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High court to hear challenges of union organizers’ tactics

NEW YORK — Labor leaders and businesses are closely watching a Supreme Court case to be argued Wednesday that involves a popular strategy used by unions to organize hundreds of thousands of workers.

That strategy — widely deployed by the Service Employees International Union and the Unite Here hotel workers union — involves pressuring an employer into signing a so-called neutrality agreement in which the employer promises not to oppose a unionization drive.

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By some estimates, more than half of the recent successful unionization campaigns involve such agreements, which sometimes allow union organizers onto company property to talk with workers.

Benjamin Sachs, a professor of labor law at Harvard Law School, said the case before the Supreme Court is potentially “the most significant labor case in a generation.”

Sachs said that if the court ruled against labor, it could hobble efforts by private-sector unions to organize workers.

He added the other big labor case the Supreme Court has agreed to hear this session could have a significant effect on public-sector unions. In that case, a home care worker has asked the court to rule the state of Illinois violated her First Amendment rights by requiring her to pay “fair share” fees, much like dues, to a union she did not support.

In the case being argued Wednesday, an employee of Mardi Gras Gaming in Florida sued Unite Here, asserting its neutrality agreement with the company was illegal. The 11th US Circuit Court of Appeals ruled in his favor, finding the agreement was a “thing of value” that federal labor law bars employers from giving to any union or union official.

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Unite Here appealed, urging the Supreme Court to overturn the 11th Circuit and instead embrace rulings of the Third and Fourth Circuits, which have held that such agreements were not illegal things of value.

The National Right to Work Legal Defense Foundation, which helped the Mardi Gras employee, Martin Mulhall, bring the case, said another prevalent union tactic — unions getting employers to agree to use “card check” rather than a secret-ballot election to determine whether a majority of workers want a union — should also be considered an illegal thing of value.

With card check, union organizers ask workers to sign cards saying they support a union. If a majority of workers sign them, the union presents the cards to the employer so the employer will recognize the union.

As part of its neutrality agreement, Mardi Gras Gaming agreed to permit card check. In exchange, Unite Here pledged to back a casino gambling ballot initiative, spending more than $100,000 on the effort, and not to picket or strike Mardi Gras during its unionization drive.

Craig Becker, general counsel of the AFL-CIO, said the Right to Work group’s legal theory to bar such agreements “would criminalize a large swath of ordinary, voluntary labor-management relations.”

“Under their theory,” Becker said, “parties cannot agree to this, the employer can’t give it unilaterally, and the union can’t even ask for it. The implications are really sweeping.”

The other labor case, involving the Illinois home-care worker, stems from a 2003 executive order issued by Rod Blagojevich, governor of Illinois at the time, stating that the thousands of home-care workers who helped disabled individuals at home were public employees — Medicaid funds pay for their salary — who had the right to unionize.

Later that year, a majority of 20,000 Illinois home-care workers voted to choose the Service Employees as their union. Workers who joined the union had to pay union dues, while the state required those who opted not to join to pay “fair share” fees to help finance union representation.

Pamela Harris, a home-care aide, sued the state, objecting to the fees.

The Service Employees International Union receives an estimated $3 million a year in dues and fees from the state’s home-care workers.

In petitioning the Supreme Court to hear the case, the National Right to Work Legal Defense Foundation, which is affiliated with the National Right to Work Committee, said the case involved “a new and pernicious form of compelled expressive association” that violated Harris’s First Amendment rights.

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