SCOTUS argument: Does a neutrality agreement violate labor laws?

Is organizing assistance a "thing of value"? UNITE HERE Local 355 v. Mulhall is up for oral argument at the US Supreme Court on November 13.

Let the union's petition for writ of certiorari tell the story:

Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186 – the federal labor anti-bribery statute – makes it criminal for an employer “to pay, lend, or deliver . . . any money or other thing of value” to a labor union that seeks to represent its employees, and prohibits the labor union from receiving the same. The Third and Fourth Circuits have held that agreements between employers and unions that set ground rules for union organizing campaigns – including employer promises to remain neutral and recognize the union upon a showing of majority support, and union promises to forego the rights to picket, boycott, or otherwise put pressure on the employer’s business – are not “payment” of “things of value” proscribed by § 302. The Third Circuit found that a contrary holding would “wreak havoc on the carefully balanced structure of the laws governing recognition of and bargaining with unions.” Hotel Employees & Restaurant Employees, Local 57 v. Sage Hospitality Resources, LLC, 390 F.3d 206, 219 (3d Cir. 2004), cert. denied, 125 S.Ct. 1944 (2005). In this case, however, the Eleventh Circuit came to the opposite conclusion. The question presented is:

Whether an employer and union may violate § 302 by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business?

Then let employee Martin Mulhall's brief tell the story:

Section 302(a)(2) of the Labor Management Relations Act makes it unlawful for an employer to “pay, lend, or deliver any money or other thing of value . . . to any labor organization,” with exceptions inapplicable here. 29 U.S.C. § 186(a)(2). Do the following three things, when demanded by a labor organization to help it unionize employees, constitute a “thing of value” to the labor organization under Section 302:

1. lists of personal information about nonunion employees; 2. use of the employer’s private property for organizing; and, 3. control over the employer’s communications regarding unionization?

[For a good preview of oral arguments, see Argument preview: Unite or disunite – another roadblock to union organizing and collective bargaining? by William B. Gould IV, the Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School.]