sonia Sotomayor said.
The justices are expected to make a ruling before summer in the case of UNITE HERE Local 355 v. Mulhall, 12-99.