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At the U.S. Supreme Court today, the justices heard arguments in a case that could severely limit union organizing efforts across the country. At issue was whether so-called neutrality agreements between employers and unions are legal. Under these agreements, long approved by the courts, employers pledge to remain neutral during union organizing campaigns. In exchange, the union agrees not to picket, boycott, or strike.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The purpose of the 1946 Labor Management Relations Act was to promote industrial peace and avoid nasty, even violent clashes over unionization. In recent decades, unions have found that neutrality agreements are their most effective organizing tool.
The agreement before the court is fairly typical. A Florida casino owner agreed to provide union organizers access to its workers, to recognize the union if a majority of workers signed up, and to arbitrate disputes. The union, in exchange, agreed not to boycott, strike, or use other outside pressure tactics. It agreed not to coerce employees; and it said it would support an initiative that would allow casinos to have slot machines.
After the initiative passed, the casino reneged on the agreement, and backed a lawsuit brought by the National Right to Work Committee and one of the casino employees, Martin Mulhall, who explained his objection this way.
MARTIN MULHALL: Someone can't just come in and bargain for me without me even being recognized or have a say.
TOTENBERG: But the union's lawyer, Richard McCracken, countered that Mulhall's lawsuit is an attempt to make amicable union organizing impossible.
RICHARD MCCRACKEN: It's an extraordinary change in the law that would be accomplished.
TOTENBERG: Inside the courtroom, the focus was on one provision of the labor law, which bars employers from giving money or things of value to the union. Justice Kennedy acknowledged that neutrality agreements have been fairly standard in labor law, but he wondered what if the employer paid the union to pull out of an agreement.
That would be illegal, replied lawyer McCracken, because the statute bars employer payments to the union. In contrast here, he said, the only thing given by the union was a promise not to strike, picket, boycott, and not to coerce employees during the course of the organizing campaign.
Justice Scalia: What about the support for the referendum to permit slot machines?
Answer: There's no question the union did tell the casino it would work to pass the referendum. But that served the union's interests too, creating more jobs - potentially union jobs. And the union spent $100,000 worth of its own time and money on the slots campaign.
Justice Sotomayor: That $100,000 is troubling to me because if it was spent to buy the neutrality agreement, then that's corrupt and barred by the law.
This wasn't a cash payment to the employer, replied lawyer McCracken. It was the union's own exercise of its speech and petition rights in campaigning for passage of an initiative. It's no different than the construction unions lobbying right now for passage of the Keystone XL oil pipeline knowing that it will create more jobs for union employees.
Chief Justice Roberts focused on one aspect of the neutrality agreement: the provision that recognizes the union if a majority of the employees sign up. Are these card check agreements usual? asked Roberts.
Yes, replied McCracken, adding that most major hotel and casino companies have such agreements.
Next up to the lectern was deputy solicitor general Michael Dreeben, representing the government and supporting the union's position. Voluntary recognition of a union is not only permissible under the National Labor Relations Act, he told the court, it's a favored policy under the law.
Chief Justice Roberts, however, suggested that the card check provision is coercive. The union organizer comes up to you and asks you to sign up, and there's a bunch of your fellow workers around. And he's a big guy, interjected Justice Scalia.
But lawyer Dreeben was unfazed. Some would argue that employers also have big guys. And it's very coercive to have your employer in there on the factory floor reminding employees that there are a lot of costs to joining a union. The agreement here does not recognize the union, noted Dreeben. All it does is establish a perfectly lawful process so that employees get information from the union about unionization.
Last up to the lectern was William Messenger of the National Right to Work Committee. He contended that the neutrality agreement here would in fact be a crime under the federal law because it required the casino to provide things of value to the union, for example, access to the employees.
Justice Kagan: You're saying that if an employer invites a union onto the premises and allows the union to make the case for unionization, the employer cannot do that?
Answer: That's correct.
More answers like that inspired Justice Kennedy to suggest that Messenger's position is, quote, contrary to years of settled practices and understandings.
Several justices pressed further as to the boundaries of Messenger's argument. But from left to right, they seemed puzzled by his answers.
Nina Totenberg, NPR News, Washington.