Jack Goldsmith on Labor Law

I did not know until relatively recently that in addition to blogging at Lawfare, Harvard Law professor Jack Goldsmith blogs about labor law, at a newish project called “On Labor.” (“On Labor” is also home to Ben Sachs, another Harvard Law professor and one of the greatest labor law experts in the country.)

Goldsmith has a recent post up about the Supreme Court’s forthcoming argument in UNITE Here v. Mulhall. The case is a challenge to organizing agreements between unions and employers that could very much alter the way union organizing is done. And it features some tricky legal questions. As Goldsmith discusses:

If the Court reaches the merits, it will face a very tricky question of statutory interpretation. The central issue is whether a union organizing agreement violates Section 302 of the Labor Management Relations Act, 29 USC § 186. Simplifying a great deal, Section 302 prohibits an employer from paying “anything of value” and prohibits a union from receiving any such thing of value from an employer. In the organizing agreement in Mulhall (which is typical), the employer agrees to (1) recognize the union based on a card-check procedure; (2) give the union access to work premises during non-work hours; (3) provide the union a list of employees and their addresses; and (4) remain neutral in the union’s organization efforts. In return, the union agrees not to strike, picket, or engage in “other economic activity” during the life of the contract. . . .

The term “things of value” is construed throughout the U.S. Code to include intangible property, and naturally includes valuable legal rights. And as this case makes abundantly clear, the employer’s contractual concessions have economic value to the union – as is evidenced by the large sums of money the union spent to ensure that the conditions of the contract (the placement of slot machines on the employer’s premises) are realized.

So far things look bad for the union. But there is a big problem with this plain-text interpretation of “things of value”: It would mean that Section 302 wipes out not just organizing agreements, but also any contract between an employer and union, for such contracts almost by definition involve an exchange of things of value. This implication calls into question the correctness of the plain-text interpretation, for Congress in other parts of the U.S. Code clearly favors employer-union contracts (see, e.g., 28 U.S.C. § 185(a), which contemplates suits for “violation of contracts between an employer and a labor organization”). And indeed, despite the Respondent’s attempts to show otherwise, its plain-meaning interpretation of Section 302 would criminalize collective bargaining agreements – a result that clearly cannot be right. . . .

The hard legal question in the case, then, is how to resolve the contradiction between the commands of the plain text and the unacceptability of its structural implications.