Obama Administration Lawyer: Coercive ‘Card Checks’ Are a ‘Favored Element of National Labor Policy’

The National Labor Relations Act (NLRA), the principal federal law regulating employer-employee relations in America’s private sector, purports to uphold the right to “form, join or assist labor organizations” and also “the right to refrain from” forming, joining or assisting such organizations.

But the NLRA fails utterly to give equal protection to workers who don’t want a union.

For example, under the NLRA as interpreted by the courts, workers have only a nominal right not to join.  As nonmembers, they don’t have the right to refuse to pay dues or fees to a union, and still keep their jobs, whenever union officials can obtain “exclusive” bargaining privileges.

On the other hand, the NLRA fully protects the freedom of employees who want a union to join and pay dues; it doesn’t matter at all if their employer and the majority of their fellow employees oppose unionization.  Pro-union employees cannot legally be fired or otherwise discriminated against for joining or financially supporting a union under any circumstances.

The freedom not to join a union thus receives far less protection than the freedom to join under federal labor policy. Even so, Big Labor and its allies believe federal law is insufficiently biased in favor of compulsory unionism.

At a U.S. Supreme Court hearing yesterday, Obama Administration lawyer Michael Dreeben and Unite Here union lawyer Richard McCracken made no bones about the direction in which they want federal labor policy to go.

The case before the nine justices was Unite Here Local 355 v. Mulhall.  It stems from a so-called “neutrality” agreement forged in 2004 between hotel workers union bosses and Mardi Gras Gaming, a firm which owns a casino and a racetrack in Hollywood, Fla.  Martin Mulhall, represented by a National Right to Work Legal Defense Foundation attorney, contends that several years ago Mardi Gras and Unite Here hotel union bosses colluded to undermine employees’ right not to unionize under federal law.

While federal law denies the individual employee and the employer the freedom to negotiate directly with one another if the majority of employees favor unionization, federal law also says such union monopoly bargaining is illegal when a majority of employees don’t want a union.  And Sec. 8(c) of the NLRA was adopted by Congress in 1947 largely to protect employees’ right to hear both sides of the story regarding unions before collectively deciding whether or not they will be unionized.  As then-Justice John Paul Stevens put it in a 2008 decision for the High Court, federal labor policy recognizes that employees have an “underlying right to receive information opposing unionization.”

In exchange for various considerations from Unite Here kingpins, in 2004 Mardi Gras cut a “neutrality” deal in which it agreed to give union agents free access to company premises for organizing purposes, to hand over lists of employees’ names and addresses to Local 355, and to refrain from any action or statement “that will directly or indirectly state any opposition by the Employer” to unionization or any particular union.

Mulhall and Foundation attorney Bill Messenger charge that these three Mardi Gras “concessions” to Local 355 are gifts of “things of value” to the union that are prohibited by NLRA Sec. 302, a part of the NLRA that was largely intended by Congress to forestall “conflicts of interest in labor relations.”  Congress chose to make such employer “concessions” illegal because it wanted union officials to be accountable solely to the workers they purport to represent, and not be beholden to employers.

Throughout the hearing, Dreeben and McCracken refused to acknowledge that an important aim of federal labor law is to encourage what Stevens called “free debate on issues dividing [organized] labor and management” during unionization campaigns.  “Neutrality” pacts that directly quash free debate should actually be fostered by federal policy, Dreeben and McCracken suggested, to the extent that they lead to more employees being corralled into unions.

Dreeben openly conceded that normally the Mardi Gras “concessions” at issue in the Mulhall case would be regarded as “things of value” under federal laws designed to deter conflicts of interest, but suggested that they should not be regarded that way in Sec. 302 because the concessions’ goal to help union organizers win recognition as employees’ monopoly-bargaining agents without first submitting to a secret-ballot vote by employees.

Dreeben justified this stance by falsely contending that employers’ so-called “voluntary” recognition of unions through “card checks” is not merely a “permissible,” but a “favored element of national labor policy.”

In reality, the U.S. Supreme Court acknowledged nearly 45 years ago that “secret elections,” not “card checks,” are the “preferred” method “of ascertaining whether a union has majority support.”  The High Court has not budged from that stance since.

Unless the current justices want to rewrite federal labor law to tilt it even more steeply in favor of union organizers and against employee freedom to join or not join a union, it should reject the Obama Administration’s misrepresentations and rule in favor of Martin Mulhall.

Unions’ Organizing Technique Gets Mixed ReactionFrom Justices