Roberts Court Leaves Workers and Employers Hanging

Over the dissent of three of the moderate Justices, the Supreme Court this morning dismissed "as improvidently granted" the Unite Here v. Mulhall case. As we discussed in our term preview, that's the case where the Eleventh Circuit declared as criminal certain routine agreements between employers and unions designed to facilitate peaceful organizing. But in dismissing the case, the Roberts Court seems to have left intact a damaging lower court opinion whose potential illegitimacy was the basis of today's dismissal.

Today's dismissal consists of simply one sentence, with no explanation. To learn what prompted it, you have to read Justice Breyer's dissent (joined by Sotomayor and Kagan).

The dissenting justices suggest that the case is being dismissed because questions have been raised about whether the Eleventh Circuit had jurisdiction to hear it in the first place. The dissenters argue that the Court should have asked the parties to address certain new questions to determine if the lower court had the legal authority to issue its decision. If the answer turns out to be yes, the Justices would then decide the merits of the case. Otherwise, they would vacate the Eleventh Circuit decision, meaning it would have no effect, as if it had never been issued.

But because the appeal was simply dismissed, the lower court ruling stands. That means that this damaging Eleventh Circuit ruling stands even though the Supreme Court's majority seems to believe it may have been made invalidly. As Justice Breyer writes:

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 ... if the employer or union official is found to have made certain commonplace organizing assistance agreements with the intent to "corrupt" or "extort." In my view, given the importance of the question presented to the collective-bargaining process, further briefing, rather than dismissal, is the better course of action.

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