Monday, June 24, 2013

Supreme Court Grants Cert. in Noel Canning & Section 302 Cases

NLRBIn what can probably be described as among the least surprising news to come out of the Supreme Court this week, the Court today granted cert. in Noel Canning.  You can read our previous posts on the case here, here, here, and here.

The briefing and arguments in this case should be interesting.  I'll be especially curious about the extent to which the government will try to defend the pro forma session appointments rather than just attacking the D.C. Circuit's incredibly broad decision. 

Also, the Court granted cert. in UNITE HERE v. Mulhall.  This deals with Section 302, which makes it unlawful for an "“employer . . . to pay, lend, or deliver, any money or other thing of value . . . to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer . . . ."  Anti-union folks have argued that certain nuetrality agreements and other promises to give employee contact info violate this provision.  Most courts have rejected that.  In Mulhall, the Eleventh Circuit was more open to the argument, although still stressed that there's only a problem if the agreements implicate Section 302's policy by showing evidence of an intent to corrupt a union or were made in the face of extortion.  This grant of cert. worries me.  I don't see a reason to take cert. unless the Court wants to expand Section 302 (theoretically they could say Mulhall went too far, but I'm guessing that's not the case).  I don't think Section 302 was intended to prohibit neutrality agreements, but that may be too juicy a target for the Court majority.  Stay tuned.


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Mulhall looks to be a big case as well.

Posted by: Per Son | Jun 24, 2013 7:01:13 AM

It is interesting to note that despite calling the 11th Circuit’s decision in Mulhall “troubling”, the SG urged the Court not to grant cert. The SG stated, inter alia, that the Court’s intervention was not warranted at this time or in the case as only three Courts of Appeals have addressed the underlying issues and further consideration in the lower courts would benefit the Court should review eventually be justified.

Posted by: Josh | Jun 24, 2013 12:09:11 PM

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