SCOTUS and the Uncertain Future of Organized Labor

This has been a blockbuster week for the Supreme Court to say the least. With DOMA, Proposition 8, Title VII, and affirmative action decisions dominating the coverage, few have taken note of the Supreme Court's move on Monday to grant review to a set of cases that could strike a severe blow to private sector union organizing.

The first case, Noel Canning, challenges the ability of the President to make recess appointments to the National Labor Relations Board when the Senate has technically kept itself in session. Due to GOP obstruction in the Senate, the NLRB has for years struggled to maintain a three-member quorum. The Supreme Court held in New Process Steel that, absent such a quorum, the NLRB cannot legally rule on cases brought before it. If the Supreme Court decides that the President's recess appointments to the NLRB are unlawful, the NLRB will become basically non-functional for as long as Senate Republicans continue to deny the NLRB a quorum by blocking new appointments to the agency. In a world with a non-functional NLRB, private sector unions will find themselves with nowhere to turn when employers illegally coerce, intimidate, and otherwise unlawfully obstruct organizing campaigns.

The second case, Mulhall, challenges the legality of the most successful private sector union organizing tactic in the last decade. Because the federal protections for workers attempting to organize unions are so weak, a number of unions have sought to win organizing agreements with employers before embarking upon organizing campaigns. These organizing agreements set the terms for what the union and the employer are allowed to do in a given union organizing drive. Among other things, the agreements often require that the employer remain neutral during the organizing campaign and agree to recognize the union as soon as the majority of the workforce has signed union authorization cards.

Major unions that have a heavy organizing focus, like SEIU and UNITE HERE, owe much of their organizing success in the last decade to this particular tactic. In the worst case scenario, the Supreme Court could rule that organizing agreements necessarily violate the Labor-Management Relations Act's prohibition against employers providing "things of value" to unions. In so doing, it would destroy one of the few ways private sector unions have managed to expand their memberships in recent years.

These two cases -- which are slated to be decided upon next year -- could deliver a devastating one-two punch to private sector unionism, which is already at a historical low point. That would likely mean an even bleaker future for economic equality and working class power, both in our workplace and in our politics.