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No. 12-99
Supreme Court of the United States
IN THE
UNITE HERE LOCAL 355,
Petitioner,
v.
MARTIN MULHALL AND HOLLYWOOD GREYHOUND
TRACK, INC. D/B/A MARDI GRAS GAMING,
Respondents.
On Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
BRIEF OF THE AMERICAN FEDERATION OF
LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS, SERVICE EMPLOYEES
INTERNATIONAL UNION AND NATIONAL
EDUCATION ASSOCIATION AS AMICI
CURIAE IN SUPPORT OF PETITIONER
CRAIG BECKER
LYNN RHINEHART
JAMES B. COPPESS
American Federation of Labor
and Congress of Industrial
Organizations
815 16th Street, N.W.
Washington, D.C. 20005
Telephone: (202) 637-5310
LEON DAYAN
Counsel of Record
LAURENCE GOLD
Bredhoff & Kaiser, P.L.L.C.
805 15th Street, N.W.,
Suite 1000
Washington, D.C. 20005
Telephone: (202) 842-2600
[email protected]
[ADDITIONAL COUNSEL ON INSIDE COVER]
Peake DeLancey Printers, LLC - (301) 341-4600 - Cheverly MD
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JUDITH A. SCOTT
WALTER KAMIAT
MARK SCHNEIDER
Service Employees
International Union
1800 Massachusetts Ave., N.W.
Washington, D.C. 20036
Telephone: (202) 730-7455
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ALICE O’BRIEN
PHILIP A. HOSTAK
National Education
Association
1201 16th Street, N.W.
Washington, D.C. 20036
Telephone: (202) 822-7035
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TABLE OF CONTENTS
TABLE OF AUTHORITIES..................................
Page
ii
INTEREST OF AMICI CURIAE..........................
1
STATEMENT..........................................................
1
SUMMARY OF ARGUMENT...............................
3
ARGUMENT...........................................................
5
I.
RESPONDENT’S CONSTRUCTION
OF LMRA § 302 IS UNSOUND ...............
5
A. Respondent’s Construction of § 302
Cannot Be Squared with the
Language of § 302.................................
8
B. Respondent’s Construction of
§ 302 Would Put § 302 in Conflict
with Other Provisions of the LMRA..
11
II. UNDER § 302 AS PROPERLY
INTERPRETED, THE CHALLENGED
CLAUSES IN THE RECOGNITIONPROCESS AGREEMENT ARE LAWFUL
23
A. The Neutrality Clause Is Lawful ........
24
B. The Access-to-Premises Clause Is
Lawful.....................................................
27
C. The Access-to-Employee-ContactInformation Clause Is Valid ................
32
III. THE ELEVENTH CIRCUIT
IMPROPERLY INSERTED AN INTENT
REQUIREMENT INTO § 302 ..................
34
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TABLE OF AUTHORITIES
CASES:
Page
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............
26
Chamber of Commerce v. Brown,
554 U.S. 60 (2008)..........................................
24
Cities Serv. Oil Co., 25 N.L.R.B. 36 (1940)....
29, 30
Coamo Knitting Mills,
150 N.L.R.B. 579 (1964) ................................
24
Excelsior Underwear,
156 N.L.R.B. 1236 (1966) ..............................
33
Granite City Steel Co.,
167 N.L.R.B. 310 (1967) ................................
29
Hillman v. Maretta,
133 S. Ct. 1943 (2013) ...................................
22
Holyoke Water Power Co.,
273 N.L.R.B. 1369 (1985) ..............................
30
Kroger Co., 219 N.L.R.B. 388 (1975)...............
26
Linden Lumber v. NLRB,
419 U.S. 301 (1974)........................................
12
Local 1976 Carpenters v. NLRB,
357 U.S. 93 (1958)....................................... 17, 18, 19
Lucile Salter Packard Children’s Hosp. v.
NLRB, 97 F.3d 583 (D.C. Cir. 1996).............
31
Machinists v. Wis. Employment Relations
Comm’n, 427 U.S. 132 (1976) ......................
22, 23
NLRB v. Babcock & Wilcox Co.,
351 U.S. 105 (1956)........................................
31, 32
NLRB v. Drivers, 362 U.S. 274 (1960)............
21
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TABLE OF AUTHORITIES—Continued
Page
NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969)........................................
15
NLRB v. Ill.-Am. Water Co., 933 F.2d 1368
(7th Cir. 1991) ................................................
33
NLRB v. Servette, Inc., 377 U.S. 46 (1964) ....
19
NLRB v. Stowe Spinning Co.,
336 U.S. 226 (1949)........................................
31
NLRB v. Truitt Mfg. Co.,
351 U.S. 149 (1956)........................................
33
NLRB v. Wyman-Gordon,
394 U.S. 759 (1969)........................................
33
Roberts v. Sea-Land Servs., Inc.,
132 S. Ct. 1350 (2012) ...................................
12, 15
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997)........................................
7
Sekhar v. United States,
133 S. Ct. 2720 (2013) ...................................
8, 25
Skilling v. United States,
130 S. Ct. 2896 (2010)..................................22, 23, 32
Teamsters v. Morton,
377 U.S. 252 (1964)........................................
21
Torrington Extend-A-Care Emp. Ass’n v.
NLRB, 17 F.3d 580 (2d Cir. 1994) ................
34
United States v. Schiffman,
552 F.2d 1124 (5th Cir. 1977)........................
28
Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645 (1982)........................................
13
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TABLE OF AUTHORITIES—Continued
Page
STATUTES
18 U.S.C. § 1961(1)............................................
29 U.S.C. § 158(b)(7).........................................
29 U.S.C. § 158(b)(7)(C)...................................
29 U.S.C. § 158(c)..............................................
29 U.S.C. § 158(e)..............................................
29 U.S.C. § 159(c)..............................................
29 U.S.C. § 186 ...................................................
29 U.S.C. § 186(a)..............................................
29 U.S.C. § 186(a)(2).........................................
29 U.S.C. § 186(a)(3).........................................
29 U.S.C. § 186(a)(4).........................................
29 U.S.C. § 186(b)(1).........................................
29 U.S.C. § 186(c)(5).........................................
32
2
16
24
19
14
2
25
6
35
35
6
10
LEGISLATIVE MATERIAL
S. Rep. 80-105 (1947) ........................................
11
105 Cong. Rec. 6668 (1959)..............................
20
105 Cong. Rec. 6670-71 (1959).........................
20
61 Stat. 136 (1947) .......................................... 16, 17, 30
73 Stat. 519 (1959).............................................
16
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INTEREST OF AMICI CURIAE
This brief amicus
curiae is submitted, with the
1
parties’ consent, by the American Federation of
Labor and Congress of Industrial Organizations
(AFL-CIO), Service Employees International Union
(SEIU), and National Education Association (NEA).
The AFL-CIO is a federation of 57 labor organizations
representing over 12 million workers. SEIU is an
international labor organization representing over
2 million workers. NEA is a national labor organization representing 3 million public- and private-school
employees. Amici and/or their affiliates often negotiate labor-management agreements similar to those
challenged in this case that include mutually beneficial ground rules for the conduct of organizing campaigns.
STATEMENT
The complaint (Complaint) brought by Respondent Mulhall (Respondent) seeks to enjoin the
enforcement of a recognition-process agreement
between Mardi Gras (Employer) and Petitioner Unite
Here Local 355 (Union). The Agreement is typical of
recognition-process agreements commonly entered
into by management and labor to resolve labor disputes. In exchange for the Union’s promise to waive
certain rights, including its right under Section
8(b)(7) of the Labor Management Relations Act
1
Letters of consent from Respondents are on file with the
Clerk. Amici received written consent from Petitioner. No
counsel for a party authored this brief in whole or in part, and
no person or entity other than amici curiae made a monetary
contribution to fund its preparation or submission.
(1)
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(LMRA), 29 U.S.C. § 158(b)(7), to engage in organizational picketing of the Employer’s premises, Pet.
App. 82, the Employer made a number of promises to
the Union.
The Agreement’s central clause states that if the
Union can demonstrate to a neutral arbitrator that it
has the support of a majority of the employees in a particular bargaining unit, as evidenced by signed authorization cards, the Employer will voluntarily recognize
the Union as the exclusive representative and commence collective bargaining. Pet. App. 81-82. The
Agreement also contains subsidiary clauses setting out
certain ground rules, all subject to arbitral oversight,
governing the parties’ conduct during the Union’s
organizing effort. The Employer agrees: to remain neutral on union representation, Pet. App. 79; to accord the
Union limited access to the non-public non-work areas
of the Employer’s premises so that it can communicate
with the employees about union representation during
their non-work time, id. 80; and to provide the Union
with a list of employee names and home addresses for
the same purpose, id. 81.
Respondent’s Complaint does not challenge the
voluntary recognition clause. It challenges only the
subsidiary clauses just described, claiming they are
“facially invalid under § 302 of the LMRA,” 29 U.S.C.
§ 186, a criminal provision of federal labor law. Pet.
App. 75.
The Eleventh Circuit rejected the theory that the
clauses are facially invalid. Pet. App. 8. But, despite
the absence of allegations in the Complaint pleading
improper intent, the court of appeals held that the
lawfulness of the clauses depended on the parties’
(2)
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intent in agreeing to them, reversed the district
court’s grant of Petitioner’s motion to dismiss, and
remanded for further proceedings to “determine the
reason why Unite and Mardi Gras agreed to cooperate with one another.” Id. 9.
SUMMARY OF ARGUMENT
Sections 302(a)-(b) of the LMRA make it a crime
for an employer to “pay, lend, or deliver any money
or other thing of value” to a labor organization; for a
labor organization to “request” such a “payment,
loan, or delivery,” or for the parties to “agree” to such
a payment, loan, or delivery. The theory of
Respondent’s Complaint is that § 302 criminalizes
any request by a union for any employer action on a
labor-relations matter that yields something “subjectively desir[able]” or “objectively useful” to the union
in advancing a union institutional interest. That theory is foreclosed both by the text and statutory context of the provision, which compel a narrower construction.
As to text, § 302’s phrase “pay, lend, or deliver”
requires a transfer by the employer to the union of
money or some other employer asset; and its conjoined phrase “any money or other thing of value”
requires that the transferred asset must, like money,
be of general commercial value in the market and
not, unlike money, be of value only to the recipient.
Those two textual limits are confirmed by § 302’s history, which shows that the evil at which § 302 was
aimed was the diversion to a union of employer
money and assets that otherwise could be made
available to pay employee wages.
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As to context, whereas Respondent’s construction
of § 302 would put it at war both with specific provisions of the LMRA and the LMRA’s overall structure,
the proper construction demanded by § 302’s text
harmonizes § 302 with the LMRA as a whole.
Applying the proper construction to the three challenged clauses of the Agreement here establishes
that the Agreement is lawful. The first challenged
clause sets out a ground rule that the Employer will
take a neutral position on union representation. An
employer’s decision not to campaign against a union
is not something that is “pa[id], len[t], or deliver[ed]”
to anyone; thus the transfer element is unsatisfied.
Additionally, an employer’s decision not to campaign
against a union is not an asset of general commercial
value; thus the money-or-other-thing-of-value element is likewise unsatisfied.
Although Respondent concedes that an employer
exercising its free-speech right to remain neutral on
unionization does not violate § 302, he contends that
where an employer enters into an agreement to
be neutral, it delivers a “thing of value” to the union
in the form of “control” over the employer’s freespeech rights. That argument fails. Section 302’s
text makes plain that § 302 prohibits only those
agreements that require the employer to “pay,
lend, or deliver” something that could not lawfully
be paid, lent, or delivered in the absence of an
agreement.
The second challenged clause sets a ground rule
that allows the Union limited access to the Employer’s
premises to reach employees in its organizing effort.
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This, too, is not effectuating the transfer of any asset
to the Union, let alone one of general commercial
value; the Employer is merely exercising its own right
to determine whom to invite on and whom to exclude
from its property. Moreover, construing § 302 to criminalize the provision-of-access clause would put § 302
in conflict with decades of established law requiring
employers to provide access to union representatives
under numerous circumstances and always permitting an employer to do so.
The third clause provides that the Employer will
share employee contact information with the Union
for purposes of communicating with employees in its
organizing effort. Here, too, what is being provided
has no commercial value in the market, but has value
only to the Union. Indeed, the list is similar in kind to
the information that the National Labor Relations
Board (NLRB), with approval from this Court, long
has required employers to make available in the
course of election campaigns conducted under the
Board’s supervision.
While properly rejecting Respondent’s position,
the Eleventh Circuit nevertheless erred by improperly inserting an intent requirement in § 302(a)(2) that
Congress deliberately omitted.
ARGUMENT
I. RESPONDENT’S CONSTRUCTION OF LMRA
§ 302 IS UNSOUND
Section 302(a)(2) of the LMRA makes it a criminal
offense for an employer to “pay, lend, or deliver, or
agree to pay, lend, or deliver, any money or other
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thing of value” to a labor organization which
represents or seeks to represent the employer’s
employees, 29 U.S.C. § 186(a)(2); and § 302(b)(1),
in turn, makes it a criminal offense for any such
labor organization “to request, demand, receive or
accept, or agree to receive or accept, any
payment, loan, or delivery of any money or other
thing of value” from an employer. 29 U.S.C.
§ 186(b)(1).
Respondent’s Complaint alleges that the Union
committed a criminal offense under § 302(b)(1) by
making a “request” that the Employer agree to take
a neutral position on union representation during
the Union’s organizing effort; committed a second
offense by making a “request” that the Employer
permit Union representatives to enter the non-public,
non-work areas of the Employer’s premises to
communicate with the employees during that organizing effort; and committed a third offense by making
a “request” that the Employer agree to share with the
Union a list of employee names and addresses for
that same purpose. Pet. App. 73-74.
Respondent’s legal theory, as expressed in the
Complaint, is this: The phrase “thing of value” means
something that the recipient of the thing “subjectively desires” or considers “objectively useful,” so it necessarily follows that §§ 302(a)(2) & (b)(1) are properly read to proscribe (i) any employer action on a
labor-relations matter that yields something that is
“subjectively desir[able]” or “objectively useful” to
the union in pursuing a union institutional interest;
and (ii) any union request that the employer take
such an action. Pet. App. 68, 69, 70.
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The most that might be said for Respondent’s legal
theory is that its premise—that the phrase “thing of
value” means anything that is “subjectively
desir[able]” or “objectively useful”—rests on one of
the plausible understandings of that phrase if the
phrase is read in isolation. But there is nothing to
Respondent’s hypothesis that the phrase “thing of
value” has that meaning in § 302, where the phrase
does not stand alone but is one component of a
broader statutory provision, and where that
provision is one component of a broader statute, the
LMRA, that is founded on the recognition that
unions and employers frequently and properly make
requests of one another and enter into agreements with one another over a myriad of laborrelations matters—and thereby exchange “subjectively desirable” and “objectively useful” accommodations and concessions to one another—instead
of resorting to industrial combat to settle their
differences.
As we proceed to show, the text of §§ 302(a)(2) &
(b)(1)—when read as statutory text must be, “by reference to the language itself, the specific context in
which that language is used, and the broader context
of the statute as a whole,” Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997)—forecloses Respondent’s
construction of § 302. And, as we further show, those
provisions, properly read, make criminal only those
transactions in which (i) the employer transfers to
the union, or agrees to transfer to the union, money
or some other transferable employer asset; and (ii)
the asset transferred to the union is money or something that, like money, is of general commercial value
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in the market (and not something that, unlike money,
is only of value, or potential value, to the recipient).
A. Respondent’s Construction of § 302 Cannot
Be Squared with the Language of § 302
The words of § 302’s operative phrases—that it is a
criminal wrong for an employer “to pay, lend, or
deliver any money or other thing of value” to a union
and for a union to “receive or accept” any such
employer payment, loan, or delivery—read together
and in context serve to establish two critical limits
on the provision’s scope.
1. Section 302’s text makes it plain that the provision does not apply to any and all employer-union
interactions but rather to one particular set of
employer-union transactions: those in which the
employer makes a transfer to a union of an asset in
its possession in a manner that results in the union
obtaining possession of the asset.
What § 302 says is that it is unlawful for an employer to “pay, lend or deliver” to a union “any money or
other thing of value” and for a union to “receive” or
“accept” that employer “payment, loan or delivery.”
And the natural reading of the active verbs “pay, lend,
or deliver” and their correlatives “receive or accept”
in this context is that the first person—the
payer/lender/deliverer—is turning over an asset he or
she possesses to the second person, who “receives”
or “accepts” that asset and takes possession of it. Cf.
Sekhar v. United States, 133 S. Ct. 2720, 2725 (2013)
(holding that the term “property” as used in the
Hobbs Act’s prohibition against the “obtaining of
property from another,” must refer to property that is
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“transferable” or “capable of passing from one person to another,” and not more elusive forms of property (emphasis omitted)).
Thus, § 302’s “payment, loan, or delivery” element
directly contradicts Respondent’s claim that the provision reaches any and all employer actions that yield
something that is “subjectively desirable” or “objectively useful” to a union without regard to whether
the employer action that yields that benefit to the
union is part of an employer-union transaction
involving a transfer by the employer to the union of
some employer asset.
2. Of equal moment, § 302’s operative phrases,
reading all their words together and in context, place
a second rational, discernible limit on the class of
employer-union transactions that § 302 criminalizes.
Section 302 does so by providing that it is a crime for
an employer “to pay, lend, or deliver any money or
other thing of value” to a union.
In context, or standing alone, the term “money” is
clear and self-explanatory. And whatever may be true
when the phrase “thing of value” stands alone, when
it is instead one integral part of a phrase that conjoins the words “pay, lend, or deliver” and “money or
other thing of value,” the fair reading of “other thing
of value” is an employer asset that is closely akin to
money in that it has commercial value in the market.
For only an asset that has commercial value in the
market is, like money, valuable in the employer’s
hands and would be equally valuable in the union’s
hands or a third person’s hands. Such an employer
asset is thus sufficiently like money that a simple pro-
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hibition on an employer “payment, loan, or delivery
of any money” to a union would be seriously incomplete unless the prohibition were expanded to the
“payment, loan, or delivery of any money or other
thing of value.”
That understanding of “money or other thing of
value” has two strong buttresses in § 302’s text and
history.
First, in § 302(c), Congress drafted the express
exceptions to the prohibitions in §§ 302(a)-(b) in language that indicates that what Congress meant by
“any money or other thing of value” was any money
or other employer asset that has commercial value in
the market. In § 302(c)(5), for example, Congress
specified that § 302’s general prohibition “shall not be
applicable” “with respect to money or other thing of
value paid to a [union-sponsored] trust fund …
Provided, That (A) such payments are held in trust
for the purpose of paying, either from principal or
income, or both, for the benefit of employees … medical or hospital care [and other employee benefits].”
29 U.S.C. § 186(c)(5) (emphasis added). Not everything that is “subjectively desirable” or “objectively
useful” to a union can be used or monetized to pay,
“from principal or income, or both,” employee benefits; in contrast, employer assets with commercial
value in the market can be so used.
Second, the co-sponsors of § 302, including Senator
Taft, the chief floor manager of the Senate bill that contained § 302 and became law, authoritatively stated the
theory of the provision in the following terms:
The amendment proceeds on the theory that union
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leaders should not be permitted, without reference
to the employees, to divert funds paid by the company, in consideration of the services of employees, to the union treasury or the union officers….
The necessity for the amendment was made clear by
the demand made last year on the part of the United
Mine Workers that a tax of 10 cents a ton on coal to be
paid to the Mine Workers Union for indiscriminate use
for so-called welfare purposes. It seemed essential to
the Senate at that time, and today, that if any such huge
sums were to be paid, representing as they do the
value of the services of the union members, which
could otherwise be paid to the union members in
wages, the use of such funds be strictly safeguarded.
S. Rep. No. 80-105, pt. 1, at 52 (1947).
The evil at which the provision was aimed was thus
the diversion to the union of employer money, and of
employer assets that could be monetized, that the
employer had available for making wage payments to
its employees. And the nature of that evil confirms the
reading of § 302 that we have advanced, namely, that
the proscription against “payment[s]” and “deliver[ies]”
of “any money or other thing of value” reaches, in addition to money, payments and deliveries of employer
assets that are capable of being used to finance employee wages and benefits but are also capable of being
diverted to a union seeking to augment its own treasury.
B. Respondent’s Construction of § 302
Would Put § 302 in Conflict with Other
Provisions of the LMRA
An examination of the LMRA’s text as a whole con-
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firms that LMRA § 302 does not criminalize employer
actions with respect to a labor-relations matter that
yield something subjectively desirable or objectively
useful to a union in pursuing a union institutional interest, such as the union interest in organizing unorganized employees or in representing organized employees. That theory of § 302’s reach not only stretches
§ 302’s words well beyond the breaking point but as we
now show would put § 302 at war with other provisions
of the LMRA and violate both the “fundamental canon
of statutory construction that the words of a statute
must be read in their context and with a view to their
place in the overall statutory scheme,” and the related
principle that the “task is to fit, if possible, all parts into
an harmonious whole.” Roberts v. Sea-Land Servs.,
Inc., 132 S. Ct. 1350, 1356-57 (2012) (quotation omitted).
To illustrate the extent of this conflict, we examine in
depth the LMRA’s treatment of two employer actions
with respect to labor-relations matters that are more
“desirable” and more “useful” to unions engaged in
organizing unorganized employees than the three clauses of the Agreement Respondent challenges here.
The first is the employer action, in response to a
union request, of voluntarily recognizing the union.
Voluntary recognition means that the employer waives
its right to insist that the union demonstrate majority
employee support through an NLRB-conducted secretballot election; and the employer instead confers
recognition based on majority employee support
demonstrated through a neutral’s verification of
authorization cards, an arbitrator-conducted election,
or other similar forms of proof. See generally Linden
Lumber v. NLRB, 419 U.S. 301, 309-10 (1974).
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The second is the employer action, at the union’s
request, of refusing to do business with nonunion
firms under a secondary boycott.
Voluntary recognition is subjectively desirable and
objectively useful to a union pursuing its institutional interest in organizing unorganized employees in
many ways. It permits the union, upon obtaining
majority support through, e.g., authorization cards,
to commence collective bargaining without delay;
without the need to prove its majority status through
the lengthy, complex, and expensive NLRB representation-case election process; and without the need to
counter any new or redoubled employer efforts
to dissuade employees from voting for union representation.
Employer refusals to do business with nonunion
firms are likewise desirable or useful to a union
engaged in an organizing effort, since firms that are
losing business because their employees are not represented by the union have a strong incentive not to
oppose the union’s organizing efforts; indeed, they
have a strong incentive to exercise their free-speech
right to counsel their employees to support union
representation. This Court took note of that incentive
in Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.
645, 663 (1982), when it observed that “secondary
subcontracting agreements … create top-down
organizing pressure.”
We focus on these two types of employer actions
(i) because they both promote the precise union institutional interest in organizing unorganized employees that, according to Respondent, rendered the
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Union’s negotiation of the three clauses in the
Agreement challenged here a form of union “selfdealing,” Resp.’s Mem. in Support of Pet. at 13-14; and
(ii) because the Congresses that adopted § 302 in
1947 as part of the Taft-Hartley Act and amended
§ 302 in 1959 also enacted LMRA provisions concerning both the issue of voluntary recognition and the
issue of boycotts of nonunion firms; and those provisions are incompatible with the theory articulated in
Respondent’s Complaint as to the reach of § 302’s
criminal-law prohibition.
1.a. As to voluntary recognition, it is clear from the
text of the LMRA that the 1947 Congress that enacted § 302 did not prohibit either an employer grant of
voluntary recognition or a union request for such
recognition.
Section 9(c) of the LMRA, 29 U.S.C. § 159(c), was
part of the same bill that included § 302. Section 9(c)
addresses the subject of recognition and elections
and does so by stating that one type of election petition by a union that triggers an NLRB-conducted
election is a petition “alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to
recognize their representative…” 29 U.S.C. § 159(c)
(emphasis added). That language makes clear that a
request for recognition tendered by a union and
declined by an employer is a request that the employer lawfully can accept. Congress would not, of
course, have included a request-for-voluntary-recognition step in this statutorily authorized path to an
election if that step would be pointless. Lest there be
any doubt on the matter, this Court held unequivocal-
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ly in NLRB v. Gissel Packing Co., 395 U.S. 575, 59798 (1969), that the 1947 Congress made a deliberate
choice to allow voluntary recognition where the
union has majority support based on authorization
cards and has not had its majority confirmed in an
NLRB-conducted election.
Yet on the theory of the Complaint—under which a
§ 302 “thing of value” is delivered any time an
employer action yields a benefit to a union that is
“objectively useful” to the union in organizing unorganized employees, such as recognition without a
Board election—§ 9(c) would contemplate unions’
taking the pointless step of making a request for
recognition that § 302 would require the employer to
decline. Far from “fit[ting], if possible, all parts [of
the LMRA] into an harmonious whole,” Roberts,
supra, the theory as to § 302’s reach set out in the
Complaint would put § 9(c) and § 302 into open conflict and render the LMRA discordant.
b. The Complaint’s theory as to § 302’s reach
would create an equally sharp conflict with respect
to the 1959 amendments to the LMRA, which were
part of the Labor-Management Reporting and
Disclosure Act (LMRDA). The 1959 Congress had
before it both the question whether § 302 should be
amended and the question whether the LMRA’s voluntary-recognition regime should be amended; and
that Congress, like the 1947 Congress, acted in a
manner that belies the Complaint’s theory as to
§ 302’s reach.
The 1959 Congress, in addressing § 302, made two
amendments to the original Taft-Hartley version that
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are significant for present purposes. First, whereas
the original § 302 made it criminal for an employer
to pay or deliver any money or other thing of value to
a labor organization only when that organization
was the current representative of any of the employer’s employees, the 1959 version also made such
payments and deliveries criminal when they were
made to “any labor organization … [that] seeks to
represent, or would admit to membership” any of the
employer’s employees. Compare 61 Stat. 136, 157
(1947), with 73 Stat. 519, 537-38 (1959). Second,
whereas the original § 302 made it criminal for a
labor organization to “receive or accept, or agree to
receive or accept” a payment or delivery of any
money or other thing of value from an employer, the
1959 version also made it criminal for a labor organization “to request [or] demand” such a payment or
delivery. See id.
At the same time as it amended § 302, the
1959 Congress amended § 8(b) of the LMRA, the
provision setting out union unfair labor practices,
to limit the economic pressure, e.g., strikes and
picketing, that unions could use to induce voluntary
recognition by an employer. Notably, Congress
expressly permitted unions to picket an employer
for voluntary recognition without a Board
election for “a reasonable period of time, not to
exceed thirty days.” LMRA § 8(b)(7)(C), 29 U.S.C.
§ 158(b)(7)(C).
Because Congress’ express grant of permission to
unions to picket—and thereby pressure—an employer to accord voluntary recognition would make no
sense if Congress believed that even a “request” for
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such recognition would be criminal under § 302, the
1959 Congress’ adoption of § 8(b)(7) shows that
Congress intended to leave undisturbed the principle
that voluntary recognition and requests for such
recognition are lawful.
2. The 1947 and 1959 Congresses addressed the
subject of union-requested employer boycotts of
nonunion firms as well, doing so, again, in a manner
utterly inconsistent with Respondent’s interpretation
of § 302.
a. The 1947 Congress regulated boycotts of
nonunion firms in a carefully calibrated manner.
The Taft-Hartley Act did not ban all such boycotts
but instead made union efforts to cause employers to
boycott nonunion firms unfair labor practices only
in those instances where the union induced or
encouraged employees of the employer to withhold
their labor so as to pressure the employer to engage
in the desired boycott. See 61 Stat. at 141 (1947
version of § 8(b)(4)(A)) (prohibiting a union from
“induc[ing] or encourag[ing] the employees of any
employer” to engage in concerted activities aimed at
“forcing or requiring any employer … to cease doing
business with any other person”) (emphasis added).
The Taft-Hartley Congress consequently did not designate as an unfair labor practice a request for a secondary boycott made by a union directly to the employer.
See id.
As this Court held in Local 1976 Carpenters v.
NLRB, 357 U.S. 93, 99 (1958), under the Taft-Hartley
Act, “a union is free to approach an employer to persuade him to engage in a boycott, so long as it
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refrains from the specifically prohibited means of
coercion through inducement of employees,” and “if
the secondary employer agrees to the boycott …
there is no unfair labor practice.”
Nevertheless, on Respondent’s interpretation of
§ 302, the Taft-Hartley Congress, after considering
the subject of union efforts to enlist employers in
boycotts of nonunion firms, addressing that subject
in terms in § 8(b)(4), and determining that resulting
employer agreements honoring such boycotts do not
even present a sufficient threat to federal labor policy to warrant classification as unfair labor practices, turned right around and treated such boycott
agreements as criminal in § 302. That interpretation
of § 302 puts the section in direct conflict with the
balance of the Taft-Hartley Act.
b. The 1959 Congress revisited both the subject
of boycotts of nonunion firms and § 302. And
that Congress, like the 1947 Congress, dealt with the
subject of boycotts in a way that, again, is fundamentally at odds with Respondent’s interpretation
of § 302.
Shortly after the Taft-Hartley Act was passed in
1947, a major controversy developed concerning the
treatment of so-called “hot cargo” clauses in collective bargaining agreements—clauses that obligated
the employer to boycott goods or services from
nonunion firms and that consequently created the
“top-down” organizing pressure on the employees of
such firms described supra. Broadly speaking, the
NLRB took two positions between 1947 and 1958,
when the issue reached this Court in the Local 1976
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case. As the Court explained, one position was that
the clauses were valid and their performance lawfully could be compelled by unions through strike calls
or other inducements to employees to pressure the
employer to comply. 357 U.S. at 101. The second position was that the clauses were valid but that it was an
unfair labor practice for a union to compel compliance through such inducements. Id. at 101-02.
Notably, even those Board members in the minority
who contended for a third position, that the clauses
were facially invalid under § 8(b)(4), made no suggestion that § 302 applied and made such clauses
criminal, even though those members looked outside
§ 8(b)(4)—and indeed outside the entire LMRA, to
the Interstate Commerce Act—to support that position. Id. at 104.
In Local 1976 the Court adopted the second of the
Board’s positions. Id. at 106-07; see also id. at 108
(“[c]ertainly the voluntary observance of a hot cargo
provision by an employer does not constitute a violation of § 8(b)(4)(A)”).
It was against this backdrop that Congress in 1959,
after revisiting both the LMRA’s provisions concerning
boycotts of nonunion firms and § 302, did the following:
First, Congress enacted a new § 8(e) that, while
permitting “hot cargo” agreements in the garment
and construction industries, prohibited them elsewhere as an unfair labor practice. 29 U.S.C. § 158(e).
Second, Congress chose to preserve the principle
that neither a union request to an employer to boycott another firm nor an employer’s honoring of such
a request is an unfair labor practice. See NLRB v.
Servette, Inc., 377 U.S. 46, 54 (1964). Third, Congress
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rejected a proposal to criminalize unlawful secondary boycotts. 105 Cong. Rec. 6670-71 (1959).
Senator Kennedy, the chief Senate sponsor of the
1959 bill, captured the essence of the “hot cargo” compromise as follows: “I would not say that the union
should have the right to say to the contractor, ‘If you do
not do as we ask, we are going to strike against you.’
But at least the union should have the right to say to the
employer, ‘Our relations will be far better if you do not
deal with employer A.’” Id. at 6668.
At the same time, the 1959 Congress also adopted the
amendments to § 302 described above, including the
amendment that made it a crime for a union “to
request” a “payment, loan or delivery” of “any money or
other thing of value” from an employer. On
Respondent’s construction of § 302, Congress, in so
doing, necessarily would have been criminalizing
through those amendments both a union “request” to an
employer that the employer boycott a nonunion firm
and an employer decision to honor such a request.
Congress would therefore have been tacitly negating in
§ 302 all the careful work it had done in § 8 of the LMRA
to provide that such requests are lawful; that employer
actions honoring such requests are lawful; that employer-union agreements to this effect are lawful in the construction and garment industries; and that neither
requests, nor honoring such requests, nor employerunion boycott agreements are criminal under the
LMRA in any context. The interpretation of § 302 set
out in the Complaint thus puts that provision in clear
conflict with other specific provisions of the LMRA.
Indeed, Respondent’s interpretation has an even
deeper flaw. This Court repeatedly has held that in
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enacting LMRA § 8, captioned “Unfair labor practices,”
Congress did not merely lay down a set of labor-relations practices that are prohibited; rather, it considered
a wider field of labor-relations practices and, by deciding
not to prohibit under § 8 a given practice in that field,
made the concomitant judgment that the practice was to
be permitted and left free from regulation. See, e.g.,
Teamsters v. Morton, 377 U.S. 252, 260 (1964) (holding
(i) that the LMRA Congress deliberately permitted
unions to make, and employers to honor, requests to
engage in secondary boycotts; (ii) that a state commonlaw doctrine proscribing such requests conflicted with
the LMRA; and (iii) that, consequently, the Court would
vacate “the damages awarded against the petitioner
based upon its peaceful persuasion of [the employer’s]
management not to do business with the respondent”).
Among the practices designedly left to be free from
regulation are numerous practices involving union
“request[s]” or “demand[s]” for employer action favorable to union institutional interests, including the institutional interest in organizing unorganized employees.
For example, in NLRB v. Drivers, 362 U.S. 274 (1960),
the Court held that, because the 1947 Congress focused
on the topic of union recognitional picketing in LMRA
§ 8(b)(4) and did so in a way that did not bar such picketing in cases where the union had lost a Board representation election, the NLRB erred in relying on a more
general LMRA provision, within § 8 itself, that prohibited union “restraint or coersion” of employers, to deem
such picketing an unfair labor practice.
Yet on Respondent’s conception of the LMRA, § 8
would be largely overshadowed by § 302. Sections
302(a)-(b) would for the first time be deemed to apply
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to a host of long-accepted labor-relations “request[s]”
and “demand[s],” and to employer actions that are a
favorable response to such requests and demands, that
§ 8 does not make unfair labor practices. And one of
two consequences would necessarily follow: Either
§ 302 would displace § 8 as the principal locus of federal regulation of this host of labor-relations matters, contrary to decades of precedents of this Court treating § 8
as that locus. Or, despite the fact that § 302(c) enumerates nine specific exceptions from its general prohibition, innumerable additional exceptions to § 302 would
have to be implied into the statute to avoid conflict with
the legislative judgments embodied in § 8, so that in
each case where a union “request[ed]” or “demand[ed]”
an employer action beneficial to a union institutional
interest, the courts would have to inquire whether the
action was within the field covered by § 8 and therefore
impliedly excepted from § 302’s general prohibitions.
Cf. Machinists v. Wis. Employment Relations
Comm’n, 427 U.S. 132, 144 (1976) (engaging in such an
inquiry where state law was alleged to be field-preempted by LMRA).
The first consequence is self-evidently unacceptable.
And the second consequence is unacceptable as well.
To begin with, it is improper to imply exceptions to a
statutory provision that has express exceptions. See
Hillman v. Maretta, 133 S. Ct. 1943, 1953 (2013).
Perhaps more fundamentally, § 302 is a criminal statute,
and that brings into play another canon of statutory
construction—the rule of lenity—pursuant to which
courts must construe criminal statutes to avoid making
culpability turn on uncertain standards of conduct. See
Skilling v. United States, 130 S. Ct. 2896, 2932-33 (2010)
(holding that, because there was no clear line separat-
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ing which undisclosed-conflict-of-interest transactions
had and had not been treated as criminal
“depriv[ations] [of] another of the intangible right of
honest services,” the rule of lenity required that the
statute be construed not to reach that type of transaction at all). The lines separating conduct prohibited by
§ 8, conduct intentionally left unregulated by § 8, and
conduct simply outside the scope of § 8 are often quite
uncertain. See generally Machinists, supra. And, while
that type of uncertainty is tolerable when the consequences of guessing wrong are civil remedies, this
Court’s decisions teach that this type of uncertainty is
wholly unacceptable where criminal sanctions are
involved. E.g., Skilling, supra.
The interpretation of § 302 that we have tendered
avoids both of these consequences. For under that
interpretation, § 302’s operative phrases set a clear,
definite standard of conduct and are in harmony, not
conflict, with the balance of § 302 itself and with the
LMRA statutory scheme as a whole.
II. UNDER § 302 AS PROPERLY INTERPRETED,
THE CHALLENGED CLAUSES IN THE
RECOGNITION-PROCESS AGREEMENT ARE
LAWFUL
Once it is recognized that § 302’s operative phrases apply only to employer transfers of money or
other assets having commercial value in the market
and do not criminalize any and all employer-union
interactions that are subjectively desirable or objectively
useful to unions, it becomes a straightforward matter
to conclude that § 302 does not make criminal the
challenged clauses in the Agreement here.
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A. The Neutrality Clause Is Lawful
The first challenged clause sets out as a ground
rule that “[t]he Employer will take a neutral
approach to unionization of Employees.” Pet. App.
79. There are multiple reasons why the Respondent’s
attack on this clause fails.
1. An employer’s decision not to campaign against
a union is not something that is “pa[id], len[t], or
deliver[ed]” to anyone, let alone to a union, as it
involves no transfer of any asset, or of anything at all,
from one person to another. See supra at 8. That is
sufficient to defeat Respondent’s attack.
Additionally, an employer’s decision not to campaign
against a union is not “any money or other thing of
value.” It is not money and it is not an asset of general
commercial value in the employer’s possession that the
employer can sell or monetize in the market, let alone
one that is capable of being diverted from employee
wages or benefits into a union’s treasury. An employer’s
neutrality decision is thus outside the reach of § 302 for
this reason as well. See supra at 9-11.
2. Beyond this, an employer’s decision not to campaign against a union cannot possibly constitute a
crime under § 302 because an employer has a freespeech right, protected expressly by LMRA § 8(c), 29
U.S.C. § 158(c), to take any position it wishes in respect
to unionization, see Chamber of Commerce v. Brown,
554 U.S. 60, 66-67 (2008), including remaining neutral or
even expressing affirmative support for a union, Coamo
Knitting Mills, 150 N.L.R.B. 579, 580-81 (1964).
Respondent concedes this point. Resp.’s Mem. in
Support of Pet. at 17 n.13. But Respondent says that
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the theory of his Complaint is that where, as here, an
employer enters into an agreement to be neutral, the
outcome is different, because the employer then is
“deliver[ing]” to the union “contractual control” over
the employer’s free-speech right. Id.
That argument does not withstand a moment’s
inspection. Section 302(a) makes it unlawful for an
employer to “pay, lend, or deliver, or agree to pay, lend
or deliver, any money or other thing of value.” 29 U.S.C.
§ 186(a). Section 302(a) thus prohibits only those
“agree[ments]” that require the employer “to pay, lend,
or deliver” something that would be impermissible to
“pay, lend, or deliver” in the absence of an agreement. If
an “agreement” were something that itself could be
“pa[id], len[t], or deliver[ed],” then it would be superfluous for Congress to address the topic of “agree[ments]”
separately and in terms in § 302(a). The only natural
reading of § 302(a)—and the only reading that avoids
this redundancy—is to read the “agree[ment]” clause as
serving to ensure that the employer who agrees to “pay,
lend, or deliver any money or other thing of value” can
be prosecuted for an inchoate crime, or enjoined,
before the employer actually executes the payment,
loan, or delivery in question.
Furthermore, the argument advanced by
Respondent—that an employer that agrees to remain
neutral on unionization “deliver[s]” to the union
“control” over the employer’s communications—is
directly analogous to an argument that this Court
considered and rejected as making “a nonsense of
words” just last Term. See Sekhar, 133 S. Ct. at 2727
(“No fluent speaker of English … would say that a
person ‘obtained and exercised another’s right to
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free speech.’ He would say … that a person ‘forced
another
to make a statement.’” (emphases in origi2
nal)).
3. While the foregoing is more than sufficient, we
would add that Respondent’s “agreement” argument,
if accepted, would have far-reaching implications
that even Respondent recoils from. If, as Respondent
would have it, any permissible unilateral employer
action becomes criminal if the employer promises to
take that action in an agreement with a union, then
every agreement providing for voluntary recognition
would be criminal, even though it has long been settled that an employer properly can agree, in advance,
voluntarily to recognize a union. Kroger Co., 219
N.L.R.B. 388, 389 (1975) (holding that such advancerecognition agreements are enforceable). Respondent, by framing his Complaint so as studiously to
avoid making a challenge to the voluntary recognition clause in the Agreement, see supra at 2, must
2
While the Complaint here contains boilerplate alleging that
the neutrality clause and the other two challenged clauses
have “monetary and market value,” Pet. App. 70, those allegations are, as explained in the Petitioner’s Brief, entirely conclusory and therefore are not to be deemed true under Ashcroft v.
Iqbal, 556 U.S. 662, 677-79 (2009). See Pet. Br. at 61. The
Complaint does not, nor could it, allege any specific facts
showing that there is a market in which the Employer or the
Union could have sold or otherwise transferred for money any
of the rights the Employer exercised by agreeing to the challenged clauses, including its free-speech right to remain neutral on unionization. What the Complaint does properly allege
is that the Union here subjectively desired the clauses and was
willing to provide consideration to secure them.
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realize this. But, by omitting a challenge to that
clause from his Complaint, Respondent cannot
obscure the fact that the premise of his argument, if
taken seriously, would lead to the rejection of another settled legal doctrine.
Respondent tries to minimize the impact of his
interpretation on settled law by asserting that
employers that enter into voluntary recognition
agreements with unions are not “materially assisting
their organizing campaigns,” whereas employers that
agree to remain neutral are providing material assistance. Resp.’s Mem. in Support of Pet. at 16-17 n.12.
That assertion is risible. Recognition without an election enables the union, on demonstrating majority
support through, e.g., authorization cards, to declare
the successful end to its campaign without the need
to undergo a lengthy and expensive representationcase election process and often without the need to
counter any new or redoubled employer efforts to
dissuade employees from supporting union representation. That is at least as “material” a form of “assistance,” in Respondent’s terms, as is neutrality.
B. The Access-to-Premises Clause Is Lawful
The second clause in the recognition-process
Agreement that Respondent challenges sets a ground
rule allowing the union to “engage in organizing
efforts in non-public areas of the [employer’s] gaming
facility during Employees’ non-working times.” Pet.
App. 80. Here, too, there is no violation of § 302.
1. As is the case with respect to neutrality, an
employer that permits a union the sort of limited and
conditional access to its property contemplated by
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the Agreement here is not transferring to the union
any money or other asset and is therefore not effectuating any “payment, loan, or delivery” to the union.
The employer is instead merely exercising its own
right to determine whom to invite on and whom to
exclude from its property and is not conveying to the
union anything in the nature of an easement over the
property, a leasehold, or any other right to exclusive
use or possession of any portion of the premises in
question. Put simply, here all the Employer is doing is
telling the Union that it will not evict Union representatives as trespassers so long as their activities on the
property are limited in the manner specified in the
Agreement; the Employer is giving the Union no right
to evict others.
Not only is there no “payment, loan or delivery”
effectuated by this clause, there is no transfer by the
Employer to the Union of any money or other
Employer asset that has commercial value in the
market and thus no transfer of “any money or other
thing of value.” Put another way, the grant of permission involves no diversion to the Union of an
Employer asset that the Employer otherwise could
have monetized to pay employees higher wages or
benefits.
The situation here therefore stands in stark contrast to that presented in United States v. Schiffman,
552 F.2d 1124, 1126 (5th Cir. 1977), cited by
Respondent, where the employer, a hotel operator,
agreed to allow union representatives to stay
overnight at the hotel at rates sharply below those it
charged to its most favored customers and even
below its per-room cost. By not paying the employer
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the regular rate, the representatives there were
engaged in the diversion of an employer asset—
indeed the Employer’s very stock in trade—to their
own use.
2. Any interpretation of § 302 that would have it
reach all instances where an employer permits union
representatives to come onto or stay on its premises
in circumstances where the permission is “subjectively desirable” to the union and “objectively useful”
would be unsound, not only for the reasons just
given, but for the added reason that it would again
upset decades of established law and practice.
a. Provisions in collective bargaining agreements
that grant access to employer premises to union representatives who are not employees of the employer
have been common since before the enactment of
§ 302 in 1947. See Cities Serv. Oil Co., 25 N.L.R.B. 36,
50 (1940) (“The right of access [to non-employee
union grievance handlers] is a common provision in
contracts…. Union representatives are permitted to
enter the shop for the purpose of discussing grievances with the employees in [21 listed] industries.”).
Indeed, it is well settled that the subject of access by
union representatives to company property is a
mandatory subject of bargaining. E.g., Granite City
Steel Co., 167 N.L.R.B. 310, 315-16 (1967).
What is more, both before and after 1947, the
NLRB has held that even when there is no contract
provision on point, the employer is required—under
certain circumstances, as determined through a
multi-factor balancing test—to grant access to nonemployee union representatives, including access
necessary to permit such representatives to investi-
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gate grievances and conduct safety inspections. See,
e.g., Holyoke Water Power Co., 273 N.L.R.B. 1369,
1370 (1985) (employer violated § 8 in denying
access); Cities Serv. Oil Co., 25 N.L.R.B. at 47 (same).
This whole body of law would be wrong—and
countless employers and unions would have been
committing crimes on a daily basis—if, as the theory
of the Complaint would have it, an employer, in
granting access to its property to union representatives, is “pay[ing], lend[ing], or deliver[ing] any
money or other thing of value” to a union, and a
union in “request[ing]” such access is likewise violating § 302.
b. It is no answer to this objection to
Respondent’s theory that the access at issue in the
above-cited cases is access by a union serving as the
incumbent exclusive bargaining representative, as
opposed to a union seeking to organize an employer’s
employees. For there is nothing in the text of § 302
that would permit the meaning of the phrase “pay,
lend, or deliver, or agree to pay, lend or deliver any
money or other thing of value … to a labor organization” to vary depending on the status of the labor
organization as an exclusive representative or
not. Indeed, the Taft-Hartley Act covered only
“pay[ments]” or “deliver[ies]” to unions that were
current representatives of at least some of the
employer’s employees, 61 Stat. 136, 157 (1947); the
language extending the prohibition to unions that
“seek[ ] to represent, or would admit to membership”
the employer’s employees was added in 1959 but
with no change to the “any money or other thing of
value” clause. And, the archetypal payments that
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Congress enacted § 302 to prevent were the per-ton
royalty payments from mine owners to the United
Mine Workers’ treasury for unspecified employeewelfare purposes that that union had been demanding in collective bargaining in its capacity as exclusive bargaining agent. See supra at 10-11.
Quite apart from that, even an organizing union
that lacks the status of exclusive representative has a
right of access to an employer’s premises in two
important circumstances. First, an employer must
provide access to union representatives when the
employer has granted access to similarly situated
third parties. NLRB v. Stowe Spinning Co., 336 U.S.
226, 233 (1949); Lucile Salter Packard Children’s
Hosp. v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996).
Second, “if the location of a plant and the living quarters of the employees place the employees beyond
the reach of reasonable union efforts to communicate with them, the employer must allow the union to
approach his employees on his property.” NLRB v.
Babcock & Wilcox Co., 351 U.S. 105, 113 (1956).
Respondent’s interpretation of § 302 would criminalize employer grants of access to unions that these
decisions require, which would create yet another
conflict with the LMRA and established precedents
construing it.
Equally to the point, even in those cases holding
that, under particular circumstances, the employer is
not required to provide access to a union, the implication is always that the employer is permitted to
provide access to a union as a matter of choice in
determining how it will exercise its property rights;
and there is not even the slightest hint that an
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employer is ever prohibited from providing such
access. See, e.g., Babcock & Wilcox, 351 U.S. at 112
(“It is our judgment, however, that an employer may
validly post his property against nonemployee distribution of union literature…”) (emphasis added). Yet
on Respondent’s theory, there can be no middle
ground: whatever access an employer is not required
to provide, it is criminally prohibited from providing.
That theory, if adopted, would thus establish an
unprecedented restriction on the ability of employers to exercise their property rights.
Finally, there is a powerful additional reason to
reject the position that § 302 prohibits union requests
for, and employer grants of, access to employer
premises whenever employers are not required to
grant such access. As we have explained, § 302, as a
criminal provision, must be construed in accordance
with the rule of lenity, and the distinctions made in
the access-to-premises jurisprudence are too blurry
for criminal culpability to turn on them. See Skilling,
supra; see also id. at 2932 (lenity especially appropriate in regard to statutes, such as § 302, that are “predicate offense[s] under [the Racketeering Influenced
and Corrupt Organizations Act], 18 U.S.C.
§ 1961(1)”). Thus § 302 should not be construed to
treat access to employer premises as the “deliver[y]”
of a “thing of value.”
C. The Access-to-Employee-Contact-Information Clause Is Valid
The last of the three challenged clauses provides
that the Employer will share employee names, job
classifications and home addresses with the Union
for purposes of reaching the employees in connec-
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tion with the union’s organizing effort. This clause
too is valid, for there are no allegations in the
Complaint setting forth specific facts that would
establish that this information has commercial value
in the market. That is not surprising because its only
value is a labor-relations value to a union engaged in
an effort to organize the Employer’s employees. It
thus has value only to the Union and is no more a
§ 302 “thing of value” than voluntary recognition
itself.
Indeed, the list contemplated by the Agreement is
a list similar in kind to the list of employee names
and contact information that the NLRB, with
approval from this Court, long has required employers to make available in the course of election campaigns conducted under the Board’s supervision.
Excelsior Underwear, 156 N.L.R.B. 1236, 1239-46
(1966); NLRB v. Wyman-Gordon, 394 U.S. 759, 767
(1969). On Respondent’s theory, that long-established
rule would conflict with § 302.
There are, moreover, countless circumstances outside the Excelsior Underwear context where an
employer is required to grant union requests for
information, see, e.g, NLRB v. Truitt Mfg. Co., 351
U.S. 149, 153-54 (1956), including for information just
like that at issue here, NLRB v. Ill.-Am. Water Co.,
933 F.2d 1368, 1377-78 (7th Cir. 1991). And, as with
respect to the access-to-premises issue, even where
the circumstances do not require the employer to
share the information in question with the union, the
cases never have suggested that employers are prohibited from doing so. They have proceeded instead
on the premise that, where not required, sharing
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information is a matter of employer choice. See, e.g.,
Torrington Extend-A-Care Emp. Ass’n v. NLRB, 17
F.3d 580, 589-90 (2d Cir. 1994). Thus, the same considerations set out above in our discussion of the
access-to-premises issue apply with equal force in
the context of the access-to-information issue.
III.
THE ELEVENTH CIRCUIT IMPROPERLY
INSERTED AN INTENT REQUIREMENT
INTO § 302
While rejecting Respondent’s position that the
clauses at issue here are facially invalid, the court of
appeals allowed this action to survive the pleading
stage by declaring that the validity of those clauses
turns on the factual issue of the parties’ intention in
entering into them—i.e., on “the reason why Unite
and Mardi Gras agreed to cooperate with one another,” Pet. App. 9. According to the court of appeals,
“[i]f employers offer organizing assistance with the
intention of improperly influencing a union,” then
§ 302(a)(2) is implicated. Id. 8.
The fatal defect in the Eleventh Circuit’s ruling is
that the only paragraph in § 302(a) that the
Complaint alleges the Agreement violated—paragraph (a)(2)—sets out a strict liability offense and
includes no intent or other scienter element. That
paragraph makes it unlawful for “any employer …. to
pay, lend, or deliver, or agree to pay, lend, or deliver,
any money or other thing of value … to any labor
organization … which represents, seeks to represent,
or would admit to membership, any of the employees
of such employer.” In stark contrast, the two following paragraphs in § 302(a), which apply to employer
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payments to persons other than labor organizations,
do include a scienter element. Section 302(a)(3)
includes an express “purpose” requirement, and
§ 302(a)(4) includes an express “intent to influence”
requirement. 29 U.S.C. §§ 186(a)(3), (a)(4).
The Eleventh Circuit did not explain how a scienter requirement could be grafted onto § 302(a)(2),
given that Congress’ inclusion of such a requirement
in the following two paragraphs shows that its exclusion of such a requirement in § 302(a)(2) was deliberate. Its interpretation of § 302(a)(2) is thus untenable, and this Court should reject it.
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Respectfully submitted,
LEON DAYAN
Counsel of Record
LAURENCE GOLD
Bredhoff & Kaiser, P.L.L.C.
805 15th Street, N.W.,
Suite 1000
Washington, D.C. 20005
Telephone: (202) 842-2600
[email protected]
CRAIG BECKER
LYNN RHINEHART
JAMES B. COPPESS
American Federation of Labor
and Congress of Industrial
Organizations
815 16th Street, N.W.
Washington, D.C. 20005
Telephone: (202) 637-5310
JUDITH A. SCOTT
WALTER KAMIAT
MARK SCHNEIDER
Service Employees
International Union
1800 Massachusetts Ave., N.W.
Washington, D.C. 20036
Telephone: (202) 730-7455
ALICE O’BRIEN
PHILIP A. HOSTAK
National Education
Association
1201 16th Street, N.W.
Washington, D.C. 20036
Telephone: (202) 822-7035