Supreme Court Tosses Cert in Union Case

(CN)- A divided Supreme Court on Tuesday dismissed a writ of certiorari granted in a case involving a Florida casino, the labor union with which it made a deal nearly a decade ago, and a union-opposed worker.

The writ had been "improvidently granted," a majority of the Justices, without explanation.

But Justice Stephen Breyer disagreed.

While conceding that "two logically antecedent questions" arose after the Justices received briefs and heard oral argument in the case, Breyer said he believes it would have been better to ask for additional briefs addressing the questions.

He was joined in his dissent by Justice Sonia Sotomayor and Justice Elena Kagan.

Martin Mulhall had sued Hollywood Greyhound Track dba Mardi Gras Gaming and Unite Here Local 355 over a deal that the pair made in 2004.

The agreement included promises by the Greater Miami casino to give the union some concessions in exchange for the union's financial support of a ballot initiative regarding casino gaming.

In addition to spending more than $100,000 campaigning for the ballot initiative, the union promised that it would refrain from picketing, boycotting, striking, or undertaking other actions against Mardi Gras if the workers picked it as their exclusive bargaining agent.

Per its concessions to the union, meanwhile, Mardi Gras Gaming said it would make its site available to the union for organizing during non-work hours. It would also provide the union with a list of employees, their job classifications, departments, and addresses; and it would remain neutral on the subject of unionizing employees.

Mulhall, a Mardi Gras worker who is opposed to being unionized, claimed that this deal violates Section 302 of the Labor Management Relations Act. This statute makes it unlawful for an employer to give or for a union to receive any "thing of value," subject to limited exceptions.

Though a federal judge found that the assistance promised in the agreement could not constitute a thing of value under Section 302, the 11th Circuit disagreed and revived Mulhall's suit in January 2012.

Mardi Gras and the union then petitioned the Supreme Court to grant it a writ of certiorari.

In his dissent Justice Breyer acknowledged the two questions that have arisen in the case could prevent the high court from ultimately deciding the matter.

"First, it is possible that the case is moot because the contract between the employer and the union that contained the allegedly criminal promises appears to have expired by the end of 2011, before the Eleventh Circuit rendered its decision on the scope of §302," Breyer wrote. "Second, it is arguable that respondent Mulhall, the sole plaintiff in this case, lacks Article III standing."

But if either is the case, the Justice said the court "should likely order the Eleventh Circuit's decision vacated, thereby removing its precedential effect and leaving the merits question open to be resolved in later case that does fall within the jurisdiction of the federal courts."

Breyer then suggested the court should have asked to be briefed on an additional question: whether §302 authorizes a private right of action.

Unless resolved, Breyer said, "the differences among the Courts of Appeals could negatively affect the collective-bargaining process."

"This is because the Eleventh Circuit's decision raises the specter that an employer or union official could be found guilty of a crime that carries a 5-year maximum sentence ... if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to 'corrupt' or 'extort,'" the Justice wrote.

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