Does "Why" or "What" Matter: Should Section 302 Apply to Card Check Neutrality Agreements?

By Ohanesian, Nicholas M. | The University of Memphis Law Review, December 1, 2014 | Go to article overview

Does "Why" or "What" Matter: Should Section 302 Apply to Card Check Neutrality Agreements?


Ohanesian, Nicholas M., The University of Memphis Law Review


I. INTRODUCTION 250

II. THE HISTORY OF SECTION 302 251

III. THE HISTORY OF NEUTRALITY/CARD CHECK RECOGNITION AGREEMENTS 254

IV. ATTEMPTS TO APPLY SECTION 302 TO NEUTRALITY/CARD CHECK RECOGNITION AGREEMENTS 257

A. The History of Mulhall 257

B. Choose to Never Apply 261

1. Sage 261

2. Adcock 262

V. Proposed Solutions 266

A. The Issue of Intent Under Section 302 (Pros and Cons) 267

B. Narrowing the Construction of a "Thing of Value " (Pros and Cons) 269

VI. CONSTRUCTING A TEST 272

A. Narrow Intent 272

B. Narrowing a "Thing of Value " 272

C. The Proposed Solution 274

VII. CONCLUSION 279

I. INTRODUCTION

Section 302 of the Labor Management Relations Act ("LMRA") broadly prohibits "any 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 In UNITE HERE Local 355 v. Mulhall, the United States Supreme Court was confronted with whether a card check neutrality agreement violates section 302.2 A card check neutrality agreement is an agreement between an employer and a union whereby the employer agrees to recognize the union as the collective bargaining representative for the employees of the employer upon being presented with evidence that the union represents a majority of the employees. As part of this agreement, the employer agrees not to campaign against the union as it seeks to gather majority support among the employees of the employer.3 Even though the Court dismissed the writ of certiorari as improvidently granted,4 this nonetheless leaves a circuit split on this issue because the Third and Fourth Circuits find section 302 to not be implicated, while the Eleventh Circuit finds in the affirmative.5 In addition, Volkswagen workers recently filed, and later withdrew, a lawsuit in the United States District Court for the Eastern District of Tennessee alleging that a neutrality agreement between the United Auto Workers and Volkswagen violated section 302.6

This Article traces the histories of section 302 and card check neutrality agreements. It also discusses how different courts have treated the application of section 302 to card check neutrality agreements. The Article then looks at attempts to resolve the conflict between section 302 and card check neutrality agreements by analyzing issues of intent and whether card check neutrality agreements are covered under section 302. Finally, the Article proposes looking at extrinsic evidence to decide, on a case-by-case basis, whether card check neutrality agreements violate section 302.7

II. The History of Section 302

In 1947, Congress passed section 302 as part of the LMRA.8 The LMRA's passage expanded the scope of the National Labor Relations Act ("NLRA")9 from a statute governing the conduct of employers in the field of labor relations, to one govern- ing the conduct of employers and labor unions.10 The LMRA also marked the return of federal courts to the field of labor relations.11 For example, section 301 vested federal courts with subject matter jurisdiction over breaches of collective bargaining agreements by employers and labor unions,12 while section 303 permitted employers to seek damages caused by unlawful picketing, strikes, and work stoppages.13 The crux of this Article, however, is the aforementioned section 302. Section 302(a) made it a crime for an employer to make payments to a labor organization, and section 302(b) made it a crime for a labor union to receive such payments unless certain conditions were met.14 Section 302(c) provided exceptions for when an employer could make payments to labor unions and employees belonging to labor unions.15

Section 302, which began as an amendment, sought to prohibit the payment by an employer, or the receipt by a labor union, of money except for wages or as union dues subject to a lawful dues check-off agreement. …

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