Wednesday, August 21, 2013

National Academy of Arbitrators' Mulhall Amicus Brief

Supreme CourtThe National Academy of Arbitrators have just filed a amicus brief in Mulhall.  [Download NAA-Unite.Here.Mulhall.Amicus.]  Unlike a lot of amicus briefs, this one appears to do a nice job of adding something to the conversation, in particular the impact that the ruling could have on arbitrations.   The brief's summary of argument:

The Question Presented is whether an employer’s participation in a regime of labor-management relations that structures the parties’ relationship, in anticipation of potential union recognition, “pays” or “delivers” a “thing of value” to the union in violation of criminal law. The court below, as have the other courts, focused solely on the rules contained in the agreement. No judicial attention has been devoted to the role of arbitration as a component of the negotiated system as a whole. Once the role of arbitration is considered, it is apparent that what is “paid” or “delivered”—note the awkward statutory usage—is a system of industrial self-government in which arbitration plays a key role in overseeing the meaning, including the lawfulness, of the system. Such a pre-recognitional governance system is no more encompassed by § 302 than is the system of industrial self-government created by a collective bargaining agreement given legal effect through § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. 

In fact, it is quite impossible to distinguish a pre-recognition exchange of terms, of union access in return for labor peace subject to arbitral oversight, from a post-recognition exchange of terms, of recognition of union and management rights in return for labor peace subject to arbitral oversight. To accept the applicability of § 302 to the former is to extend the potential applicability of criminal law to the latter. Both would be antithetical to well-established labor law and policy. 

This brings me to raise what may be a controversial point: does anyone else think the union was mistaken to petition for cert. in Mulhall?  It may not have mattered--the employer petitioned as well--but I never read the 11th Circuit's decision as being as bad as many others did.  Although the court certainly opened the door to Section 302 application more than before, it still emphasized that there would only be a violation when there were bribery or corruption issues in play:

Employers and unions may set ground rules for an organizing campaign, even if the employer and union benefit from the agreement. But innocuous ground rules can become illegal payments if used as valuable consideration in a scheme to corrupt a union or to extort a benefit from an employer.

I know that opening could become wider before some courts.  That said, if I were the union, my inclination would be to accept that holding for now--it can always wait until an actual violation is found down the road--and try to avoid Supreme Court review.  Especially after some of the language in Knox, do they really think the Court is going to come out with a better ruling?  Seems like the risk and costs of losing at the Supreme Court are far, far greater than the potential gains here.


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