Unite Here Local 355 v. Mulhall

September 27, 2013 • Legal Briefs
By Ilya Shapiro, Trevor Burrus, Luke Wake, & Karen Harned

The Labor Management Relations Act (a.k.a. the Taft‐​Hartley Act) was passed in 1947 in order to curb the tide of unfair labor practices that had arisen since the National Labor Relations Act (NLRA) of 1935. The NLRA established a legal regime that was friendly to unions and unfriendly to the rights of workers who dissented from attempts to unionize workplaces. Unions have many tools at their disposal to ease the path to unionization, but the government should not prefer the rights of those who wish to be unionized at the expense of those who do not. One part of Taft‐​Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40‐​year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft‐​Hartley Act passed to protect. Mr. Mulhall alleges that, in violation of Section 302, Local 355 and Mardi Gras exchanged “things of value” in order to smooth the path to unionization. In exchange for the union agreeing not to picket, boycott, or strike against Mardi Gras, as well as for financially supporting a ballot initiative that legalized slot‐​machine gambling, Mardi Gras agreed to support Local 355’s efforts to organize its employees. Specifically, Mardi Gras gave the union access to employee records and to its facilities in order to engage in organizing efforts during non‐​working hours. Additionally, and most crucially, Mardi Gras agreed to waive its right to a secret‐​ballot election supervised by the National Labor Relations Board as well as its right to contest any unfair labor practices committed by the union during the process of organizing the workers. The question before the Supreme Court is whether these are “things of value” exchanged in violation of Section 302. Cato, joined by the National Federation of Independent Business, has filed an amicus brief in support of Mr. Mulhall. We argue that, not only are Mardi Gras’s concessions clearly “things of value,” they are the types of exchanges that the Taft‐​Hartley Act was specifically passed to prohibit. The union exchanged a promise of “peace” from strikes and boycotts for concessions from the casino that compromised Mr. Mulhall’s right to dissent from unionization. The “exchange” was little better than extortion. Allowing such transactions would enable unions to coerce business owners into waiving protected constitutional rights — including the First Amendment right to voice opposition to unionization efforts and the fundamental right to exclude the public from private property. Moreover, this is a particularly serious concern for small business owners because they are especially vulnerable to coercive union demands. Small businesses generally lack the resources to survive a targeted corporate campaign when a union threatens economic war. Unions are free to try to organize employees, but they should not be allowed to override the rights of dissenters in the process.

About the Authors
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

Trevor Burrus

Research Fellow, Robert A. Levy Center for Constitutional Studies

Luke Wake
Karen Harned