Union organizing campaigns run up against the fact that labor law enforcement, wealth, and power in the workplace are all stacked against workers, and if bosses fight a union with everything at their disposal, it is damn hard for workers to win. That environment could get a lot worse, though, with the Supreme Court hearing a case this week that challenged the legality of a key organizing tool.

As Labor Notes' Jenny Brown explains:



Neutrality agreements create rules for union and employer behavior during organizing drives. Often an employer signs such an agreement only after years of targeted union pressure. The employer promises not to try to sway workers’ opinions, allowing them some breathing room when labor law is mostly on management’s side.

The paragraph is designed to keep employers from bribing unions with money, jobs, loans, or other inducements, said Massachusetts labor lawyer Robert Schwartz. “No employer would think to bribe a union by making it easier for the union to organize,” noted UNITE HERE in a press release.

Justice Elena Kagan said that the argument from Mulhall's lawyer, William L. Messenger, could mean that employers would never be able to do simple things like invite union representatives on their property to talk to their employees without running afoul of the law. "So this is to say that the National Labor Relations Act prohibits employers from providing access to their premises, from granting a union a list of employees, or from declaring itself neutral as to a union election?" Kagan said. Messenger agreed, prompting a reaction from Justice Anthony Kennedy. "Do you acknowledge that your answer to Justice Kagan is contrary to years of settled practices and understandings?" Kennedy said.

For their part, unions may offer the employer some promises—for instance, that they will avoid strikes. But in the case the Supreme Court heard this week, a federal appeals court ruled that neutrality agreements may violate a provision of the Taft-Hartley Act prohibiting employers from giving unions "anything of value." According to the appeals court, the fact that Mardi Gras gaming gave UNITE HERE access to its facilities and the names and addresses of employees could count as something of value.The Supreme Court hearing a case that could seriously limit union organizing efforts is a terrifying prospect. There were some promising moments during questioning:But still. This is not a pro-worker Court, and it's going to be a nervous wait for the decision.

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