Unite Here Local 355 v. Mulhall

(Slip Opinion) Cite as: 571 U. S. ____ (2013) 1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the
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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
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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]

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.