The circuit court panel remanded back to the district court so that it “can consider the § 302 claim and determine the reason why UNITE and Mardi Gras agreed to cooperate with one another.” This outcome and the ambiguity of the 11th Circuit decision prompted both sides of the litigation to seek a hearing before the Supreme Court (although, interestingly, the solicitor general, on behalf of the Obama Administration, urged the Court to let the 11th Circuit’s decision stand). The consequences could be highly significant. The Roberts Court could decide to go beyond the 11th Circuit’s decision and reaffirm the legality of card-check agreements, a pervasive feature of labor-management relations today. Or it could hold that section 302 of Taft-Hartley makes all such agreements illegal, and thus remove one of the only remaining effective organizing strategies for use by private-sector unions.
But taking a hard line against the conditions that undergird card-check agreements would also put the Court in the anomalous position of limiting the rights of companies to reach organizing agreements with unions on their own terms—in a sense, a broad reading of section 302 could be construed as impinging upon the rights of businesses, not just unions. Still, in this as in all of its litigation, the NRWLDF understands what it is up to, and it is not to enable union organizing. Given that the Roberts Court has been widely acknowledged to be perhaps the most pro-business Supreme Court in the past 70 years, the labor movement might be faced with a court decision based upon a highly creative reading of a section of the Taft-Hartley Act that might have shocked even Sen. Taft and Rep. Hartley themselves.
Every Roberts Court decision moves us closer to the Gilded Age.