Monroe v. Standard Oil Company

PETITIONER:Monroe
RESPONDENT:Standard Oil Company
LOCATION:1980 Democratic National Convention, Madison Square Garden

DOCKET NO.: 80-298
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 452 US 549 (1981)
ARGUED: Mar 04, 1981
DECIDED: Jun 17, 1981

ADVOCATES:
Alan I. Horowitz – on behalf of the Petitioner
Paul S. McAuliffe – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – March 04, 1981 in Monroe v. Standard Oil Company

Paul S. McAuliffe:

The union has–

Warren E. Burger:

We’ll hear arguments next in Monroe v. Standard Oil.

Alan I. Horowitz:

Without pay.

Warren E. Burger:

Mr. Horowitz, I think you may proceed when you are ready.

Alan I. Horowitz:

Mr. Chief Justice, and may it please the Court:

This case is here on a writ of certiorari to the United States Court of Appeals for the 6th Circuit.

The issue involves the construction of Section 38 U.S.C. 2021(b)(3), a section of what are commonly known as the veterans’s reemployment rights provisions.

This section, enacted in 1968, provides that reservists

“shall not be denied retention in employment, or any promotion or other incident or advantage of employment because of any obligation as a member of a reserve component of the armed forces. “

The facts of this case are as follows.

Petitioner is employed at respondent’s refinery in Lima, Ohio.

This refinery operates around the clock, seven days a week, three eight-hour shifts per day.

Each employee works five days per week for a total of 40 hours, according to a rotating shift schedule that is established by the respondent.

During 1975 and 1976 petitioner was a member of a reserve component of the armed forces, which entailed certain training obligations.

As a general rule he was required to train with his unit on one weekend per month.

In establishing the shift schedule, respondent took no cognizance of petitioner’s training obligations and therefore petitioner was frequently scheduled to work on weekend days that conflicted with his training obligations.

Thus, unless he was able to arrange a voluntary exchange of shifts with a fellow employee, petitioner was unable to work 40 hours during those weeks, and respondent made other arrangements for other employees to substitute for him.

As a result, petitioner lost 192 hours of work and salary over a 15-month period.

Now, the parties entered into a stipulation in the district court and stipulated that respondent took no steps to provide petitioner with any work hours during these weeks to substitute for those lost as a result of his military obligations.

Petitioner brought this suit in the United States District Court for the Northern District of Ohio, alleging that Respondent’s failure to attempt to accommodate his reserve obligations violated his statutory rights guaranteed by Section 2021(b)(3).

Based upon a stipulated set of facts the district court granted petitioner’s motion for summary judgment.

The court held that respondent had denied the petitioner the right to a 40-hour week, an incident or advantage of employment under the Act by refusing to take account of his reserve obligations in its scheduling.

On appeal the Court of Appeals reversed.

The Court of Appeals agreed that the right to be scheduled for a 40-hour work week at respondent’s refinery was an incident or advantage of employment within the meaning of the statute.

However, the Court of Appeals disagreed with the district court and with other courts of appeals as to the scope of the protection that the statute provides such a benefit.

The Court of Appeals held that Section 2021(b)(3) protects reservists only against intentional unequal treatment or on-the-job bias by their employers.

However, if a reservist is denied an employment benefit because of the operation of “a facially neutral rule” that is applied uniformly to all employees, in that case, the court held that the statute is not violated.

Applying these principles to this case, the court held that respondent had not violated the Act.

Petitioner’s work schedule was established without regard to his training obligations and his training-related absences were treated just as other nonmilitary absences of another employee would have been treated.

Thus, in the view of the Court of Appeals, neutral treatment, not bias, was shown.

Alan I. Horowitz:

It is our contention that the principles on which the court based its decision stem from an erroneous interpretation of the statute.

Congress did not intend that employers would be permitted blindly to follow rules that, although neutral on their face, have an inevitable adverse effect on reservists not in situations where that adverse impact can be completely eliminated if the employer seeks to accommodate rather than simply ignore the fact of petitioner’s reserve obligations.

William J. Brennan, Jr.:

Do you have suggestions, Mr. Horowitz, how do you think the employer should accommodate to satisfy his obligation under the statute?

Alan I. Horowitz:

You mean, on these specific facts?

It depends, on a case by case basis.

William J. Brennan, Jr.:

All right, let’s start with these.

Alan I. Horowitz:

Okay, well, first of all, we don’t think the actual means of accommodation is really an issue in this case because the record reveals that the employer made no effort to make any arrangements.

Often it can be arranged simply by exchanging shifts.

For example, in this case, other employees had to take respondent’s shift, employees that work on a so-called extra board, and there’s nothing in the record that indicates why petitioner couldn’t then have taken shifts caused by the extra board employees.

William J. Brennan, Jr.:

Suppose that’s tried and that doesn’t work, then what?

What should the employer do?

Alan I. Horowitz:

In other words, it’s impossible for the employer to accommodate in that sense?

William J. Brennan, Jr.:

At least by that method he can’t accommodate him.

Alan I. Horowitz:

Well, we would also suggest that he should have taken account of these obligations in the schedule itself.

In other words, first, have a schedule for petitioner’s off weekends, on those weekends when he had military obligations, and then fill in his schedule around that.

William J. Brennan, Jr.:

So that he works five days other than the weekend?

Alan I. Horowitz:

Only in the week that he has the reserve obligations.

He would still work the same number of weekends over the course of the year, as everyone else.

William H. Rehnquist:

But under your theory, every time that a worker is dissatisfied with the employer’s effort to accommodate, it would be a question that would have to be resolved in court, whether there had been good faith effort to accommodate him.

Alan I. Horowitz:

Well, it’s not a question of whether he’s dissatisfied with the accommodation.

It’s a question of whether the benefit is denied to him.

Now, if the employer didn’t give him a 40-hour work week, for example.

William H. Rehnquist:

But you say that it’s a very flexible type of thing, that the employer does not have to–

Alan I. Horowitz:

I don’t mean to suggest that the courts… the courts are not going to be overrun by cases now deciding what’s reasonable accommodation.

There’s been a lot of litigation in this area already, and it’s always been a dispute over what the meaning of the statute is.

There’s never been any question in these other cases that the employer couldn’t accommodate.

In most situations it’s no trouble at all.

For example, in the 5th Circuit case, in the West case, which we’ve asserted as directly in conflict with this one, the employer conceded that it was no trouble to arrange the schedule that way.

Now, the facts of this case may raise a slightly more difficult question because you have a small plant and it’s making–

William H. Rehnquist:

–And you’ve also got seven days a week, 24 hours a day, scheduling.

Alan I. Horowitz:

–Yes, but the reservist is going to be there for five days, so it’s not clear that there’s any difficulty in scheduling him for those five days.

Byron R. White:

Well, did the employer treat this reservist like he treated other employees who wanted to be away?

Alan I. Horowitz:

That’s right.

He treated his reserve absences just as if they were personal leaves of absence for whatever reason–

Byron R. White:

So your submission is that he’s not entitled to do that, that he… that the statute puts a–

Alan I. Horowitz:

–That’s right.

Congress has enacted a special statute that provides for special treatment of reservists–

Byron R. White:

–It requires him to treat the reservists more favorably than others, including more favorably with respect to absences?

Alan I. Horowitz:

–I don’t think it’s a question of treating the reservist more favorably.

The end result–

Byron R. White:

That’s what I just asked you.

Alan I. Horowitz:

–What we contend is that the employer has to give special treatment to the absences.

The statute’s not satisfied simply by–

Byron R. White:

All right.

He is to give more favorable treatment to these absences than to other?

Alan I. Horowitz:

–It’s not permitted to treat an absence for reserve duty as if it was any other sort of absence.

Now, the bottom line is not more favorable treatment for the reservist.

He ends up with the same benefits that all the other employees have.

It’s just the recognition by Congress that these are absences that the reservists have no control over.

Warren E. Burger:

Are you saying that this statute is comparable to what some states have, with special provisions made for people called for jury service?

Is military service in the same ball park as jury service?

Alan I. Horowitz:

I think it’s in the same ball park.

Congress has specifically put it in a special category.

They’ve asked employers to take certain steps so that people are not, do not automatically lose benefits in their civilian employment because they have to enter into this military service.

This is a recognition that military service is important for this country and they want to encourage people to do it, not be discouraged.

William J. Brennan, Jr.:

Are the problems of accommodation, Mr. Horowitz, any different under this statute than under those statutes that the Congress has enacted requiring accommodation of religious preferences?

Alan I. Horowitz:

Well, I think it’s quite different than under Title VII, because the situation under Title VII, it’s a complete anti-discrimination statute that intends to prohibit discrimination against all groups of employees, religious being one.

But here there is a specific statute directed at military absences.

So I think that there may be some more accommodation required here than there is in the Title VII problem.

William J. Brennan, Jr.:

More required here?

William J. Brennan, Jr.:

Even though that’s rather constitutionally based, isn’t it, under Title VII?

Alan I. Horowitz:

Well, I think the accommodation is just statutorily based.

Thurgood Marshall:

Is that why you don’t see TWA v. Hardison as being in your way?

Alan I. Horowitz:

Well, we think that TWA v. Hardison really has very little to do with this case.

First of all–

Thurgood Marshall:

Is that the reason?

Alan I. Horowitz:

–Well, for several reasons.

One, the statute is completely different.

The purposes of the statute are quite different.

I mean, here you have a specific statute aimed at a particular group of employees.

There you have complete anti-discrimination.

Now, you have to recognize, in Hardison the employee himself was asking for preferential treatment.

He didn’t want to work on any Saturdays at all, so he was asking for a schedule that was better than what the other employees were entitled to, even though those employees had greater seniority.

Now, here, the respondent’s just asking for an opportunity to work.

And the schedule is going to end up being the same, in the final analysis.

Byron R. White:

The statute doesn’t say anything about rescheduling, does it?

Alan I. Horowitz:

No.

Byron R. White:

It does give him, certainly, something other employees don’t have.

He can be away for reserve duty and still maintain his seniority and other things, so certainly there is a statute here directed to reservists, but… It specifically says what the employer may not deprive him of, but it doesn’t say anything about his having to change his shifts or anything.

Alan I. Horowitz:

Well, there are two different sections that apply to reservists.

One is Section 2024(d), first enacted in 1960, that says that a reservist has a right to a leave of absence when he has reserve duty and when he returns from that leave of absence he’s entitled to be restored to his employment with the same seniority, vacation, et cetera.

William H. Rehnquist:

No question about that being violated?

Alan I. Horowitz:

No question about that being violated here.

But Congress had enacted an additional section, several years later, to increase the protection for reservists, and in that section the statutory language is that

“the reservist may not be denied retention of employment. “

et cetera

“or other incident or advantages of employment because of his reserve obligations. “

Now, in its literal terms, that statute has been violated here.

Both courts found that the right to a 40-hour work week at the refinery was an incident or advantage of employment within the meaning of the statute.

Byron R. White:

The right to work 40 hours?

Alan I. Horowitz:

Yes.

Right to work.

Byron R. White:

Where is the right, where’s that in, the source of any right to work 40 hours a week?

Alan I. Horowitz:

The right to work 40 hours a week is based on the employer’s practice at this particular refinery.

Warren E. Burger:

Well, that’s what he was employed for.

The employer would have been glad to have him, if he had worked the 40 hours he wanted him to work.

Alan I. Horowitz:

This is a right that is granted to employees.

Employees want to be able to depend upon a certain amount of guaranteed income.

I mean, the right to a 40-hour work week is not a benefit for employers, it’s a benefit for employees.

Byron R. White:

Yes, but who guaranteed him the right to work 40 hours a week?

Alan I. Horowitz:

The right is guaranteed by the employer.

It was not a guarantee of–

Byron R. White:

Where was that guaranteed him?

Alan I. Horowitz:

–By custom and practice at the refinery.

That’s a factual finding by both courts below.

Warren E. Burger:

Well, is it a question of a guarantee, counsel?

Or is it simply that, were it not for his reservist status, he would work 40 hours a week, and it’s because of his reservist status that he’s put in what you regard as a position of discrimination.

Alan I. Horowitz:

He’s denied meaningful right to work 40 hours a week because of his reserve status.

Now, it’s true that they scheduled him, on schedule, for 40 hours, but they scheduled him at times that they knew he could not work.

I’m not probably responsive to the questions but that’s not a meaningful–

John Paul Stevens:

May I ask you a question about your distinction of the Hardison case now?

Supposing here… and I don’t think the record tells us whether this is true or not, but suppose it was here, in order to accommodate his desire to be off on the days where he had reserve obligations, one out of every four weekends, the schedule would require some other employee to work more weekends than he wanted.

Now, let’s assume it’s undesirable to work weekends.

Does your position apply even if the rescheduling would impose, may give him a preference at times of desirable work?

Or does it only relate to the cases where, given the requirement of meeting his demands, everybody still has the same employment obligation?

Alan I. Horowitz:

–Okay, we’re not asking for the reservist to be given a preference.

It’s hard to answer completely in the abstract as to what is reasonable or not.

I mean, if the fact that other employees would have to work more weekends, or if it might interfere with some seniority system, there is certainly strong evidence that it’s an unreasonable accommodation.

Because, I’m just reluctant to admit that there might be some–

John Paul Stevens:

Well, he’s getting more than equal treatment, if other employees have to take some undesirable work.

John Paul Stevens:

That seems to be rather clear in that case.

I don’t know whether this fellow’s in that category or not.

Alan I. Horowitz:

–No, we absolutely concede that he’s not entitled to work fewer weekends than the other employees, although it has to be recognized that he is–

John Paul Stevens:

So your point is that if the company could rearrange the schedules in a way that didn’t put any other employee in any worse position than they’re in under the normal scheduling, that then he has the right to reschedule?

Alan I. Horowitz:

–Yes, that’s clear, as far as it goes; I’m not sure.

Byron R. White:

What if there are two employees; this man goes off to reserve duty and the employer says, fine, I’ll reschedule, I’ll try to work it out, and he does, and then a man comes to him and says, I understand so and so is getting off for reserve duty and gets rescheduled.

Every time he goes to reserve duty I want to go fishing, for the same amount of time and please reschedule me, just the same schedule.

And the employer says, you must be out of your mind.

You can’t; or, I will not do it.

Now, you say that the employer certainly could say that in the latter case, but he couldn’t say that to the reservist?

Alan I. Horowitz:

Well, I think you’ve put your finger on it.

Byron R. White:

He certainly is being favored, isn’t he?

Warren E. Burger:

Well, has Congress made any provision for going fishing?

Alan I. Horowitz:

Well, he’s not being favored, because he doesn’t have the right to go fishing either.

I mean, this is just a special treatment of this particular category of absences that Congress has mandated.

Byron R. White:

Well, all right, so you do say that it is a special treatment, that the Act does give him special treatment.

Alan I. Horowitz:

It requires the employer to treat his absences differently.

Byron R. White:

The statute is not satisfied by treating the reservist like everyone else?

Alan I. Horowitz:

Not satisfied by treating his absences like other absences.

I still maintain that the bottom line as to what the reservist gets is the same.

He works the same number of weekends, the same number of hours.

Warren E. Burger:

Is it fundamentally different from the situation of a man who’s gone to Korea or Vietnam or wherever?

He comes back and is given “special treatment” by getting seniority for service he did not perform for the employer?

Alan I. Horowitz:

No, that’s the precise analogy.

And this Court has said many times that under the seniority provisions of the reemployment rights statutes the employer is not entitled to treat a veteran’s absences the same as he treats absences of–

Byron R. White:

There’s no argument about that.

The only question is whether the Congress intended to give him preference for his being away.

William H. Rehnquist:

What if this statute had been in effect at the time of the Korean War when, let’s say, someone like Ted Williams was called back into the service?

Do you think after a two-year tour of duty in Korea the veteran could come back and say, I want to be paid for all the time I was away?

Alan I. Horowitz:

–Clearly not.

Alan I. Horowitz:

Our contention here is that he has a right to work 40 hours during the week when he’s present at work.

Now, on these weekends that he misses, he’s there at work, during the week, for five days of the week, and we’re just asking that he be entitled to work on those five days.

Now, if he’s gone for two years, he’s not at the plant.

He can’t work 40 hours for any of those weeks.

So he’s not been denied that right.

Harry A. Blackmun:

Mr. Horowitz, is there any–

Alan I. Horowitz:

Excuse me, Justice Blackmun.

There’s no way they can accommodate him.

I’m sorry; go ahead.

Harry A. Blackmun:

–Is there any union presence in this case, in the background?

Alan I. Horowitz:

Well, there’s no official union presence.

I mean, I think union employers are often reluctant to give these benefits, or to give this treatment to reservists unless they’re required to do so by the courts, because they’re a little concerned that the unions will complain.

I mean, I think that perhaps explains why even though it may not have been very difficult for them to accommodate the reservists, they chose not to and chose to litigate it.

Harry A. Blackmun:

Maybe I should ask my question of your opposition.

Thurgood Marshall:

Wouldn’t… can I assume that Standard Oil has a union?

Alan I. Horowitz:

That Standard Oil is unionized?

Thurgood Marshall:

Yes.

Alan I. Horowitz:

I think we can assume that; yes.

There is a collective bargaining agreement involved.

Now, this case is basically one of statutory construction.

Apart from the plain language of the statute that I’ve already alluded to, there are several principles of statutory construction this Court has established under the veterans provisions, and each of these points towards petitioner’s construction of the statute.

First, it’s always been recognized that the provisions ought to be given liberal construction in favor of the veteran or, as in this case, the reservist.

Now, despite this command, the Court of Appeals adopted a very narrow view of the protection here because there was no clear and unambiguous legislative mandate to the contrary.

This rejection of what the Court of Appeals recognized to be a plausible interpretation is completely contrary to what this Court has established as the rule for construing the statute.

Secondly, this Court has repeatedly recognized the underlying purpose of these provisions, and that is that servicemen not be disadvantaged by serving their country, to the extent possible.

In Alabama Power this Court stated this principle thusly:

“The provisions evidence Congress’s desire to minimize the destruction in individuals’ lives resulting from military needs. “

William H. Rehnquist:

Mr. Horowitz, supposing that this man had a two-week summer duty and when he came back from it he gets paid so much for being in the reserves, he couldn’t claim the complete wages that he would have received, but he made a claim against the employer for the difference between what he got paid by the Government for his reserve duty and what he would have made had he stayed at the plant and worked?

Alan I. Horowitz:

We said in our brief, there is no basis for such a claim, unless there is some other employment benefit I’m not aware of.

But on this benefit we’re talking about in this case, the right to a 40-hour work week, he was not denied that right, if he’s gone for two weeks.

Alan I. Horowitz:

If he’s gone for a whole week, there’s no way the employer can schedule him for 40 hours of work that week, so he’s not entitled to anything.

We’re not… he’s just asking for the right to work, he’s not asking to be paid for hours that he does not work.

William H. Rehnquist:

And if it’s seasonal employment and his reserve duty occurs during the season, he has no claim?

A cannery-type thing?

Alan I. Horowitz:

I’m not sure exactly what situation you’re talking about.

If there’s a way that they can work it out, that he can work the hours, then he has a claim.

If there isn’t, there isn’t.

Now, Congress enacted this statute against the background of these principles of construction that I’ve discussed.

They deliberately enacted the statute using broad language.

They used the words,

“any incident or advantage of employment. “

and they used the words,

“that the reservist shall not be denied these benefits. “

Congress did not intend that the statute be interpreted as narrowly as it has been.

Now, I think the waters in this case have been muddied a little bit by the facts, which as I pointed out to Mr. Justice Stevens, are not really at issue in this case.

Perhaps I could focus the issue a little better by giving you different examples.

Let’s suppose the reservist worked at a store where each employee was entitled to two weekends of work in a given month at double pay, and the employer has historically divided the weekends on an alphabetical basis.

Those employees in the first half of the alphabet work on the first and third weekends of each month, those in the second half of the alphabet worked on the second and fourth weekends of each month.

Now, Mr. Andrews, who works at the store, joins the reserves and now has an obligation to attend reserve duty on the third weekend of those months.

Now, our position is that the employer has a duty, since it is no trouble for him at all, to schedule Andrews on the second and the fourth weekend of those months and schedule someone else on the first and the third weekends, even though that violates his long-established rule of how he allocates the weekends.

The Court of Appeals position is that the employer is entitled to rely on his rule.

The rule is facially neutral, does not discriminate against reservists, and therefore they don’t have to do anything for him.

William H. Rehnquist:

What if the rule were that there’s a one-month vacation for all employees, and the vacation for A-to-M employees is July and the vacation for N-to-Z employees is August, and some have scheduled, say, refresher teaching courses, some have scheduled vacations with their families, some have scheduled any number of things.

Would you say that the reservist has a right to insist that he get the vacation time contrary to policy because of his one-month reserve duty?

Alan I. Horowitz:

You’re suggesting this one month reserve duty falls in July, for example, and that’s when he’s scheduled for vacation?

William H. Rehnquist:

Yes.

Alan I. Horowitz:

I’m not sure what employment benefit he’s being denied if his reserve duty comes out on his vacation.

I mean, that’s the optimum situation, that’s the idea that Congress had in mind.

William H. Rehnquist:

Well, supposing his reserve duty comes in August, and he wants a vacation, but he’s also a member of the reserves?

Alan I. Horowitz:

Well, he can’t… well, let me backtrack.

Alan I. Horowitz:

I think he–

William H. Rehnquist:

You wouldn’t regard the reserve duty as vacation?

Alan I. Horowitz:

–That doesn’t even really raise the issue, I think, that’s presented here, because Section 2024(d) guarantees him a leave of absence and guarantees that he can come back with his vacation intact.

William H. Rehnquist:

But it doesn’t guarantee that he will be paid during that time?

Alan I. Horowitz:

No, that’s right; it doesn’t guarantee that he’ll be paid.

But if he comes back at the end of July he will still be entitled to vacation.

John Paul Stevens:

Well, your question would be comparable if he wanted to work during August when they scheduled him for vacation, and he had to go to the reserves in July.

Then it would be like your first and third, and second and fourth.

I understand you to be arguing, yes, he has a right to have his vacation in the month in which the reserve obligation falls.

Alan I. Horowitz:

All right, assuming that it can be accommodated, now–

John Paul Stevens:

And how do you tell whether it can be accommodated?

There’s always a little extra work if they stop using the A-M schedule.

What is the test?

Alan I. Horowitz:

–Well, I think that’s right.

It’s just a reasonableness test.

It’s hard to identify in the abstract.

I mean, certainly the fact that they had to do a little extra work, change from A-to-M to N-to-Z.

John Paul Stevens:

But isn’t it true, as Justice White suggests, that the statute is therefore giving him something no other employee has?

Alan I. Horowitz:

Right.

John Paul Stevens:

He’s got a right to some kind of special consideration at the time the work schedule is prepared?

Alan I. Horowitz:

He just has a right to the same benefit–

John Paul Stevens:

I’m saying that he’s the only one in the store who can say, I want to take my vacation in July, or I’m the only one in the store who says, even though my name begins with A, I want to have my first and third with the N?

Alan I. Horowitz:

–He can’t say that I want to have my first and third… the same as any other employee.

If he has any reason that he wants his vacation in July, it’s too bad.

But if it conflicts, if it’s because it conflicts with his reserve obligation, then he does have a right not to have the benefit denied to him.

Potter Stewart:

He says it’s not that he wants to have, he’s entitled to have; that’s your argument.

Alan I. Horowitz:

Congress has guaranteed him these employment benefits to the extent that if they can be accommodated.

I’d like to reserve the remainder of my time.

Warren E. Burger:

Very well.

Mr. McAuliffe, you may proceed.

Paul S. McAuliffe:

Mr. Chief Justice, and may it please the Court:

During the course of an average year each hourly employee at Sohio’s petroleum refinery in Lima, Ohio, will have seven weekends scheduled off from work, during that year.

For the other 45 weekends of the calendar year, that employee will be scheduled to work: on 30 of those weekends working both Saturday and Sunday; on the other 15 working one or the other.

There is a reason why life appears to be so draconian at the refinery, and that is because, like most petroleum refineries and like many other workplaces in this country, the refinery operates seven days a week, 24 hours a day, 365 days a year.

That means that on every weekend a full operating work force is required to run that refinery.

If weekends were staffed on a voluntary basis, in most cases there would be serious practical problems getting a full on a weekend.

For that reason Sohio has developed at this refinery, subject to the collective bargaining agreement that exists with the Oil, Chemical, and Atomic Workers, a system of routine rotating scheduling of weekend work on an involuntary basis.

Under this system, which is set forth in the record, every employee will have on the average seven weekends off per year, that I have mentioned.

In this case we’re dealing with one of these employee’s who was a member at the time in question of the Ohio National Guard.

John Paul Stevens:

Mr. McAuliffe, could I interrupt with a question, because it affects the argument right here?

I didn’t know from the record that there were seven weekends off and 45 on, but I’m sure that’s correct if you tell us that.

Are you also telling us that you could not schedule this man so he’d have 12 weekends off but still work the same number of Saturdays and Sundays?

In other words, he’d have to work both days on more weekends, to work the same number of total weekend days?

Are you saying you couldn’t do that, because of the schedule?

There’s my question to you.

Paul S. McAuliffe:

Well, first, in response to the first part of your question, this schedule itself is set forth in the joint appendix and was part of the stipulation, and you can–

John Paul Stevens:

Is this the one at page 29?

Paul S. McAuliffe:

–Pages 29 through 39.

If you go–

John Paul Stevens:

Oh, I see.

Paul S. McAuliffe:

–If you go through the rotation scheme in there, you will find it works out on the average to seven weekends off per year.

But the difficulty in rescheduling is the fact that even to just shift one day at a time on a weekend, you are requiring another employee who would otherwise have had, say, the Saturday off, to work on that Saturday.

And then–

Potter Stewart:

But against his will?

Paul S. McAuliffe:

–That’s correct.

And we–

Byron R. White:

All voluntary trades have been exhausted in this case, haven’t they?

Paul S. McAuliffe:

–That’s correct, Mr. Justice White.

There is a provision in the collective bargaining agreement that provides, whenever the regular work schedule, whenever an employee has a conflict, he can change voluntarily.

John Paul Stevens:

He can change… I still don’t think you’ve answered my question.

John Paul Stevens:

My question is whether he could be scheduled with the number of days off he needs, the number of Saturdays and Sundays off to accommodate his reserve obligation, without requiring any other other employee in the plant to work any more Saturdays or Sundays than they now have to work under the regular routine?

Paul S. McAuliffe:

Given the facts we have in this case, that could be done, Mr. Justice Stevens.

The number of days, if we’re talking about, 12 months, 24 days, the total number of weekend days off he would normally have would be 29, so we’re talking about a redistribution of his weekend days as well as the days of the other employees.

As a practical matter, in most cases, we’ll be talking about more than the 24 days, because the reservist will also be gone for two weeks for the summer training camp obligation.

John Paul Stevens:

Right, and you may have more than one service too.

Paul S. McAuliffe:

So you might be able to accomplish it by juggling the days around.

You’re still–

Byron R. White:

Which would mean other employees would have to work fewer weekend days?

Paul S. McAuliffe:

–No, no, I wasn’t suggesting that at all.

Byron R. White:

Well, if he works more weekend days than would be normal and the company only needs a total of X weekend days, I’m not saying that other employees wouldn’t welcome the opportunity to work fewer weekend days?

Paul S. McAuliffe:

Mr. Justice White, I do not mean to say he’d be working more days.

Their distribution would be different.

Byron R. White:

There might be two in January and none in February, instead of one in each month?

Paul S. McAuliffe:

The total number during the course of the year could be set up so that the number of days, enough days, would be the same.

That’s correct.

Thurgood Marshall:

But in your admissions you say that the defendant took no steps to provide plaintiff with substituted work hours.

No effort, no steps, rather; no… none.

Not even one.

Paul S. McAuliffe:

That’s correct, Mr. Justice Marshall.

Thurgood Marshall:

Do you think that’s in keeping with the statute, to, make no effort?

Paul S. McAuliffe:

I think it’s in keeping with the statute when you look at the provisions of the statute and at the workplaces of this facility.

First of all, we’re talking about Sohio having taken the specific steps that were required by the statute to grant a–

Thurgood Marshall:

This is the admission,

“They had made no steps to provide plaintiff with sixteen substituted working hours to make up for his lost work. “

That’s all that it says.

Paul S. McAuliffe:

–That’s correct, Mr. Justice Marshall.

Thurgood Marshall:

And no means no.

Paul S. McAuliffe:

And we contend that that–

Thurgood Marshall:

Did you even ask if somebody wanted to take this man’s place?

Paul S. McAuliffe:

–The steps that were taken were the steps taken under the collective bargaining agreement calling for voluntary exchanges.

Paul S. McAuliffe:

Other than that, no steps were taken to rearrange the schedule.

Thurgood Marshall:

Well, under the collective agreement the man has to take the steps, the worker has to make the steps.

Paul S. McAuliffe:

Yes, that’s correct.

Thurgood Marshall:

So it still means that the defendant did nothing.

Paul S. McAuliffe:

That’s true, Mr. Justice Marshall, and we contend that there was no obligation.

Thurgood Marshall:

And I would assume, I could assume there were ten million people waiting there to do it, if they’d just ask.

Paul S. McAuliffe:

I missed… I’m sorry.

Thurgood Marshall:

Well, you can’t dispute it.

I mean, that word “no” is awfully–

Paul S. McAuliffe:

What we see at issue in this case is the problem of reconciling the problems of somebody who is in effect holding two different jobs.

The petitioner in this case is a full-time employee at Sohio’s Lima, Ohio, refinery, and has certain rights and obligations that go with that status of being an employee.

Warren E. Burger:

Are you suggesting that a reservist in this setting is just like some fellow who is moonlighting, working for a Seven-Eleven store or?

Paul S. McAuliffe:

Not at all, Mr. Chief Justice.

Warren E. Burger:

Congress singled out this one category of people, didn’t it?

Paul S. McAuliffe:

Congress has and Congress has enacted very specific accommodation requirements that–

Warren E. Burger:

They did that to encourage people to go into the military reserve, did they not?

Do you doubt this then?

Paul S. McAuliffe:

–I assume that they did, Mr. Chief Justice.

Warren E. Burger:

You assume it.

Is there any doubt about it in the legislative history?

Paul S. McAuliffe:

No, I don’t think so.

But what Congress has done with regard to the reserves is to create very specific special rights to accommodation that do not exist for other employees.

Byron R. White:

And you suggest that this isn’t one of them?

Paul S. McAuliffe:

That’s correct, Mr. Justice White.

The right that Congress has created is, first, the right when there is a conflict to relieve this employee of his obligation to work his regular schedule and to grant that employee a leave of absence, to reinstate that employee at the termination of that, and to protect his seniority, his status, just as you would have to do for someone who was in the regular military.

Byron R. White:

Well, Mr. McAuliffe, when you grant him a leave of absence, which you agree you have to do without firing him… he can be away from work, and he won’t be paid under your submission, but he can’t be fired for being away?

Paul S. McAuliffe:

That’s correct, Mr. Justice White.

Byron R. White:

Well, what do you do when he’s away?

Paul S. McAuliffe:

When he is away?

Byron R. White:

Under your position.

Byron R. White:

You certainly need to fill the job while he’s away.

So what do you do?

Require other employees to work?

Paul S. McAuliffe:

While he’s away, you fill the job on a temporary basis and that can be done–

Byron R. White:

How do you do it?

Do you assign people who should be off on the weekend to?

Paul S. McAuliffe:

–There are two methods that were used at this workplace.

One would be to assign an employee if one is available from a floating crew called “the extra board” at the facility who would not have a regular schedule and who would be available to fill temporary vacancies.

That person would then work that day or two days, as the–

Byron R. White:

And you’re paying him but not the fellow who’s away?

Paul S. McAuliffe:

–That’s correct.

If no one were available from that crew, then you would fill it as an overtime job.

Under this agreement it has to be voluntary.

Byron R. White:

And that would cost you money?

Paul S. McAuliffe:

That would cost premium pay; time and a half.

The rearrangement of schedules That the Government is suggesting in this case would require us to take an employee in the same classification as petitioner, require him to work that particular weekend instead, still at his regular pay, no premium pay, because everybody is still just working a 40-hour week under this theory.

But the fact is that the vacancy is filled now under the provisions of… collective bargaining agreement.

Byron R. White:

So, you have a way of it not costing you any money to accommodate yourself to the leave of absence?

You could let him be away and not fire him, and still get the work done by your extra crew?

Paul S. McAuliffe:

That’s correct.

In some cases there may be some premium pay involved but that wasn’t done in this case.

William J. Brennan, Jr.:

But in any event, Mr. McAuliffe, as I understand your submission, it is that all that Congress required you to do was (a) let him have a leave of absence, and (b) on his return give him what the statute expressly identifies, namely, restore seniority, status, pay, and vacation.

And that’s all you have to do because Congress didn’t say you had to do any more?

Paul S. McAuliffe:

Well, that’s correct, Mr. Justice Brennan, because the right to seniority that is protected is a very broad right.

Byron R. White:

Yes, I know, you have to… but that isn’t involved here?

Paul S. McAuliffe:

There’s no contention here.

William J. Brennan, Jr.:

He comes back with the same seniority as if he’d not taken a leave of absence, under the statute, doesn’t he?

Paul S. McAuliffe:

Yes, that’s correct, and–

William J. Brennan, Jr.:

Incidentally, that’s the same wording that’s appeared in some of these veterans return statutes.

Paul S. McAuliffe:

–The wording is precisely the same with one difference, and that is that provisions relating to reservists also use the word “vacation”, because there’s a specific protection for the reservist that he cannot be charged any vacation time–

William J. Brennan, Jr.:

Well, my question was going to be, haven’t we had some of our cases under the veterans return statutes that have interpreted this wording a little more broadly than you submit?

You don’t think so?

Paul S. McAuliffe:

–I don’t believe so.

The cases under the Veterans Reemployment Act apply to veterans; have said that the seniority that’s protected can and should be interpreted when you’re talking about seniority to protect the veteran, or in this case the reservist, protect that absence, give them protections that may not exist elsewhere.

The difference between our position and the Government’s position in this case is that we freely concede that the leave of absence is to be treated better, and, in fact, it is, because of the leave of absence, because of the seniority protection.

The Government’s argument is that there is an obligation of reasonable accommodation out there that requires even more.

What it requires is that the work schedule be changed so that there is no absence at all.

What we’re talking about is not better treatment, should there be an absence.

We freely concede that that is required by this Court’s decisions and we have in fact done that in this case; there is no dispute that we have done that.

Thurgood Marshall:

And the Court of Appeals said that all that was required was that he be treated exactly like everybody else.

Paul S. McAuliffe:

That’s correct.

Thurgood Marshall:

That’s what they said over and over again.

Byron R. White:

Well, for this purpose; for this particular purpose.

They didn’t say you had to treat him the same for seniority.

Paul S. McAuliffe:

No, the Court of Appeals, the passage which Mr. Justice Marshall was reciting refers to the version of the statute upon which the Government relies, and the Court of Appeals reads that as requiring neutral treatment.

William H. Rehnquist:

Why did Congress pass the most recent amendment to the Veterans Reemployment Act?

Paul S. McAuliffe:

Congress passed this because when they first enacted the reinstatement protection for reservist in 1960 they left a gap in protection, when you compare that to the protection they had already provided for the regular military.

The statutes that apply to the regular military create two kinds of statutory protection.

The first is a reinstatement right with protection of seniority and status.

Congress enacted that for reservists in 24(d) in 1960.

There is a second provision of the statute that relates to the regular military that protects them against discharge without cause for a fixed period after their return to work.

The reasons for that being to prevent the case where a veteran would be reinstated, given full seniority protection, and then once that had been done, a few weeks down the road that person would be released from employment.

In 1960, when Congress specifically extended the statute to the reservists, they provided no comparable protection, and if you look at the legislative history that led to the passage of 21(b)(3), the specific concern of the Department of Labor in proposing the legislation, or the Department of Defense in supporting it, was that there were instances of employees being reinstated after having exercised their reservist rights and then being discharged from employment or denied promotions or suffering other adverse treatment.

William H. Rehnquist:

Dumped, in effect, after a pro forma compliance with the statute?

Paul S. McAuliffe:

That’s correct.

Absent 21(b)(3), there would be no protection under the statute in that case, and that’s the reason Congress enacted it.

And that is… it’s clear from the legislative history that that was their purpose and this comes clear as well if you look at the interpretations that have been issued under the statute by the Department of Labor from that time to this date, which has specifically described 21(b)(3) as a section designed to protect against discharges, protect against denials of promotion or other discrimination.

Byron R. White:

If you must do what the Government says, I take it you’ll be doing more than the collective bargaining agreement calls for?

Paul S. McAuliffe:

That’s correct, Mr. Justice White.

Byron R. White:

But would it violate the collective bargaining agreement for you to do what the Government says?

Paul S. McAuliffe:

I think the best answer I can give you to that question is that it probably would and I answer–

William J. Brennan, Jr.:

At least the union will probably say so.

Paul S. McAuliffe:

–The facts are that the scheduling practice that has been followed under the agreement is the one that’s set forth in the record.

There never has been any attempt to follow a different practice.

The agreement, while it may be silent on this specific work schedules, the agreement does have a specific mechanism for resolving schedule conflicts–

William J. Brennan, Jr.:

And is the union in here?

Paul S. McAuliffe:

–Yes, sir.

There is a union at this facility.

It is Local–

Harry A. Blackmun:

No, but is the union in the litigation?

Have they taken a position at all?

Paul S. McAuliffe:

–No, they are not.

Harry A. Blackmun:

They’re not very concerned about it then?

Thurgood Marshall:

It’s in all the findings.

Paul S. McAuliffe:

–Well, there is… the union is not a party to this litigation.

Thurgood Marshall:

Not a party, but it’s in the findings.

Paul S. McAuliffe:

I suspect that–

Thurgood Marshall:

Well, if you paid a union worker a single salary for a double salary job, wouldn’t it be a violation of the union contract?

Paul S. McAuliffe:

–It certainly would be.

Thurgood Marshall:

I should think so.

I wouldn’t advise trying it.

William H. Rehnquist:

Well, couldn’t the company have at least undertaken on its own to have solicited other employees to see if they wanted to take this man’s place while he was at camp, rather than leaving it totally up to him?

Paul S. McAuliffe:

It could have been done.

I am sure it would not be impossible to do that, but we’re facing facts where we know that solicitation was already done by the employee affected and there was no one willing to exchange on a voluntary basis.

We could… as we read the collective bargaining agreement in place here, we would not have the right to force somebody to make the shift.

Harry A. Blackmun:

Mr. McAuliffe, does the record show how many persons are employed at the Lima plant?

Paul S. McAuliffe:

At the time in question, approximately, I think it’s 561 employees at this time.

Lewis F. Powell, Jr.:

Does it show how many reservists are employed?

Paul S. McAuliffe:

The record is silent on that question other than to note this one petitioner involved is a member of the reserves.

Warren E. Burger:

If it had been 100, for example, wouldn’t it be reasonable to assume that someone would put that in evidence as distinguished from five or ten?

Paul S. McAuliffe:

Yes, it certainly would be.

Warren E. Burger:

To try to accommodate 100 reservists would be perhaps a bit of a problem, wouldn’t it?

Paul S. McAuliffe:

Well, you run into the answer I gave to Mr. Justice Stevens before, what will work in the case of one employee won’t work as you get, get more and more, perhaps, more and more employees involved.

We don’t have any specific knowledge in the record of this case, how many employees are affected.

I think in terms of reading–

Warren E. Burger:

Excuse me.

I think Mr. Justice Stevens had a question for you.

Paul S. McAuliffe:

–Yes, sir.

John Paul Stevens:

I was just going to ask you this one question.

Maybe you were going to address it.

In your brief you say,

“This case presents a radically different issue from that presented in the Safeway case in the 5th Circuit. “

Do you think the 5th Circuit case was correctly decided?

Paul S. McAuliffe:

No, I do not, Mr. Justice Stevens.

John Paul Stevens:

Seems to me your position really is inconsistent with the 5th Circuit’s holding.

Paul S. McAuliffe:

I think the 5th Circuit holding was incorrect and also that the logic that it followed in getting to that holding was incorrect.

That’s what I’ll–

It’s different.

Paul S. McAuliffe:

–I think this case reflects in a way that the West case in the 5th Circuit does not, some of the difficulties with trying to develop an accommodation scheme, because you do have a fixed schedule, you do have a collective bargaining agreement that limits flexibility in changing that schedule, which was not, at least not in the record, as far as we know in the–

John Paul Stevens:

Another way to put the question, I suppose, would you think this case would be different if instead, if the agreement, instead of giving the employees a right to be scheduled for 40 hours, had said they have a right to work 40 hours?

It seems to me your argument would still be that that wouldn’t make any difference.

Paul S. McAuliffe:

–It would not.

It would… the answer to that question would depend somewhat upon how the collective bargaining agreement was construed and whether that was actually construed as a guarantee of 40 hours per week, a guarantee that the employer would assure on a regular basis for the right–

John Paul Stevens:

Seems to me you’d still argue they’ve got to show up for work to get… if you offer them the job for 40 hours, that satisfies your requirement under the agreement and it also would meet the statute.

Paul S. McAuliffe:

–That’s precisely our argument, Mr. Justice Stevens.

The principal difference in reading, in our reading of the statute and the reading that the petitioner urges, does come down to the question of whether or not there is a reasonable accommodation requirement that applies.

It’s our position that there is not, and that, first, if you look at the statute, there’s nothing in the language of Section 21(b)(3) which even hints at there being a reasonable accommodation requirement.

You also have the fact that in another section of the same statute Congress spoke very specifically to what types of accommodation should be provided when you have a conflict between a reservist schedule and a regular work schedule.

I’m referring to Section 24(d).

You also have a very clear legislative history of Section 21(b)(3) which shows that its purpose was to protect against discriminatory treatment.

Paul S. McAuliffe:

We submit that there’s no basis in the statute or the legislative history to support the interpretation that the Government has urged upon you in this case.

We believe that the reading that we think is the proper reading of 21(b)(3) is the only reading that is consistent with the structure of the statute, with the legislative history, with the administrative guidance that employers have gotten for ten years from the Department of Labor on what their obligations are, as well as the best reading consistent with the use of judicial resources to reconcile claims of what may or may not, within a particular set of facts, be reasonable accommodation.

In our view the Congress in 24(d) specifically addressed this question, and gave very detailed, specific, and workable rules for employers to follow.

And our contention is that the facts in this case show that Sohio has met all of its obligations with regard to the reserve absence, with regard to the need to provide reinstatement rights, and with regard to 21(b)(3) and its protection against discriminatory treatment.

I thank the Court.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Horowitz?

Alan I. Horowitz:

I have a couple of points.

Lewis F. Powell, Jr.:

Mr. Horowitz, the Government’s position is that only reasonable efforts to accommodate the needs of a reservist are required under the statute.

The statute itself is rather positive, isn’t it?

2021(b)(3) provides in effect that any person who holds a position described in the statute shall not be denied other incident or advantage.

Do you interpret that to require only reasonable effort?

Alan I. Horowitz:

That’s correct.

The plain language of the statute is that reservists cannot be denied these benefits.

Now, we are willing to admit that Congress did not intend that employers need to take unreasonable measures in order to assure employees these benefits–

Potter Stewart:

Well, it seems to me your argument as suggested by my brother Powell is a little bit inconsistent with the statute.

The statute doesn’t impose a duty upon an employer to make reasonable efforts, but it says–

Alan I. Horowitz:

–No, the statute imposed a duty on the employer.

Potter Stewart:

–It seems to give absolute entitlements.

Alan I. Horowitz:

An absolute duty; that’s right.

Potter Stewart:

And therefore the requirement is an absolute duty.

Alan I. Horowitz:

There’s an absolute duty.

Potter Stewart:

If the statute means what you say it means.

Alan I. Horowitz:

Well, in another portion of the statute the Congress made clear in 2021(a) that it did not require the employer to take unreasonable measures.

That’s in connection with reinstating veterans.

Potter Stewart:

Well, no, it doesn’t–

–Where is that found in 2021(a)?

Alan I. Horowitz:

This is at the end.

Well, it’s not reprinted, because it’s not germane to this case, but in fact, there’s a specific statement in the statute that employers are not required to reinstate veterans where it will be unreasonable or unduly burdensome to do so, and we–

Potter Stewart:

But here, if the petitioner is entitled to 40 hours a week, he’s entitled to 40 hours a week, and not entitled simply to his employer’s making reasonable efforts to see to it that he has 40 hours.

Alan I. Horowitz:

–He’s entitled to 40 hours a week, to work 40 hours a week.

But if it’s impossible for him to work 40 hours that week, it’s recognized that Congress wouldn’t haven’t intended it.

Thurgood Marshall:

Is there anybody else in that plant entitled to 40 hours a week?

Alan I. Horowitz:

Everybody’s entitled to 40 hours a week.

Byron R. White:

Well, it isn’t impossible, it isn’t impossible to give him his 40 hours.

Alan I. Horowitz:

Not in this case, it’s not impossible.

Byron R. White:

Well, I know, but it wouldn’t be in any case, would it?

Alan I. Horowitz:

Sure, it’s impossible–

Byron R. White:

All the employer would have to do is to pay overtime.

Alan I. Horowitz:

–No, if he’s gone for the whole week, it’s impossible to schedule him to work 40 hours during that week.

Byron R. White:

I know, but if he’s gone on weekends, you can assign somebody else to work for him.

Or pay him even though he’s not there.

Alan I. Horowitz:

But that’s not giving him… the employment benefit is the right to work, not the right to be paid for not working.

We’re just saying that he’s entitled to be given the employment benefit at issue, which is working for 40 hours.

Byron R. White:

So, he has the right to work 40 hours and not just the right to a leave?

Alan I. Horowitz:

That’s right.

And I think a lot of discussion here has completely ignored the fact that Congress passed this statute, 2021(b)(3).

In response to Mr. Justice Brennan’s question, the respondent indicated that the reservist has only certain limited rights, and those are the rights that are guaranteed by 2024(d).

There is another statute here and respondent will either have us ignore this statute or restrict it to discharges, which is plain from the face of the statute that it’s not restricted to discharge or, as the court of Appeals so narrowly construed the statute as to make it almost meaningless.

And they did that by–

William H. Rehnquist:

Aren’t you yourself, as my brother Stewart suggested, construing it more narrowly than it’s literally written?

Alan I. Horowitz:

–The statute has to be construed in line with what we think Congress’s intent would be.

Now, this Court has said many times that this entire statute is to be read together as one piece.

Now, there is this unreasonability requirement in another part of the statute.

They didn’t specifically repeat it in this particular amendment, but it’s reasonable to assume the Congress would have thought the same thing; the same policies applied.

The policy, as to reservists… inequality in employment be minimized.

Thurgood Marshall:

Mr. Horowitz, may I ask you one question?

I’m not entirely clear as to what the duty is with respect to the two weeks’ summer training for reservists.

Does the reservist have a right not only to be absent for those two weeks but in addition to have his two weeks vacation with pay, so he’s away four weeks in the summer?

Alan I. Horowitz:

In other words, if he has a two-week vacation with pay, generally, and then he takes these two weeks off on reserve duty.

Alan I. Horowitz:

He’s not required to count those two weeks as his two weeks’ vacation.

He takes the two weeks off, he’s not paid for these two weeks.

And then later he could take his vacation.

Lewis F. Powell, Jr.:

Let me see if I understand you.

He’s entitled, I suppose, under this union bargaining contract, as in most, to a period off with pay?

Alan I. Horowitz:

Yes; assuming that.

Lewis F. Powell, Jr.:

Is a reservist entitled, in addition to that, to take off two additional weeks to fulfill his reserve requirements–

Alan I. Horowitz:

Yes.

Lewis F. Powell, Jr.:

–Without pay.

Potter Stewart:

Well, he gets paid as a reservist.

Alan I. Horowitz:

Some pay.

Potter Stewart:

He gets pay on his weekends as a reservist, but not from this–

Alan I. Horowitz:

He doesn’t get… it doesn’t go; it’s not the same pay.

Lewis F. Powell, Jr.:

–The result is he may be away a month?

Alan I. Horowitz:

He may be away a total of a month, yes.

He’s entitled to take the–

William H. Rehnquist:

Mr. Horiwitz, when Congress enacted this statute and its amendments, did it confide its administration to the Department of Defense or Department of Labor, or did it not confide it to any of the administrative departments?

Alan I. Horowitz:

–Well, I mean, the veterans reemployment or the statutes in general are administered by the Department of Labor.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The honorable court is now adjourned until Monday next at 10:00.