Supreme Court Dismisses Major Test To Key Union Organizing Tactic

CREDIT: Associated Press

Atlantic City Casino Union

CREDIT: Associated Press

A major challenge to a key labor organizing tactic will not go before the U.S. Supreme Court as expected. The high court dismissed the challenge on procedural grounds Tuesday, finding that the case had been “improvidently granted” and was not ripe for review.

The decision means the Roberts Court will not have the opportunity to weaken a key tool in modern labor organizing. (The justices appeared divided on the question during oral argument.) But it also means a federal appeals court decision invalidating the tactic will stand.

The appeal concerned what is known as a “neutrality agreements.” Employers entering into these agreements with unions agree to remain neutral as they attempt to organize the workforce, and unions sometimes agree not to picket or criticize the employer publicly. These agreements have benefits to both the employer, which establishes a good relationship if workers are ultimately unionized, and the workers, who have had dramatically more success unionizing in workplaces that have agreed to neutrality.

But anti-union interests developed a legal argument suggesting that employers violate a 1947 anti-bribery law when they enter into these agreements. Several judges, including then-Judge Michael Chertoff, who later became Homeland Security Secretary under President George W. Bush, rejected this argument. But last year, the U.S. Court of Appeals for the Eleventh Circuit agreed that this neutrality could violate federal anti-bribery law in at least some cases.

In a dissent to today’s dismissal, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan warned that leaving this issue unresolved “could negatively affect the collective-bargaining process,” because the Eleventh Circuit decision suggests an employer or union official could be found guilty of a crime with a five-year maximum sentence. In this case, an employee of Florida casino Mardi Gras Gaming had charged that his employer violated anti-bribery law when it entered into a neurality agreement with UNITE HERE.

This is the second dismissal without a substantive ruling on a closely watched case this term that could have had dramatic implications. Last month, the court dismissed as improvidently granted a case on how far states can go to impose abortion strikes, although another similar case may not be far behind.