A union, a casino and the law

At a time when unions are struggling to organize workers in the private sector, the Supreme Court is being asked to make unionization more difficult even when an employer agrees not to resist it. The court should reject the notion that such “neutrality” agreements violate the law.

On Wednesday, the court will be asked to allow a Florida casino to renege on an agreement it made with the Unite Here union under which management promised to remain neutral during the organizing process and assist the union by providing easy access to employees. The agreement also allowed the union to win the right to represent workers by collecting signatures — the so-called card check system — rather than by a secret ballot. Finally, the agreement provided for binding arbitration of disputes.

The agreement was reached in anticipation of a ballot initiative to legalize casino gambling in Miami-Dade and Broward counties. But after the measure was approved, the casino declined to comply with the agreement, citing legal concerns. Later, a casino company employee filed a lawsuit claiming that the deal violated a provision of federal law that says employers may not “pay, lend or deliver … any money or other tangible thing of value” to a union. The U.S. 11th Circuit Court of Appeals agreed, in a decision that conflicts with rulings by two other appeals courts.

Lawyers for the union argue persuasively that a company’s agreement to remain neutral during an organizing drive is not a “payment” or “delivery” or “thing of value.” And they note that the Supreme Court itself has said that the provision was motivated by a concern in Congress that companies might try to co-opt union leaders by bribing them. The union also notes that courts have enforced agreements such as the one in this case for decades.

Companies aren’t required to endorse the unionization of their workplaces, and this page has opposed legislation that would do away with secret ballots in organization elections. The government’s interest isn’t to promote unionization at all costs but to ensure that workers can make an uncoerced decision about whether to be represented by a bargaining unit.

But if a company decides that it’s in its interests to remain neutral in an organization drive — perhaps because it believes unionization is inevitable — it shouldn’t be prevented from doing so. The Supreme Court should overturn the 11th Circuit’s far-fetched reading of federal labor law.