Unite Here Local 355 v. Mulhall (12-99)

argument 12-99

Unite Here Local 355 v. Mulhall

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the legal significance of “pre‑certification” agreements in labor organizing?

John G. Roberts 0:01

We'll hear argument first this morning in case 1299, Unite Here Local 355 versus Mulhall. Mr. McCracken.

John McCracken 0:10

Mr. Chief Justice, and may it please the Court. Many employers and unions find agreements such as this useful to avoid conflict during organizing campaigns. They are efficient. They avoid the hard feelings that come in many contested organizing campaigns and thereby create a good environment for collective bargaining. They serve the core objectives of the Labor Management Relations Act, those being freedom of contracts, organizing employees for collective bargaining, and labor peace.

Unknown 0:40

I think there's substantial force to that argument. But can we talk just about property for a minute, just in the abstract? Isn't it true that what you have might become property when you trade it? If you take a picture of a celebrity on the street, that's your right to do so, but you can't sell it. Maybe that's not quite the right analogy. But here, what — as you point out, is fairly standard in labor relations, has been turned into property, arguably, by the parties. Could the parties say that we'll pay you – could the employer say we'll pay you $100,000 to get out of the recognition agreement? That would be property in an economist's sense. Now, it might be a violation of the Labor Act.

John McCracken 1:32

That example would definitely be a violation of Section 302. If the employer gave the union $100,000 to not organize, that would be exactly like the Ventimiglia case from 1957 in the Fourth Circuit.

Unknown 1:45

But in the abstract, wouldn't that be property?

John McCracken 1:49

Money is property.

Unknown 1:51

We don't dispute that. And isn't the thing that's exchanged for the money also property?

John McCracken 1:56

This statute focuses on what is Paid lent or delivered by the employer — I'm just talking about

Unknown 2:02

our common definition, our common agreement as to what property

John McCracken 2:06

means. In this case, the only thing given by the union was a promise not to strike, picket, or boycott this business, to help supply labor if the employer needed it, not to coerce or threaten employees in the course of the organizing effort, and to arbitrate in the event that there was any —

John G. Roberts 2:25

And the list of — the list of employees.

John McCracken 2:30

Yes, that's what the employer promised to give to the union. And I was describing the things the union gave in response because it was a mutual

Unknown 2:36

agreement. What about support of the legislation to permit slot machines? Was that a promise that the union made?

John McCracken 2:46

It's so alleged, and there's no question that the union did tell the employer and the other employers that it would work to pass the legislation necessary for these employers to get into business in the first place, thereby serving the their interest and also the union's interest in having an industry and workers in the industry to represent.

Unknown 3:05

But as the case comes to us, we assume that there was such a commitment by the union. Yes, Your Honor. Okay. So suppose the company manufactures widgets and the union says we'll spend $100,000 advertising your widgets if you sign the recognition agreement.

John McCracken 3:22

Yes. Is that

Unknown 3:23

lawful?

John McCracken 3:24

It would be lawful because the union would not have received any widgets or It would not have received any kind of property from the employer. It would simply have promised to help the employer in business, something that happens a great deal in labor relations.

Unknown 3:38

Well, there would have been a quid pro quo for that, certainly. I mean, the union wouldn't promise that for nothing. it would get something in exchange, such as, as in this case, the right to go on the employer's property to recruit union members or some other thing of value from the employer.

John McCracken 4:02

Unquestionably. And this, as I say, happens a lot. So why

Elena Kagan 4:07

isn't that the property that Justice Kennedy referred to? The union paid $100,000 — to get the items that the employer gave them. So aren't they valued, something tangible, valued for what the union paid for it?

John McCracken 4:26

They are desired by the union. That does not make them things of value that are paid, lent, and delivered by the employer to the

Elena Kagan 4:36

union. Well, the argument, as Justice Scalia and Kennedy are referring to it,