Employee Relations Law Journal - Split Circuits
"Can Something Intangible Be a 'Thing of Value'? The Permissibility of Neutrality Agreements under The Labor Management Relations Act"
Does an employer offer a "thing of value" to a union when it agrees not to oppose a union organizing campaign? The circuit courts are split. The Third and Fourth Circuits have held that a neutrality agreement is not a thing of value, and is therefore permissible under Section 302 of the Labor Management Relations Act (LMRA). However, the Eleventh Circuit recently held that such an agreement may be a thing of value, and unlawful under Section 302 if it is entered into by the employer with the intent to improperly influence a union. Although the U.S. Supreme Court may consider the issue in the upcoming months, until it does, the ability of an employer to enter into a neutrality agreement turns, in part, upon geography.