Wyatt Employment Law Report


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Supreme Court Dismisses Case Involving Employer Neutrality Agreement

By Edwin S. Hopson

U.S. Supreme Court Building, Washington, D.C. ...

U.S. Supreme Court Building, Washington, D.C. (LOC) (Photo credit: The Library of Congress)

On December 10, 2013, the U.S. Supreme Court issued an order in UNITE HERE Local 355 v. Mulhall, 571 U.S. ___ (2013), No. 12-99, dismissing the writ of certiorari as improvidently granted.  The case involved the question of whether an employer who agrees with a union (1) to remain neutral should the union seek to organize its employees, (2) that the union will be given access (for organizing purposes) to nonpublic areas of the company’s premises, and (3) that the union will receive a list of employees’ names and contact information, is in violation of the Labor Management Relations Act.  This statute makes it a crime for an employer “to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value” to a union that represents or seeks to represent the company’s employees.  29 U.S.C. §186(a)(2).  The lower court, the 11th Circuit Court of Appeals, had held that such commitments by the company violated the LMRA.

The Supreme Court had already received briefs in the case and had heard oral argument before it decided to dismiss the case without deciding it.  Three Justices, Breyer, Sotomayor and Kagan, dissented and argued that the Court should have kept the case and requested additional briefing on several issues.


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11th Circuit Rejects Recess Appointments Argument in NLRB Case

By Edwin S. Hopson

On November 15, 2013, the U.S. Court of Appeals for the 11th Circuit in Ambassador Services v. NLRB, No. 12-15124, rejected the employer’s argument that the NLRB lacked authority to issue the decision in its case because recess appointments to the Board made by President Obama in January 2012 were invalid.  The per curiam decision is not to be published.  The case conflicts with the Noel Canning v. NLRB decision of the D.C. Circuit which is now before the U.S. Supreme Court.