Labor and the Supreme Court: Significant Issues of 1991-92

By Hukill, Craig | Monthly Labor Review, January 1992 | Go to article overview

Labor and the Supreme Court: Significant Issues of 1991-92


Hukill, Craig, Monthly Labor Review


Craig Hukill is an attorney in the Office of the Solicitor, U.S. Department of Labor.

For the second consecutive year, the Supreme Court opened its fall term with only eight justices. The most recent vacancy resulted from Justice Thurgood Marshall's announcement on June 27, 1991, that he was stepping down after having served on the High Court for 24 years. Within days of this announcement, President Bush nominated Judge Clarence Thomas, of the Court of Appeals for the District of Columbia Circuit, to succeed Justice Marshall. Although Judge Thomas' confirmation hearing proved to be one of the most contentious in history, 52 of the Senate's 100 members voted to confirm him. Judge Thomas was soon sworn into office and joined the Court nearly 1 month into its new term.

The Court's caseload in recent years has declined steadily. For example, litigants argued and submitted 184 cases to the Court as recently as the 1983-84 term.(1) By contrast, only 125 cases were argued and submitted last term.(2) With this reduced caseload, it is not surprising that the Court's current calendar contains fewer labor cases than in years past. Even so, these cases raise many important issues, including whether nonemployee union members should be allowed to organize workers on company property, whether a city violates its workers' Federal civil rights when it neglects to provide adequate safety training for them, whether a veteran's reemployment rights include the right to take a 3-year leave of absence to serve in the Reserves, and whether a union member can sue his or her union to enforce a provision of the union's constitution.(3)

Veterans' reemployment rights

The Veterans' Reemployment Rights Act(4) allows reservists to take leaves of absence from their regular jobs in order to engage in various types of training.(5) In King v. St. Vincent's Hospital,(6) the Supreme Court will consider whether this Federal law requires an employer to grant all leave requests or just those it considers to be reasonable.

The leave request at issue in St. Vincent's Hospital was made by a hospital security department manager, known as "Sky" King, who also was a sergeant major in the Alabama National Guard. King sought a 3-year leave of absence so that he could serve in the Reserves as an advisor to his adjutant general. Although the hospital considered King to be an exemplary employee, it denied his request because the length of the leave requested was deemed too long.

The Court of Appeals for the Eleventh Circuit agreed with the hospital's decision, holding that only reasonable leave requests must be granted. Even though section 2024(d) nowhere mentions the word reasonable," the court wrote, "Were we to read Section 2024(d) as creating an absolute right of reinstatement, reservists would be allowed to play fast and loose with the system in a way that Congress could not have intended."(7) The court then found that King's request was for leave of an "exceptional duration," which it held was an indication of his bad faith. Thus, it concluded that the request was unreasonable per se.

Union organizing

In Lechmere, Inc. V. NLRB,(8) the Court has been asked to decide whether an operator of a chain of New England retail stores committed an unfair labor practice when it prevented nonemployee union organizers from distributing union literature on company property. The United Food and Commercial Workers union had tried to organize 200 nonunion employees at a Lechmere store, and the company had responded by enforcing its no-solicitation policy, which limited organizers to distributing their materials to cars as they entered the store's parking lot from a busy highway. The union objected to this arrangement and complained to the National Labor Relations Board.

Thirty-five years ago, in NLRB v. Babcock & Wilcox,(9) the Supreme Court allowed companies to ban nonemployee union organizers from company premises when circumstances are such that organizers can contact employees through the usual channels" of communication. …

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