Unite Here Local 355 v. Mulhall , 134 S. Ct. 594 ( 2013 )


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  • (Slip Opinion)            Cite as: 571 U. S. ____ (2013)                              1
    
                                         Per Curiam
    
           NOTICE: This opinion is subject to formal revision before publication in the
           preliminary print of the United States Reports. Readers are requested to
           notify the Reporter of Decisions, Supreme Court of the United States, Wash-
           ington, D. C. 20543, of any typographical or other formal errors, in order
           that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
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                                          No. 12–99
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       UNITE HERE LOCAL 355, PETITIONER v. MARTIN
    
                    MULHALL ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
              APPEALS FOR THE ELEVENTH CIRCUIT
    
                                    [December 10, 2013]
    
    
      PER CURIAM. 
    
      The writ of certiorari is dismissed as improvidently 
    
    granted.
                                            It is so ordered.
                     Cite as: 571 U. S. ____ (2013)           1
    
                        BREYER, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 12–99
                             _________________
    
    
      UNITE HERE LOCAL 355, PETITIONER v. MARTIN
    
                   MULHALL ET AL. 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
              APPEALS FOR THE ELEVENTH CIRCUIT
    
                         [December 10, 2013]
    
    
      JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
    JUSTICE KAGAN join, dissenting.
      Section 302(a) of the Labor Management Relations Act,
    1947, 61 Stat. 157, as amended, an antibribery provision,
    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 labor union that represents or seeks to
    represent its employees. 
    29 U.S. C
    . §186(a)(2). Section
    302(b) makes it a crime “for any person to request [or]
    demand . . . , or agree to receive or accept, any payment,
    loan, or delivery of any money or other thing of value
    prohibited by subsection (a).” §186(b)(1). The question in
    this case is whether an employer violates §302(a) by mak-
    ing the following promises to a union that seeks to repre-
    sent its employees: (1) that the employer will remain
    neutral in respect to the union’s efforts to organize its
    employees, (2) that the union will be given access (for
    organizing purposes) to nonpublic areas of the employer’s
    premises, and (3) that the union will receive a list of em-
    ployees’ names and contact information (also for organiz-
    ing purposes). A further question (the other side of the
    same coin) is whether a union violates §302(b) by request-
    ing that the employer perform its contractual obligations
    to fulfill these promises.
      The Eleventh Circuit held that these items are “thing[s]
    2            UNITE HERE LOCAL 355 v. MULHALL
    
                         BREYER, J., dissenting
    
    of value” and that an employer’s promise to “pay” them in
    return for something of value from the union violates the
    Act if the employer intends to use the payment to “cor-
    rupt” the union; the Eleventh Circuit also held that a
    union’s request that an employer make such a payment
    violates §302(b) if the union intends to “extort” the benefit
    from the employer. 
    667 F.3d 1211
    , 1215–1216 (2012).
    Other Circuits have held to the contrary, reasoning that
    similar promises by an employer to assist a union’s orga-
    nizing campaign (or merely to avoid opposing the campaign)
    fall outside the scope of §302. See Adcock v. Freightliner
    LLC, 
    550 F.3d 369
     (CA4 2008); Hotel Employees & Res-
    taurant Employees Union, Local 57 v. Sage Hospitality
    Resources, LLC, 
    390 F.3d 206
     (CA3 2004). We granted
    certiorari to resolve the conflict.
       We have received briefs on the issue, and we have heard
    oral argument. But in considering the briefs and argu-
    ment, we became aware of two logically antecedent ques-
    tions that could prevent us from reaching the question of
    the correct interpretation of §302. First, it is possible that
    the case is moot because the contract between the employer
    and 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. Second, it is arguable that respondent Mulhall, the
    sole plaintiff in this case, lacks Article III standing.
       In my view, rather than dismiss the writ of certiorari as
    improvidently granted, the Court should simply ask for
    additional briefs addressing these two questions. If it
    turns out that the federal courts lack jurisdiction either
    because the case is moot or because Mulhall lacks stand-
    ing, then we cannot reach the merits. But if that is the
    case, then we should likely order the Eleventh Circuit’s
    decision vacated, thereby removing its precedential effect
    and leaving the merits question open to be resolved in a
    later case that does fall within the jurisdiction of the
                     Cite as: 571 U. S. ____ (2013)           3
    
                        BREYER, J., dissenting
    
    federal courts.
       I believe we should also ask for further briefing on a
    third question: the question whether §302 authorizes a
    private right of action. I recognize that the Court said,
    long ago and in passing, that §302(e) “permit[s] private
    litigants to obtain injunctions” for violations of §302.
    Sinclair Refining Co. v. Atkinson, 
    370 U.S. 195
    , 205
    (1962), overruled in part on other grounds, Boys Markets,
    Inc. v. Retail Clerks, 
    398 U.S. 235
    , 237–238 (1970). But,
    in light of the Court’s more restrictive views on private
    rights of action in recent decades, see, e.g., Alexander v.
    Sandoval, 
    532 U.S. 275
    , 286–287 (2001), the legal status
    of Sinclair Refining’s dictum is uncertain. And if §302 in
    fact does not provide a right of action to private parties
    like Mulhall, then courts will not need to reach difficult
    questions about the scope of §302, as happened in this
    case, unless the Federal Government decides to prosecute
    such cases rather than limit its attention to cases that
    clearly fall within the statute’s core antibribery purpose.
       Unless resolved, 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, see 
    29 U.S. C
    . §186(d), if the employer or union
    official is found to have made certain commonplace orga-
    nizing assistance agreements with the intent to “corrupt”
    or “extort.” In my view, given the importance of the ques-
    tion presented to the collective-bargaining process, further
    briefing, rather than dismissal, is the better course of
    action.