The Next Big Labor Case

Watchdog petitions Supreme Court on withdrawal case that could upend labor law

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July 5, 2018

A labor watchdog's objection to a union withdrawal procedure could hamper workers and union members from bringing future suits against employers' labor organizations.

The National Right to Work Legal Defense Foundation filed a petition to the Supreme Court on Monday asking justices to review an appeals court decision upholding United Food & Commercial Workers Local 876's use of strict time windows for withdrawing membership. The case, however, extends far beyond the 17,000 workers in Local 876. A three-member panel of the Sixth Circuit Court of Appeals, two of whom are on President Trump's shortlist for the Supreme Court, questioned whether any party—employee, union, or employer—could bring such a case to federal civil court to begin with.

For decades parties to labor law have filed suit against unions and employers using Section 302 of the Labor Management Relations Act, which prohibits bribery on the parts of employers and unions. This aspect of the law has been used to bring suit against hundreds of unions and employers in federal court, including Local 876. The Sixth Circuit, however, questioned whether such suits should be allowed in the first place because the text of the law centers on criminal courts, rather than civil courts where labor law is settled.

"Nothing in [Section] 302 says that private parties may enforce the law. The relevant language imposes federal criminal penalties on parties who willfully violate the statute," the Sixth Circuit ruling says. "That is a form of relief usually enforced by the federal government, not private parties. The section about 'Penalties for violations' says nothing about civil remedies."

Union attorney Doug Korney said that revisiting Section 302 has been a hot button issue among labor lawyers and could be the vehicle that drives the Supreme Court to take up the case. He called the Sixth Circuit ruling's approach to Taft-Hartley "a novel issue."

"What makes this case so unique and different and precedent setting is the idea that Section 302 does not create a private cause of action," Korney told the Washington Free Beacon.

Korney pointed out that the Sixth Circuit panel included judges Joan Larsen and Raymond Kethledge, both of whom are on President Trump's shortlist for the Supreme Court. His clients may benefit from the strict textual approach favored by many conservative and originalist judicial philosophers.

"At base, [Section 302] is a criminal statute that makes it illegal for an employer to give anything of value," he said. "If you simply look at the text of the statute there's nothing implied about cause of action in civil court."

Attorneys for the National Right to Work Legal Defense Foundation said reversing a decades-old interpretation of labor law could upend the rights of employers, workers, and unions. Attorney Amanda Freeman said the ruling was surprising because "no other circuit to our knowledge" had questioned the ability of private plaintiffs to seek relief using Section 302. Her colleague Glenn Taubman called it a "game changer."

"This is the main statute that parties use to prevent financial improprieties from happening ... the main defense and main weapon parties have to make sure other parties are not engaged in bribery," Taubman said.

If the Supreme Court does not take up the case, the ruling would apply only to the Sixth Circuit, which is made up of Michigan, Ohio, Kentucky, and Tennessee. Workers, union officials, or employers would be unable to file private claims in federal courts and would instead have to request federal prosecutors investigate or petition the National Labor Relations Board. Freeman is hopeful they will take up the case, especially in light of the Supreme Court's Janus ruling, which forbids mandatory union fees for government workers. She said the Michigan case, though it is private sector, came about because the union was trying to hinder members from dropping out in the wake its right-to-work law. She said it is a preview of what is to come in a post-Janus world.

The Sixth Circuit ruling "is important because it impacts thousands of workers in the private sector, but it is also timely," Freeman said. "If you want to understand the aftermath of Janus, look to Michigan."

The union did not respond to request for comment.

Published under: Big Labor , Supreme Court