Setback for Scalia in Attempt to Curtail Labor Rights

Truthout depends on you to continue producing grassroots journalism and disseminating conscientious visions for a brighter future. Help us start 2014 strong by clicking here!

U.S. Supreme Court Justice Antonin Scalia. (Photo: United States Mission Geneva / Flickr)Last week the Supreme Court decided against ruling on a legal decision from a lower court which, if broadly applied, could have undermined some of the few remaining effective union organizing techniques: neutrality and card check agreements. These standards allow employees to organize in relative peace, without the threat of employer intimidation that is endemic to elections overseen by the National Labor Relation’s Board (NLRB).

But in the cartoonish worldview of Supreme Court Justice Antonin Scalia, such agreements are merely an exercise in thuggish union intimidation. During the hearing for the recent case, UNITE HERE Local 355 v. Mulhall, Chief Justice John Roberts tried to paint a scenario of a union organizer who “comes up to you” and acts coercively, as Scalia rushed to add his own flourishes to the tale, interrupting to say: “And he’s a big guy . . .”

“[Scalia’s] still working off this weird stereotype of union thugs, like On The Waterfront,” says Moshe Marvit, a Pittsburgh labor lawyer who has written about the case extensively. “They’ve painted this as an antidemocratic civil rights issue where workers are losing their right to have a free and fair election.”

Scalia’s colorful rhetoric was part of an attempt to depict employees’ organizations as anti-American special-interest groups, rather than democratic institutions that working people choose themselves. The National Right To Work Foundation deployed this same rhetoric in the initial 11th Circuit case, exploiting an obscure anticorruption clause in the 1947 Taft-Hartley law to argue that any agreement by an employer to act with neutrality during an organizing campaign should be considered a bribe to the union (which, in this circumstance, would be a federal crime). Similar language implying corruption and violence was used to tear down the Employee Free Choice Act, which would have made nontraditional union organizing easier. Opponents commissioned videos starring Sopranos actors as labor bosses to play up their narrative of card check as a thuggish process, while Grover Norquist’s organization made a video game where the protagonist is pursued by corrupt and parasitical union organizers.

The Mulhall case pitted the hospitality workers’ union, which represents many casino employees, against the virulently antilabor National Right To Work Legal Defense Foundation. In essence, the lawsuit was an attempt to further limit the already narrow organizing rights of working people in America. In theory, these rights are guaranteed by law and overseen by the NLRB, but in practice this agency has proven unable to provide fair outcomes. A 2009 study found pro-union employees were illegally fired in over one-third of organizing drives; other forms of unlawful intimidation are widespread, and the penalties against such behavior are so trivial that they had little deterrent effect on employers.

Given the weakness of government protections for employee rights, labor groups have looked for new tactics for organizing. An important one has been neutrality agreements between businesses and their workforces. These allow the two parties to establish rules for recognizing employees’ desire to form a union without going through the business-biased NLRB process.

While a neutrality agreement often imposes restrictions on both sides, labor advocates believe it is a much fairer process. The employees may agree not to wage a public relations campaign against the employer or not to go on strike. But, in return, employers are barred from workplace intimidation and agree to be legally bound by the outcome of the organizing drive (without such agreements in place, employers regularly ignore NLRB election results with impunity). Neutrality deals are often paired with a card check agreement, which grants union recognition if a majority of those employed at the site sign a petition expressing their desire to be part of a union.

The Conservative Attack on Card Check

In the Mulhall case, conservatives in the National Right To Work Foundation claimed that the neutrality and card check agreements between the Florida UNITE HERE local and the Mardi Gras Gaming Company violated an obscure provision of the Taft-Hartley Act, a law designed to subdue the then-ascendant American labor movement. Had the Supreme Court ruled on the case, it could have had far-reaching consequences.

The language used by the National Right To Work Foundation was so loose – their claim hinges on Taft-Hartley’s provision that states an employer cannot “pay, lend or deliver . . . any money or other thing of value” to a union – that, as Chicago labor lawyer Thomas Geoghegan argues, it could easily be extended to ensnare the entire labor movement.

“Taken to its logical conclusion, the claim upheld by the 11th Circuit would make it a criminal violation for an employer to even give a wage increase to union workers,” says Geoghegan, author of Which Side Are You On? Trying to Be for Labor When It’s Flat on Its Back. “A wage increase would be welcomed by the union, and therefore a thing of value to the union, and therefore a federal crime. Forget card check; forget neutrality agreements, I’m talking about collective bargaining agreements. It would make unions illegal.”

Defending the Right to Organize

Even the narrower terms of the 11th Court decision are greatly damaging. The real reason that conservatives loathe neutrality and card check agreements is that they are effective as mechanisms for promoting workers’ rights. As Marvit points out in a recent article, when employees have card check and neutrality agreements, they win a union 78 percent of the time. In contrast, when they go through an NLRB election process that is ripe for employer abuse, they are successful 46 percent of the time only. With card check, the resulting relationships between the employees are healthier too. Without the fear of employer reprisal, employees are able to work together, build positive relationships and honestly debate unionization. This collaborative process is empowering and allows for a much healthier workplace, without the lasting scars caused by a grueling opposition campaign waged by the professional union-buster consultants routinely hired by businesses whose employees have expressed any interest in collective action.

Advocates of neutrality and card check agreements should recognize the limits of these tactics. Such agreements really work in traditionally structured workplaces, where everyone is employed under the same roof by the same employer under a typical employment contract; they do not address the new economy of contingent, subcontracted, mobile and geographically diffuse employment. Even within the more traditional organizing model, they work best in the service sector. In the hotel, entertainment and grocery industries, for example, employees frequently interact with the public, and work sites are often located in population centers. This makes it substantially easier to draw together community allies and bring pressure to bear on recalcitrant companies. Workers in an isolated factory in the exurbs, for instance, would have a harder time rallying allies because they do not have face-to-face customers, and the barriers to access for community members are far higher than they would be in an urban hotel or grocery store.

But there is no doubt that neutrality and card check agreements are worth defending. When employees win a card check petition election, they get a first contract almost 100 percent of the time. This is a very different outcome than with an NLRB-overseen election, after which the company often stalls on a contract for months or years. Following a traditional election, the NLRB can order an employer to begin bargaining in earnest, but the federal agency has no power to actually enforce its own edict. In another case involving Unite Here, Atlantic City casinos delayed a contract for years despite an overwhelming vote for unionization and over 50 meetings between worker representatives and management. This kind of stalling effectively denies employees their right to democratic representation. For those employees, their freedoms ended when they crossed the threshold of their workplace.

The justices of the Supreme Court, after giving the Mulhall case a hearing, decided against pursuing it further. That may be because, as Marvit speculates, the National Right To Work Foundation’s argument would necessitate scrapping the entire National Labor Relations Act. And even some members of the court’s conservative wing might balk at that. (After all, the status quo of a toothless NLRB doesn’t bother business too much.)

Yet the past week’s developments still leave supporters of employees’ rights with plenty of work to do. With the Supreme Court declining to rule, the case has been left to the conservative 11th US Circuit Court of Appeals, whose initial ruling may make using neutrality agreements more difficult in Georgia, Alabama and Florida. In those states and beyond, the right to organize remains an endangered concept, and new strategies for promoting workplace democracy are urgently needed.

“Any time the union made any kind of ground rules with the employer, [opponents] would say that’s a violation of the Taft-Hartley act and therefore considered a bribe,” says Marvit, who is also the coauthor of Why Labor Organizing Should be a Civil Right. “There are a lot of organizing techniques, but this would really hamper a lot of them, because you would really be banned from cooperating with the employer in any way before the election.”