STATEMENT OF INTEREST OF THE UNITED STATES Re: Lawsuit Against VW/UAW

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

MICHAEL BURTON, MICHAEL J ARVIS, )
and DAVID REED, )
)
Plaintiffs, )
)
v. )
) Case No. 1:14-CV-76
INTERNATIONAL UNION, UNITED )
AUTOMOBILE, AEROSPACE & )
AGRICULTURAL IMPLEMENT )
WORKERS OF AMERICA, UAW; )
VOLKSWAGEN GROUP OF AMERICA, )
INC.; and VOLKSWAGEN GROUP )
OF AMERICA CHATTANOOGA )
OPERATIONS, LLC, )
)
Defendants. )
______________

STATEMENT OF INTEREST OF THE UNITED STATES

______________

M. PATRICIA SMITH
Solicitor of Labor

ERIC C. HALLSTROM
Special Counsel

WILLIAM J . STONE
Senior Attorney
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, D.C. 20210

RICHARD F. GRIFFIN, J R.
General Counsel
National Labor Relations Board
DAVID A. ONEIL
Acting Assistant Attorney General

DAVID M. BITKOWER
Deputy Assistant Attorney General

J OHN M. PELLETTIERI
Attorney, Appellate Section
Criminal Division
U.S. Department of J ustice
950 Pennsylvania Ave., N.W., Rm. 1260
(202) 307-3766
john.pellettieri@usdoj.gov

Case 1:14-cv-00076-CLC-SKL Document 41 Filed 05/21/14 Page 1 of 34 PageID #: 436
i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................... i

STATEMENT OF INTEREST ....................................................................................................... 1

STATEMENT OF THE ISSUES.................................................................................................... 1

BACKGROUND ............................................................................................................................ 1

I. Ground-Rules Agreements for Union Recognition ...................................................... 1
II. Section 302 of the Labor-Management Relations Act .................................................. 4
III. The Procedural and Factual History of this Case .......................................................... 6
ARGUMENT .................................................................................................................................. 9
I. Section 302 Does Not Create a Private Right of Action ............................................... 9
II. Section 302 Does Not Prohibit the Terms of the Ground-Rules Agreement
Challenged by the Plaintiffs ........................................................................................ 14

A. The Text of Section 302 Does Not J ustify the Plaintiffs Proposed
Interpretation ......................................................................................................... 15

B. The Statutory Context Does Not Support the Plaintiffs Proposed
Interpretation of Section 302 ................................................................................ 17

C. The Legislative History of Section 302 Does Not Support the Plaintiffs
Proposed Interpretation ......................................................................................... 22

CONCLUSION ............................................................................................................................. 25

ii

TABLE OF AUTHORITES

Cases:

Adcock v. Freightliner LLC,
550 F.3d 369 (4th Cir. 2008), cert. denied, 668 U.S. 932 (2009) ................. 5, 6, 16, 18, 20

AK Steel Corp. v. United Steelworkers of Am.,
163 F.3d 403 (6th Cir. 1998) ............................................................................................ 21

Alexander v. Sandoval,
532 U.S. 275 (2001) ...................................................................................................... 9, 13

Am. Premier Underwriters, Inc. v. Nat'l R.R. Passenger Corp.,
709 F.3d 584 (6th Cir. 2013) ............................................................................................ 10

Amalgamated Clothing & Textile Workers Union v. Facetglas, Inc.,
845 F.2d 1250 (4th Cir. 1988) ...................................................................................... 4, 20

Amalgamated Clothing Workers of Am. v. Richman Bros.Co.,
348 U.S. 511 (1955) .......................................................................................................... 12

Arroyo v. United States,
359 U.S. 419 (1959) ................................................................................................ 5, 11, 22

Bakerstown Container Corp. v. Int'l Bhd. of Teamsters,
884 F.2d 105 (3d Cir. 1989).............................................................................................. 13

BASF Wyandotte Corp. v. Local 227, Int'l Chem. Workers Union,
791 F.2d 1046 (2d Cir. 1986)............................................................................................ 24

Bowling Green v. Martin Land Dev. Co.,
561 F.3d 556 (6th Cir. 2009) ............................................................................................ 10

Bullock v. Bank-Champaign, N.A.,
133 S. Ct. 1754 (2013) ...................................................................................................... 16

Burlington N.R. Co. v. Bhd. of Maint. of Way Emps.,
481 U.S. 429 (1987) .......................................................................................................... 13

California v. Sierra Club,
451 U.S. 287 (1981) .......................................................................................................... 11

Cannon v. Univ. of Chicago,
441 U.S. 677 (1979) .................................................................................................... 10, 11

iii

Caswell v. City of Detroit Hous. Comm'n,
418 F.3d 615 (6th Cir. 2005) ............................................................................................ 11

Chamber of Commerce v. Brown,
554 U.S. 60 (2008) ............................................................................................................ 21

Cort v. Ash,
422 U.S. 66 (1975) ............................................................................................................ 10

Credit Suisse Sec. (USA) LLC v. Billing,
551 U.S. 264 (2007) .......................................................................................................... 14

Dana Corp.,
356 N.L.R.B. No. 49 (2010) ............................................................................................. 19

Gonzaga Univ. v. Doe,
536 U.S. 273 (2002) .......................................................................................................... 11

Green v. Bock Laundry Mach. Co.,
490 U.S. 504 (1989) .......................................................................................................... 22

Hosp. Emps. Div. of Local 79 v. Mercy-Memorial Hosp. Corp.,
862 F.2d 606 (6th Cir. 1988), vacated on other grounds, 492 U.S. 914 (1989) ............... 13

Hotel & Rest. Emps. Union Local 217 v. J.P. Morgan Hotel,
996 F.2d 561 (2d Cir. 1993)...................................................................................... 3, 4, 18

Hotel Emps. & Rest. Emps. Union, Local 57 v. Sage Hospitality Res., LLC,
390 F.3d 206 (3d Cir. 2004), cert. denied 544 U.S. 1010 (2005) ....................... 5, 6, 16, 18

Hotel Emps., Rest. Emps. Union, Local 2 v. Marriott Corp.,
961 F.2d 1464 (9th Cir. 1992) ............................................................................................ 4

Int'l Union v. Dana Corp.,
278 F.3d 548 (2002) .......................................................................................................... 21

Johnson v. City of Detroit,
446 F.3d 614 (6th Cir. 2006) ............................................................................................ 15

Kimbrell v. NLRB,
290 F.2d 799 (4th Cir. 1961) ............................................................................................ 18

Linden Lumber Div., Summer & Co. v. NLRB,
419 U.S. 301 (1974) ............................................................................................................ 3

iv

Local 357, Int'l Bhd. of Teamsters v. NLRB,
365 U.S. 667 (1961) .......................................................................................................... 23

Mik v. Fed. Home Loan Mortg. Corp.,
743 F.3d 149 (6th Cir. 2014) ........................................................................................ 9, 10

Montague v. NLRB,
698 F.3d 307 (6th Cir. 2012) ............................................................................................ 19

Mulhall v. Unite Here Local 355,
667 F.3d 1211 (11th Cir. 2012) ............................................................................... 5, 6, 15

Muniz v. Hoffman,
422 U.S. 454 (1975) .......................................................................................................... 13

New Process Steel, L.P. v. NLRB,
560 U.S. 674 (2010) .......................................................................................................... 15

NLRB v. American Nat'l Ins. Co.,
343 U.S. 395 (1952) ............................................................................................................ 2

NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969) ............................................................................................................ 3

NLRB v. L. Ronney & Sons Furniture Mfg. Co.,
206 F.2d 730 (9th Cir. 1953) ............................................................................................ 18

NLRB v. Virginia Elec. & Power Co.,
314 U.S. 469 (1941) ............................................................................................................ 3

NLRB v. Waterman S.S. Corp.,
309 U.S. 206 (1940) .......................................................................................................... 18

Otis Hospital,
219 N.L.R.B. 164 (1975) .................................................................................................... 3

Radio Officers Union v. NLRB,
347 U.S. 17 (1954) ............................................................................................................ 23

Scheidler v. Nat'l Org. for Women, Inc.,
547 U.S. 9 (2006) .............................................................................................................. 22

Sinclair Refining Co. v. Atkinson,
370 U.S. 195 (1962) .......................................................................................................... 13

v

Textile Workers Union of Am. v. Lincoln Mills,
353 U.S. 448 (1957) .......................................................................................................... 17

Touche Ross & Co. v. Redington,
442 U.S. 560 (1979) .......................................................................................................... 11

Unite Here Local 355 v. Mulhall,
134 S. Ct. 594 (2013) ................................................................................................ 6, 7, 13

United States v. Boffa,
688 F.2d 919 (3d Cir. 1982).............................................................................................. 16

United States v. Burge,
990 F.2d 244 (6th Cir. 1992) ............................................................................................ 16

United States v. Douglas,
634 F.3d 852 (6th Cir. 2011) ............................................................................................ 16

United States v. Jeter,
775 F.2d 670 (6th Cir. 1985) ............................................................................................ 15

United States v. Marmolejo,
89 F.3d 1185 (5th Cir. 1996) ............................................................................................ 15

United States v. Nilsen,
967 F.2d 539 (11th Cir. 1992) .......................................................................................... 15

United States v. Palumbo Bros.,
145 F.3d 850 (7th Cir. 1998) .............................................................................................. 2

United States v. Roth,
333 F.2d 450 (2d Cir. 1963).............................................................................................. 11

United States v. Ryan,
350 U.S. 299 (1956) .......................................................................................................... 22

United States v. Schiffman,
552 F.2d 1124 (5th Cir. 1977) .......................................................................................... 16

United States v. Townsend,
630 F.3d 1003 (11th Cir. 2011) ........................................................................................ 15

Ventimiglia v. United States,
242 F.2d 620 (4th Cir. 1957) ............................................................................................ 24

vi

Verizon Info. Sys.,
335 N.L.R.B. 558 (2001) .............................................................................................. 4, 18

Wolgast Corp. v. NLRB,
349 F.3d 250 (6th Cir. 2003), enforcing 334 N.L.R.B. 203 (2001) .................................. 21

Statutes:

28 U.S.C. 517 ............................................................................................................................... 1

29 U.S.C. 101 ............................................................................................................................. 13

Labor Management Cooperation Act of 1978, 5(b), 29 U.S.C. 175a ..................................... 20

National Labor Relations Act, 29 U.S.C. 151 et seq. ........................................................ 1, 2, 19

29 U.S.C. 151 ............................................................................................................. 1, 18
29 U.S.C. 153 ................................................................................................................... 2
29 U.S.C. 154 ................................................................................................................... 2
29 U.S.C. 153 ................................................................................................................... 2
29 U.S.C. 156 ................................................................................................................... 2
29 U.S.C. 157 ................................................................................................................... 2
29 U.S.C. 158 ................................................................................................................... 2
29 U.S.C. 158(a)(2) ........................................................................................................ 12
29 U.S.C. 158(a)(3) ........................................................................................................ 23
29 U.S.C. 158(a)(5) .......................................................................................................... 3
29 U.S.C. 158(b) ............................................................................................................ 23
29 U.S.C. 158(b)(3) ......................................................................................................... 2
29 U.S.C. 158(b)(6) ....................................................................................................... 12
29 U.S.C. 158(c) ............................................................................................................ 23
29 U.S.C. 158(d) .............................................................................................................. 2
29 U.S.C. 158(2) ............................................................................................................ 24
29 U.S.C. 159 ............................................................................................................. 2, 19
29 U.S.C. 159(c) .............................................................................................................. 3
29 U.S.C. 159(c)(1) .......................................................................................................... 3
29 U.S.C. 159(e) .............................................................................................................. 3
29 U.S.C. 160 ................................................................................................................... 2
29 U.S.C. 160(e) ............................................................................................................ 12
29 U.S.C. 160(j) ............................................................................................................. 12
29 U.S.C. 160(l) ............................................................................................................. 12
29 U.S.C. 161 ................................................................................................................... 2
29 U.S.C. 162 ................................................................................................................... 2

vii

Labor-Management Relations Act of 1947,

29 U.S.C. 141 ............................................................................................................. 5, 24
29 U.S.C. 185 ............................................................................................................. 4, 23
29 U.S.C. 186 .......................................................................................................... passim
29 U.S.C. 186(a) ........................................................................................................ 1, 10
29 U.S.C. 186(a)(2) ................................................................................................ 4, 8, 16
29 U.S.C. 186(b) ........................................................................................................ 1, 10
29 U.S.C. 186(b)(1) ............................................................................................... 5, 8, 16
29 U.S.C. 186(c) ...................................................................................... 5, 10, 11, 16, 17
29 U.S.C. 186(c)(9) ........................................................................................................ 20
29 U.S.C. 186(d) ................................................................................................ 10, 11, 16
29 U.S.C. 186(e) ............................................................................................ 1, 10, 11, 12

Labor-Management Reporting and Disclosure Act, 29 U.S.C. 433 .......................................... 16

Pub. L. No. 86-257, 505, 73 Stat. 537 ....................................................................................... 25

Miscellaneous:

92 Cong. Rec. 5180, 5181 (1946) (statement of Sen. Overton) .................................................... 22

92 Cong. Rec. 4900 (1946) (statement of Sen. Byrd) ................................................................... 22

92 Cong. Rec. 4746 (1947) (statement of Sen. Taft) .................................................................... 23

104 Cong. Rec. 16,464 (1958) (statement of Rep. McGovern) .................................................... 25

H.R. Rep. No. 98-1159 (1984) (Conf. Rep.), reprinted in
1984 U.S.C.C.A.N. 3712 .................................................................................................. 12

H.R.J . Res. 648, 98th Cong., 2d Sess. (1984) ............................................................................... 12

H.R. Rep. No. 245, 80th Cong., 1st Sess. (1947) ......................................................................... 24

S. Rep. No. 98-83, 98th Cong., 1st Sess. (1983) .......................................................................... 12

S. Rep. No. 105, 80th Cong., 1st Sess. (1947) .............................................................................. 22

S. Rep. No. 187, 86th Cong., 1st Sess. (1959) .............................................................................. 25

Adrienne E. Eaton & J ill Kriesky, Union Organizing Under Neutrality
and Card Check Agreements, 55 Indus. & Lab. Rel. Rev. 42 (2001)................................. 4

viii

Collective Bargaining Contracts: Techniques of Negotiation and Administration
with Topical Classification of Clauses (BNA 1941) .......................................................... 3

Harry A. Millis & Emily Clark Brown, From the Wagner Act to Taft-Hartley,
A Study of National Labor Policy and Labor Relations (1950)........................................ 17

http://www.dol.gov/olms/regs/compliance/LM10_FAQ.htm (FAQs 18 & 19)
(last visited May 20, 2014) ............................................................................................... 17

Ninth Annual Report of the National Labor Relations Board for the Fiscal
Year Ended June 30, 1944 (1944)................................................................................. 3, 17

Press Release, UAW, UAW Withdraws Volkswagen Election Objections
(Apr. 21, 2014), available at http://uaw.org/articles/uaw-withdraws-
volkswagen-election-objections (last visited May 20, 2014) ............................................. 8

Union Contract and Collective Bargaining, 4 Labor Equipment (PH) (1948) .......................... 3, 4

Websters Third New International Dictionary (1993) ................................................................ 16

1

STATEMENT OF INTEREST
The United States of America respectfully submits this statement of interest in
accordance with 28 U.S.C. 517. The plaintiffs in this case seek injunctive and declaratory relief
under Section 302 of the Labor-Management Relations Act of 1947 (LMRA), 29 U.S.C. 186,
alleging that a voluntary agreement between an employer and a labor union establishing ground
rules for potential union recognition violates the statute. The Department of J ustice enforces the
statutes criminal prohibition. The National Labor Relations Board (NLRB) is responsible for
administering the National Labor Relations Act, 29 U.S.C. 151 et seq., which includes
resolving labor disputes and encouraging voluntary labor-management agreements. The United
States therefore has a significant interest in the Courts disposition of this case.
STATEMENT OF THE ISSUES
The United States will address the following issues:
1. Whether Section 302(e) of the Labor-Management Relations Act of 1947, 29
U.S.C. 186(e), creates a private right of action to seek injunctive and declaratory relief for
alleged violations of Sections 302(a) and (b) of the Act, 29 U.S.C. 186(a) & (b).
2. Whether Section 302 prohibits a voluntary agreement between a union and
employer setting the ground rules for a union organizing campaign in which the employer agrees
to (1) hold meetings with employees at which the union is present, (2) allow union access to the
employers property for organizing purposes, and (3) remain neutral with respect to unionization.
BACKGROUND
I. Ground-Rules Agreements for Union Recognition
Federal law regulates labor-management relations to minimize industrial strife. 29 U.S.C.
141 & 151. Consistent with that goal, employers and unions may enter into voluntary
2

agreements establishing procedures for organizing campaigns and union recognition. These
agreements have long been recognized as lawful by the NLRB and enforced by the courts.
1. The National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., enacted in
1935, create[d] a national, uniform body of labor law and policy in order to protect the
stability of the collective bargaining process and maintain peaceful industrial relations.
United States v. Palumbo Bros., 145 F.3d 850, 861 (7th Cir. 1998). Congress established a
centralized administrative agency, the National Labor Relations Board, to administer the NLRA
and to resolve labor disputes. See 29 U.S.C. 153-156, 160-162.
The NLRA sets out an integrated scheme governing employees, employers, and unions
during organizing campaigns, representation elections, and collective bargaining. Section 7 first
sets forth the fundamental rights of employees to self-organization; to form, join, or assist
labor organizations; to bargain collectively; and to engage in other concerted activities; as
well as the right to refrain from any or all of such activities. 29 U.S.C. 157. The NLRA then
prohibits certain union and employer unfair labor practices that interfere with the rights of
employees. 29 U.S.C. 158. It sets out procedures for union recognition, 29 U.S.C. 159, and
makes clear that, once a union is recognized, both the employer and the union have an obligation
to bargain collectively, 29 U.S.C. 158(a)(5), (b)(3) & (d).
2. Voluntary resolution of labor-management disputes is at the core of the NLRA.
See NLRB v. American Natl Ins. Co., 343 U.S. 395, 401-02 (1952). The NLRA is designed to
promote industrial peace by encouraging the making of voluntary agreements governing
relations between unions and employers. Id.
a. Voluntary agreement is particularly important in the context of union recognition.
Although the NLRA entitles an employer to request a secret-ballot election overseen by the
3

NLRB, 29 U.S.C. 159(c)(1) & (e); see Linden Lumber Div., Summer & Co. v. NLRB, 419
U.S. 301, 305-06 (1974), an employer may agree to recognize a union as the exclusive
bargaining representative if the union demonstrates majority support through other means, see,
e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 597 (1969) (card-check procedure). Even in
elections overseen by the NLRB, it has long been common for employers and unionswith
encouragement from the NLRBto reach agreement about such vital issues as the scope of the
unit in which the election will be held and the identity of eligible voters. See Otis Hospital, 219
N.L.R.B. 164, 164-65 (1975); Ninth Annual Report of the National Labor Relations Board for
the Fiscal Year Ended June 30, 1944, at 8-11 (1944). Voluntary agreement with respect to the
procedures for recognition benefits both employers and unions by providing a path for peaceful
resolution of those tensions inevitably flowing from a union organizing effort. Hotel & Rest.
Emps. Union Local 217 v. J.P. Morgan Hotel, 996 F.2d 561, 566 (2d Cir. 1993).
b. In addition to voluntary agreement with respect to elections, it has also long been
common for employers and unions to agree on ground rules for a union organizing campaign.
Since the NLRAs beginning, for example, employers have agreed to provide unions with access
to their propertyincluding bulletin boards and the employers facilitiesand lists of
employees for purposes of organizing. See Collective Bargaining Contracts: Techniques of
Negotiation and Administration with Topical Classification of Clauses 149, 586 (BNA 1941);
Union Contract and Collective Bargaining, 4 Labor Equipment (PH) 53,280 (Mar. 15, 1948),
56,754.6 (Apr. 26, 1948). Similarly, after the Supreme Court clarified in 1941 that employers
had the right to speak for or against unionization so long as their speech was not unduly coercive,
see NLRB v. Virginia Elec. & Power Co., 314 U.S. 469, 477 (1941), some employers chose to
4

exercise their speech rights by agreeing not to engage in antagonistic propaganda, Union
Contracts and Collective Bargaining 53,352 (Apr. 15, 1946).
Agreements setting the grounds rules for union organizing campaigns have become
prevalent. See Adrienne E. Eaton & J ill Kriesky, Union Organizing Under Neutrality and Card
Check Agreements, 55 Indus. & Lab. Rel. Rev. 42, 46-48 (2001). The terms in these agreements
vary, but typical terms have included the employers agreement to refrain from expressing its
views about union representation and to provide the union with access to the employers
facilities and with a list of names and addresses of employees. Id.; see also, e.g., Hotel Emps.,
Rest. Emps. Union, Local 2 v. Marriott Corp., 961 F.2d 1464, 1467-68, 1470 (9th Cir. 1992).
The NLRB has approved such agreements and respected their terms, see, e.g., Verizon Info. Sys.,
335 N.L.R.B. 558, 558-60 & n.7 (2001), and courts have routinely enforced ground-rules
agreements containing similar provisions under 29 U.S.C. 185, which permits suits for
violation of contracts between an employer and a labor organization, see, e.g., J.P. Morgan
Hotel, 996 F.2d at 563, 566-68; Marriott Corp., 961 F.2d at 1467-70; Amalgamated Clothing &
Textile Workers Union v. Facetglas, Inc., 845 F.2d 1250, 1252-53 (4th Cir. 1988).
II. Section 302 of the Labor-Management Relations Act
1. Section 302 of the Labor-Management Relations Act of 1947, 29 U.S.C. 186,
makes it a crime for any employer . . . to pay, lend, or deliver, or agree to pay, lend, or deliver,
any money or other thing of value . . . to any labor organization, or officer or employee of such
an organization, that represents or seeks to represent the employers employees. 29 U.S.C.
186(a)(2). The statute also makes it a crime for a labor union to request, demand, receive, or
accept, or agree to receive or accept, any payment, loan, or delivery of any money or other thing
5

of value prohibited by subsection (a). 29 U.S.C. 186(b)(1). These prohibitions have several
exceptions that are not at issue in this case. See 29 U.S.C. 186(c).
Section 302s purpose is to stop corruption of collective bargaining through bribery of
employee representatives by employers, extortion by employee representatives, and abuse
[of power] by union officers. Arroyo v. United States, 359 U.S. 419, 425-26 (1959).
2. The courts of appeals have expressed different views on whether an agreement to
establish ground rules for an organizing campaign, such as an employers agreement to remain
neutral and provide union access to company property, may violate Section 302. The Third and
Fourth Circuits have held that agreements containing these or similar terms fall outside the scope
of Section 302. See Adcock v. Freightliner LLC, 550 F.3d 369 (4th Cir. 2008), cert. denied, 558
U.S. 932 (2009); Hotel Emps. & Rest. Emps. Union, Local 57 v. Sage Hospitality Res., LLC, 390
F.3d 206 (3d Cir. 2004), cert. denied, 544 U.S. 1010 (2005). Those courts explained that the
statutory text and the overall structure and purposes of the federal labor laws counsel against
making voluntary ground-rules agreements criminal under Section 302. See Adcock, 550 F.3d at
375-76; Sage, 390 F.3d at 218-19.
In Mulhall v. Unite Here Local 355, 667 F.3d 1211 (11th Cir. 2012), a divided panel of
the Eleventh Circuit concluded that under some circumstances, Section 302 could reach such an
agreement. The employer and union had entered into an agreement in which the employer agreed
to remain neutral during the unions organizing campaign, to give the union access to its property
for organizing purposes, and to provide the union with the names and contact information of
employees. Id. at 1213. The Eleventh Circuit held that these types of organizing assistance can
be a thing of value that, if demanded or given as payment, could constitute a violation of 302.
Id. at 1213. The court acknowledged that [e]mployers and unions may set ground rules for an
6

organizing campaign, but in the courts view, these innocuous ground rules can become illegal
payments if used as valuable consideration in a scheme to corrupt a union or to extort a benefit
from an employer. Id. at 1215.
The Supreme Court granted a writ of certiorari in Mulhall, but after briefing and oral
argument, the Court dismissed the writ as improvidently granted. Unite Here Local 355 v.
Mulhall, 134 S. Ct. 594 (2013). J ustice Breyer, joined by J ustices Sotomayor and Kagan,
dissented from the decision to dismiss the writ. Id. at 594-95. [I]n considering the briefs and
argument, J ustice Breyer stated, the Court became aware of two logically antecedent
questions that could have prevented it from reaching the question of the correct interpretation
of 302. Id. at 595. Specifically, J ustice Breyer observed that the case was potentially moot,
because the agreement between the union and employer had expired, and that Mulhall, the sole
plaintiff in the case, arguably lacked Article III standing. Id. J ustice Breyer would have asked for
additional briefs on standing and mootness, rather than dismiss the writ of certiorari. Id. at 595.
He also would have directed briefing on a third question, namely whether 302 authorizes a
private right of action. Id. at 595.
III. The Procedural and Factual History of this Case
1. The defendant United Autoworkers Union (UAW) is a union that sought to
become the exclusive bargaining representative for employees of defendants Volkswagen Group
of America and Volkswagen Group of America Chattanooga Operations, collectively
Volkswagen, which manufacture automobiles at a plant in Chattanooga, Tennessee. Compl.
3-7. On J anuary 27, 2014, UAW and Volkswagen entered into a voluntary agreement that,
among other things, set ground rules for an organizing campaign by UAW. Compl., Ex. A
(Agreement).
7

In the agreement, UAW and Volkswagen agreed to jointly petition the NLRB for an
expedited secret-ballot election overseen by the NLRB on February 12 to 14, 2014. Compl. 11.
UAW agreed not to visit employees at their homes and not to make negative comments about
Volkswagen during the organizing campaign. Id. 12(d). UAW also agreed that if elected
exclusive bargaining representative it would delegate many of its responsibilities and functions
to a Works Council populated by individuals selected by Volkswagen employees, including
employees not represented by UAW, id. at 12(a); it would not engage in picketing or strikes
while the parties negotiated an initial collective bargaining agreement, id. at 12(c); and it
would, when negotiating a collective bargaining agreement, endeavor to maintain[] and where
possible enhanc[e] the cost advantages and other competitive advantages that [Volkswagen]
enjoys relative to its competitors in the United States and North America, id. at 12(b). For its
part, Volkswagen agreed that during the organizational campaign it would conduct meetings
with all its employees, during work time, where it would voice support for a Works Council and
allow UAW to solicit support from employees. Id. 11(a). Volkswagen also agreed to allow
UAW use of company property for organizing activities and not to take a position opposed to
UAW or union representation. Id. 11(b) & (c).
The parties complied with the agreement and, in February 2014, an election was held.
Compl. 15-19. The employees voted 712 to 626 against representation by UAW. Id. 19. As
a result, Volkswagen does not have any further obligations under the agreement, Agreement
8, and UAW may not conduct an organizing campaign and seek recognition at Volkswagen for
one year, unless during that period another union commences a serious, concerted and
legitimate effort to organize Volkswagen employees, Agreement 6(c).
8

UAW then filed objections with the NLRB seeking to invalidate the results of the
election and require that it be redone. Compl. 20.
2. On March 12, 2014, three employees of VolkswagenMichael Burton, Michael
J arvis, and David Reedfiled the present suit. Compl. 6. The complaint alleges that there is
imminent risk that Volkswagen will violate Section 302(a)(2) by providing what plaintiffs
call organizing assistancethe all-employee meetings, use of company property, and
neutrality promised in the ground-rules agreement in the event of a rerun election. Id. 21,
31. The complaint also asserts an imminent danger that UAW will violate Section 302(b)(1)
by requesting this assistance in the event of a rerun election. Id. 32-33. The complaint also
alleges that Volkswagen presently is violating Section 302(a)(2) because it agreed to pay,
lend, or deliver these three types of organizing assistance to UAW, Compl. 30, and that UAW
is violating Section 302(b)(1) because it agreed to accept the organizing assistance from
Volkswagen. Id. 32-33.
Plaintiffs seek injunctive relief prohibiting Volkswagen from providing, and UAW from
requesting, the allegedly unlawful organizing assistance promised in the agreement. Compl. pp.
11 (Prayer for Relief). Plaintiffs also seek a declaratory judgment that Volkswagen and UAW
have violated and will violate Section 302 by providing and requesting the organizing assistance.
Id. at 11-12.
3. After the plaintiffs filed their complaint, UAW chose to withdraw the objections
to the election it had filed with the NLRB. See Press Release, UAW, UAW Withdraws
Volkswagen Election Objections (Apr. 21, 2014), available at http://uaw.org/articles/uaw-
withdraws-volkswagen-election-objections (last visited May 20, 2014). On April 21, 2014, the
NLRB certified the results of the election.
9

ARGUMENT
This statement of interest addresses two questions about the scope of Section 302 that are
of specific interest to the United States: whether Section 302 creates a private right of action and
whether Section 302 applies to the ground-rules agreement at issue here. Section 302 does not
create a private right of action to enforce its prohibitions, and it does not, as alleged by plaintiffs,
prohibit employers from agreeing to provide, in a ground-rules agreement for resolving questions
concerning representation, organizing assistance of the type challenged in this case. There is a
substantial danger that if construed in the manner urged by plaintiffs Section 302 will disturb the
finely-wrought balance of the federal labor laws.
1

I. Section 302 Does Not Create a Private Right of Action
Section 302 does not create a right of action for private parties to seek relief for alleged
violations of the statute. The language, structure, and legislative history of Section 302 evince no
intent on the part of Congress to create a private right of action. The statute establishes criminal
prohibitions, to be enforced by the government, and authorizes the governmentand only the
governmentto seek injunctive relief.
1. [P]rivate rights of action to enforce federal law must be created by Congress.
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Congress may create a private right of action
expressly or by implication. Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 158 (6th Cir.
2014). But the mere fact that a federal statute has been violated and some person harmed does

1
There also appear to be substantial questions of standing and mootness in this case. The results
of the election, upon their certification by the NLRB, appear to extinguish Volkswagens
contractual obligations to provide organizing assistance to UAW. Although the complaint alleges
that UAWs challenge to the results of the election creates an imminent risk of future violations
of Section 302, UAW withdrew that challenge. The United States confines its brief to questions
regarding the scope of Section 302.

10

not automatically give rise to a private cause of action in favor of that person. Cannon v. Univ.
of Chicago, 441 U.S. 677, 688 (1979). The judicial task is to interpret the statute Congress has
passed to determine whether it displays an intent to create not just a private right but also a
private remedy. Sandoval, 532 U.S. at 286 (emphasis added). Congressional intent is the
lodestar, see Bowling Green v. Martin Land Dev. Co., 561 F.3d 556, 559 (6th Cir. 2009), and to
discern that intent, courts consider (1) whether the statute create[s] a federal right in favor of the
plaintiff, (2) whether there is any indication of legislative intent, explicit or implicit, either to
create or to deny a remedy for the plaintiff, (3) whether it is consistent with the underlying
purposes of the legislative scheme to imply such a remedy for the plaintiff, and (4) whether the
cause of action [is] one traditionally relegated to state law, so that it would be inappropriate to
infer a cause of action based solely on federal law, Cort v. Ash, 422 U.S. 66, 78 (1975); see
generally Am. Premier Underwriters, Inc. v. Natl R.R. Passenger Corp., 709 F.3d 584, 593 (6th
Cir. 2013) (finding no private right of action after considering the four Cort factors); Bowling
Green, 561 F.3d at 559-61 (same); Mik, 743 F.3d at 158-60 (same).
2. The text and history of Section 302, considered in light of these factors, establish
that Congress did not intend to create a private right of action. Section 302(a) and Section 302(b)
define prohibited transactions involving employers, unions, employees, and their agents. 29
U.S.C. 186(a) & (b). Section 302(c) enumerates exceptions to these prohibitions. 29 U.S.C.
186(c). Section 302(d) creates criminal penalties for willful violations. 29 U.S.C. 186(d).
And Section 302(e) provides that federal district courts shall have jurisdiction . . . to restrain
violations of Section 302, without limitations that apply in other contexts. 29 U.S.C. 186(e).
These provisions create a mechanism for government, not private, enforcement of rules intended
to root out and prevent corruption and bribery in the labor context.
11

a. In order for a statute to create a private right, its text must be phrased in terms of
the persons benefited. Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002) (quoting Cannon,
441 U.S. at 692 n.13). Congress must confer the right in clear and unambiguous terms.
Caswell v. City of Detroit Hous. Commn, 418 F.3d 615, 619 (6th Cir. 2005) (quoting Gonzaga,
536 U.S. at 290). Statutes that focus on the person regulated rather than the individuals
protected create no implication of an intent to confer rights on a particular class of persons.
Sandoval, 532 U.S. at 289 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)).
Section 302 does not create any private right. The text of Section 302 describes in detail
the prohibited conduct of employers, unions, and employeesprohibiting employers from
delivering things of value to labor organizations, for example, and labor organizations from
accepting such things of value from employers. The text does not, however, contain any
language conferring rights on a particular class or identifying a particular class as an intended
beneficiary. As a result, [t]he question whether Congress . . . intended to create a private right
of action [is] definitively answered in the negative. Gonzaga, 536 U.S. at 283-84 (quoting
Touche Ross & Co. v. Redington, 442 U.S. 560, 576 (1979)) (alterations in Gonzaga).
b. There is no indication of legislative intent to create a remedy for private parties
for violations of Section 302. Section 302 was enacted to prevent bribery and corruption in the
labor context. Arroyo, 359 U.S. at 425-26; accord United States v. Roth, 333 F.2d 450, 453 (2d
Cir. 1963). Consistent with that purpose, the statute establishes criminal penalties to be pursued
by the government. 29 U.S.C. 186(d). Although Section 302 also creates federal district court
jurisdiction to restrain violations of the statute, 29 U.S.C. 186(e), that provision is best
understood as establishing jurisdiction for injunctive relief sought by the government.
12

The legislative history supports this conclusion. In the early 1980s, Congress considered
but rejected amendments to Section 302(e) that would have given the United States explicit
standing to enjoin violations of Section 302 where the criminal intent required for criminal
prosecution was lacking, see S. Rep. No. 98-83, 98th Cong., 1st Sess. 13 (1983); and that would
have explicitly provided a right of action for suits brought by any person directly affected by the
alleged violation, id. The Senate Labor Committee explained that the amendments would have
specified jurisdiction for suits to restrain violations of [Section 302] brought by any person
directly affected by the alleged violation. Id. at 12-13. These proposals were eliminated in the
Senate when the legislation was ultimately enacted in 1984. See H.R.J . Res. 648, 98th Cong., 2d
Sess. 585-86 (1984); H.R. Rep. No. 98-1159, at 416 (1984) (Conf. Rep.) (Amendment No. 136),
reprinted in 1984 U.S.C.C.A.N. 3712. Plainly there would have been no need to amend Section
302(e) to create a private right of action if such a right of action had been created when the
statute was enacted or previously amended.
c. It would also be inconsistent with the legislative scheme to imply a private right
of action in Section 302. Section 302 is but one component of an integrated scheme governing
employees, employers, and unions during organizing campaigns, representation elections, and
collective bargaining. See supra pp. 2-5. The NLRA allows private parties to file charges with
the NLRB alleging unfair labor practices by employers and unions, including charges based on
conduct that could also violate Section 302, and the NLRB may petition courts to enjoin conduct
it deems unlawful. See 29 U.S.C. 158(a)(2), 158(b)(6), 160(e), (j) & (l). It is well established
that the right to seek an order enjoining unfair labor practices is exclusively within the authority
of the Board. See, e.g., Amalgamated Clothing Workers of Am. v. Richman Bros. Co., 348 U.S.
511, 516-17 (1955). Allowing private parties to bring suits for injunctions under Section 302
13

would intrude into the governments administration of the federal labor laws and be inconsistent
with the basic policy of federal labor law that injunctive relief is prohibited in all but the
narrowest of circumstances. See, e.g., Burlington N.R. Co. v. Bhd. of Maint. of Way Emps., 481
U.S. 429, 437 (1987); 29 U.S.C. 101. Consistent with that basic policy, the same Congress that
enacted Section 302 in 1947 also rejected a proposal that would have allowed private parties to
seek injunctive relief in federal court for certain unfair labor practices. See Muniz v. Hoffman,
422 U.S. 454, 465-67 (1975) (discussing legislative history of Taft-Hartley Amendments).
3. In 1962, in Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962), the Supreme
Court suggested in dictum that Section 302(e) permits private litigants to obtain injunctive relief.
Id. at 204-05 & n.19. Courts have relied on Sinclair in holding that Section 302(e) allows for a
private cause of action for injunctive relief but not damages. See Bakerstown Container Corp. v.
Intl Bhd. of Teamsters, 884 F.2d 105, 107 (3d Cir. 1989) (citing cases).
Those cases are not controlling. The basis for the dictum in Sinclair has since been
severely undermined. See Unite Here Local 355 v. Mulhall, 134 S. Ct. at 595 (Breyer, J .,
dissenting from dismissal) ([I]n light of the Courts more restrictive views on private rights of
action in recent decades, the legal status of Sinclair Refinings dictum is uncertain.) (internal
citation omitted). The understanding of private cause of action that held sway 40 years ago, at
the time that Sinclair was decided, has been abandoned. Sandoval, 532 U.S. at 286-87; see
Johnson v. City of Detroit, 446 F.3d 614, 621 (6th Cir. 2006) (describing recent Supreme Court
cases that altered the landscape of the law in this area).
2
Section 302 must be considered in

2
The Sixth Circuit assumed that Section 302 creates a private right of action in Hosp. Emps. Div.
of Local 79 v. Mercy-Memorial Hosp. Corp., 862 F.2d 606, 608 (6th Cir. 1988), vacated on other
grounds, 492 U.S. 914 (1989), but the issue apparently was undisputed in that case.
14

light of the Supreme Courts modern private-right-of-action cases, and as discussed above, those
cases make clear that Section 302 does not create a private right of action.
II. Section 302 Does Not Prohibit the Terms of the Ground-Rules Agreement
Challenged by the Plaintiffs

The plaintiffs allege that the defendants are violating or will violate Section 302 by way
of Volkswagen providing, and UAW requesting, three discrete forms of organizing assistance:
(1) employee meetings with UAW during work time; (2) UAW access to Volkswagen property
for purposes of organizing; and (3) Volkswagen neutrality with respect to UAW and union
representation. See Compl. 10, 29-33. Those routine ground-rules provisions in an organizing
campaign do not violate Section 302. The treatment of these terms as per se prohibited fits
poorly with the statutory language of Section 302. Equally important, construing Section 302 to
prohibit these types of provisions creates insurmountable tensions within the overall structure of
the labor lawsthreatening to substitute a regime of injunctions and per se prohibitions under
Section 302 for the nuanced and detailed administrative process overseen by the NLRB. The
legislative history is inconsistent with any claim that Congress intended to criminalize the
provision of organizing assistance of the type challenged by plaintiffs.
Under these circumstances, Section 302 cannot be read to invalidate ground-rules
agreements of the form at issue here. When particular conduct might be regulated under different
statutory provisions, courts endeavor to reconcile those provisions, paying particular attention to
whether the conduct is regulated by a specialized administrative scheme. See, e.g., Credit Suisse
Sec. (USA) LLC v. Billing, 551 U.S. 264, 275-76 (2007) (finding that securities laws and SEC,
rather than antitrust laws and district courts, exclusively regulate certain conduct in public
offerings). Even when a reading of a statute might be textually permissible in a narrow sense,
it may be structurally implausible, because it would render other statutory provisions
15

functionally void. New Process Steel, L.P. v. NLRB, 560 U.S. 674, 681 (2010). That is the case
here: Section 302 should not be interpreted to criminalize agreements that have long been
considered lawful under the NLRA as incidental to the process of resolving disputes about union
representation. The plaintiffs claims therefore must fail.
A. The Text of Section 302 Does Not Justify the Plaintiffs Proposed
Interpretation

The key text plaintiffs rely on is the statutes prohibition on an employers pay[ing],
lend[ing], or deliver[ing] any money or other thing of value to a labor union or union official
or employee. 29 U.S.C. 186(a)(2). The broad phrase thing of value has been used in dozens
of provisions throughout the United States Code, including several criminal provisions.
Congress[s] frequent use of thing of value in various criminal statutes has evolved the phrase
into a term of art which the courts generally construe to envelop[] both tangibles and
intangibles. United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992) (citing cases); see
Mulhall, 667 F.3d at 1214-15. This broad interpretation is based upon a recognition that
monetary worth is not the sole measure of value. Nilsen, 967 F.2d at 542-43; see United States
v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985) (Congress[s] very use of the more expansive thing
of value rather than property strongly implies coverage beyond mere tangible entities.).
Courts have found a wide variety of goods, services, and benefits to be things of value within
the meaning of the criminal laws.
3

But several features of Section 302s text make this statute uniqueand a poor fit for the
contractual provisions challenged here. Section 302 applies only when an employer pay[s],
lend[s], or deliver[s] money or a thing of value to a labor union or union officer or employee, or

3
See, e.g., United States v. Townsend, 630 F.3d 1003, 1010-11 (11th Cir. 2011) (relaxed
conditions of pretrial detention); United States v. Marmolejo, 89 F.3d 1185, 1191 (5th Cir. 1996)
(conjugal visits).
16

the union or its officer or employee requests such a payment, loan, or delivery. 29 U.S.C.
186(a)(2) & (b)(1). The verbs pay, lend, and deliver capture transactions with a
corrupting potentialbut are inapt to describe an employers compliance with the terms of a
negotiated ground-rules agreement. See Sage, 390 F.3d at 219 (a ground-rules agreement for
organizing involves no payment, loan, or delivery of anything). Pay naturally refers to
compensation with money. E.g., Websters Third New International Dictionary 1659 (1993).
Lend typically refers to providing money or an item for temporary use on the condition it will
be returned. Id. at 1293. Deliver does have a more general meaning of give, transfer, or
yield possession or control of a thing. Id. at 597. But the canon of noscitur a sociis, see Bullock
v. Bank-Champaign, N.A., 133 S. Ct. 1754, 1760 (2013), suggests a financial-transfer focus for
this term as wellfor example, delivery of free tickets to a sporting event. See, e.g., United
States v. Douglas, 634 F.3d 852, 859 (6th Cir. 2011) (Section 302 applied to wage and benefit
payments to friends and relatives of union officials); United States v. Burge, 990 F.2d 244, 249-
50 (6th Cir. 1992) (sham consulting fees); United States v. Boffa, 688 F.2d 919, 935-36 (3d Cir.
1982) (use of an automobile); United States v. Schiffman, 552 F.2d 1124, 1126 (5th Cir. 1977)
(preferentially-low rates at a hotel).
4
The statutory text therefore would not naturally encompass
the ground-rules agreement at issue here.
5

4
Other parts of Section 302 similarly suggest a focus on financial transfers. See Adcock, 550
F.3d at 375 (penalty provision, Section 302(d), shows that Congress clearly intended 302s
thing of value to have at least some ascertainable value); see also 29 U.S.C. 186(c)
(exemptions pertaining to monetary and financial transactions).
5
Volkswagen correctly states (Br. in Supp. of Mot. to Dismiss 25) that the Department of Labor
has not interpreted the disclosure provision in the Labor-Management Reporting and Disclosure
Act, 29 U.S.C. 433, to require employers to report promises of the types at issue in this case.
While the language of that provision may be read in the manner suggested by Volkswagen, i.e.,
to require reporting only of items with ascertainable value, DOLs guidance on the provision
expressly states: [T]his guidance does not interpret the provisions of section 302(c), and
conclusions reached by the Department regarding payments of the kind referred to in section
17

B. The Statutory Context Does Not Support the Plaintiffs Proposed
Interpretation of Section 302

To the extent that the literal meaning of pay[ing], lend[ing], or deliver[ing] any money
or other thing of value could be construed to reach components of negotiated agreements over
ground rules for potential representation, Section 302 should be read not in a vacuum, but in light
of its origins, the surrounding body of labor law, and the disruptive effects of the plaintiffs
proposed approach. Reading Section 302 in that context makes clear that the plaintiffs view is
fundamentally at odds with the accepted premises and core goals of the federal labor laws. Their
proposed construction of Section 302 would upset settled understanding of the law by employers
and unions and would undermine Congresss goal of promoting industrial peace through
voluntary employer-union agreements.
1. As the Supreme Court has recognized, the NLRA expresses a federal policy
that industrial peace can be best obtained when employers and unions voluntarily reach
agreement and the federal courts . . . enforce these agreements. Textile Workers Union of Am.
v. Lincoln Mills, 353 U.S. 448, 455 (1957). Employers and unions have accordingly long entered
into, and the NLRB has sanctioned, so-called consent election agreements in which the parties
themselves resolve such potentially outcome-determinative election issues as voting eligibility,
the scope of the unit in which the election will be conducted, and the date of the election. See
NLRB, Ninth Annual Report of the National Labor Relations Board for the Fiscal Year Ended
June 30, 1944, at 8, 11 (1944); see also Harry A. Millis & Emily Clark Brown, From the Wagner
Act to Taft-Hartley, A Study of National Labor Policy and Labor Relations 87 (1950) (over a 12-

302(c) would not bind the Department of J ustice in carrying out its criminal enforcement
responsibilities. See http://www.dol.gov/olms/regs/compliance/LM10_FAQ.htm (FAQs 18 &
19) (last visited May 20, 2014).

18

year period nearly half [of the representation petitions] were reported as adjusted without
formal action). Employers have also long provided unions with access to employers premises
and supplied employee lists during organizing campaigns. See supra pp. 3-4. The NLRB and
courts have long sanctioned these practices, so long as employers provided the same
opportunities to rival unions. See, e.g., NLRB v. Waterman S.S. Corp., 309 U.S. 206, 209-10 &
n.4, 225-26 (1940) (access); Kimbrell v. NLRB, 290 F.2d 799, 802 (4th Cir. 1961) (access);
NLRB v. L. Ronney & Sons Furniture Mfg. Co., 206 F.2d 730, 735 (9th Cir. 1953) (employee
names and addresses). And as noted, the NLRB has recognized as lawful, and courts have
enforced, ground-rules agreements for the conduct of union organizing campaigns. See, e.g., J.P.
Morgan Hotel, 996 F.2d at 566 (2d Cir. 1993); Verizon Info. Sys., 335 N.L.R.B. at 558-60 & n.7.
Section 302 must be read against this backdrop. Plaintiffs contention that an employer
would commit a federal crime by complying with the terms of an agreement for the resolution of
representational disputes cannot be reconciled with the longstanding and settled body of law
allowing such agreements, including the particular provisions challenged here. These provisions
are useful in the process leading to voluntary recognition and are useful only for that purpose.
Such a procedural agreement (unlike plaintiffs hypothetical direct payment of cash) implicates
none of the concerns animating Section 302. These voluntary agreements do not involve bribery
or other corrupt practices and do not provide personal[] benefit[s] to union officials; instead,
they eliminate the potential for hostile organizing campaigns in the workplace. Adcock, 550
F.3d at 375; see Sage, 390 F.3d at 219. Reading the statute to criminalize such voluntary
agreements would penalize the friendly adjustment of industrial disputes, despite Congresss
longstanding policy of encouraging such cooperation as a way of avoiding industrial strife. 29
U.S.C. 151.
19

2. Criminalizing agreements to provide assistance during an organizing campaign
would also intrude upon the jurisdiction of the NLRB. The NLRB has been delegated
responsibility for resolving labor disputes, including disputes regarding union elections and
recognition. 29 U.S.C. 159. The Sixth Circuit accordingly has deferred to the primacy of the
NLRB in determining the legality of agreements between a union and employer that precede the
unions recognition as exclusive bargaining representative. See Montague v. NLRB, 698 F.3d
307, 314-16 (6th Cir. 2012), denying petition for review, Dana Corp., 356 N.L.R.B. No. 49
(2010). The court has recognized that Congress has given the Board the power to make
industrial policy as long as it is doing so within the confines of the statutory language and that
the balancing of conflicting legitimate interests in pursuit of the national policy of promoting
labor peace through strengthened collective bargaining is precisely the kind of judgment that . . .
should be left to the Board. Id. (internal citation and quotation marks omitted).
If a voluntary agreement between a union and employer results in unfair labor practices,
to the detriment of employees, the NLRB may seek to enjoin the offending conduct. In Adcock,
for example, although the court of appeals concluded that the agreement did not violate Section
302, the NLRB pursued unfair labor practice charges against the union and employer because the
union agreed not to seek wage increases for employees if elected the exclusive bargaining
representative. See 550 F.3d at 374-77. The plaintiffs in this case contend that UAW made
similar concessions. Compl. 9. They allege that through the ground-rules agreement UAW is
under the contractual control of Volkswagen, and Volkswagen can require UAW to delegate
its responsibilities to a company-funded Work Council, not strike or picket in support of better
wages or working conditions, and not seek wages or benefits for Plaintiffs and other Employees
that erode Volkswagens cost advantages vis--vis other automakers in North America. Compl.
20

24(b). These allegations are conclusory, but in any event, the proper recourse for the plaintiffs
to seek relief is to file unfair labor practice charges with the NLRB, not a private suit for
injunctive and declaratory relief under Section 302.
6
The availability of such adequate
remedies, namely unfair labor practice proceedings before the NLRB, severely undermines
attempts to stretch 302 beyond its limits Adcock, 550 F.3d at 377; see also Facetglas, 845
F.2d at 1253 (enforcing a neutrality agreement that contained terms to be included in the parties
collective bargaining agreement if the union became recognized as bargaining representative).
3. Plaintiffs theory is also untenable because it would cast doubt on a host of other
voluntary agreements outside of the union-recognition context that play a key role in effectuating
the purposes of the NLRA, including some terms common in collective-bargaining agreements.
The fundamental policy of the labor laws is to encourage voluntary agreements that reduce labor
strife, and plaintiffs broad construction of Section 302 would invalidate innumerable such
agreementsmost or all of which provide a thing of value to a union that, plaintiffs would
maintain, is paid or delivered. The interpretation of Section 302 urged by the plaintiffs, for
example, would criminalize an employers agreement to allow union access to a plant or
employer bulletin board, yet as the Sixth Circuit has held, bargained-for access provisions

6
The plaintiffs appear to contend that these supposed concessions demonstrate the improper
effects of the organizing assistance that Volkswagen provided to UAW. The plaintiffs do not,
because they cannot, allege that UAWs agreement to these concessions alone violates Section
302. Section 302 does not prohibit a union from providing things of value to an employer; it
only prevents employers from delivering (and the union or union representatives from accepting
or receiving) thing[s] of value. Adcock, 550 F.3d at 376. Although the plaintiffs allege that
Volkswagen agreed to fund the Works Council, Compl. 12(a) & 24(b), they do not allege
that in doing so Volkswagen agreed to a payment that violates Section 302. See Compl. 10,
30-33 (specifying as things of value three forms of pre-election organizing assistance
Volkswagen agreed to provide UAW); see also 29 U.S.C. 186(c)(9) (exempting from Section
302s prohibitions money or other things of value paid by an employer to a plant, area or
industrywide labor management committee established for one or more of the purposes set forth
in section 5(b) of the Labor Management Cooperation Act of 1978).
21

implement the employees own undisputed 7 right to negotiate and benefit from a collective
bargaining agreement which allows union access for purposes of investigating the premises and
interviewing employees on-site. Wolgast Corp. v. NLRB, 349 F.3d 250, 256 (6th Cir. 2003),
enforcing 334 N.L.R.B. 203 (2001). Similarly, while plaintiffs would construe Section 302 to
criminalize promises of neutrality during an organizing campaign, the Sixth Circuit has enforced
collective-bargaining agreements between a union and employer in which the employer agreed to
remain neutral if the union sought to mount an organizing campaign at unrepresented facilities
owned by the employer. See Intl Union v. Dana Corp., 278 F.3d 548 (2002); AK Steel Corp. v.
United Steelworkers of Am., 163 F.3d 403, 408 (6th Cir. 1998). Plaintiffs expansive reading of
Section 302 has the potential to criminalize virtually any term in a collective bargaining
agreement, which, by reinforcing the unions ability to win valuable concessions for its
members, allegedly would pay or deliver a thing of valueenhanced prestige and
influenceto the union. A system of peaceful adjustment of grievances or economic disputes
would thus become subservient to Section 302 and its exceptions.
Collective bargaining is the cornerstone of the NLRA. A theory of Section 302 that could
sweep in all employer agreements to provide a union with things it believes valuable and finds
objectively useful would subvert the statutes core provisions. Rather than upset the careful
balance Congress struck in the labor context between protection, prohibition, and laissez-faire
in respect to union organization, collective bargaining, and labor disputes, Chamber of
Commerce v. Brown, 554 U.S. 60, 65 (2008) (internal citations and quotation marks omitted),
this Court should reject the expansive and unwarranted interpretation of Section 302 advanced
by the plaintiffs.

22

C. The Legislative History of Section 302 Does Not Support the Plaintiffs
Proposed Interpretation

A party contending that legislative action changed settled law has the burden of showing
that the legislature intended such a change. Green v. Bock Laundry Mach. Co., 490 U.S. 504,
521 (1989). A statute should not be construed to work a fundamental change in established law
absent a clear expression of congressional intent. See, e.g., Scheidler v. Natl Org. for Women,
Inc., 547 U.S. 9, 20 (2006). The legislative record provides no support for the conclusion that
Congress intended to criminalize ground-rules agreements affording union access and employer
neutrality when it enacted Section 302.
1. Section 302 resulted from congressional concern about corruption of collective
bargaining through bribery of employee representatives by employers, extortion [of
employers] by employee representatives, and abuse by union officers of the power which they
might achieve if welfare funds were left to their sole control. Arroyo, 359 U.S. at 425-26. The
statute reacted to a demand by the president of the United Mine Workers that a tax of 10 cents a
ton on coal be paid to the union for an indiscriminate use for so-called welfare purposes. S.
Rep. No. 105, 80th Cong., 1st Sess. 52 (1947) (Senate Report); see, e.g., United States v. Ryan,
350 U.S. 299, 304-05 (1956).
Members of Congress believed that if any such huge sums were to be paid to the union,
their use must be strictly safeguarded so that the funds would be used for the benefit of
employees rather than union officials. Senate Report 52; see Arroyo, 359 U.S. at 426. More
generally, the congressional debate reflects concern that if union officials could demand that
employers pay royalties on production, they might take[] advantage of the positions which they
occupy . . . to fill their own pockets. 92 Cong. Rec. 5180, 5181 (1946) (statement of Sen.
Overton); see, e.g., 92 Cong. Rec. 4900 (1946) (statement of Sen. Byrd) (provisions purpose is
23

to prevent the payment of a royalty to the representatives of a union); 92 Cong. Rec. 4746
(1947) (statement of Sen. Taft) (provision was intended to address extortion or a case where the
union representative is shaking down the employer). Congress therefore barred employers from
making payments to unions and union officials, and unions and union officials from demanding
such payments, except under certain circumstances. See LMRA 302, 61 Stat. 157.
2. Nothing in the legislative record suggests that Congress intended to criminalize
compliance with ground-rules agreements like the one at issue in this case. To the contrary, at the
same time Congress enacted Section 302, it enacted several other provisions that acknowledged
the validity of labor agreements that provided benefits to unions.
For example, Congress provided that an employer and union may mak[e] an agreement
that requires employees to become union members as a condition of employment. LMRA
101, 61 Stat. 140-141 (enacting 29 U.S.C. 158(a)(3) & (b)). As a result employers may
agree to require employees to pay union membership dues as a condition of employment, see
Radio Officers Union v. NLRB, 347 U.S. 17, 39-42 (1954). Congress also permitted agreements
making union-run hiring-halls the exclusive source of hiring referrals. See Local 357, Intl Bhd.
of Teamsters v. NLRB, 365 U.S. 667, 672-76 (1961). Congress underscored its commitment to
voluntary resolution of disputes by authorizing the federal courts to enforce contracts between
an employer and a labor organization. LMRA 301(a), 61 Stat. 156-157 (enacting 29 U.S.C.
185). These congressional actions permitting agreements that give valuable benefits to unions
and making these agreements enforceable in federal court are at odds with any inference that it
intended to criminalize agreements setting procedures for an organizing campaign.
Further, in 1947 Congress enacted 29 U.S.C. 158(c) to insure both to employers and
labor organizations full freedom to express their views to employees on labor matters. Senate
24

Report 23-24; see LMRA 101, 61 Stat. 142. And Members of Congress acknowledged, without
disturbing, the settled understanding that an employer can permit forms of union access to
employer property beyond what the NLRA requires. At the time of the 1947 amendments, the
NLRA provided that it was an unfair labor practice for an employer to dominate or interfere
with the formation or administration of any labor organization or contribute financial or other
support to it, but also stated that an employer was not prohibited from permitting employees to
confer with him during working hours without loss of time or pay. 29 U.S.C. 158(2) (1940).
While considering possible amendments to that provision, the House Report accepted as a
commonplace truth that an employer can do more for the union of his employees than the act,
by its terms, permits such as provid[ing] . . . bulletin boards for the unions use and
allow[ing] representatives of the union to confer not only with the employer but as well with
employees on company property. H.R. Rep. No. 245, 80th Cong., 1st Sess. 28-29 (1947); see
BASF Wyandotte Corp. v. Local 227, Intl Chem. Workers Union, 791 F.2d 1046, 1051-52 (2d
Cir. 1986). The Congress that expressly recognized employer free speech and took for granted
that employers may allow union access to employees and property would not have silently
outlawed voluntary employer-union agreements encompassing the very same elements.
3. The 1959 amendments to Section 302 likewise evidence no congressional intent
to criminalize voluntary agreements for organizing campaigns. As originally enacted, Section
302 provided that an employer could not pay or deliver any money or thing of value to any
representative of any of his employees who are employed in an industry affecting commerce. 61
Stat. 157. That language was interpreted to apply only to payments made to incumbent unions
and union representatives and not to unions seeking to become the collective bargaining
representative. See Ventimiglia v. United States, 242 F.2d 620, 623-24 (4th Cir. 1957).
25

To close this gap, Congress extended Section 302s reach to any labor organization, or
any officer or employee thereof, which represents, seeks to represent, or would admit to
membership, any of the employees of the employer. Pub. L. No. 86-257, 505, 73 Stat. 537
(emphasis added); see S. Rep. No. 187, 86th Cong., 1st Sess. 13 (1959). Although Congress
expressly extended Section 302 so that it would apply during the organizing process, no one
suggested that the statute would criminalize voluntary ground-rules agreements for organizing.
To the contrary, the one Member of Congress who mentioned such agreements found it obvious
that Section 302 would not prohibit card-check agreements and other similar agreements that are
part of normal and legitimate labor relations. 104 Cong. Rec. 16,464 (1958) (statement of Rep.
McGovern). Rather, he reaffirmed that the statute prohibits improper payments to union
officials, employees or middlemenin a word, it forbids bribes or pay-offs. Id.
CONCLUSION
If the Court does not dismiss the complaint for mootness or lack of standing, it should
nonetheless dismiss the complaint for the reasons stated above.
Respectfully submitted,
M. PATRICIA SMITH
Solicitor of Labor

ERIC C. HALLSTROM
Special Counsel

WILLIAM J . STONE
Senior Attorney
U.S. Department of Labor
200 Constitution Ave., N.W.

RICHARD F. GRIFFIN, J R.
General Counsel
National Labor Relations Board
Washington D.C. 20570
DAVID A. ONEIL
Acting Assistant Attorney General

DAVID M. BITKOWER
Deputy Assistant Attorney General

/s/J ohn M. Pellettieri
J OHN M. PELLETTIERI
Attorney, Appellate Section
Criminal Division
U.S. Department of J ustice
950 Pennsylvania Ave., N.W., Rm. 1260
(202) 307-3766

Dated: May 21, 2014

STATEMENT OF INTEREST OF THE UNITED STATES Re: Lawsuit Against VW/UAW

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