useful to avoid conflict during organizing campaigns they are efficient they avoid the hard feelings that come in many contested organizing campaigns and thereby create a good environment for collective bargaining they serve the core objective of the labor management relations act those being freedom of contract organizing employees for collective bargaining and labor peace i think there's substantial force to that argument but can we talk just about property for a minute just in the abstract isn't it true that what you have might become a property when you trade it if you take a picture of a celebrity on the street but it's your right to do that but you can't sell  it maybe that's not quite there to the right amount but here what is as you point out is a fairly standard in labor relations has been turned into property arguably by the parties could could the parties say that we'll pay you a good the employer say we'll pay you one hundred thousand dollars to get out of the commission agreement that would be property in an economist sent might be a violation  common definition or common agreement as to what property mean in this case the all the only thing given by the union was a promise not to strike picket or a boycott this business to help supply labor of the promised to give to the union and i was describing the things the union gave in response because it was a mutual agreement what about support of the legislation to to permit slot machines was that a promise that the union made it so there's no question that the union did tell the employer and the other employers that it would work to pass the legislation necessary for these employers to get into business in the first place thereby serving their interest and also the union's interest in having an industry and workers in the industry to represent but as the case comes to us we assume that there was such a commitment but yes your honor so suppose the company manufactures widgets and the union says we'll spend one hundred would simply have promised to help the employer in business something that happens a great deal in labor relations as they would have been a quid pro quo for that certainly i mean the union wouldn't promise that for nothing it would get something in exchange such as as in this case the right to go on the importers property to to recruit union members or some other thing of value from the employer unquestionably and they this as i say happened so why isn't that the property that justice kennedy refer to they paid the union paid one hundred thousand dollars to get the items that the employer gave them so aren't they value something tangible valued for what the union hatefully their desired by the union that does not make them  the access to the facility the promises not to strike to get the hundred thousand in and that was the b s and so because the union paying money is not a violation of the act the there is no prohibition against the union paying money to an employer or it's only the other way around and in this case the union spent one hundred thousand dollars at the time of its staff knocking on doors exercising its speech and petition rights in order to get this legislation passed so that the employer could get into business with crack in the respondents brief search that these kinds of priest certification agreements have only been common s an incumbent union and department store in four years in cleveland that provided among other things for access sometimes there's a conflict between two different groups that want to unionize the same workforce right yes how would this work in that case let's say the employer gave entered into an agreement like this with one union that wanted to organize the same workforce but not the other the n l r b has dealt with that quite a few times and takes the position and has required employers to give equal rights to both unions doesn't that suggest it's a thing of value in the in this context it's certainly not a thing of value in the sense of marketability because the one union could not sell it for the second get in because the other union could get it free from the employer because the employer must give equal rights to all comers in the typical case how important is an agreement like this to the union how much does it about sixty seven percent success rate in and larbi elections and about a seventy six percent success rate under these agreements and every agreements i think greenland's uniform or do they have vary elements there are some things that are quite stand is the card check provision standard it is found in most agreements then shall be somewhat less so but still in the vast majority of them and i don't can tell you from my experience if i may that these agreements are prevalent in the hospitality industry and both in hotels and casinos and that all of the major hotel is that the union never demand or request or receive any of these things that is neutrality names and addresses or access regardless of agreement so what would be what would be  the relief if they if this case went forward and was found meritorious the relief would be an injunction against the union from ever asking an employer for this employer for neutrality for for the names of addresses of here is that an employer may never give these things whether it's an agreement or not and be that that even if an army would mr maule hall have to face an imminent threat in order for him to have standing it what you on and why is the threat come in and at this time i'm sorry why is the threat imminent at this time your honor we advocated during an earlier phase of this case that there was no standing over what is your position now  we still do not believe he has standing because there is no imminent harm here the harm that he he alleges is that he will be ultimately forced into a collective bargaining  situation that he doesn't want however that could only occur if the union succeeded in convincing a majority of his co employees that they should unionize and the employer gave recognition and the collective bargaining agreement was negotiated only only after so the imminence is is very distant here did you also raise in an earlier stage an argument that he had no private right of action we did not know and has never been litigated it hasn't it has existence of a private right of action the court decided that it was it was not proper to for the courts to to get past the point of formation of the trust and engage in administration but it was assumed that the plaintiff had a right to sue why wouldn't the right to use private property in a way that otherwise wouldn't be allowed to constitute a thing of value suppose the with the employer gave the union was a lease well below market rate on property for you since the as a union office with that qualifies a thing of value it would profit both as a thing of really only had a right of access not an exclusive possession of any property and only for the very limited purpose of communicating with employees about their sections of your rights but still it's a lesser property right but it's not a property right what if what if the employer sold to i catering company the right to drive launch trucks onto this premises to sell sandwiches and coffee to the employees wouldn't that be a a thing of value that that is paid lent or delivered in this case there was not a license so much as there was a waiver or forbearance of the employer's right to exclude the union did not receive or accept any employer property yes it is your property right but the union did not obtain your right to exclude it did not obtain that property right it obtained the right to be there to not do any exclusive area but your property right to exclude remains in your hands council it's clear that there are some difficulty in defining the limits of property there are some things that i think have al you even though they may not have market value for example a union an employer bribing a union steward by offering him a favorable work schedule or or days off that or a weekend or something that's valuable to the workers but doesn't necessarily have  section three zero two the promises that were at issue in this case could be viewed as things of value and with a little bit of stretching of the language could be viewed as paid lent or delivered this before you get too much into the m think of this court we're looking at the language of the statute today section of the section three zero two of the statute which is on page eleven a of of our brief gives the district court's jurisdiction to  violations of this case of the statute and courts have assumed that private parties could invoke that if the court were looking at that afresh i'm not sure that it would reach that result but there is a lot of ink on the page with respect to it the eleventh circuit did not reach that issue and it doesn't seem to be squarely presented here but what is squarely presented here is whether the court should read section three o two as a freestanding provision divorced from the statute the government's position is that the three terms that are at issue neutrality access to the employee list are not prohibited by section three zero two probably the best way to reach that conclusion is to  determine that congress did not intend that these three things be viewed as things of value under the statute certainly read in isolation the worst thing of value are very broad in other statutes they cover intangibles we would have no problem need multiple statutes together in order to harmonize them and just as in the billing the court said well the any trust laws literally do apply here this securities underwriting activity could violate any trust laws the court looked at it in conflicts billing is simply an application of this court's responsibility to divine congress intent based on the language structure and history and policy of the relevant laws and here all of those things when we had together indicate that agreements by parties to set the ground rules for an organizing campaign do not constitute prohibited them but one would suppose that the employer had written a check for one hundred thousand dollars to the union and everything else now you ask why do you do that he said because they have to have the money they can run the organizing campaign along the lines that everyone wants those are not covered because hundred thousand dollars is but they aren't because and then what comes after the because few things justice prior and they're both equally important first of all the the provision of money is useful to the union in any purportedly liberal application of section three o two just does not wash we start from the proposition that voluntary recognition of a union is not only permissible under the national labor relations act it's a favored element of national labor policy that we're at  that are at issue here are all procedures that are useful and geared towards facilitating voluntary recognition and are only useful for that purpose if i may thin but if you recall the point you made earlier the point is yes voluntary agreement but if i'm with you the workforce wants to be organized and represented by the union and the argument here as i understand it is that this agreement they made the movie an organizer comes up to you and says well here's a card you can check i want to join the union or do i don't want to union which is libby and there's a bunch of your fellow workers gathered around this you fill out the card well at some some some would argue that employers also have big guys and it's very coercive to have your employer in there on the factory floor reminding employees daily that they're very anti union and that there are a lot of cost to joining a union and so the the process here is one in which yes the parties can go to the national labor relations board and have an election but this court in the packing case backed up by decades of board law has validated that card check agreements are perfectly legitimate and may facilitate the employees free exercise of their choice to have a union the agreement in this case doesn't recognize the union all the agreement does is establish a perfectly lawful process which respondent concedes would be a thing of value but he has to carve it out from section three zero to a voluntary recognition agreement and the access that is given to the property which is something that employers lawfully can do it's their property they have the right to do it they provide it so that the employees limitation on it that responded to a policy that's just not reflected in the language of the act what about slot machines you you mentioned all of the other things promised  not the the promise to support legislation that's right the the unions promises are not comprehended by section three zero two all that said issue here is whether it's a federal crime for an employer to say to a union you guys want to organize i will let you come into my plant and address the employees in fact better yet we will have a debate management on one side union on the other coming to our hall to do that that would be a federal crime under respondents view thank you thank you counsel mr messenger mr chief justice and may please the court enforcing section three zero two in this case cannot conflict with the national labor relations act as you noted minutes organizing agreements such as this are meant to privatized the national labor relations act and avoid the representational procedures you agreement here expressly requires the employer not petition for a secret ballot election not fallen for labor practices with the national labor relations board and also provide assistance to the employer or to the union well i would say two things first the issue of course of the three individual provisions not organizing agreements as a whole the three things issue here of course is the gag clause the use of property in the information not the agreement but secondly the eleventh circuit's opinion comes from its holding that this intangible systems can't be delivered it can only be paid and therefore the court held you needed to show consideration for payment whereas the it's at the eleventh circuit sippin eon it right above the section that you just read from where the court hold that it didn't believe things could be delivered which we disagree with but they they can be paid and therefore consideration is given then you have a violation and then it goes on to say that consideration would show that the purposes of the statute are implicated by the transaction because in that case the union is being influenced by what the employer gave so the eleventh circuit when it said the not all ground rules agreements will violate three o two was saying that if no consideration was given there would be no payment and therefore no violation in that then that's if there's consideration so if the employer gives this is systems and the union give something in return for example here the hundred thousand dollars political campaign and agreement not to strike then it becomes a payment reasons the first of which is that unite has pending a lawsuit to compel arbitration it which is alleging violations of the agreement that occurred before it expired and one of the remedies the union is seeking is to have the agreement extend it for a longer period of time which is a remedy it received before and that lawsuit is currently pending in federal district court it's been stayed pending these proceedings and then the second reason is you know continues to demand this organizing assistance zero to be one makes it illegal for a union to demand a thing of value even if it doesn't receive it united here is clearly still demanding that mardi gras help it organize its employees so more hall still has standing to seek injunctive relief to stop the union from demanding a the first two could because the exceptions to three zero two start to apply to exceptions found at three zero two c for example access for union stewards obvious been upheld under section c one which allows for access to union officials if by reason of their service to the employer and so giving a union steward use a property to administer the contract and such has been upheld that case b a s f y n n versus one b s f y hot the information during collective bargaining a union has a right to information under section eighty five that actually relations act giving that information would fall into the exception found at c two which provides for the release of any claim that a union may have and so the union has a legal claim to that information and the at all or a so if the employer rita provider did provide it it would fall into that exception mr messenger taunter stand the structure of your argument to be as follows and whether before certification or afterwards in a collective bargaining agreement along the lines that justice scalia said the only thing that an employer and a promise a union are agreed to provide to a union are things that are specifically authorized in other parts of the labor law is that the structure of your argument yes your honor and because in collective bargaining a union of course is supposed to act as an employee representative and not for itself so most terms of collective bargaining agreements go to the employees not to the union itself the real true sole purpose or primary purpose is precisely such i would have thought that the premise and the policies of the labor law are to encourage a wide variety of employer employee both things that are listed in the labor laws that are provided for in the labor laws but many things that are not at the idea is to get these parties together to reach agreements on a wide variety of things that matter to them regardless whether the labor law specifically refers to them well the structure is it seems sort of turning the whole thing on its head to say that the only things that are allowed in terms of promises were there in a collective bargaining agreement or prior to that are the things that the law itself requires while i believe that is the structure of section three o two a and b are simply a bright line if banned and then see provide exceptions to it and that sort of structure for a conflict of interest statute is relatively common and so the term common terms of collective bargain green is either a deliver nothing to the union itself but give things to employees such as wages or in the alternative does go to the union it has to fall under one of the exceptions counter saloon worse why don't why doesn't the billings billing framework apply you to flee here because what it holds says that where there's a regulatory framework in here there is that produces standards of conduct going to justice kagan some point that almost all of the three things which are arguing against or standards of conduct that have been approved doesn't that doctrine do the work here well for two reasons but the first and most important is that section three o two is part of the labor law it was an act discourse as part of the tap partly act and amended as part of the labor management reporting disclosure act so you're not talking about two different statutory schemes as in billings we had the f c c law and you had the antitrust law through are two is federal labor law it is every bit as much a federal labor law it's any provision of the national labor relations act but we happen flicking provisions within stanford statutes anyway so why doesn't the concept behind it still apply the concept would if there was a direct conflict between the general prohibition of three o two and any right granted by the national labor relations act but  and certainly no right to control its communications eight c the national labor relations act says that even the n l r b can't control employees and employers communications absent a threat or promise of benefit so there is no conflict here and a persuasive opinio obvious enough binding it's a six circuits opinion and mercy memorial hospital where the six circuit in that case the general counsel the n l r b said the employers conduct does not violate the n r a and the union brought a three zero two claim anyway from the sixth circuit said they could bring right so here i think what they're saying is that read this statute you don't have to get into a metaphysical argument about things of value rather those things which play a central role in the organizing campaign are things that are governed by the other parts of the n l r b and to throw them in here and now laura in to throw them in here is going to create a mess lists access promises to stay neutral are central to many aspects of organized am pains and they are no more within this statute this part of the thing than the jeep on the pedestal is part of the no vehicles in the park now that's what i understand roughly their argument to be if i got it right and what is your response that nothing in the national labor relations act gives them a right to that if i didn't say they had a right they were in the way they had a right what they said was the kinds of property or things of value are issue here are the kinds of things that play important roles in organizing campaigns and we needn't go further than that we don't have to talk about rights to it we don't have to talk about who said what to whom it's just that these kinds of things are organizing things and therefore they're outside the scope but sections like the jeep on the pedestal but section three zero two was specifically amended in one thousand fifty nine to apply to union organizing they had section eight two to extend a prohibition to unions that seek to represent section eighty three applies to things given to employee committees to influence employees in their right to organizing the organizing part of labor law i guess it would mean that the the union can cut a deal with the employer that if the employer gives them a free hand  and assist them in organizing the union will promise not to not to seek a raise in wages or not to seek insurance coverage or whatever i guess that would also be part of the organizing campaign right so to be ok yes an organizing exemption and organizing exemption to section three zero two would tear a massive hole in the statute it's difficult to think of anything that unions value more than employers because the issue i believe any agreement is each particular term has to be looked at individually so for example if the issue of was a particular term of a collective bargaining agreement illegal the question would be phrased are collective bargaining agreements legal same thing with organ know i think that my employees should have a right to listen to you and decide for themselves whether they want to be represented by the union so i'm inviting the union on my premises just simple as that you're saying that the employer cannot do that that's correct consideration obviously can show a value and it could show towards the purpose of the statute but we believe this image you say yes of course this is an important union so that self neutral as to a union election yes with caviar it's the with the first two it could fall into exceptions in other circumstances for again during a collective bargaining relationship some of the exceptions start to apply to the information and use of property and going towards the communications of an employer unilaterally said i'm not going to say anything i don't have the time or money to fight the union it can do so but if an employer or contractually agrees and gives the union control the word speech then yes a thing of value or knowledge that you're that you're answer to justice kagan it's contrary to years of subtle practices and understanding no your honor i don't believe that it is and if this is going cases so would they have enforced the agreement if it was alleged that it was violated three o two that of course is the question before this court the question is the same i think and go back i thought the most clear statement of your view was when you said justice calling a hole is an area where the national labor relations act gives to the national labor relations board all kinds of authority to set rules and to say what is an appropriate practice and not am i right about that which are central to the n l ari's regulatory power into this particular provision the n l or loses the power to say when they're ok when they're not ok to make a thousand qualifications hence the in yellow eyes regulatory provisions and this case are the jeep on the pedestal or the barber in the street even though i have to tell you in balloon you're in the eighteenth century despite the exception of the a century it did not mention barbara specifically in the statute they had to be read in by the courts three or two also covers it so if for example a messenger supposed there was a union and a strike and the union goes to the employer and and and they reach an agreement and the agreement is the union will stop strike and if the employer agrees to sit down and negotiate with the union so that's the promise that the employer makes to the union i'm going to sit down and negotiate with you and that's obviously a thing of import and value to the union is that also prohibited no because in that case there's no thing that's actually been given to the union especially if you're talking about negotiating a collective bargaining agreement which of course those benefits go to employees you know thing that's given to the union i mean i would think if your argument is thin a value is anything that has a value there's nothing that simply made a value to the union than an employer's agreement to negotiate but the question becomes negotiate what so if the question is let's negotiate over employee wages wages go to employees there's nothing there on the other have said we will negotiate over how much money we'll pay you to stop striking while that's illegal under three of two so it just begs the question are racist questions are of what comes next after that the employer is going to sit down and talk with us i would say in that case even if it did have value no thing is deliver to the union has written going to spend if it's to the employees always benefit the union i mean that's you know that's automatic it seems to me i don't understand how you say that this is just a gift statute and there doesn't have to be any anything on the other side no quid pro quo you say it's perfectly ok if the if the employer allows the union to come on his premises to recruit members but it's not ok for him to agree to agree to do so no i don't understand what that leads no no your honor it would be illegal to agree or to do that so if an employer didn't agree to allow the union on its property just did that would still be the delivery of the use of property so that's not my position and what if the employee employer does not oppose the union he neither speaks against it nor for it if you know that giving something of value to the not if he does so unilaterally but if he agrees to do so then the control is given to the union very similar to a non compete and the agreement or agreement the example used in the brief i believe is a good one if coca cola decides not to run advertising against pepsi it hasn't given anything to pepsi it doesn't enter into a non compete agreement as meaning to say you agree to something when you're not getting anything in return you can promise something without getting anything in have to agree i think that means you know i won't do it in the exchange for something else and there will be consideration so the hypothetical given of the employer just doing it in exchange for nothing will almost never happen as i believe in it you know it says in its brief even if it did happen you'd say that it would be a violation yes so if the for example if the employer just said to the union here's a thousand dollars just put it on the table that's a violation it doesn't have to go any further than that or if the union said give me a thousand dollars that's illegal the employer doesn't have to hand it over but it's very unusual to have this kind of organizing agreement thought a quid pro quo most employers don't hand over their employees to the union without something in exchange either pre negotiated concessions in employee expense such as an ad hoc or an agreement not to strike or political campaigns such as here you would argue that the three items and  disputes that was promised by the employer in the union under this agreement i wouldn't call that consideration i believe the consideration was what the union gave the employer was the hundred thousand dollar political campaign and the agreement not to strike not to strike up a yes not to strike mr messenger would would your argument applied to the following i'm just going to give you a few kinds of different promises a promise to give a union information about the company and its finances during collective bargaining no because would fall into the final clause of section c two but not if if if if not or in collective bargain then if that had value to the union yes i'm sure it does and agreement given in union a role in grievance procedures no because the grievance procedures ultimately go to the employees so a grievance over for example should this employee get back pay doesn't deliver anything to the union could you explain that distinction automatically go to the employee i mean i assume that everything that the union does the union is saying moten at least the benefits go to the employee well the three o two it's very structure sort of differentiates the union from the employees so the thought of what's good for the union is good for the employee is somewhat rejected implicitly in rio to that there's a separation there the union is supposed to act as their representative but the union on the ones that you say well the neutrality agreement access meant or delivery of serie a nice place or payment or delivery so if the thing is delivered to the employer not to the union itself it's not covered so for example it original legislative history they said what about wages to the procedure is simply a contractual mechanism to do something else so the question is what's in other words take arbitration if you agree to arbitrate something what is what are they arbitrating if you're arbitrating over what the union gets then yes that could be illegal but if you're trading over what goes to employees the thing is delivered to the employees i guess i'll tell you that i think that a union the can say that it has a role and we've and procedures is that's that's an important thing for a union to be able to tell its employee that's of real value to the union to have that but is the value coming from the employer like they're the argument would be the value is being given as the goodwill of employees towards the union but how about the if a company gives a union  in company decision making any kind hiring any other kind of company decision making company says we want a union but is it in this i would say probably not because what is what is ultimately the thing is that if they gave it control perhaps over like you can now run the auto shop and you know take the profits from it then yes however if it's merely will listen to your input what exactly is being given because i think it's important hall's not arguing for an expansive interpretation of three o two three things that are actually issue here are rather direct things given directly to the union list of information use of property so if you do move more to the fringes of things that may create indirect benefits to unions that may create some and difficulties but the court need not reach those here to find organizing assistance to violate this it's hard to think of the way one really pays or lands or delivers which was  for tax purposes so those can't that control can be delivered to another party or paid if it is done consideration for something else it's a messenger of the the excelsior rule if i required that's for a minute yes so it does within a period of twenty four hours something that no employer can do voluntarily to something that has to be done yes and the reason is it's not the possession of the list it's somehow wrong it's the fact that it's given by the employer which creates the danger what will the union give in exchange and that's the danger the three zero two exist to take care of not that it's necessarily wrongful per se for a union to have lists of information of use of property but what will it do in return and unions have compromised employee interests in exchange for this type of a system they certainly have extorted employers and here you know i was willing to conduct one hundred thousand dollars political campaign for this information so course that hypothetical they'd get the next day anyways would be rather unusual for it to happen but in a case like this where the union can even request an election that list is extremely valuable to them and as the conduct shows they valued enough to do something in exchange for it of peaceful recognition churns that were given for that purpose were legal but that things given for that were not solely for recognition but had value outside of that  would be wrong but hundred thousand is troubling to me because i think what the circuit was saying is if the hundred thousand bought the piece all recognition provisions and that's corrupt and that is outside the exemptions that the walk robots that's how i read its decision tell me why i'm wrong about that and tell me how i deal with that niggling problem i have about the hundred thousand dollars because it does feel like a bribe to the employer and the reading th actually somewhat difficult i think because the it appears that the court i suspected that there must be something else in the picture that had not been disclosed and that's why it ordered the district court to find out why the two parties had cooperated with each other despite the fact that no one had alleged anything else in the picture besides what is before us all now the so it seemed that  the court was puzzled that an employer would agree with the union to cooperate in this fashion the cooperation and i don't think it it was puzzled by the provisions at issue i think it was puzzled by the hundred thousand yes and the one hundred thousand was not a cash payment anyone although it might have been it might have been a contribution to a political action committee that had been formed to advocate for this initiative but instead it was actually the union's own exercise of its speech and petition rights as it campaigned for the passage of the initiative that would allow the company to get into business in the first place as a casino so if the violation turns on the union's exercise of its own first amendment rights then there is the worse a girl problem here than section three o two i believe that there was a promise to exercise the first amendment rights in a particular way up to the amount of one hundred thousand dollars yes that's a little different it's a little different but also very similar to the promises that are actually on the face of the memorandum itself because the union agrees to waive its first amendment rights to engage in picketing and boycott activity as well as the employer waiving some of its rights with respect to its freedom of speech so this is a case where there are multiple waivers of rights both speech rights and property rights going back and forth between two parties for completely legitimate purpose and that is the employer getting into business and the union getting the opportunity to organize its employees that's all there is in this picture is the union like so many construction that we know advocating in congress for the passage of was like the keystone pipeline law why did they do that they do it because they want the jots they hope that if they help the industry develop a pipeline that their members will work on those jobs that is a combination of interests funneled through the first amendment's protection for mutual effort as the court e very simplistic argument will would accomplish that were adopted justice kagan referred to they grievance procedure well there's also arbitration in this agreement as well as in collective bargaining agreement but one searches in vain in rio to see for any exception for aberration even though the court has said over so many years that is the most important thing under the labor measure relations thank you thank you counsel and so the case